Review of the Child Care Act 1991 –Background note and … · • Private foster care • Jurisdiction and procedure, including provisions for the appointment of a guardian ad litem

Review of the Child Care Act 1991 –Background note and template for written consultation

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Review of the Child Care Act, 1991 Call for written submissions Context: The Department of Children and Youth Affairs has commenced a review of the Child Care Act 1991. The 1991 Act is a wide ranging piece of legislation which, at its core, seeks to promote the welfare of children who may not receive adequate care and protection. The legislation covers the following main areas:

• Promotion of the welfare of children, including the relevant functions of the Child and Family Agency

• Protection of children in emergencies, including section 12 which governs the powers of An Garda Síochána to take a child to safety

• Care proceedings, including the different types of care orders which can be made by a court • Children in need of special care or protection • Private foster care • Jurisdiction and procedure, including provisions for the appointment of a guardian ad litem

for a child and the in camera rule • Children in the care of the Child and Family Agency • Supervision of preschool services and • Children’s residential centres.

Better Outcomes Brighter Futures – The National Policy Framework for Children and Young People 2014-2020 commits to ‘review and reform, as necessary, the Child Care Act 1991’. The purpose of the review is to:

- Identify what is working well within the legislation including its impact on policy and practice

- Address any identified gaps and new areas for development - Capture current legislative, policy and practice developments - Building on those steps, revise the original legislation.

The Department has now commenced the public consultation process on this important piece of legislation. It is working closely with Tusla, the Child and Family Agency, to identify areas for improvement and reform under the 1991 Act. The Department held a successful Open Policy Debate on the review of the 1991 Act in Dublin Castle on 5th September 2017 where the implementation of the current Act was discussed with reference to three key themes: supporting families and children, listening to the voice of children and inter-agency work. The report of the day, as prepared by an independent rapporteur, has been published on the Department’s website see: (https://www.dcya.gov.ie/documents/legislation/20171212ReportFindingsOpenPolicyDebateReviewCCA1991.PDF) Calls for submissions The Department is inviting submissions and additional written documentation from interested groups/individuals regarding how best to reform and revise the 1991 Act. The Child Care Act, 1991 can be accessed at this link. You may wish to consult the exploratory memorandum and a list of useful resources at the website here. .


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Format of submissions Please provide a separate covering letter that outlines your name, the name of the organisation you represent your position within that organisation and your contact details. Your submission should include a brief introduction explaining the basis for your/your organisation’s interest in the review of Child Care Act 1991.

Furthermore, you are asked to provide commentary and recommendation with reference to the main parts of the Act as follows:

• Promotion of welfare of children • Protection of children in emergencies • Care proceedings • Children in need of special care or protection • Private foster care • Jurisdiction and procedure • Children in the care of Child and Family Agency • Supervision of pre-school services • Children’s Residential Centres • Administration, Miscellaneous and Supplementary

Where you think a new part is necessary, please include this within the section ‘New parts’. You are not required to comment on all parts/sections of the Act. Please ensure that you specify the section(s) of the Act in your examination as may be relevant. When preparing your submission, please consider the following points:

• Existing provisions which are particularly strong and should be retained • Existing provisions which should be improved or strengthened • Existing provisions that should be removed, amended or replaced • New areas that might be included with reference to recent legislative, policy and practice

developments • Any related legislative and policy changes that you see as necessary in the context of

reviewing the Child Care Act (e.g. Family Courts Bill) Guidelines for the submission

The following provide further information for your submission:

• The submission should contain any factual information that supports your conclusions and recommendations.

• The submissions should provide a rationale for the proposed changes and new provisions

• Comments and suggestions should be as specific as possible. However, there is no requirement to propose alternative legislative text as long as recommendations are clear.

• Relevant information to illustrate how the legislation is currently implemented is considered beneficial.


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• References to cases where individuals may be identified should be avoided.

• Operational changes may be suggested. However, recommendations with no implications for the legislation will be passed on to relevant officials/organisations for their considerations.

• References to written publications and data are welcome; however, it is enough to provide a link to relevant publications when available and it is not necessary to attach copies of the publication or datasets in that case.

Please note that the reform of current Guardian ad Litem arrangements is being progressed separately to this review and has already been the subject of public consultation. Section 26 is therefore excluded from this call for submissions and it is not necessary to provide any comment on Section 26 in this call for submissions. See link for detailed information on these reforms. Any query regarding submissions should be sent to [email protected] . Closing date: Submissions should be submitted no later than 4 pm on Friday, 23rd February 2017 by email only to the following address: [email protected] Each submission will be acknowledged as it is received. Next steps: The Department intends to publish all submissions received on its website www.dcya.gov.ie in due course. Please note that submissions received are subject to the provisions of the Freedom of Information Act 2014. The Department will carefully examine all written submissions. The findings will be considered in the process of developing proposals.


