Child Care Law2

Child Care Law
ALTERNATIVE CARE OPTIONS
Donna Crampsie

Statutory Framework
 The Child Care Act, 1991 is the main statutory framework and sets
out the circumstances in which the State is permitted to intervene, in
order to protect children.
 This Act has been amended by the Children Acts, 1997 & 2001, and
the Child Care (Amendment) Acts, 2007 & 2011.
 The Child Care Act, 1991 places extremely onerous obligations on
the Health Service Executive (“HSE”) to protect children. Section 3,
states that “It shall be a function of every health board to promote
the welfare of children in its area who are not receiving adequate
care and protection.”

The Child Care Act,1991-
Basic Principles
 Section 16, places an onus on the HSE to apply to Court where it
appears that a child requires care or protection, which s/he is
unlikely to receive unless a Care Order or a Supervision Order is
made.
 Section 24, stipulates that in any proceedings before the Court, the
welfare of the child is the paramount consideration.
 Section 3(2)(c)affirms that the HSE shall have regard to the principle
that it is generally in the best interest of a child to be brought up by
his or her own family.
 Part (III) and (IV) of the Act sets out the types of applications that
the HSE may make to the District Court in order to protect children.

Protection of Children in Emergency Situations
 The HSE may apply under Section 13 of the Child Care Act, 1991
for an Emergency Care Order (“ECO”). These applications may be
brought before the Court at extremely short notice. In some
occasions an application may be made ex parte, if the HSE
considers that the safety or welfare of the child would be
jeopardised if notice is given to the parents.
 ECO’s frequently arise after a member of An Garda Siochana has
used his/her powers under Section 12, to remove a child into the
care of the HSE.
 Section 12(1) states that An Garda Siochana may intervene where:-
(a) there is an immediate and serious risk to the health or welfare of
a child, and;
(b) it will not be sufficient for the protection of the child from such
immediate and serious risk to await the making of an application for
an ECO, by the HSE.

Protection of Children in Emergency Situations
 When a member of An Garda Siochana exercises these powers, the
child is then delivered to the care of a HSE Social Worker who will
investigate, whether an immediate return to the care of his/her
parent is feasible, or whether the child should be placed in
emergency foster or residential care.
 The HSE apply for an ECO after a member of An Garda Siochana
has used his/her powers under Section 12 or it may apply
independently on its own motion.
 Section 13(1) states the criteria which a District Court Judge must
consider prior to making an Order.
 An ECO can be granted for a maximum period of eight (8) days.
Generally, an ECO will be granted for the full period of time in order
to facilitate an investigation an investigation by the HSE into the
issues which gave rise to the application.
 The District Court Judge may return the application in four (4) days
time to afford the parent(s) with an opportunity to apply for legal aid.

Protection of Children in Emergency
Situations-Ancillary Orders
 A Judge can, if necessary, issue a warrant authorising An Garda
Siochana to search for and enter by force any premises where there
are reasonable grounds to believe that a child is for the purpose of
executing the order.
 Section 13(7)(a) allows the District Judge to make certain ancillary
orders for the protection of children, including:-
(i) Witholding the address or location of a child from one or both of
the parents;
(ii) Arrangements regarding the access, if any, which is to be
permitted between the child and any named person and the
conditions under which access is to take place;
(iii) Medical or psychiatric examination, treatment or assessment of
the child.
 The District Court Judge has a wide discretion to make ancillary
orders and restrict the rights of the natural parents

Emergency Care Orders-
Practice and Procedure
 When an application is made for an ECO, Social Work Reports are
usually prepared by the Social Worker dealing with the case and
distributed to the parties and the Judge in advance of the hearing.
The purpose of providing a Social Work Report is to ensure that all
parties have a summary of the evidence which will be given before
the hearing takes place.
 The only information upon which a Judge can grant an order is the
verbal evidence given to the Court.
 A Notice of Application is filed in Court in advance and a sworn
Information may also be prepared. This Information will usually
outline the facts which gave rise to the concerns for the child. In
practice, the HSE will obtain written statements from An Garda
Siochana, if they have exercised their powers pursuant to Section
12, of the CCA.1991. It is imperative that the Member involved
attends to give direct evidence to the Court.

