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
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.
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.