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1. Brief introduction to the person or organisation making the submission We are a research team at University College Cork examining child care proceedings in the District Court in Ireland since 2011. We are also members of a European network of researchers examining child welfare removals in child protection cases. Our research team has four academic members from law and social work: 1. Dr Kenneth Burns, college lecturer in social work and research associate with ISS21, School of

Applied Social Studies, University College Cork. Kenneth is the Principal Investigator for this study and the contact person if you require further information: [email protected].

2. Dr Caroline Shore, college lecturer in social work and research associate with ISS21, School of Applied Social Studies, University College Cork.

3. Dr Conor O’Mahony, senior lecturer in law and research associate with ISS21, School of Law, University College Cork.

4. Dr Aisling Parkes, college lecturer in law and research associate with ISS21, School of Law, University College Cork.

A full list of our publications and outputs can be viewed on the following link. Our observations and recommendations are based on our academic knowledge, research findings and direct practice experiences in child care proceedings in the District Court: https://www.ucc.ie/en/appsoc/resconf/res/childcareproceedingsinthedistrictcourt/ This submission should be read as a submission from our research team only and the submission does not represent the views of our Schools and/or University College Cork. Should you require further information, please do not hesitate to contact the research team - [email protected]


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2. Promotion of welfare of children (Part II) a. Comments including rationale/supporting information Section 3 Section 3 of the 1991 Act could be amended to provide a more detailed and specific itemisation of the positive obligations of the CFA in respect of preventing, identifying and responding to child abuse and neglect. This is necessary so as to ensure compliance with Ireland’s obligations under Articles 3 and 8 of the European Convention on Human Rights (ECHR). The positive obligations of States that have been clearly and consistently recognised in ECHR case law include: - Responding to known abuse or neglect by taking steps to secure the welfare of the child and to prevent re-occurrences in the future, including – but not limited to – applying for a care order or supervision order (see Z v United Kingdom, 29392/95, May 10, 2001 and Eremia v Moldova, 3564/11, May 28, 2013); - Preventive measures to protect against foreseeable risks of abuse or neglect so as to make it less likely to occur in the first place, such as risk assessments, sharing of information, inspection regimes, and educational and research measures (see Kontrová v Slovakia, 7510/04, May 31, 2007, in respect of risks to specific children, and O’Keeffe v Ireland, 35810/09, January 28, 2014, in respect of a general risk to unidentified individuals); - Effective investigation of alleged abuse or neglect that is in principle capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible; investigations must be prompt, rigorous and child-sensitive (including the provision of proper counselling services), and must take reasonable steps to secure the evidence concerning the incident, including eyewitness testimony, forensic evidence, etc. (see CAS and CS v Romania, 26692/05, March 20, 2012). b. Recommendations Rather than assuming that these obligations are all subsumed within the general language of section 3, it would be preferable to revise that language to make these obligations explicit in the text. a. Comments including rationale/supporting information Section 4 In Ireland, c.60% of all admissions of children to State care are through this section of the Act (see Child and Family Agency Review of Adequacy Reports, http://www.tusla.ie/publications/review-of-adequacy-reports). It is very clear from these statistics that voluntary care is a frequently used and valuable option for families and the Child and Family Agency to ensure the safety of children. Additionally, recent research findings on the operation of child care proceedings in Ireland suggest that not all children’s and family cases are appropriate for child care proceedings in the District Court. A consultation on voluntary care took place with c. 40 professionals (legal, social work, child care, managers) at University College Cork in 2015 (see Kenneth Burns, Brid Kiely and Denise Kirwan (2015) Voluntary care (S.4 of the Child Care Act 1991): A caring, non-adversarial way to deal with