Applications for Longer Term Orders
 Part (IV) of the Act deals with the
remaining three (3) applications which
the HSE can make, which are as
follows:-
1) An Interim Care Order (Section 17)
2) A Full Care Order (Section 18)
3) A Supervision Order (Section 19)

Interim Care Orders
 Where a District Court Judge is satisfied on the application of a health board
that:-
a) an application for a care order in respect of a child has been or is about
to be made (whether or not an emergency care order is in force), and
b)… that it is necessary for the protection of the child’s health and welfare
that s/he be placed in the care of the HSE pending the determination of the
application for the care order.
 Further, the Court must be satisfied that:-
a) the child has been or is being assaulted, ill treated, neglected or sexually
abused or
b) the child’s health, development or welfare has been avoidably impaired or
neglected or
c) the child’s health, development or welfare is likely to be avoidably
impaired or neglected.
 If the Judge is satisfied that the abovementioned circumstances exist then
s/he will make an Interim Care Order.

Interim Care Orders-
Duration and Notice Periods
 An Interim Care Order can be granted for a period of 29 days or
longer if there is consent from the respondent parents.
 An Interim Care Order is commonly sought after an ECO has been
granted to the HSE. However, an application for an Interim Care
Order can also be made in isolation.
 The HSE may apply for an extension of an Interim Care Order if it
believes that the risks giving rise to the original application continue
to subsist.
 The HSE may also require further time to assess the parent’s
capacity to protect the child and to meet the child’s welfare needs.
 The HSE must give two (2) days notice to the parents, in advance of
applying for an Interim Care Order. However, in certain
circumstances this notice period may be dispensed with (Section
17(3).

Interim Care Orders
It is very rare for Interim Care Orders to be
made without notice to the parents.
The Judge may extend the Interim Care Order
on the application of “any of the parties”. It has
been argued that this includes a Guardian Ad
Litem.
Section 17(4) provides that the Judge may also
make directions in relation to access and
medical treatment for the child.

Full Care Order
The HSE can make an application for a Full Care Order
under Section 18 of the Act.
Section 18(1) sets out the criteria which must be
satisfied-
a) the child has been or is being assaulted, ill treated,
neglected or sexually abused or
b) the child’s health, development or welfare has been or
is being avoidably impaired or neglected or
c) the child’s health, development or welfare is likely to
be avoidably impaired or neglected,
and that the child requires care or protection which s/he
is unlikely to receive unless the Court makes such an
order.

Full Care Order-Duration and Effect
The Court should consider where a Full Care Order is
appropriate having regard to all the circumstances of the
case, and whether there are alternative options of
ensuring that the child’s needs can be met.
A Care Order can be granted by the District Court until
the child’s 18th
birthday or for a shorter period.
It is important to be aware that if a Care Order is granted
this essentially transfers rights from the parents or
guardian to the HSE, who shall decide inter alia the type
of care to be provided for the child.
The Court has the power to order the parents to make a
contribution to the HSE towards the cost of maintaining
the child in care.

Supervision Order
 The HSE can make a Supervision Order under Section 19 of the
Act, and is generally sought when problems are brought to the
attention of the HSE that do not warrant the removal of a child from
his/her home.
 The Supervision Order entitles the HSE to visit the family home on
such periodic occasions as, the HSE considers necessary. This also
facilitates the HSE giving parents any necessary advice as to the
care of the child.
 Visits may be announced or unannounced.
 The HSE frequently seeks directions from the Court under Section
19(4) e.g. that a child be brought to school every day on time.
 The HSE may also ask the Court to recommend that a parent
engage with certain services and undergo assessment. The Court
may make recommendations or directions. The consequences of a
breach of a direction is that a parent could be prosecuted.
 A Judge can make a Supervision Order for a period of up to twelve
(12) months

