Children in care
The primary legislation regulating child care policy is the Child Care Act 1991 which brought in considerable changes in relation to children in care. Until the main part of the Act was implemented in 1995, child care policy had been regulated by the 1908 Children Act.
Duty of Tusla - the Child and Family Agency
Under the Child Care Act 1991 Act, as amended by the Child and Family Agency Act 2013, Tusla - the Child and Family Agency has a statutory duty to promote the welfare of children who are not receiving adequate care and protection. The definition of a child is a person under 18 years of age.
When carrying out its statutory duty, Tusla must have regard to the following:
- It is generally in the best interests of the child to be brought up in their own family
- Having regard to the rights and duties of the parents, the welfare of the child is the first and paramount consideration and, as far as is practicable, the wishes of the child should be considered
Among other things, Tusla is required to:
- Identify children who are not receiving adequate care and protection and co-ordinate information on children from all relevant sources
- Provide child care and family support services with the aim of helping parents to care for their children and to avoid the need for such children to be taken into care
- Prepare an annual report each year in relation to the performance of Tusla's functions the previous year
If a child is in need of care and protection and is unlikely to receive it at home, then Tusla must take them into care. This may happen, for example, in the case of an orphan or an abandoned child.
In other cases where parents are unable to cope due to illness or other problems, they may agree to their children being taken into the care of Tusla. This is known as voluntary care. In these cases, while Tusla has care of the children it must consider the parents' wishes as to how the care is provided. Tusla is obliged to maintain these children for as long as their welfare requires it.
There are a number of procedures which Tusla can use for children who are at risk or who are in need of care. Tusla may apply to the courts for a number of different orders. These orders give the courts a range of powers (including decision-making), about the type of care necessary and about access to the child or children for parents and other relatives. The following is a summary of these orders:
- Emergency care order - maximum of 8 days in care
- Interim care order - maximum of 28 days in care but may be extended
- Care order - permanent or temporary and can continue up to age 18
- Supervision order - maximum of 12 months but may be renewed
- Interim special care order - maximum of 28 days but may be extended
- Special care order - a period of between 3 and 6 months but may be extended.
In general, the various orders involve the child being taken into care by Tusla. A supervision order however, involves the child being visited and monitored in their own home by Tusla. See "Types of order" below for more details.
Separate representation for the child
The court must make all decisions on the basis that the welfare of the child is paramount. With this consideration in mind, the court may order that the child be joined as a party to the care proceedings. This means that the child has separate legal representation, paid for by Tusla. If the child is not a party to the proceedings, the court may appoint a guardian ad litem to speak for the child. (A guardian ad litem is an independent person appointed by the court to represent the wishes and interests of a child in specified court proceedings.)
Assistance for parents of limited capacity
Parents whose children are the subject of child care proceedings may be entitled to legal aid. In certain circumstances, where the parent’s ability to understand the child care proceedings is significantly impaired due to an intellectual disability or a psychological condition, the legal aid solicitor can apply for the appointment of another person, sometimes known as an “advocate”.
If appointed, the advocate’s main functions will include:
- Helping the parent to understand and participate in the child care proceedings
- Attending consultations between the parent and the legal team and other relevant meetings
- Helping the parent to understand the relevant documents and any legal advice provided
- Communicating the parent’s views to their legal team
For further information, contact the Legal Aid Board.
Types of orders
Under the 1991 Act there are a number of procedures which Tusla can use for children who are at risk or who are in need of care. Tusla may apply to the courts for a number of different orders which give the courts a range of powers including decisions about the kind of care, and the access to the child or children for parents and other relatives:
- Emergency care orders
- Care orders
- Supervision orders
These orders replaced the previous fit person orders and place of safety orders. The Children Act 2001 amended the Child Care Act 1991 to allow for another sort of order - a special care order. This is for situations where the child is at risk from their own behaviour.
Emergency care orders
If the gardaí have reason to believe that there is an immediate and serious risk to the health or welfare of a child which cannot wait until an emergency care order is made, they have the power to enter the home and remove a child, by force if necessary, to safety. The child must be given into the care of Tusla as soon as possible. Tusla may either return the child to the parents/guardians or may apply to the District Court for an emergency care order. If the court is not due to sit within 3 days a special sitting must be arranged.
Tusla can apply for an emergency care order for a child who is still at home or for one who has been removed by the gardaí. This may be made without notice being given to the parents or guardians of the child. The order will be made if the judge considers that there is an immediate and serious risk to the health or welfare of the child requiring them to be placed, or to remain in, the care of Tusla. The child must remain in the care of Tusla for 8 days or a shorter period if specified in the order.
Tusla must apply for a care order or a supervision order (see below) if a child needs care and protection which he/she is unlikely to receive without an order. The District Court judge may make an interim care order while the decision on a full care order is pending. This means that the child is placed in the care of Tusla for 28 days. It may be extended if Tusla and the parents agree. Generally the parents/guardians must be given notice of an interim care order application.
A care order may be made when the court is satisfied that:
- The child has been or is being assaulted, ill-treated, neglected or sexually abused or that the child's health, development or welfare has been or is likely to be impaired or neglected
- The child needs care and protection which they are unlikely to receive without a care order
When a care order is made the child remains in the care of Tusla for the length of time specified by the order or until the age of 18 when they are no longer a child. Tusla has the rights and duties of a parent during this time.
A supervision order is an alternative to children being taken into the care of Tusla.