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the removal of a child or an opaque system where the rights of parents and children are not protected?. [Oral Presentation], 5th National Child Protection and Welfare Social Work Conference, Cork , 23-OCT-15). While there was a consensus that S. 4 needed to be updated, there was also a common view that the retention of voluntary care in some form was necessary. In a recent study of child welfare removals in eight countries, all of the jurisdictions profiled had some form of a voluntary care process (see Kenneth Burns, Tarja Pösö and Marit Skivenes (Ed.). (2017) Child Welfare Removals by the State: A Cross-Country Analysis of Decision-Making Systems, New York: Oxford University Press.) While S. 4 is titled voluntary care, the text under this section is opaque and provides very little instruction for those seeking guidance on how voluntary care should operate. This opacity and low level of guidance means that S.4 may sometimes be used in ways not intended when drafted. b. Recommendations A revised S. 4 (voluntary care) should include: 1. A clear definition of what voluntary care is. 2. An active consent process with a parent(s) is required, rather than the current passive consent. 3. Consent for voluntary care should only be valid if (a) a period of voluntary care has been assessed

by the Child and Family Agency as being necessary to safeguard a child’s welfare, (b) the Child and Family Agency have established that a parent(s) has the capacity to consent (addiction, mental health, cognitive capacity, not under duress), (c) a parent(s) has been clearly advised of their rights including their right to terminate voluntary care at any time, (d) there must be written consent from a parent(s), and (e) the Child and Family Agency warrants that a parent(s) was recommended to seek independent legal advice before agreeing to and signing the voluntary care consent form.

4. If a parent(s) does not consent, or are unable to consent or are unavailable/can’t be identified, the use of S.4 should be deemed inappropriate and the section should direct the Child and Family Agency to consider applying for a care order in one of the other sections.

5. The current Act is silent as to whether voluntary care is a short-term/medium-term or long-term measure. Should there be timeframes for the length of time a child can stay in voluntary care? As children in voluntary care are not independently reviewed by a court or a similar competent body, there is a need for some process to evaluate whether a child in voluntary care should return home or should be placed on a long-term care order after a fixed period of time.

6. If long-term care is likely, a parent is no longer available, or if a parent cannot be identified, the Child and Family Agency should be obliged to apply to court for a care order in one of the other sections.

7. Should a revised S.4 place an obligation on the Child and Family Agency to seek the views of children/young people on their entry into voluntary care?

8. Should Ireland be moving towards children, of a certain age, consenting to voluntary care in addition to their parents? If we don’t, Ireland will be out of step with similar developments in other countries. In this regard, how can the new S.4 adopt the principles outlined in the National Strategy on Children and Young People’s Participation in Decision-Making 2015-2020 (Department of Children and Youth Affairs, 2017)?


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a. Comments including rationale/supporting information Separated Children Sections 4 and 5 of the Act are currently being used inconsistently and inappropriately to deal with separated children entering the country seeking asylum. This has serious implications both for the care of these children (if they remain in the care of the State for a period of time without a care order being in place, so that neither a parent/guardian nor the CFA can consent to, e.g. medical treatment) and for their immigration status (which cannot be regularised so long as they remain in care under section 4 or 5). A separate section is needed to deal with providing care to separated children. This section needs to impose an obligation on the CFA to apply for an interim care order at an early point and a full care order thereafter if family reunification has not been achieved. It also needs to tie in with the relevant provisions of the International Protection Act 2015 so as to provide a coherent legislative response to the needs of separated children. Recommendations The Child Care Act should include a dedicated section dealing with the obligation of the CFA to care for separated children who present themselves at a port of entry to Ireland unaccompanied by a person having legal responsibility for them. Sections 4 and 5 should no longer be relied on for this purpose. The new section should oblige the CFA to make an application for an interim care order while efforts at family reunification are being pursued, and for a full care order within a short period of time thereafter if these efforts are unsuccessful. The new section should operate harmoniously with the International Protection Act 2015.


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3. Protection of Children in Emergencies (Part III.) a. Comments including rationale/supporting information b. Recommendations