Supervision Orders-continued
Often, Supervision Orders are granted for shorter
periods or are reviewed by the Court at a future date in
order to review progress.
The C.C.A, 1991 states that the HSE must have regard
to the principle that it is generally in the best interest of
the child to be brought up by his/her own family.
The HSE should only remove a child from the care of
his/her parents as a measure of last resort and only after
all other possibilities have been investigated.
There is also a perception that if the family co-operate
with the terms of the Supervision Order, that the family
situation should improve and there will be no necessity
to make an application for an Interim Care Order.

Ancillary Applications
 Section 37 makes provision for access applications to be made in respect of children
in care. It states that “any person” who has a bona fide interest in the child, may apply
for access. For example an access application may be made by an aunt/uncle or
grandparent.
 Section 47 is a catch all provision which can be initiated by “any person” and allows
the Judge to make an Order on any question affecting the welfare of a child. For
example, the HSE may make an application for a child to be placed out of the
jurisdiction, to allocate a Social Worker or appoint an after care worker to a child.
 Section 20 provides that the Health Service Executive may be required to undertake
an investigation of the circumstances of a child, and to prepare a report for court, with
a view to determining whether a care or a supervision order is appropriate, in relation
to a child who is the subject of proceedings concerning custody, access or the
welfare of the child.
 It is not the function of the HSE to make directions or give recommendations in
relation to custody and access or which parent is best placed to care for a child.
Consequently, careful consideration should be given by Practitioners prior to making
an application pursuant to Section 20 as to whether it is absolutely necessary to
involve the HSE in the proceedings.

Practice and Procedure
The HSE usually undertakes considerable planning prior
to any application being made to the District Court. In
particular, Chapter 5 of the Children First Guidelines
deals with the assessment and management of child
protection concerns.
As long as it does not put a child in jeopardy, the Social
Worker will ordinarily interview the child and the child’s
parents.
The HSE must strike a balance between protecting the
child and avoiding unnecessary and distressing
intervention.
The Social Worker may also consult other professional
who may have information in order to form an informed
opinion e.g. schools, GPs etc.

Practice and Procedure-continued
In cases where there is a child protection concern, the
HSE will convene a Child Protection Case Conference,
involving all relevant professionals.
The Child’s parents should be included in the decision
making process.
A Child Protection Case Conference is held when
decisions of a serious nature are being considered.
Minutes are taken and a child protection plan may be put
in place. It is important for solicitors acting for the
parents to obtain copies of these documents.

The Courts View-Points to Note
 In deciding the merits of an Application the Court may consider a
number of factors:-
1. An Interim Care/Care Order should be a measure of last resort.
Would a less restrictive alternative such as a Supervision Order
be more appropriate. On balance would the impact of removing a
child from his/her parents be more detrimental than the harm
anticipated;
2. Details of the HSE’s efforts to provide a support system to the
parents to alleviate the perceived risks;
3. Consider whether it is appropriate for the voice of the child to be
heard and consider whether an application should be made for
the appointment of a Guardian Ad Litem, to independently
establish the child’s wishes, feelings and interests and represent
them to Court.
4. Ascertain whether all relevant information has been taken into
account by the HSE through viewing the minutes of case
conferences/statutory review meetings and analyse whether due
weight has been given by the HSE to the opinion of other experts.

The Courts Views-Points to Note
5. In Re B. (Minors)[1998] 1.F.L.R.368,which is an English case and would
be persuasive in this jurisdiction, the importance of regular reviews was
highlighted. It was held that, it would be an abuse of statutory power to
allow the local authorities manage the Child’s life by a series of repeated
interim orders covering a twelve (12) month period.
6. Ascertain whether the HSE have given the parents (and the child) an
appropriate opportunity to give their input into the decision making
process.
7. Ascertain whether your client could be assisted if family supports were
explored and implemented. A Family Support worker could be allocated.
8. Explore whether a short term Care Order is more appropriate than a Full
Care Order, would be more proportionate and may allow for a parent to
focus on what they need to achieve. This should always be balanced
against the child’s need.
9. Explore whether a Voluntary Care Arrangement under Section 4 of the
Child Care Act is more appropriate than a Court Order.
10. Whether an application should be made under Section 22, for a Care
Order to be discharged or varied in circumstances where pro-active steps
have been taken by a parent and they are now in a position to resume
care.

