Judge Conal Gibbonsof the District Court writes of the troubling childcare cases witnessed by the court.
Childcare law is a hidden world in the sense that, like private family law proceedings generally, public law childcare applications are heard in-camera. It is hidden in the sense that citizens are not aware of it, and its workings do not permeate the public consciousness as some of our other courts do.
Much media attention is focused on the terrible abuses that happened in the recent past in various residential homes, and on the awful sexual abuse of children. But little attention is paid to the trials and tribulations of families in crisis today.
The District Court has a huge responsibility. It has a power similar to a life sentence, in effect, because the consequences of our decisions have a lifelong impact on those whom we seek to protect and care for.
The figures garnered from the Courts Service with respect to care orders reflect the urban/rural dimension. I was surprised to learn that the court only deals with about 43 per cent of children placed in care. This means that children are being placed in care on a voluntary basis simpliciter or under Section 4 procedure with no court involvement.
It is troubling at times to consider the children who come before Court 20. I describe these children as being on the edge; they are on the edge of society, on the edge of their families, on the edge of the care system and often on the edge of their lives. It just takes one little push to put them over the precipice.
It is difficult to get Irish statistics, but according to figures for children in care in the UK, half of all children in care are failing to achieve a single qualification in school, with only six in 100 making it to university.
They are five times more likely to have a diagnosable mental illness and almost one-third will not have received their basic inoculations. Many children in care end up in prison or turning to drugs and prostitution, according to Baroness Morris of Bolton, quoted in Hansard, October 9th, 2006.
The most troubling cases are those where children are physically or sexually assaulted, those who suffer non-accidental injury, and the separated children who arrive here unaccompanied, destitute and often destined for a life of domestic slavery or worse, such as being absorbed into the sex industry.
We as judges have the ultimate responsibility. We are obliged to inquire about such matters and in particular to ensure that the children are being correctly cared for. It is appalling to hear of children who are supposed to be in care of the HSE availing of bed & breakfast accommodation or the out-of-hours emergency accommodation service despite the provisions of Section 5 of the Child Care Act, which could not be clearer with respect to the HSE's responsibility for homeless children.
Cases such as PS v EHB set out the position in clear terms. Geoghegan J, then of the High Court, made clear the position and obligation of the HSE in this regard where a child was staying in unfit accommodation.
I accept that social workers and the HSE do a difficult job, and that people in the caring professions do not become social workers in order to make money.
At times, though, there is little or no communication between the duty social workers and the assigned teams in different areas. You even get cases occasionally where a garda will have activated the Section 12 emergency procedures but, due to communication breakdowns, children at risk will have been returned to a parent in crisis without discussion or consultation between the social work teams, or the original garda who initiated the process.
It brings to mind a recommendation of the Laming Report (HMSO, 2003) into the case of Victoria Climbie [ the little girl who died in England after maltreatment by her guardians, despite the involvement of social services]: "Managers of duty teams must devise and operate a system which enables them immediately to establish how many children have been referred to their team, what action is required to be taken for each child, who is responsible for taking that action, and when that action must be completed."
A case as tragic as Victoria Climbie does not appear to have happened here as far as I am aware, but we have a system not unlike that in the UK where social workers are dealing with impossibly large caseloads in a climate of scarce resources and crisis management.
They have not the necessary technology and systems that any modern agency would require. Sometimes files are unfortunately shut for the wrong reason.
Too often children move from one care area to another without proper reference onwards or communication to those who should be responsible. At times, proper assessments of the children are not made and the different agencies and personnel do not have the means or systems to deal properly or appropriately with files in a systematic way.
Of course, in the majority of cases proper procedures work, but we have to ensure that they work in all cases that come before us.
The appalling circumstances or the terrible reality for many children worldwide has been well documented at every level, most recently at the International Association of Youth and Family Judges and Magistrates XVII World Congress in Belfast, held in September 2006, which set out some of the horrors that children face.
The congress delegates heard, among other issues, about human rights violations of children, of execution by death squads, torture, unfair detention, forced genital mutilation, slavery, trafficking in human organs, the murder and abuse of street children, forced marriage, and forced conscription. Is it any wonder that some children are washed up on our shore, alone, unaccompanied and separated? It is said that at any one time there are approximately 200 unaccompanied children in State care.