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4. Care proceedings (Part IV) Comments including rationale/supporting information Ascertaining the views of children (It is noted that section 26 of the Act is excluded on the grounds that the Department of Children and Youth Affairs (DCYA) is shortly to publish an amended General Scheme of Child Care (Amendment) Bill 2017 – Guardian ad litem arrangements, which will legislate for a single national service under an executive office of the DCYA. However, it is not possible to address sections 24 and 25 without making some brief reference to section 26.) Article 42A.4 of the Constitution imposes a clear constitutional obligation on the Oireachtas to legislate to the effect that the views of children will be ascertained and given due weight in child care proceedings. The current provisions of the 1991 Act which deal with this (sections 24, 25 and 26) are inadequate at present, since they impose a weaker obligation than that stipulated in the Constitution and allow significant discretion to the court to dispose of the proceedings without ascertaining the views of the child. Evidence suggests that practice varies widely between districts regarding the extent to and manner in which children are facilitated in expressing their wishes to the court (see further Aisling Parkes, Caroline Shore, Conor O’Mahony and Kenneth Burns, “The Right of the Child to be Heard? Professional Experiences of Child Care Proceedings in the Irish District Court” (2015) 27(4) Child and Family Law Quarterly, 423-444). As such, an amendment here is a constitutional imperative. Although Article 42A.4 has not been couched as a constitutional right, it is important to note that even before its enactment, the High Court recognised that children have a procedural right under Article 40.3 of the Constitution to be heard in cases affecting them (see FN v CO [2004] 4 IR 311 at 322 and A O’D v Judge Constantine G. O’Leary [2016] IEHC 555 at [89]). These judgments reinforce the obligation under Article 42A.4 and potentially provide a springboard for arguments to be made on behalf of children in cases where the manner in which the legislative framework has been implemented has not resulted in their views being ascertained and given due weight. Article 42A.4.2° requires that in all child care proceedings “in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.” A number of key points should be noted about Article 42A.4. First, it is significant that the obligation to ascertain the views of the child has been closely linked to the obligation to have regard to the best interests of the child as the first and paramount consideration in the same categories of proceedings. As stated by the UN Committee on the Rights of the Child, “[a]ny decision that does not take into account the child’s views or does not give their views due weight according to their age and maturity, does not respect the possibility for the child or children to influence the determination of their best interests” (General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) CRC/C/GC/14 at paras. 53-54). Second, it is crucially important to note that the obligation to ascertain the views of the child is mandatory in all cases where the child is capable of forming those views. This is a marked departure from the approach under the existing provisions of the Child Care Act 1991, which gives the court the discretion to appoint a guardian ad litem (GAL) or to make the child a party to the proceedings, but imposes no clear obligation to do so. The process is a three stage one:


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1. First, it should be established whether the child is capable of forming views of relevance to the situation.

2. Second, if so, those views should be ascertained. 3. Having ascertained those views, the court then decides how much weight they should be

given, according to the age and maturity of the child. The best guidance on how the courts might approach this process can be gleaned from the case law dealing with international child abduction proceedings under the Brussels II bis Regulation, which has been taking this approach for some time. In N v N [2008] IEHC 382, the High Court described the process as follows: (i) The starting point is that the child should be heard; (ii) maturity determines whether child capable of forming views; and (iii) age is relevant only to the weight to be attached. In deciding to hear from a six-year old child, Finlay Geoghegan J stressed: “Anyone who has had contact with normal six-year olds knows that they are capable of forming their own views about many matters of direct relevance to them in their ordinary everyday life.” The key point is that capability of forming views, rather than any chronological age, is the benchmark for whether a child’s views should be ascertained. Clearly, a court would be free to attach less weight to the views of a five or six-year-old than to those of a 15 or 16-year-old – but that does not mean that the younger children are not constitutionally entitled to be afforded the opportunity to express their views. Article 42A.4 does not prescribe any particular mechanism through which the views of the child are to be ascertained. As long as the implementing legislation requires that those views are ascertained, the provision will be complied with. This echoes the approach taken in Article 12(2) of the United Nations Convention on the Rights of the Child, which envisages that in judicial proceedings, children shall be heard “either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”. There are a range of possibilities here. A representative such as a GAL could be appointed to ascertain the views of the child and communicate them to the court. The child could be made a party to proceedings and represented by a solicitor (similar to the existing section 25 of the Child Care Act 1991). The child could speak to the judge in chambers; or the child could give direct testimony in court. The Sixth Report of the Special Rapporteur on Child Protection in 2013 recommended that legislation enacted to implement Article 42A.4 “should provide for a variety of mechanisms to be employed to ascertain the views of the child” (G. Shannon, Sixth Report of the Special Rapporteur on Child Protection, January 2013, pp.141-151). The gold standard of indirect participation is dual representation by children by way of a guardian ad litem and a solicitor. The role of the GAL is commonly accepted as twofold in nature: to provide the court with the voice of the child in respect of wishes and feelings, whilst also advising on the best interests of that child, particularly in respect of Child and Family Agency (Tusla) applications and care planning. This dual role can lead to challenges for GALs (and the children themselves) when views and wishes of children may be contrary to the assessed best interests (see Aisling Parkes, Caroline Shore, Conor O’Mahony and Kenneth Burns, “The Right of the Child to be Heard? Professional Experiences of Child Care Proceedings in the Irish District Court” (2015) 27(4) Child and Family Law Quarterly 423-444). If a GAL must argue for the child’s best interests, which are potentially at odds with that child’s wishes, is that child truly represented in the court arena on a similar standing to the other parties present? Currently, a child in such a situation is denied separate legal representation or indeed, an independent advocate within the court. The tandem model of child representation in UK care proceedings (including Northern


