District Court decisions in child care cases
The Child Care Act 1991 confers upon the District Court jurisdiction to hear applications by the Health Service Executive to place children into care or to issue an order of supervision.
In cases under the Child Care Act 1991, the applicant is the HSE and the respondent(s) is/are (usually) the child’s parents. Under the 1991 Act, the HSE has a statutory duty to promote the welfare of children who are not receiving adequate care and protection. When carrying out its statutory duty, the HSE must have regard to the following:
- that, having regard to the rights and duties of the parents under the Irish Constitution and EU/international law, the welfare of the child is the first and paramount consideration;
- that it is generally in the best interests of the child to be brought up in his/her own family; and
- that, as far as is practicable, the wishes of the child themselves should be considered.
In seeking to protect the welfare of the child, and in the absence of parental agreement, the HSE may apply to the District Court for the following orders:
- emergency care orders placing a child in the care of the HSE for a period of up to eight days;
- interim care orders placing a child in the care of the HSE for a period of up to 29 days (or longer with consent of the parties);
- care orders (often called "full care orders") for any period up to a maximum of the child’s 18th birthday;
- supervision orders for a maximum period of one year (but may be renewed after expiration);
- court directions regarding any question affecting the welfare of a child in care; and
- orders under the Mental Health Acts that affect children.
The reasons why the HSE may bring the above types of care or supervision applications vary. If a child is in need of care and protection, and if the child is unlikely to receive that care and attention in their home, then the HSE must apply to Court for an order permitting them to take the child into care. This may happen for example, in the case of an orphan or an abandoned child. In other cases, where parent(s) are unable to cope due to illness or other problems, they may agree to their children being taken into the care of the HSE. This is known as voluntary care. The HSE may, in other situations, determine that the risk posed to the child is serious but not serious enough to remove the child from home. In such cases, a supervision order may be a more proportionate response. This involves the child being visited and monitored in their own home by the HSE.
As noted above, the child’s separate interests in the proceedings must be considered by the Court. In this regard, the Court can appoint a Guardian ad litem ("GAL") to bring the child’s views to the Court. That GAL is an experienced social worker or psychologist and is independent of both the HSE and the parent(s). In addition to bringing the child’s views to the Court, the GAL can also give their own independent view to the Court as to what they think is in the child’s best interests. Sometimes, the Court may join the child as a party to the proceedings and grant the mature child their own separate legal representation rather than appointing a GAL to represent their views and welfare interests.
All parties in child care proceedings (and the GAL) may be legally represented, unless a party wishes to exercise their right to self-representation. The HSE must prove the case on the balance of probabilities. It is important to bear in mind, however, that child care proceedings are inquisitorial in nature, rather than purely adversarial. The decision of the District Court in these cases can be appealed in the Circuit Court.
Crucially, child care cases are held in camera; none of the parties or witnesses involved may disclose any details or speak about the case to anyone who is not involved. In line with the in camera nature of these cases, the decisions reported on www.courts.ie are fully anonymised.