A proper debate on the merits of taking children into care is long overdue

Opinion: Adversarial system associated with court setting is of questionable value

Sun, Nov 10, 2013, 00:01

The interim report on the Child Care Law Reporting Project provides a valuable opportunity for a real debate about taking children into care. For the first time, observers have attended childcare proceedings and published reports.

With her usual scrupulous integrity, Dr Carol Coulter, director of the project, has pointed out the limitations of the initiative, but it is groundbreaking, nonetheless. For example, it is clear that the two childcare cases that have generated most media attention in recent weeks could scarcely be less representative.

The taking of two Roma children into care, and the extraordinary story of the traumatised “teenager” who turned out to be a 25-year-old Australian woman, are not exactly routine cases in the life of the District Courts.

What emerges, even from the interim report, is a degree of mundane human misery and squalor that will rarely generate headlines, much less debate. Alcohol and drug addiction are to some extent predictable triggers for care orders, but it is striking how often parents with mental health difficulties or cognitive problems feature. Many care orders are granted due to neglect: “young children found in filthy circumstances, unresponsive and clearly delayed in their development.”

These are messy, complex and demanding cases with no easy answers, and I suspect most of us want to look the other way. Yet a society-wide debate about the parameters and boundaries around taking children into care is long overdue. When should the State intervene? When does the damage done to a child outweigh the value of being with his or her parents?

Children’s rights
As the report points out, there have been far too many cases that have made the headlines because “children’s rights to bodily integrity, to safety, and even to life itself, have been violated”. The Roscommon abuse case, and the tragic Monageer case are but two examples.

In each of those instances, there was a failure to act by social services. Yet in the Roma case, gardaí appeared to have acted far too rapidly. All public health nurses have records of children from the age of six weeks. Would a simple phone call to establish whether such records existed have made a visit from the Garda, much less DNA testing, redundant?

Inquiries into that case are ongoing. But how do you generate debate about the much more mundane, much more intractable cases that appear so regularly in our District Courts, that infringe rights in less dramatic but very serious ways?

The interim report describes a young child who allegedly had an intellectual disability. Within a year of being in foster care, that diagnosis disappeared. Neglect, and lack of stimulation were probably the problem, but would that diagnosis have become permanent if intervention had not happened?

Another question: should these cases be in the courts as currently constituted, at all? Our legal system is highly adversarial and stigmatising. Every time the HSE goes into court looking for a care order, it essentially has to prove that the parents are damaging their children. Yet most of the parents involved have had multiple disadvantages, including never having been properly parented themselves.

Disincentive
As Kieran McGrath, a highly experienced independent child welfare consultant has pointed out, if you are fearful that your children will be taken into care, it constitutes a huge disincentive to seeking help. He has given examples of other legal systems that are far less adversarial, and far less stigmatising.

For example, in the Netherlands, there are specialist courts with part-time judges, who are qualified not only in the law, but also in childcare and welfare. This would be anathema to our jealously guarded judicial independence, but perhaps it would be better for children?

In the Dutch system, it is quite common for parents, social workers and children not to have legal representation, because the judge works very hard to achieve consensus on what is best for the children.

Our system is “lawyered up” to an extreme and costly degree, especially in Dublin. It would not be unusual to have six different legal representatives in court, or even more. People are entitled to representation, but the more lawyers present, the more the focus is likely to be on disputes about the facts of the case, rather than on the best interests of the child.

McGrath has repeatedly called for a multidisciplinary conference of professionals and other stakeholders from which a non-adversarial pilot project might emerge, with the option of returning to court still remaining. Will this historic report improve the chances of that happening? Or will we go on looking the other way?

The other sad reality revealed by the Child Care Law Reporting Project is that, with adequate resources and expertise, many of these cases would never need to get as far as court. Providing intensive support for troubled families is expensive: providing special needs assistants to help their children stay in school costs money. But intervention is nowhere near as costly as the alternative: fearful, damaged children facing a lifetime of problems, including the likelihood of being unemployable and unable to create stable family units of their own.

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