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Ireland), where every child is entitled to representation by both a solicitor and a GAL, ensures that both a child’s wishes and views; and his or her best interests are represented independently within the courts (see Family Justice Review (2011) Final Report. London: Ministry of Justice. Available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf.) b. Recommendations Sections 24-26 of the Child Care Act are constitutionally required to be amended to stipulate that in all cases where children are capable of forming their own views, those views shall be ascertained and given due weight in accordance with the age and maturity of the child. For the avoidance of confusion between deciding whether to hear children and deciding how much weight to attach to their views, the three-stage process set down by the High Court in N v N should be clearly replicated in the legislation. A range of mechanisms for ascertaining the views of children should be provided for. To place the child squarely at the centre of proceedings which are of such magnitude in terms of the future direction of his/her life, the legislation should incorporate the right of the child to both a Guardian ad litem and a solicitor to represent him/her, as is currently the case in the UK. The legislation should also make clear that in cases where a representative (such as a solicitor or a guardian ad litem) is not appointed for the child, the obligation to ascertain the child’s views remains in place, and a fall-back option for doing so should be identified.

a. Comments including rationale/supporting information

Time limits for care proceedings There are currently no figures available outlining the average time frame for child care proceedings to be completed through the district courts in the Republic of Ireland. Research has evidenced that there is a lack of consistency between different court areas throughout the country in respect of the approach taken to various aspects of the proceedings, including how frequently such cases are adjourned, and how much time is allocated on a given day or days for proceedings to be heard see Conor O’Mahony, Kenneth Burns and Aisling Parkes and Caroline Shore (2016) 'Child Care Proceedings in Non-Specialist Courts: The Experience in Ireland'. International Journal Of Law Policy And The Family, 30: 131-157). This research found that in some areas, where child care proceedings are just one component of a busy and mixed District Court responsibility, such cases may receive low priority in terms of time allocated. Responding to concerns over detrimental lengthy care proceedings in England and Wales (an average of 60 weeks at the time of review), the Family Justice Review (2011) proposed that the length of care proceedings within the courts be restricted. This was viewed by many as intended to provide a practical measure to ensure the prioritising of child rights within child care proceedings. This recommendation was enacted under the Children and Families Act 2014, which


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sets a time limit of 26 weeks. As of the end of 2017, approximately 60% of care proceedings are now completed within this timeframe. It must be noted that recent research has suggested that this speeded up process has resulted in an increase in the making of different types of orders after the enactment of the new legislation, rather than the standard care and placement orders which dominated previously. In particular more Supervision Orders and Special Guardianship Orders (placement of children with relatives) are being used. This appears to be an unintended outcome of the legislation, and will require more longitudinal studies to ascertain if these orders lead to the long term safety, security and welfare of the child (see Masson, J., Dickens, J., and Bader, K. (2017) ‘Achieving positive change for children? Reducing the length of child protection proceedings: lessons from England and Wales’. Adoption and Fostering, 41(4) 401 – 413). Hearing proceedings in a timely manner has to be a priority when the lives of children are involved. A child’s sense of time can be very different to an adults and the uncertainty and lack of security that can be inflicted upon a child when proceedings effecting their current and future daily lives are unduly protracted, can cause significant detriment to his or her welfare. Resolutions of child care proceedings should therefore occur in as timely a manner as possible to minimise negative consequences of delay and drift.

b. Recommendations

Consideration should be given to stipulating a desired time frame in which child care proceedings should be completed. There will of course be a need to allow for exceptions to the normal course of events, whereby complexities within individual cases require a more protracted decision making process. However, legislating for clear time limits will ensure greater consistency across the numerous District Courts in the jurisdiction. Such a provision should end the situation where the area in which a child lives may determine how long it takes the court to reach a decision about his or her future care. Such a provision would reasonably be considered more workable within a specialist family court system, incorporating specialist child care judges. Current resource limitations within busy and generic District Court lists, makes prioritising the necessary dedicated time dedicated for child care cases problematic.


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Use of repeated Interim Care Order extensions

Section 17 of the 1991 Act allows for the making of an Interim Care Order (ICO) in circumstances where, “an application for a care order in respect of the child has been or is about to be made” …. “pending the determination of the application for the care order” . The 29 day maximum duration of the order can be extended in circumstances whereby, “the justice is satisfied that grounds for the making of an interim care order continue to exist with respect to the child”.

