The purpose of the Child Act is to up-date the law in relation to the care of children, particularly children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk. The main provisions of the Act are as follows: –
- the placing of a statutory duty on the Child and Family Agency (CFA) to promote the welfare of children who are not receiving adequate care and protection;
- strengthening of the powers of the CFA to provide child care and family support services;
- improved procedures to facilitate immediate intervention by the CFA and the Gardai where children are in serious danger;
- revised provisions to enable 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;
- introduction of arrangements for the inspection and supervision of pre-school services;
- revised provisions in relation to the registration and inspection of residential centres for children.
The term “child” is defined as any person up to 18 years (other than a married person). The main effect of this is to raise from 16 to 18 years the age up to which the CFA are responsible for children and the age up to which children may be placed in care.
Promotion of Welfare of Children
This Part contains a number of provisions aimed at promoting the welfare of children. The 1991 Act gives the CFA responsibility to promote the welfare of children who are not receiving adequate care and protection and power to provide child care and family support services. In the performance of this function, the CFA will be required, having regard to the rights and duties of parents, to regard the welfare of the child as the first and paramount consideration.
It also requires the CFA to have regard to the principle that it is generally in the best interests of a child to be brought up in his own family. Thus, the emphasis is on providing support and assistance so that children can remain at home; only in exceptional cases are children to be taken into care.
The CFA may receive into voluntary care, orphans and abandoned children and, with the consent of the parents, children whose parents are unable to care for them due, for example, to serious illness, sudden bereavement, marital breakdown or other family crisis.
The CFA is to make available accommodation for children who are homeless, who have no accommodation that they can reasonably occupy and who are unable to arrange accommodation for themselves.
The CFA is to provide or ensure the provision of an adoption service in its area. For this purpose, it may enter into an arrangement with a registered adoption society.
The 1991 Act provides for the establishment of Child Care Advisory Committees in each CFA area to advise the board on the performance of its functions under the Act. The Committees would include representatives of voluntary bodies involved in child care. The CFA has power to carry out annual reviews of the adequacy of the child care services in their areas.
The CFA may make arrangements with voluntary bodies to provide child care and family support services on their behalf. The CFA has power to grant-aid voluntary bodies providing child care and family support services. The Minister for Health and the CFA may carry out research in the area of child care.
Supervision of Pre-School Services
The Child Care Act provides for the supervision and inspection of pre-schools, playgroups, creches, nurseries and similar services for pre-school children.
The Minister for Health, after consultation with the Ministers for Education and for the Environment, is to make regulations for securing the safety and promoting the development of children attending pre school services. Persons carrying on pre-school services are to notify the CFA, now the Child and Family Agency.
There is a statutory duty on persons carrying on pre-school services to take all reasonable measures to safeguard the children concerned. The CFA is to arrange for the inspection of pre-school services.
The Act provides for the appointment of authorised persons (which may include officers of the Minister for Education) to carry out inspections. There are powers of inspection for authorised persons.
The CFA has power to provide pre-school services and to make available information on pre-school services. There are offences for breach.
Children’s Residential Centres
There are arrangements for the registration and inspection of residential homes for children. It is not lawful for any person or body to operate a home for children unless it is registered with the CFA. There is a system of registration administered by the CFA. There are appeals against decisions of the CFA in relation to registration.
The Minister is to make regulations for the purpose of ensuring proper standards in children’s residential centres. A person guilty of an offence under this Part is liable to a fine of up to £1,000 or 12 months imprisonment or both.
There is a superannuation scheme for the staff of certain residential centres.
The Minister has power to make regulations. The Minister is to supervise the CFA in the performance of their functions. The CFA may charge for certain services.
There is provision for the prosecution of offences. Certain functions under the Act are assigned to chief executive officers of the CFA. Most of these functions are delegated by chief executive officers to other officers of the CFA.
It is an offence to sell solvent-based products to children for “glue-sniffing”. A Garda has power to seize any substance in the possession of a child in a public place which the Garda has reasonable cause to believe is being misused by that child in a manner likely to cause him to be intoxicated. Provision is made for fines of up to £1,000 or 12 months imprisonment.
There is provision for deductions from pay of members of the Defence Forces who may have children in care.
Foster Care Relative Care Order
The 2007 Act amends the Child Care Act 1991 by inserting two new sections into Part VI of the Act. The amendment provides that a foster parent or a relative who has had a child in their care for a continuous period of five years, the child having been placed with them by the Child and Family Agency, now the Child and Family Agency may apply for a court order in relation to the care of the child.
There are provisions in relation to the granting of the orders and the variation, discharge or cessation of the orders. They provides that foster parent or relative may apply for such an order whether the child is in care on a voluntary basis under the Principal Act or is the subject of a care order under that Act. The conditions on which the court must be satisfied before granting such an order are set out.
The authority which an order granted confers on the foster parent or relative to whom it is granted, on behalf of the Child and Family Agency, is specified. Provision is made for the court to impose conditions or restrictions as it thinks fit as to the extent of the authority granted.
The Child and Family Agency has authority to consent in the absence of consent from a foster parent or relative. Provision is made for any consent permissible under section 23 of the Non-Fatal Offences Against the Person Act 1997 to continue to be effective consent.
Provision is made for any access arrangements in place before the granting of an order to continue unless the court orders otherwise in accordance with the Principal Act. Provision is made for any other functions of the Health Service Executive in relation to the interests of a child in accordance with any other provisions of the Child Care Act 1991 or regulations made under the Act to continue in force.
Conditions for the variation or discharge of an order made under this Section are set out as well as the circumstances when an order granted under this section may cease to have effect. Whilst the Act does not specify that the Health Service Executive should pay the cost of the court applications by foster parents/relatives, in practical terms it is likely that Health Service Executive may have to pay the costs of some foster parents/relatives though means tested free legal aid could apply.
Before granting an order, the Court would have to be satisfied that the Health Service Executive had consented to the arrangement. The Health Service Executive could do this on the basis of their existing records as to the performance and suitability of the foster parents/relatives.
The Health Service Executive will be required to obtain the consent of the parent or the person acting in loco parentis in the case of a child in voluntary care or notify the parent or person acting in loco parentis in the case of a child who is the subject of a care order. These elements of work are encompassed within the current workload of the Health Service Executive in relation to foster care.
Once the revised arrangements are satisfactorily in place the level of contact and follow up between the Health Service Executive and the foster parents/relatives on day to day issues in respect of the child and the number of court directions sought under the existing section 47 of the Principal Act would reduce quite significantly (court directions would currently be sought in relation to consent to passports and medical examinations etc.) so that in overall terms even taking legal costs into account there would be no additional costs. In the longer term, overall costs should be reduced by these measures.