Protection of Children in Emergencies
This Part enables the Gardai or CFA staff to intervene quickly where there is an immediate and serious threat to the safety and welfare of a child.
The Gardai may remove to safety, without warrant, a child who is in immediate danger where it would not be sufficient to await the making of an application for an emergency care order by the CFA under section 13. Any child so removed must be delivered up to the CFA, which must apply for an emergency care order. The child may be retained in the custody of the board for a maximum of three days pending the bearing of that application.
A District Justice may make an emergency care order requiring that a child be placed or maintained in the care of the CFA for up to 8 days where there is an immediate and serious risk to bis safety. Parents are to be informed when a child is taken into care under this Part. The CFA to ensure that there is adequate accommodation avail able for the purposes of this Part.
This Part enables the courts to place children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk in the care of or under the supervision of the CFA.
There is a statutory duty on the CFA to apply for a care order or a supervision order, as appropriate, whenever it appears to the board that the conditions required for the making of an order exist with respect to a child. A district justice to make an interim care order where there is reasonable cause to believe that grounds exist for the making of a care order and that it is necessary for the protection of the child that he be placed or remain in care pending the determination of an application for a care order.
A care order suspends the parents’ right to custody of the child and place him in the custody of the CFA. In order to obtain a care order, it is necessary for the CFA to satisfy the court that-
- the child has been or is being assaulted, ill-treated, neglected or sexually abused, or
- the child’s health, development or welfare has been or is being avoidably impaired or neglected, or
- there are reasonable grounds for believing that bis health, development or welfare is likely to be avoidably im paired or neglected,
and that the child requires care or protection which is unlikely to receive unless he is placed in the care of the CFA.
While a care order is in force, the CFA shall have like control over the child as if it were his parent and shall do what is reasonable to promote the child’s welfare.
A care order would remain in force until the child attained the age of 18 (or for such shorter period as the court may determine) unless 1t was successfully challenged by the parents or discharged by the court because of changed circumstances.
The court may make a supervision order where it is satisfied that there are reasonable grounds for believing that the grounds set out exist with respect to the child. Thus, the standard of proof required to obtain a supervision order will be less than that required for a care order.
This would authorise the CFA to have a child visited in bis home to ensure that he was being cared for properly. The court would also have power to direct the parents to bring the child to a day care centre, child guidance clinic, hospital etc. A supervision order shall remain in force for up to 12 months.
Other Custody Orders
There is a link between the Act and the Guardianship of Infants Act, 1964, the Judicial Separation and Family Law Reform Act, 1989 and any other proceedings for the delivery or return of a child.
In any such proceedings, the court will be able to refuse to grant custody to either or both of the parents and instead place the child in the care of the CFA or, alternatively, to grant custody to one or both parents subject to the child being supervised by the CFA under a supervision order.
An appeal from an order under this Part shall not stay the operation of the order unless the court so directs. The court may vary or discharge orders. A court, which finds or declares that a care order is invalid, may refuse to order the return of the child to his parents if this would not be in his best interests; instead it may either make a new care order or remit the matter to the relevant District Court so that it can consider the need to make a new care order.
Jurisdiction and Procedure
The Court is to have regard to the rights and duties of parents, to regard the welfare of the child as the first and paramount consideration in any proceeding in relation to the care and protection of a child.
A court has power to make a child a party to all or part of care proceedings and to appoint a solicitor to represent the child in any case where the court is satisfied that this is necessary in the interests of the child. Where a solicitor is appointed by order of the court, the costs and expenses, including solicitors’ fees, incurred will be paid by the CFA involved in the proceedings unless the court orders otherwise.
The court, of its own motion or on the application of any party, may procure a report from any person on any question affecting the welfare of the child. A copy of any such report is to be made available to the counsel or solicitor of each of the parties or, if any of the parties is not represented, it is to be made available to that party. The reports may be received in evidence at the proceedings and the person making the report may be called as a witness.
There is jurisdiction to hear and determine care proceedings on the District Court and the Circuit Court on appeal. Care proceedings will be heard in private and will be as informal as possible.
A child involved in care proceedings need not be brought before the court for all or any part of the hearing unless the court so directs. The Act prohibits the publication or broadcast of any matter that would serve to identify a child who is the subject of care proceedings.
There are presumptions concerning and provision for determination of age by the court. Rules of court may be made to facilitate proceedings under the Act. It is an offence for a person to fail or refuse to deliver up a child to the CFA when an emergency care order, an interim care order or a care order is made. Section 34 enables a justice making an interim care order or a care order to issue a warrant to the Gardai to search for the child and deliver him up to the CFA.
Children in need of Special Care or Protection
The 2001 Act amends and extends the Child Care Act, 1991, by the insertion of a new Part IVA into that Act to provide the CFAs (now the CFA) with an additional range of powers so as to ensure that nonoffending children who are out of control receive special care, education and treatment.
