Introduction

The decision to place a child in state care, requires a high degree of interagency co-operation from a range of professionals. Where such a placement is urgent or unplanned, additional measures must be taken to ensure fair process to the parents and safety for the child.

The removal of a child from their family is seen as a measure of last resort and one, which should only be carried out once all other options have been explored. This is supported by Article 42 A of the Irish Constitution, which outlines the individual rights of a child as being separate and distinct to their parents.

Article 42A also provides for the limited circumstances in which the state should intervene in family life. “In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child”.

The key word in the constitution is “proportionate” and is one which is relevant for all professionals working with children as it requires the least invasive measure of state intervention in order to mitigate risk to a child.

What is the threshold for emergency removal of children?

Under Section 12 of the Child Care Act 1991, the Gardaí can remove a child from a family home or public place where they are of the view that there is an immediate and serious risk to the child’s health and safety. As example of this would be where Gardaí attend a domestic dispute and observe a physical injury to a child. A court order is not required in order to remove the child but if a decision is made for the child to remain in care, TUSLA must make an application to the District Court within 72 hours or at the next court sitting for an emergency care order under Section 13 of the Child Care Act 1991. The garda who removed the child is required to attend court as well as any other professional who may have assessed the child since their admission to care, such as a medical team in hospital. For example, a medical report in respect of the child’s injuries would be required together with any explanation offered by the parents.

TUSLA can also make their own application for an emergency care order even where the Gardaí have not removed a child if it is their assessment that there is an immediate and serious risk to the child. An emergency care order can last for up to 8 days and if the child is to remain in care, an application for an Interim Care Order under Section 17 of the Child Care Act 1991 can be made at the expiry of the Emergency Care Order.

There is also provision under the Child Care Act 1991 to apply under Section 23 for emergency care where a child required special care and protection. These are High Court applications and usually arise for older children whose behaviour is such that it poses a real and substantial risk to ther health, safety, development or welfare and they require additional protection of a specialised residential unit.

What are the key parental rights to be considered in child removal?

The main parental rights, which arise in a child protection context, can be examined through the framework of The Child Care Act 1991, the Irish Constitution and International Conventions, including the European Convention on Human Rights.

• Right to fair process – In practice, this means that parents must be afforded an opportunity to access legal representation and engage in the decision making process for their child. This may include attendance at a case conference or emergency meeting.

• Right to privacy and family life – this is commonly referred to in Irish cases where parents claim that state intervention has impacted these rights. This is particularly relevant in cases of emergency removals of infants.

• Right not be discriminated against by state organisations - which recognises equal status of families irrespective of marital status / gender / family type.

What can your organisation do to ensure you are respectful of parental rights?

• In emergency proceedings, parents are entitled to receive details of allegations against them, which may include medical reports and minutes of meetings. Certain exceptions may apply if sharing such information may place the child at further risk.

• Parents to be invited to case conferences, pre-birth planning meetings. If a parent requests legal representative to be present, this should be considered or an alternative support person accommodated for the parent.

• Consider if the parent has particular learning difficulty or mental health issues, which may impact on their capacity to engage fully around plans for the child. Additional supports should be put in place.

• Parents will be entitled to see the report for court. As a matter of practice, nothing in the report should be a surprise to the parents and you should ensure you meet with them to give them the information before it is shared with the court, unless there are specific reasons not to do so.

Special consideration for removal of infants

• In the case of the removal of an infant shortly after birth, additional protection must be afforded to the parents of the child, particularly the mother.

• The case of SOTA v TUSLA, November 2018 – parents of newborn child removed from maternity hospital brought Judicial review proceedings against TUSLA stating their actions to remove their child from her mother shortly after birth was disproportionate and contrary to the parents right to fair process under Article 8 of the European Convention on Human Rights.

• The case highlighted the need for interagency co-operation to keep the infant with her mother for as long as possible to allow for bonding in the early days. The judge was of the view that TUSLA should not have treated the case as an emergency as they knew of the impending birth and less intrusive measures should have been explored. This has had significant impact on practice, which supports overall requirements for TUSLA to consider alternatives such as safety plans and family support before making an application for an infant to be placed in foster care. More details of the case can be found here.

Conclusion

Over the last 5 years, there has been an increased focus on both parental and children’s rights in child protection. If parents do not agree with the decision or actions of a state agency, it is open to them to bring Judicial Review or other proceedings to the High Court. They can also of course make complaints to individual organisations,

To ensure you are compliant with the current framework of rights for parents in urgent child protection cases, you should;

1. Ensure your organisation has provided training to those working directly with children in respect of the legal framework for child protection in Ireland. This should include practical explanation of the requirement for state organisations to make every effort to maintain a child with their family, unless there is an immediate and serious risk to the child.

2. Ensure that decision making for emergency removal is carefully documented and communicated to the child’s family. Be prepared to present your report in court with focus on your professional opinion on the risk posed to the child. For example, in a case of suspected non- accidental injury to include what risk would be present if a child was released to parental care at this time.

To discuss your related Child Care Law queries, contact a member of our Health & Prosecutions team.

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