The experience of professionals who are regularly involved in child care proceedings in the Irish District Courts is that some courts regularly extend ICOs on a repeated basis, in lieu of granting a full care order. The grounds for granting an ICO, as it is meant to be a precursor to a full application for care, are less exacting than those for a Care Order. The first order requiring “reason to believe” that a child has been harmed or is at grave risk of harm, the latter order requiring that the court be “satisfied” of same. This means that some children are in the care of the State, removed from their families of origin for several months or even years, without the rigorous testing of the thresholds required for the granting of a full Care Order. On occasion, the Child and Family Agency has withdrawn applications for full orders, after children have been subject to repeatedly extended ICOs over considerable periods of time. This situation can only be regarded as detrimental to children who may have spent a significant part of their childhoods being cared for outside of their families of origin and may have transferred attachments to their new carers, and may struggle to adjust to a return home. The two Interim Reports and the Final Report of the Child Care Law Reporting Project (see Coulter, C. (2013, 2014 & 2015) provide examples of cases where ICOs were extended on such a repeated basis.

b. Recommendations

The language of section 17 needs to be tightened up to limit the number of times that an Interim Care Order can be extended before a full Care Order hearing should take place, or the child returned to their family of origin. This is essential given that the grounds on which an ICO can be granted are much less strenuous than those for a full Order, and hence under the current system children are potentially in the care of the State for significant periods of time without full and robust determination of risk and/or harm. It could be reasonably recommended that a date for a full hearing be set at the point of the granting of the initial ICO. Such procedure may require dedicated resources in some areas (see section of this submission regarding time limits for care proceedings). The use of Interim Care Orders as ‘mini’ Care Orders over extended periods of time, or indeed as a discrete period in which to allow the CFA to determine if they have grounds to apply for a full Order, must be curtailed by the legislation. It may be necessary to create a separate medium term order, specifically for the purposes of carrying out court approved assessments of discrete issues pertinent to the case. Such an Order could form part of a suite of measures to facilitate a prescribed time frame for conclusion of proceedings, as outlined separately in this submission.


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5. Children in Special Care and Protection (Part IV.A) Comments including rationale/supporting information b. Recommendations


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6. Private Foster Care (Part IV.B) a. Comments including rationale/supporting information b. Recommendations


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7. Jurisdiction and procedures (Part V) a. Comments including rationale/supporting information Adversarial versus inquisitorial hearing It has long been established (since the judgment of the Supreme Court in Southern Health Board v CH [1996] 1 IR 219) that child care proceedings are intended as being as being “in essence an inquiry as to what is best to be done for the child in the in the particular circumstances pertaining.” Since the child’s welfare is the first and paramount consideration for the court, it takes priority over any right that the parents wish to assert through the adversarial process. This approach manifests itself in a variety of ways; the District Court is empowered by section 27 to procure reports on any question affecting the welfare of the child, allowing the judge to take the lead more than is typical in an adversarial system, and the rules of evidence are more relaxed than in other proceedings, so that hearsay evidence may be admitted at the discretion of the court. The hybrid approach whereby child care proceedings have inquisitorial aspects, but are situated within an over-arching adversarial framework, has lent itself to a lack of clarity and inconsistent application. Proceedings are often highly adversarial in nature (see Conor O’Mahony, Kenneth Burns and Aisling Parkes and Caroline Shore (2016) 'Child Care Proceedings in Non-Specialist Courts: The Experience in Ireland'. International Journal Of Law Policy And The Family, 30: 131-157) and the approach to the admissibility of hearsay evidence varies across the country, with some judges taking a stricter line than others (see Coulter, C. (2014) Second Interim Report: Child Care Law Reporting Project, p. 22). b. Recommendations Since the guiding principles in this area currently derive from a short passage of a Supreme Court judgment, it would be preferable to provide some clarification in the legislation itself regarding the precise extent to which child care proceedings should consist of an inquiry rather than an adversarial hearing, and the mechanisms through which this should be achieved. In particular, the application of the rules of evidence should be clarified in the Act. a. Comments including rationale/supporting information In Camera Rule It is important in child care proceedings that there is a high degree of public confidence in the system. Heretofore, very little was known about these proceedings outside of the participants who were present as the in camera rule was ill-defined (see Conor O’Mahony, Kenneth Burns and Aisling Parkes and Caroline Shore (2016) 'Child Care Proceedings in Non-Specialist Courts: The Experience in Ireland'. International Journal Of Law Policy And The Family, 30: 131-157). Recent changes to the in camera rule to permit members of the media and researchers to attend and report on child care proceedings, has been a welcome development and increased transparency in, and public knowledge of, these proceedings. However, revisions to the in camera rule have not been extensive enough and the rule is still ill-defined and too limiting. For example, the in camera rule is still somewhat opaque on what is


