Courts must be supported in overseeing child protection
The removal of children from a family is a draconian step, so the monitoring process must receive adequate resources
If Garda evidence is found wanting, courts can refuse to make an emergency care order.
The power of the State to remove children from their families is a draconian one, impinging on the constitutional rights of the family and on the welfare and psychological wellbeing of its members. No one would argue it should be used other than very sparingly and only when absolutely necessary to protect the welfare of the children.
That power is, rightly, controlled by the courts. However, as we saw last week, in exceptional circumstances gardaí can remove children from their families if they consider them to be at “immediate and serious risk” and if they consider action cannot wait for the Health Service Executive to seek an emergency care order.
Nonetheless, such action by gardaí must be followed very quickly by an application by the HSE for an emergency care order, which is valid for eight days before the child must be returned to his or her family or taken into care under an interim care order, which is valid for 29 days.
The inquiries into last week’s events will focus on the evidence the Garda had for the children being “at immediate and serious risk” and what consideration it gave to alternatives to taking the children from their families. Under both Irish law and the case law of the European Court of Human Rights, removing children from their families must be the measure of last resort, deployed only after all alternatives have been considered.
One question arising from last week’s events was why, even if the Garda felt
it necessary to take the children in order
to have tests carried out, a parent could not have remained with them. This
would have facilitated any necessary
tests and would have avoided traumatising the children.
However, much of the discussion has lost sight of the fact that, in any case, if the children were not returned to their families the evidence of the Garda was going to be tested in court. If the evidence was found wanting, the court could refuse to make an emergency care order.
Care orders refused
The Child Care Law Reporting Project (CCLRP), whose third volume of reports of childcare cases was, coincidentally, published last week, has reported cases in which emergency care orders have been refused by the district court.
In a recent case that also involved DNA evidence, the judge refused to make the order that was sought by the HSE, on the basis that a child was found not to be the daughter of an asylum seeker, as claimed, but was related to him. There was no evidence that the child was at risk, and the evidence was that she had been reared in the family with the man’s other children.
According to the Courts Service statistics for 2012, 519 emergency care orders were sought last year, of which 85 were refused. This means 434 were granted, but in many of the cases attended by the project the reasons for seeking an emergency care order were fairly compelling. They included a case in which three very young children were found alone, dirty, wet and hungry in an unlit and unheated flat; and another in which gardaí found a baby strapped in a buggy in an alleyway
on a hot evening in summer, in the company of her mother and a number of other people who were smoking heroin.