Gardaí and HSE will come under pressure to explain drastic action in Tallaght case
Authorities must be able to demonstrate they had compelling reasons to take child into care
Solicitor Waheed Mudah speaks to the press after the court ruling. Photograph: Cyril Byrne/The Irish Times
Taking a child into State care is a big deal. It’s an act that touches on some of society’s most acute sensitivities and is the most drastic means by which the State can override the rights of an institution – the family – held up by the Constitution as the fundamental unit of society.
Even without the elements that made front-page news out of the two cases in which children were taken from
their families this week – the timing, ethnicity question and supposed foreign parallels – some fundamental questions would have been raised.
With all those elements in the mix, the stakes have risen dramatically and the pressure will be all the greater on the authorities to explain just
In the Seanad last night, Minister for Justice Alan Shatter said concerns about the identity of the two children taken into care had been proved groundless. He said he would be asking the Garda Commissioner for a report on the background to each instance with a view to reviewing procedures that applied.
Cases heard in private
One of the most remarkable aspects of this week’s cases is that they are being talked about at all. Last year, some 9,315 applications were made by the HSE for various orders (supervision, emergency care, interim care and care orders) related to children, of which 7,744 were granted. But because such cases are heard in private, virtually none were reported on or discussed in the media or in the public at large.
To all intents and purposes, pending the coming into effect of a law that relaxes the in-camera rule, the family and childcare courts are a closed domain of Irish life. Contrast that with the coverage of this week’s saga; yesterday, officials were fielding calls from CNN and the BBC.
Yet for all that coverage, some of the key questions remain unanswered. On what basis, and on foot of what suspicions, did gardaí act in these cases? How representative are these cases of their modus operandi? What efforts did they and the HSE make to establish the facts before invoking their powers to take children into care? And what evidence did they have for concluding that there was an immediate and serious risk to the health or welfare of the children?
Immediate and serious. They are the key words in Section 12 of the Childcare Act, the law that sets out the test that must be met for gardaí to enter a home, without a warrant and by force if necessary, and remove a child to safety.
The law sets a high threshold, making it clear that the State regards taking a child into care as an extraordinary power, to be used sparingly.
It can only be done where a member of the force has “reasonable grounds” for believing that there is an “immediate and serious risk to the health or welfare of a child” and that it would not be sufficient for the protection of the child from that risk to await the making of an emergency care order by the HSE.
When that test has been met, the law outlines what should happen next.
First, the HSE is obliged to carry out an immediate assessment of the child’s circumstances. It then has two options: either return the child to the parents or guardian or make an application to the District Court for an emergency care order. That order expires after a week.
When it does, the HSE must seek an interim care order or, if it believes there is no longer a threat to the child’s safety, allow the order to lapse.
A court may grant an interim care or care orders if a child has been assaulted, ill-treated, neglected or sexually abused, or if the child’s health, development or welfare has been or is likely to be impaired or neglected.
The procedures emphasise that the rights of parents must be respected. As soon as a child has been taken into care under the emergency provision, the parents must be notified.
If the parents are unknown, every effort has to be made to find them.
Rules and procedures give shape to a system such as this, but ultimately the decision to take a child into care comes down to a judgment call by individual gardaí and health service officials. It’s a delicate balancing act, requiring them to weigh the constitutional rights of the family and the child and to make snap risk assessments in often complex and fluid situations.
Gardaí and health officials also act in the knowledge that, if their actions are later challenged, they must be able to demonstrate that the set of circumstances they faced offered compelling reasons to justify an exceptional response.