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Childcare Update: New Legal Requirements for Provision of Special Care

08 June 2018

The Childcare Act 1991 has recently been updated and amended to include new provisions for children needing special care. Applications for special care are now brought under the new legislation. In addition, the Rules of the Superior Courts (Special Care of Children) 2018 have also been introduced.

The Act, as originally enacted, was silent on the question of special care orders. Since the late 1990s the High Court has regularly placed children in special care under the High Court’s inherent jurisdiction. With the insertion of a new Part IVA into the Act in January 2018, all applications are now brought under the Act.

What is special care?

Section 23C of the Act states that special care is the provision of care to a child which addresses: 

  • his or her behaviour and the risk of harm it poses to their life, health, safety, development or welfare
  • his or her care requirements

It includes medical and psychiatric assessment, examination and treatment, and educational provision. 

The Act also states that this category of care is provided “in a special care unit in which the child is detained and requires for its provision a special care order directing the Child and Family Agency to detain the child in a special care unit”. 

In simple terms, the Child and Family Agency, Tusla describes it as “…part of a continuum of State care available to children and young people. Young people referred to special care services are between 11 and 17 years, very vulnerable, sometimes very challenging, with complex psychological and sociological profiles, high numbers of previous placements which have frequently broken down.

The detention of a child in special care represents a significant infringement on their right to liberty. Accordingly, under the new legislation, an application for special care has to be based on the identification of a care provision that addresses the behaviour and risk of harm, care requirements, including medical and psychiatric assessment and treatment, and educational supervision.

If that care provision cannot be made available, there is a strong argument that Tusla is not providing special care within the meaning of the Act. There is an ongoing need to identify a therapeutic rationale for the proposed special care order. Our view is that the requirement for a therapeutic rationale is implicit in the new provisions, even if the term is not expressly used. In addition to the criteria that have to be met to succeed in an application for special care, an assessment is necessary to show that the requisite provision can be made in secure care and that it cannot be provided in the community.   

Legal requirements

Section 23F has introduced the following important new legal requirements:

  • Tusla shall not apply for a special care order unless it is satisfied that the child is at least 11 years of age and that it has made a determination that the young person requires special care. The determination is made following a recommendation from the special care committee who will have considered the application/referral for special care. The National Service Director for Residential Childcare Services has been delegated with the authority to make the formal determination that a child requires special care.
  • In advance of an application for special care there is a requirement for Tusla to conduct a consultation with the child and the person(s) who have custody of the child.
  • Tusla is required to convene a family welfare conference unless there are strong grounds that it would not be in the best interests of the child. 
  • At the beginning of any referral for special care, clarification needs to be sought from An Garda Síochána to confirm if there are any formal criminal charges pending against the child.

Tusla has prepared a document entitled “Interim Guidelines for Referrals to Special Care”. We would advise that all social workers familiarise themselves with the document in advance of a referral being made to the special care committee.

Conclusion

Every effort should be made to bring an application for a full special care order at the outset, covering a period of 3 months, and the social work department should follow the guidelines to ensure compliance with the new statutory provisions.

An application for an ex parte interim special care order, covering a period of 8 days, can be made where there is an immediate risk of harm to the young person’s life, health or safety, or if it is not in the child’s best interest to put his/her parent(s) on notice of the application. However, it should be noted that to obtain such an Order, strong evidence is required that the risk to the child overrides the rules in respect of service. Furthermore, there are very strict timelines to bring the application for a full special care order once an interim order is granted.

For more information on the new legal requirements, contact Conor Fottrell or Lebeau Jonker.


The content of this article is provided for information purposes only and does not constitute legal or other advice.

Discuss your childcare law queries now with Conor Fottrell.


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