There is a statutory duty on the CFA to institute proceedings for a special care order or an interim special care order, as appropriate, in respect of a child who appears to the board to be in need of special care or protection which he or she is unlikely to receive unless a court makes such an order.
Before applying for such an order the CFA will arrange for the convening of a family welfare conference in respect of the child. A parent may request the CFA to apply for a special care order in respect of his or her child. If CFA decides, following such a request, not to apply for such an order, the board must notify the parent of its reasons for so deciding.
Special Care Order
The special care order may be made on the application of the CFA where the court is satisfied that—
- the behaviour of the child is such that it poses a real and substantial risk to his or her health, safety, development
or welfare, and
- the child requires care or protection which he or she is unlikely to receive unless the court makes an order.
A special care order commits a child to the care of the CFA and authorises it to arrange for appropriate care,education and treatment for the child and for this purpose to detain the child in a special care unit. The CFA will have authority to take such steps as are reasonably necessary to prevent children from injuring themselves or other persons in such a unit or from absconding.
The duration of a special care order is between 6 and 12 months, but may be extended on application by the CFA if the court is satisfied that the grounds for the making of such an order continue to exist. The CFA may apply to the court
for the discharge of such an order if it appears to it that the circumstances which led to the making of the order no longer exist.
A special care order will cease to have effect when the person to whom it relates reaches 18 years of age unless the court orders otherwise in the interests of the person concerned. Provision is also made to allow the CFA place a child in a children’s residential centre, with foster parents or give the child temporary release as part of a programme of treatment.
A court may make an interim special care order where there is reasonable cause to believe that grounds exist for the making of a special care order and that it is necessary in the interests of the child that he or she be detained in a special care unit. The application can be made notwithstanding the fact that a family welfare conference is being arranged or an application for a special care order is or has been made.
Special Care Issues
A Garda to deliver a child to the custody of CFA where the behaviour of the child is such that it poses a real and substantial risk to the child’s health, safety, development or welfare and it would not be sufficient for the protection of the child to await the making of an application for an interim special care order by a CFA.
There is provision for the notification by a CFA of a parent having custody of a child or a person acting in loco parentis
of the placement of a child in a special care unit pursuant to an interim special care order.
There is provision for the variation or discharge of special care orders by the court on its own motion or on the application of any person.
The provisions of the Child Care Act, 1991, apply to proceedings in relation to a special care order or to an interim special care order. The Child Care Act, 1991, applies to children committed to the care of the CFA pursuant to a special care order or an interim special care order, viz., those dealing with access to children in care, review of cases of children in care, aftercare and application to the District Court for directions.
There are provision for special care units catering for children who are committed to the care of a CFA pursuant to a special care order or an interim special care order. The CFA may provide such units and will also be enabled to make arrangements with a voluntary body or other person to provide and operate a special care unit on their behalf. Approval of the Minister for Children will be required for the provision of such a unit.
The approval process involves the unit being inspected by a person authorised by the Minister for Children. Ministerial
approval of a unit will apply for a period of 3 years. The Minister may make regulations governing the operation of special care units.
The CFA or the Gardaı may recover a child who absconds from a special care unit.
The 2013 Act amends Child Care Act 1991 to provide that the maximum duration of an interim care order (where parental consent has not been provided) is increased from 28 days to 29 days. Where there is Health Service Executive (HSE) and parental consent the duration of an interim care order can exceed 29 days.
The Act also provides that the maximum duration of an extension to an interim care order (where HSE and parental consent has not been provided) is increased from 8 days to 29 days.
Children in the care of The CFA
This Part sets out the arrangements which may be made by the CFA in looking after children in their care. The CFA has power to place a child in foster care, in a children’s residential centre or other institution (e.g. a special school), where the child may be eligible for adoption, to place him with a view to bis adoption, or to make other suitable arrangements for his care, which may include placing him with a relative.
The CFA is to facilitate reasonable access between a child in care and bis parents or other persons who have a bona fide interest in him. There is provision for a person to appeal to court against the access arrangements offered by the CFA and also for the CFA to apply to court for an order authorising it to refuse access to a named person.
The CFA is to provide residential facilities for children. The Minister is to make regulations governing the placement of children in foster care and the Act makes similar provision in relation to residential care.
The Minister is required to make regulations for the CFA to carry out reviews of children in care. The Minister may make regulations in relation to the removal of a child from foster care or residential care.
The 1991 Act deals with children in the care of the CFA who become adopted. It enables the CFA to provide “aftercare” e.g., support and assistance for persons who were formerly in care. The CFA or the Gardai may recover children who have been unlawfully removed from care or who have absconded.
The court may give directions on any matter affecting the welfare of a child in care. Section 46 is a transitional provision in relation to children who are already in care when this Part comes into operation.