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possible outside of attending and reporting on proceedings. This has a chilling effect on research, resulting in lower levels of transparency. For example, it is not explicitly permitted for researchers to interview/survey children, young people and parents about their experiences outside of the proceedings. This is a significant gap in our knowledge base and exploring the perspectives of children, young people and parents on these proceedings may strengthen the operation and design of these proceedings. At a minimum, it is a democratic deficit that those for whom the proceedings most affects, are prohibited from talking about their experiences. Further clarifying the in camera rule would ensure that we hear from children and young people by increasing their participation. Such a change would be consistent with recent Department of Children and Youth Affairs and government policy in this regard (see Better Outcomes Brighter Futures: The National Policy Framework for Children and Young People 2014-2020 and the National Strategy on Children and Young People’s Participation in Decision-Making 2015-2020). b. Recommendations The in camera rule should be updated to consolidate existing amendments to this rule. Furthermore, the rule should be clarified to expressly permit anyone directly or indirectly participating in child care proceedings, including children, young people and parents, to participate in research undertaken by bone fide researchers with permission from the Minister of Justice and Equality. Ideally, the rule should be framed to allow a variety of research approaches and data collection methods outside of the proceedings, in addition to what is presently permitted in terms of direct observations while child care proceedings are ongoing. Additionally, consideration should be given to permitting access by bone fide researchers to all written documents and judgements on the court case file, subject to the permission of the Minister for Justice and Equality.


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8. Children in the Care of Child and Family Agency (Part VI) a. Comments including rationale/supporting information Family Reunification and Access The ECHR imposes clear obligations on Ireland in respect of working towards family reunification for children in care. The European Court of Human Rights (ECtHR) has repeatedly held that placing children in the care of the State should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted; moreover, any measures of implementation of a care order should be consistent with the ultimate aim of reuniting the child with its family (see, e.g., Olsson v Sweden (No. 1), 10465/83, March 24, 1988 at [81] and Johansen v Norway, 17383/90, August 7, 1996 at [78]). This line of case law was expressly approved by the Irish High Court in Health Service Executive (Southern Area) v SS (a minor) [2007] IEHC 189 at [94] to [95], when McMenamin J held that “[t]his general principle, applied so often in our courts established under the Constitution should be both the starting and desired end point of such orders, as to their duration and the procedural safeguards necessary to vindicate the rights of those involved.” However, at present, the principle is not expressly stated in the Child Care Act. The ECtHR has elaborated a number of specific obligations that flow from the general principle that care orders and the methods used to implement them must be consistent with the ultimate aim of family reunification. These include: - Unless it is inconsistent with the child’s best interests, there must be meaningful access between parents and children in care; any restrictions on access must go no further than is necessary to protect the child’s welfare and development (see Olsson v Sweden (No. 1), 10465/83, March 24, 1988; Andersson v Sweden, 12963/87, February 25, 1992; Johansen v Norway, 17383/90, August 7, 1996, and R v Finland, 34141/96, May 30, 2006); - Access orders must be enforced where they are in place (see Ribic v Croatia, 27148/12, April 2, 2015 and Stasik v Poland, 21823/12, October 6, 2015); - Care orders must be reviewed at regular intervals to see if the circumstances grounding the care order still persist, and public authorities and courts are obliged to take into account any new evidence presented by the parents regarding their parenting capacity (see K & T v Finland, 25702/94, July 12, 2001 and Kocherov and Sergeyeva v Russia, 16899/13, March 29, 2016). Of course, while family reunification is the ultimate goal, the best interests of the child remains the primary consideration. Where reunification or even access would harm the child’s health, welfare or development, or prevent them from having a stable environment in which to develop, the ECtHR has consistently held that it is permissible to maintain care orders, restrict access, and – in exceptional circumstances – to place the child for adoption (see, e.g., Johansen v Norway, 17383/90, August 7, 1996 at [78]; YC v United Kingdom, 4547/10, March 13, 2012 at [134]; Levin v Sweden, 35141/06, March 15, 2012 at [62] to [68] and Aune v Norway, 52502/07, October 28, 2010). What is required is that the situation be kept under continuous review and that new evidence or changes in circumstances be responded to. However, Article 8 does not require that domestic authorities make endless attempts at family reunification; it only requires that they take all the necessary steps that can reasonably be demanded to facilitate the reunion of the child and his or her parents (see, e.g., R & H v United Kingdom, 35348/06, May 31, 2011; Jovanovic v


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Sweden, 10592/12, October 22, 2015, and Kocherov and Sergeyeva v Russia, 16899/13, March 29, 2016). b. Recommendations The Act should be amended to explicitly state that placing a child in care is to be regarded a temporary measure, to be discontinued as soon as circumstances permit, subject to the paramount consideration of the best interests of the child. Any measures of implementation of a care order (such as access and reviews of the care order) should, subject to the best interests of the child, be consistent with the ultimate aim of reuniting the child with its family. A connection should be drawn between this guiding principle and the provisions of the Act governing reviews, access and applications for variation or termination of care orders.

