Absence of specific children's rights undermined law


BACKGROUND:While the letter of the law allowed the health board to act, the parents’ ability to cite constitutional rights proved a deterrent, writes CAROL COULTER

THE MOST damning statement in the Roscommon Childcare Case report is that “the staff did not exercise their statutory authority under the Childcare Act 1991 to protect these children at the earliest possible point”.

This Act permits the District Court, on the application of the appropriate health authority, to make a number of orders aimed at the protection of children at risk.

The least intrusive is a supervision order, which leaves a child in their home but monitors the child’s welfare through social workers. Supervision orders also allow the court to seek medical or psychiatric examinations or treatment of the child.

The next level of intervention under the Act is a care order, which can be an emergency care order where the matter is urgent; an interim care order where the situation is ongoing and there is a real prospect of the child returning home when problems in the family are resolved; or a permanent order, when the child is taken permanently into care.

In all such instances, except those where children are so disturbed as to be unable to live in a normal home, they live with foster parents.

This family first came to the attention of the Western Health Board when the first child was born in 1989. There was ongoing concern over the next number of years, leading to the first case conference in November 1996.

The minutes of this meeting record that the parents were to be informed that an application for a supervision “may be considered an option for the WHB [Western Health Board]”. However, none was sought then or later, despite continuing problems of alcohol abuse and neglect of the children.

The inquiry team found that by 1999 there were ample grounds to seek a supervision order, but none was sought. In 2000, relatives contacted health board officials to express serious concerns about the children. This led the board to propose a co-parenting arrangement between these relatives and the parents, to which the parents initially agreed.

However, apparently concerned at the loss of social welfare income if the children were officially not living with them, they obtained the assistance of a group, described in court as a Catholic right-wing organisation, to seek a High Court injunction restraining the health board from removing the children.

This injunction was obtained ex parte (without notifying the health board), with the mother citing the Constitution to state that she and her husband had “inalienable and imprescriptible rights over our children”.

The report points out that the impact of this order was “very significant”. Health board officials appear to have been sent into a tizzy, and a subsequent case conference raised the issue of making the children wards of court, though no action was taken. The inquiry was given no clear explanation why wardship proceedings were mooted at all.

The immediate and simple solution to the ex parte order, normally a short-term measure, was to return to the High Court to have it vacated. By now it was the opinion of the professionals that the welfare of the six children would be best served by removing them from the care of their parents.

Yet this application was only made in the summer of 2001, nine months later, and even then the nature of the order seems to have been misunderstood by the health board. The High Court vacated its earlier order to allow the health board go to the District Court to seek a care order. However, the health board social work team leader understood that the High Court order somehow prevented this. Only after the children “rescued themselves” in 2004 were care orders obtained.

While the letter of the law permitted the health board to act decisively in relation to these children, the absence of specific rights for children weakened its effectiveness.

The mother was able to obtain an order without those children having a voice in court or without their rights to a safe environment being considered. These are the weaknesses, identified in other reports, that have led to the conclusion that a constitutional amendment specifying children’s rights is necessary.