OPINION:THE NEW Child Care Act enacted in July clarifies and improves the procedures for taking children into special care, but its substantive provisions have not yet been instigated.
The Act gives the High Court statutory authority, which did not previously exist, to order children to be taken into special care and lays down stringent criteria to ensure the welfare of children is assessed as a prerequisite to admission to such a facility.
Over the last 20 years, the jurisprudence of the High Court guided protocol developments and the HSE became the applicant for the child’s placement in special care.
Special care is now defined in law as the provision of care to a child within a residential setting to address their behaviour and the risk that behaviour poses of harm to their life, health, safety, development or welfare.
It includes the provision of medical/psychiatric assessment, examination and treatment and educational supervision within the child’s broader care requirements.
There are limited special care placements in Ireland. It is sadly not uncommon for children to be lawfully placed outside the jurisdiction in some exceptional facilities in Scotland and elsewhere, where outcomes for the child exceed our own.
Research published in 2010 into the Tracing and Tracking of Children subject to a Special Care Application revealed that social workers felt only 54 per cent of special care placements in Ireland had made a positive impact on children, 21 per cent only had provided a place of safety, 18 per cent had a negative impact, with 7 per cent deeming the intervention too late.
The Irish special care system has struggled due to the absence of a child-centred strategy for the planning and delivery of integrated national care and special care services. This is not to say that young people have not benefited – some have derived a clear and sustained benefit after discharge. However, the published inspections of the independent inspectorate of Hiqa into the special care facilities and management of children have revealed ongoing concern.
Under the new Act, before making an application for special care, the Health Service Executive must make a determination of need, in consultation with child and parents.
Other safeguards exist, including reviews of the placement. The Act also ensures the welfare of the child through providing for the exigencies of a situation where a child needs special care immediately, but where the HSE has not yet completed its statutory consultations.
The Act requires that statutory regulations be developed for admission and discharge from special care, to deal with absconding and for the development of after-care services. Provision also exists for directions hearings on a question affecting the welfare of the child, similar to care proceedings.
These hearings provide a vital opportunity for parents and the guardian ad litem formally to bring matters to the attention of the court in addition to the minimum 28-day review.
The child has a right to consultation and a voice in care and special care proceedings.
A child of sufficient age and understanding may either be made a party to their case, instruct a solicitor and counsel where the court is satisfied that it is necessary in the interests of the child and in the interest of justice, or have a guardian appointed.
In Ireland, the preferred system for children and young people is the appointment of a guardian for a child in care and special care proceedings. They independently perform the dual mandate of promoting the best interests of the child concerned, while conveying the views of that child to the court, insofar as is practicable, having regard to the age and understanding of the child.
It is common for the guardian to make the court aware of a critical action or omission of the HSE affecting the child’s immediate welfare. The statute provides the guardian with unfettered discretion to appoint legal representation and the HSE shall only pay costs reasonably incurred by the guardian.
Notwithstanding the legislative provision providing for direct representation, it is rare to see a lawyer acting directly for a young person in Ireland. This is partly due to the absence of procedures guiding direct representation and the absence of training to support this specialist role.
In the UK, provision exists for the tandem model of joint representation by a guardian to represent the welfare of the child and solicitor to represent the rights and views of the child.
UK family proceedings rules underpin this joint model of representation, supported and guided by practice directions of the UK Law Society, with only members of the society’s children panel representing guardians and young people directly.
This raises the question of the need for a similar panel here, with accredited lawyers who would offer qualitative benefits for the young client and the guardian.
Notwithstanding some missed opportunities, this amending legislation is welcome and reflects the commitment of the new administration to address the failings of this State to children.
The proposal by the Minister for Children that child protection services are to be removed from the HSE and delivered from a specially designated Child and Family Support Agency promises a coherent child-centred and professional system of services.
We often hear of the 270 new social workers appointed. While this is a vital contribution, it is not a solution to the apparent rise in care proceedings.
Without joined-up thinking within a multidisciplinary framework, any intervention by social workers will be limited to the skills of that individual.
Rose Forrest is a barrister, mediator and forensic child psychologist.