During the application for a care order the court may decide that a care order is not necessary or appropriate, but that the child should be visited regularly by Tusla, and a supervision order may be made. It may be made instead of a care order or while waiting for a decision on a care order. Alternatively Tusla may apply to the court for a supervision order instead of a care order.
A supervision order gives Tusla the authority to visit and monitor the health and welfare of the child and to give the parents any necessary advice. The order is for a fixed period of time up to a maximum of 12 months but may be renewed.
Special care orders
Tusla must apply for a special care order or an interim special care order where a child needs special care and protection and is unlikely to get it unless such an order is made. Tusla must convene a family welfare conference before applying for the order.
The court may make a special care order if it is satisfied that:
- The child's behaviour poses a real and substantial risk to his/her health, safety, development or welfare and
- The child needs special care and protection which he/she is unlikely to get without such an order
A special care order means that the child is committed to Tusla's care for as long as it remains in force. It authorises Tusla to provide appropriate care, education and treatment and, for that purpose, to detain the child in a special care unit. The order will initially be for a period between 3 and 6 months and may be extended.
Special care orders may be varied by the court on its own initiative or by request of Tusla. The court may make a supervision or care order in respect of the child if appropriate.Interim special care orders may be made before the normal procedure for a special care order is complete. Such orders will mean that the child may be detained in a special care unit for up to 28 days.
Children in Tusla care
When a child is in the care of Tusla, there are a number of different ways in which care can be provided. Whatever kind of care is chosen, Tusla must facilitate reasonable access for the parents or other relatives of the children in its care.
Where possible Tusla places the child with foster parents. The Child Care (Placement of Children in Foster Care) Regulations 1995 require that a care plan for the child be drawn up which sets out, among other things, the support to be provided to the child and the foster parents, and the arrangements for access to the child in foster care by parents or relatives.
Wherever possible, Tusla would consider relative foster care first to lessen the disruption to the child's life. Relative foster carers go through an assessment and approval process in a similar way to general foster carers. The Child Care (Placement of Children with Relatives) Regulations 1995 make provision for relatives to receive an allowance for caring for a child placed with them by Tusla. The regulations set out the arrangements for the placement and are broadly similar to the Foster Care Regulations.
If there is a shortage of foster parents, children may be placed in residential care instead.
Residential care can be in a home run by Tusla, a children's residential centre registered under the 1991 Act, a school or other suitable place of residence. The Child Care (Placement of Children in Residential Care) Regulations 1995 state the requirements for the placing of children in residential care and the standards for residential centres which are registered with Tusla. The centres are subject to inspection by the Health Information and Quality Authority.
Special Care Units
Children taken into care under special care orders or interim special care orders are placed in special care units. Special care is short-term and provides safe care in a therapeutic environment for children between 11 and 17 years with challenging and complex behaviours. The child is not detained as a result of criminal offences but for their own safety and welfare.
Tusla may provide and maintain special care units or make arrangements with
voluntary bodies to provide and operate them. All centres are subject to the
approval of the Minister for Children, Equality, Disability, Integration and
Youth . Children who are convicted of an offence may not be placed in special
Family welfare conferences
The Children Act 2001 provided for family welfare conferences for children at risk from their own behaviour and these provisions came into effect in July 2004. The family welfare conference is a mechanism for early intervention and the conference may be convened where:
- Tusla is directed to convene it by the Children Court or
- Tusla is of the view that a child requires special care or protection which he/she is unlikely to receive unless a special care order is made
The function of a family welfare conference is to decide whether the child is in need of special care or protection and, if so, to recommend to Tusla that it apply for a special care order. If not, the conference may make appropriate recommendations to Tusla, including, if necessary, a recommendation that Tusla apply for a care order or a supervision order. The conference decisions must be unanimous and, if it is not possible to get agreement, Tusla must make the decision.
The conference may be attended by the child; the parents or guardians; any
guardian ad litem; other relatives agreed by the co-ordinator after consulting
the child and the parents; Tusla officials; and any other person who could make
a positive contribution because of knowledge of the child or the family or
because of particular expertise.
When Tusla receives the conference recommendation, it may:
- Apply for a special care order or
- Apply for a supervision order or a care order or
- Provide any appropriate help or service for the child or their family
Family welfare conferences have legal privilege - this means that any information, statement or admission disclosed at such a conference will not be admissible in evidence in court.
Young people leaving care
Since 1 September 2017, young people leaving care at the age of 18 are entitled to an aftercare service based on their assessed needs. The aftercare plan must be prepared and provided before the young person leaves care. It identifies the transitional supports that the young person requires, such as education, training, financial support and social network support. This assistance may include arranging accommodation or contributing towards maintenance while the young person continues at school or college. The core eligible age range for aftercare is from 18 years up to 21 years. This can be extended until the young person reaches 23 years of age to facilitate the completion of an education course or accredited training.
The aftercare provisions of the Child Care (Amendment) Act 2015 impose an obligation on Tusla:
(i) To prepare an aftercare plan for an eligible child before they reach the age of 18
(ii) To prepare aftercare plans, on request, for an eligible adult aged 18, 19 or 20
(iii) To review the operation of an aftercare plan for an eligible adult where there has been a change in their circumstances or additional needs have arisen
Focus Ireland has published Pathways (pdf), an aftercare guide for young people who are preparing to leave care.
Child Care Law Reporting Project
The Child Care Law Reporting Project was launched in 2013. It was established to provide information to the public on child care proceedings in the courts; to conduct research; to recommend how to deal with issues in the child care system identified by the research; and to promote confidence in the child care system.