Section 36. (1) (d)


Section 36.(1)(d) of the Act states: “Where a child is in the care of the Child and Family Agency, the Agency shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests- by making such other suitable arrangements (which may include placing the child with a relative) as the Agency thinks proper.” This section of the Act has historically been used to legitimise the placing of children outside of traditional foster care arrangements, specifically with relatives or neighbours/family friends who are seen as a place of safety for the child, and often in emergency or crisis situations. Unfortunately, one unintended consequence of the looseness of the terminology, “other suitable arrangements” has been that this section has been used as a mechanism to place children with unassessed carers, some of whom may be relatives or have some other form of relationship to a child, some of whom have no prior relationship with the child or birth family whatsoever. Such placements arise for a number of reasons, one of which has been a child’s familiarity with a relative who is willing to care for him/her and deemed as “safe” by the CFA, but who for whatever reason would not meet the required competencies to be approved as a foster carer. There are also relatives who have failed, on assessment, to meet the criteria for fostering, but children have been allowed to remain in their care under section 36. (1)(d) as it is deemed by the CFA as more detrimental to the child’s welfare to move that child to an approved placement. Given the significant delay in assessment of relative foster carers in some CFA areas, identified in numerous HIQA inspection reports (see for example: https://www.hiqa.ie/reports-and-publications/inspection-reports/4384-foster-care-cork-20-february-2017), some children have been placed in the care of relatives, and/or in a number of cases, strangers unknown to them prior to their placement, with no assessment being carried out on the carers for several years. During this period the children in question have continued to be cared for by these adults, and the carers have received regular foster care payment from the CFA, justified under section 36. (1)(d).


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The terminology “other suitable arrangements” has also meant that on occasion children have been placed with unassessed strangers with whom they have no prior connection but who have at some point expressed to the CFA an interest in providing foster care, or who are on a waiting list for assessment. Assessment of these carers may not occur for several months or years, and there is no guarantee that such carers will meet the required competencies when assessment does occur. Such arrangements are entirely unsatisfactory and carry a significant level of risk to the child in placement with these unassessed or non-approved carers. Section 36 effectively allows for a two tier approach to placement of children who are in the care of the State. Rigorous assessment is required to be officially approved as a foster carer by the CFA (and all assessments carried out by private foster care agencies must also, ultimately be approved by the CFA local area Foster Care Committees)(see National Standards for Foster Care DCYA 2003) https://www.dcya.gov.ie/documents/.../National_Standards_for_Foster_Care.pdf There can be some degree of confidence that these approved carers have the requisite competencies to meet the complex and evolving needs of a child placed with them by the state. This assessment, approval and review system is designed to offer an added layer of protection and security to the children placed in such arrangements. Children placed under section 36(1)(d) arrangements have no such protection and the CFA have no evidence on which to base a presumption that these unassessed or non-approved carers meet the competencies required to provide for the child’s needs. Some children in the care of the State receive greater protection and more appropriate care placements than others, all under the legislative provision of section 36. of the 1991 Child Care Act.

b. Recommendations

That section 36. be amended to remove the reference to the broad and vague, “other suitable arrangements” and the options laid out in the legislation under this section be restricted to approved and registered placements as per the respective regulations (whether foster or residential care). There should be provision for placements with relatives only when these placements meet the criteria as outlined in the National Standards for Foster Care (2003), section 14. (b) https://www.dcya.gov.ie/documents/.../National_Standards_for_Foster_Care.pdf There should be no provision for unassessed or non-approved placements for children in care, enshrined within the legislation.


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9. Supervision of pre-school services (Part VII and VIIA) a. Comments including rationale/supporting information b. Recommendations


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10. Children’s Residential Centres (Part VIII) a. Comments including rationale/supporting information b. Recommendations


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11. Administration, Miscellaneous and Supplementary (Part IX and X) a. Comments including rationale/supporting information b. Recommendations


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12. New parts a. Comments including rationale/supporting information b. Recommendations

Documents

Review of the Child Care Act 1991 –Background note and … · • Private foster care • Jurisdiction and procedure, including provisions for the appointment of a guardian ad litem