EVERY NOW AND then a case hits the headlines when a child is taken into care by the HSE in dramatic circumstances. Among the most recent was the case of a new-born baby taken into care under an Emergency Care Order, which was challenged in the High Court, leading to wide publicity. When the order lapsed after a week it was not replaced, and it is understood the baby is back with its mother under a Supervision Order.
Child care proceedings are taking place every day of the week in Dublin Metropolitan District Court, and at regularly intervals in District Courts outside Dublin. According to the latest figures from the Courts Service, a total of 9,315 applications were made by the HSE in 2012 for Supervision Orders, Emergency Care Orders, Interim Care Orders and Care Orders (which can be made until a child is 18). Of these, 7,744 were granted.
However, many of these are multiple applications in the same case, or involve several children in the same family, so they do not reflect the number of children in care. In 2011 there were 3,358 children in the care of the HSE under court order, and about the same number in voluntary care, without any court proceedings.
The Child Care Law Reporting Project was set up almost a year ago to report on child care proceedings, and the third volume of our reports has just been published. This brings to over 90 the total number of cases published on the website.
Very fundamental issues are at stake in child care proceedings: the constitutional rights of the family, considered by our Constitution the fundamental unit of society; the rights of children, whose rights to life, to bodily integrity and to development as members of their families and society may sometimes be at risk; and the balance to be struck between these rights where parents “fail in their duty”, as the Constitution puts it, towards their children.
The 1991 Child Care Act and its amendments provide the legislative framework under which children may be taken into care or otherwise protected by the State. This Act outlines circumstances in which the HSE must provide care for a child, notably where he or she has been lost, abandoned or is homeless.
Section 12 of the Act empowers a member of the Garda Siochana to remove a child who is seen to be at immediate risk and place him or her in the custody of the HSE as soon as practicable. The HSE must then seek an Emergency Care Order in the District Court, which may be granted by the judge if he or she considers the health or welfare of the child to be at immediate or serious risk.
An Emergency Care Order expires after a week, and then either the HSE must seek an Interim Care Order or allow the order to lapse if the circumstances leading to the child being removed from his or her home are no longer considered a threat to the child’s safety.
The court may make an Interim Care Order or a Care Order if a child has been or is being assaulted, ill-treated, neglected or sexually abused, or whose health, development or welfare has been or is likely to be impaired or neglected, and where this will continue if a Care Order is not granted. The majority of cases reported by the CCLRP concern neglect, often arising from alcohol or drug addiction or mental illness.
While Care Orders can be made “as long as [he or she] remains a child”, that is, until the age of 18, the Act also states “or for such shorter period as the court may determine”. Where an Interim Care Order is made and the parents do not consent to it, it must be renewed every 28 days and the court must be satisfied the circumstances continue to exist. Where a Care Order is made for a short period, the court can require the parents to attend parenting courses or address problems like addiction, and the HSE to provide certain services to the family.
The cases reported on the website this week include one where an Emergency Care Order was granted for a child who had lived all her eight years in a direct provision centre and had to go into care when her mother was hospitalised with mental illness. Her mother’s condition was stabilised and they were reunited, but the judge commented:
I am struck in this case by the fact the child has resided her entire life in direct provision and the mother has been in it for that time. Eight years speaks volumes, it seems to be inappropriate, these are matters that are outside the remit of this court.
Other cases include two separate cases where children were taken into care where their mothers had previously been in care themselves. One of the mothers was a drug abuser, the other suffered from mental health problems.
When the State intervenes in these families it does so in our name. We should be aware of what it is doing, and how it is doing it, so that we can all participate in an informed discussion on the best way to protect vulnerable children, rather than react to the latest headline.
Carol Coulter is director of the Child Care Law Reporting Project. She is former Legal Affairs Editor of The Irish Times.
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