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
However, the events of last week, and another recent case in which a newborn baby was taken from her mother by gardaí and then by the HSE under an emergency care order, have raised concerns that sometimes children are removed inappropriately from their families. The concerns arise in a situation where, until recently, there has been no transparency about the process involved in taking children into State care.
The 1991 Child Care Act provides for a child to be taken into care under a care order when (a) the child “has been or is being assaulted, ill-treated, neglected or sexually abused”; where (b) “the child’s health, development or welfare has been or is being avoidably impaired or neglected”; or (c) “where the child’s health, development or welfare is likely to be avoidably impaired or neglected”.
Section (a) is fairly clear. However, sections (b) and (c) are vaguer and open to various interpretations, and the Act does not contain any further definitions that might help.
This could give rise to inconsistency in the thresholds for taking children into care. The Act could potentially be interpreted differently by different areas of the HSE and indeed by different courts. What could appear to one social worker or one judge to be the likely “avoidable impairment” of health, development or welfare might, to another, be part of the rich and varied tapestry of life. There is a particular danger that marginalised and impoverished parents might be expected to provide standards of parenting they never experienced themselves and for which they do not possess the necessary material and educational resources.
The 31st (children’s) amendment to the Constitution, which has just survived a challenge in the High Court, contains a provision that intervention in families where children are at risk must be
“proportionate”. It is to be hoped that
this will lead to a greater focus on supports for vulnerable families to ensure that, where possible, children can remain in their families and not have their welfare “avoidably impaired”.
Meanwhile, the courts will continue to scrutinise the process whereby children are taken into care. It is very important that they receive the resources to give proper consideration to all these cases, and that the Legal Aid Board, which represents the vast majority of the
parents in these cases, also receives
the resources it needs to do so.
The CCLRP will continue to publish reports on these cases on its website, and people can make up their own minds about the thresholds applied in care proceedings and whether they are consistently applied.
Carol Coulter is director of the Child
Care Law Reporting Project. Its interim report, analysing the cases attended during its first nine months, will be published on November 5th. Its website