Foster Care and Placement with
Relatives
 Section 36 defines the various ways in which
a child placed in the care of the HSE may be
cared for, which are as follows:-
a) Placing a child with a foster parent;
b) Placing a child in residential care;
c) Placing a child with a suitable person with a
view to considering adoption;
d) By making such other suitable arrangements,
including placing a child with a relative.

Foster Care an Overview
Section 36(2) of the Child Care Act defines a Foster
Parent as a person other than a relative of a child, who is
taking care of the child on behalf of a health board in
accordance with the regulations made under section 39.
S.I. No. 261/1995-Child Care (Placement of Children in
Foster Care) Regulations, 1995.
The 1995 Regulations are divided into five(5) parts:-
1) The welfare of the child;
2) Pre-placement procedure;
3) Duties of foster parents/relatives;
4) How placements are to be monitored;
5) Finally, the removal of children from their placement.

Caselaw
 Olsson-v-Sweden (10465/83) 24th
March, 1988. It was held that a
combination of restricted access, and placement in a location which was a
substantial distance away equated to a breach of Article 8 rights.
 Eastern Health Board-v-District Court Judge McDonnell [1999] 1IR 174
(H.C)
The order made by the District Court was subject to an application for
judicial review. It was held that the Judge did have power to attach
conditions to a Care Order and that a District Court Judge enjoys substantial
supervisory powers and may have an on-going involvement in the matter.
 Western Health Board-v-K.M (H.C),14th
March, 2001.
McGuinness.J, held that the District Court had power pursuant to Section 36
of the Child Care Act, 1991 to place a child, in relative care outside the
jurisdiction. However, such discretion should be granted sparingly having
regard to a number of factors, including whether or not access by a child’s
natural parents would be possible in terms of distance and expense.

A Child as a party to Proceedings
 The rights of child to be heard stems from Article 42.A.4. of the
Constitution, which provides that a child who is:-
1) Capable of forming his or her own views;
2) The views of the child shall be ascertained and given due weight having
regard to the age and maturity of the child.
 Section 25 of the Child Care Act, 1991
 M.N.-v-R.N.[2008] IEHC 382
This case involved the interpretation of Article 11(2) Brussels II, which it
was held imposes a positive mandatory obligation on the Court to provide
a child with an opportunity to be heard, unless it appears inappropriate to
do so having regard to the age or degree of maturity of the child.
 Section 47 Reports, “the Court may make directions as it thinks proper
for the purpose of procuring a report in writing on any question affecting
the welfare of a party to the proceedings.”
 Section 23 of the Child Care Act, 1997, permits the inclusion of hearsay
evidence in circumstances where the child is unable to give evidence by
reason of age, or it would not be in the interest or welfare of the child.

The need for a Guardian Ad Litem
Service
 The need for a Guardian Ad Litem service was first identified in
England in 1973 following the death of a child, Maria Colwell, who
was living in relative foster care and was returned to the care of her
parents and subsequently tragically died.
 A Guardian Ad Litem (“GAL”) has been identified as “ an
independent representative appointed by the Court to represent the
child’s personal and legal interests in legal proceedings.
 Section 26 of the Child Care Act, 1991 allows the Court to appoint a
GAL for a child when, it is “ in the interest of the child and in the
interest of justice to do so”.
 Section 18 of the Children Act, 1997 inserts a new Section 18 into
the Guardianship of Infants Act, 1964 to provide for the appointment
of a GAL in proceedings concerning custody, access and
guardianship matters.