The legal framework used by the HSE for unaccompanied or separated children is usually that of Section 4 of the Child Care Act, 1991, which is a deemed voluntary care order in circumstances where parents are not contactable. Section 8 of the Refugee Act and Sections 3, 4 and 5 of the Child Care Act, 1991, are also utilised in these cases.
The National Children's Strategy commits the Government to treating unaccompanied children in accordance with international best practice.
The strategy includes a commitment to undertake research into the needs of refugee children and to provide an independent guardian ad litem to look after their best interests. The hostels that accommodate the children have posed difficulties in the past and often have appeared to have minimal levels of staffing, which is a likely contributor to the fact that some of these children go missing.
In any case that comes before Court 20 now with respect to these children, or any child who is being placed in a residential institution, I believe it is appropriate that the court should make the following minimal inquiries of the HSE to ensure that these institutions are proper places for these children:
Who owns the institution?
Is it owned by a limited liability company, unincorporated association, charity, a private provider, or the HSE?
Depending on details supplied - if a company or private agency - obtain confirmation that it is registered, compliant and up to date.
Get details of directors or persons in charge or accountable.
Obtain a copy of the most recent social services inspectorate report or HSE inspection report if it is not covered by the social services inspectorate.
Get details of staffing, and confirmation that they are appropriately qualified and numbers are sufficient, in accordance with best practice.
In view of young people going missing, I ask what controls and management systems are in place to deal with this risk.
Court 20 deals exclusively with childcare issues under the Child Care Act, 1991, as amended, and the District Court (Child Care) rules, 1995, on a daily basis. Its business consists of the following applications:
Emergency care orders (ECOs), returnable for eight days.
Interim care orders (ICOs), returnable for 28 days if not on consent; unlimited time if on consent.
Extension of interim care orders,returnable for 28 days if not on consent; unlimited time if on consent.
Matters for review if a care order is in place, (usually a day or half-day to hear).
Full care order hearing (anything between 1-30 days may be required).
For-mention matters, which are heard each morning.
Any emergency care ex parte application which the court may not be on notice of at the commencement of the court.
The number of cases heard daily ranges from five to 12 ICOs. From 11.30am to 4pm, we list the full hearings for care orders. Until recently the system was differently handled. Each Tuesday and Thursday, applications for ICOs, ECOs and supervision orders were heard from 2-4pm. This system became unwieldy and caused problems for the court and its users.
At times it was impossible to fit in the number of cases in the hours allocated, and judges often found that they were sitting until 5pm, 6pm or 7pm and even after. There was an obligation on the judge to read relevant reports, hear evidence and then submissions in many of the cases.
At many hearings, applications were consented to or they were uncontested.
If uncontested, the judge had to hear the evidence and read relevant material. The only difference between the uncontested and contested hearing in this context is that there is no cross-examination. These hearings deserve time and attention; more importantly the children and the parents are entitled to it.
ICO applications often determine how the case will proceed. The vast majority of cases that come before the court at interim care order stage end with care orders.
Thus it is crucial that they are given a proper listing and parents are given time to deal with the matters arising.
Unfortunately, at this crucial stage, most are not represented. This is simply because the civil legal aid system cannot react quickly enough to represent these clients and has a backlog of appointments. I do not have a statistical analysis to illustrate this point, but I believe it has a major impact on the quality of justice in the court.
It is important that I acknowledge the work of my colleagues who have created the system that has worked so well to date.
It would be invidious if I mentioned names, but I believe their work is well recognised, as indeed has been the work of judges in other courts, who have ploughed a furrow in the apparently barren soil of children's rights.
Judges of the District Court applied the provisions of the Child Care Act carefully, and when their decisions were challenged or appealed to the higher courts this resulted in a process of childcare law being reviewed, to the benefit of the development of the jurisprudence.
An example of this is the fundamental case of EHB v District Judge McDonnell.
Each day produces new issues and challenges but I believe that we in the District Court take our responsibilities seriously in this very important area of our work.
This article is an edited version of one in Family Law Matters, Vol 1, No 2, published yesterday. The article is based on a paper available from the Judicial Studies Institute, Phoenix House, Dublin 7. The full text of the article may be found under "publications" at www.courts.ie