Courts must be supported in overseeing child protection

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.

Concerns
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.

Proportionate intervention
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
is childlawproject.ie