Functions of a Guardian Ad Litem
 The Child Care (Amendment) Act, 2011 sets out the functions of a GAL.
 It states that a GAL should promote the best interests of the child concerned and
convey the views of that child to the Court, insofar as practicable, having regard to
the age and understanding of the child.
 This is a two tier process and involves a determination of what is in the child’s best
interest and conveying the views of the child. These two concepts may not be
mutually compatible.
 In this context the role of the GAL is to lay the views of the child before the Court and
the Court will ultimately make a determination as to what is in the child’s best
interests.
 The appointment of a GAL varies widely from appointment in virtually all cases to
areas where appointments are virtually non-existent.
 There is currently no formal qualification for an individual to become a GAL. However,
in practice a GAL will usually hold a social work qualification or experience in
psychology.
 The role of the GAL can be divided into four functions:-
1) Information
2)Consultation
3)Case Advocacy
4) Representation

Legal Representation of a GAL
A GAL is entitled to have legal representation,
when considering whether or not legal
representation is appropriate the following
should be considered:-
1) Does the case involve complex legal issues;
2) Is the case heavily contested;
3) Does the interests of the child require
evidence through cross-examination;
4) Does the GAL require assistance with the
Court process;
5) Is there a lack of continuity.

Cross-Examining Witnesses
Putting questions to an expert which places a different
interpretation on the facts upon which an expert has
based his/her opinion, and eliciting an answer which
shows a different interpretation or a departure from the
findings contained in the report.
Challenge the expert witnesses' opinion by introducing
different precedent cases which you are relying on and/
or support your propositions.
Establishing how an expert formed his or her opinion.
Ask the expert about their qualifications, is the matter
outside their normal field of expertise.

Children and Family Relationships
Act 2015
 Different pathways to parentage
 Two (2) Key Principles:-
1) Best interest principle
2) Voice of the child
1) The Best Interest Principle
- Eleven (11) Factors
- Section 31 (3)
- Section 31 (5)
2) Voice of the child
- Section 31(1) (a)
- Section 32(1) (b)

Children and Family Relationship
Act 2015
 Automatic guardianship for non-marital fathers
provided-
 He has lived with the child’s mother for 12 consecutive
months, including at least 3 months with the mother and
child following the child’s birth.
 The period of co-habitation can take place at any time
before the child turns 18
 Previously there were 2 mechanisms available to
unmarried fathers to acquire guardianship rights:-
1) Statutory Declaration ( reference to father’s name on
birth certificate is not sufficent to confer guardianship
rights)
2) Application to Court for Guardianship

Act 2015
Guardianship
 The Act provides that a step-parent, a civil partner or a person who
has co-habited with a parent for not less than three years may apply
to the Court to become a guardian where they have co-parented the
child for more than 2 years.
 A person who has provided for the child’s day to day care for a
continuous period of more than one year may apply if the child has
no parent or guardian who is willing or able to exercise the rights
and responsibilities of guardianship. For example, a grandparent or
foster parent.
 The court retains discretion to grant rights in relation to certain major
decisions:
- Where the child should live and with whom
- Decisions about the child’s religious spiritual and cultural up-
bringing
- Consents to medical, dental and other health related treatment
- Placing the child for adoption or consenting to the child’s adoption.

Act, 2015
Custody
• The Act provides that a parent’s or civil partner, or a parent’s co-habitant of
not less than three years duration, can apply for custody where they shared
parenting of a child for two years.
Assisted Human Reproduction (A.H.R.)
• Commencement not prior to April, 2016
• The Act does not change the basic rule that the birth mother is the legal
mother of the child.
• The Act aims to provide for civil partners and co-habitants to be a legal
parent. This person is known as the ‘intending parent’, provided the mother
and intending parent has given their consent in advance.
• In order for the above principle to apply the donor assisted re-production
must take place in a clinical setting.
• Retrospective recognition of parentage-Circuit Court application
• Donors must be at least 18 years old
• National Donor-Conceived Person Register

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