The Child Care Act 1991 and at Risk Children

“Critically assess the efficacy of the Child Care Act, 1991 with regard to the protection of children at risk in terms of the protection of, and alternative care of, children at risk.”   Introduction: The Childcare Act, 1991 is the principal law in Ireland in relation to the protection of children at risk and it sets out the guidelines on how to protect children who are at risk. The most important principal of the Child Care Act, 1991, is to be the provider of care and protection of those under eighteen years of age who are at risk. There is a mandatory duty placed on the HSE and now the Child and Family Agency, TUSLA, to uphold the welfare of those who are not receiving sufficient care and protection (Nestor, 2011). The Childcare Act 1991, is there to reinforce the powers of the Child and Family Agency to deliver family support services and childcare where needed. It permits the immediate involvement of The Child and Family agency and An Garda SA­ochana where children are at risk.

The Childcare Act 1991, also allows the courts to place children in the care of or under the supervision of The Child and Family Agency in cases where children have been abused and in cases where children are at risk. It also provides provisions for the announcement and inspection of pre-school services and revises the arrangements for registration and inspection within residential care units (Barnardos, 2010). This essay will look at how efficient the Child Care Act, 1991 is, when it comes to the protection of children who are at risk. I will assess this efficacy in terms of the protection of and the alternative care of, children who are at risk. I will firstly outline who the Child Care Act defines as a child and how the act defines the terms of “at risk” and “protection of children”. The Child Care Act, 1991 Under the Child Care Act, 1991, a child is defined as being anyone who is under the age of eighteen and who is not married. The act makes some provisions for the child protection and welfare concerns of unborn children, which may have to be deliberated during pregnancy (TUSLA, 2015). The expression “at risk” is commonly used to depict children and youth and it contains a powerful intuitive meaning (Moore, 2006). Under the Child Care act, those “at risk” are children and young people who are most likely to be neglected, ill-treated or face the possibility of homelessness (Child Care Act, 1991). According to section 3(1) of the Child Care Act, the purpose of health boards is to advocate for the welfare of children in its area, in particular, those children who are not getting the acceptable care and protection that they are entitled to (The Child Care Act, 1991). The child is protected under the Child Care Act 1991 and there is a legal obligation on health boards to safeguard those who are at risk. The Child Care Act 1991 sets out the responsibility of the Child and Family agency to provide alternative care to children who are at risk. Homelessness is a huge factor which can put children at risk. Under section 5 of The Child Care Act, 1991 there is an obligation imposed on the Child and Family agency to supply appropriate accommodation for homeless children.

Where it emerges that a child is homeless it is up to the child and family agency to “take such steps as are reasonable to make available suitable accommodation” for the child (The Child Care Act, Section 5 1991). Section 5 of the childcare act is highly effective in protecting children from the risk of homelessness as the Child and Family Agency have a responsibility to ensure the welfare of a child in the case of homelessness and failure to do so can leave them liable (Nestor, 2007). However under section 45 of the child care act, it affirms that the state “may” provide aftercare when a child leaves the care of the state but that the State is not obliged to provide after care for children leaving care. Once a child reaches the age of 18, the state no longer sees this young person as a child, but does turning 18 today turn a child immediately into an adult, is a child that much more mature and able to care for his or her own self in the space of a day? Children who are still in the care of the state by the time they reach the age of 18 are much more vulnerable than those who have lived a normal life, in a stable home, by not making it essential for the state to provide aftercare for these young people leaving care, it is putting already vulnerable adolescents at even more risk and it is putting them at a high risk of becoming homeless if they have nowhere else to go. Provision needs to be made for the mandatory aftercare of children leaving care to protect them from the risks they face upon leaving care.

Section 12 of The Child Care Act 1991, is incredibly important when it comes to children who are at risk. This particular segment provides the GardaA­ with elite powers to enable them to bring a child or children who are at risk to safety. Section 12 allows the GardaA­ to enter a house or property without a warrant if they have rational grounds to deem a child to be at risk or in danger, they may “remove a child to safety where the Garda has reasonable cause to believe that the child has been or is being assaulted, ill-treated, neglected or sexually abused” (The Child Care Act, 1991). The District court also has the power, under section 13 of the Act, to make an emergency care order in cases where the judge considers that a child may be at risk.

Section 13 states that if “There is an immediate and serious risk to the health and welfare of a child which necessitates his being placed in the care of a health board, or (b) there is likely to be such a risk if the child is removed from the place where he is for the time being” (The Child Care Act, 1991) then the judge can make an emergency care order to have the child removed from the place immediately. Sections 18 and 19 of The Child Care Act, 1991, are strongly connected to each other. These sections allow the courts to grant a care order or a supervision order if they have reasons to believe that there is a child at risk. If the courts believe that a child is being “ill-treated… neglected… sexually abused” or the child’s welfare is being compromised or neglected, then the child can be put into the care of the state (The Child Care Act, 1991). Section 20 of the Child Care Act, 1991, allows the court to ask the Child and Family agency to carry out an enquiry into a child’s situation and report back to the court where they feel that there is a possibility of a child being at-risk. The report sets out whether or not the Child and Family agency is making any applications in reverence of the child and if they are, their reasons for doing so, it sets out any service it had provided for the child or the family or if it intends to provide such service and finally it sets out any other action that the Child and Family Agency have taken or intends to take (TUSLA, 2015). Efficacy of the Child Care Act, 1991: The purpose of the Child Care Act, 1991 is to “update the law in relation to the care of children who have been assaulted, ill-treated, neglected or sexually abused, or who are at risk”(DCYA, 2011). While The Child Care Act 1991 has good intentions to fulfil this purpose, there are times when it has failed to do so. The childcare Act 1991 has not always been as effective as it should and could have been. There have been many inquiries into child abuse in family settings where the State has failed to use the act effectively to identify and respond successfully to keep children who are at-risk safe from abuse.

Two of the main inquiries are the Kilkenny Incest Investigation and the Roscommon Child Abuse Inquiry (and Kilkelly, 2012). The first major failure of the state was the Kilkenny Incest Investigation. This investigation examined the conditions surrounding the sustained abuse, both physical and sexual, by a father of his daughter for over 13 years.

The family were known to many child protection professionals and yet the abuse continued. It was from this investigation that the importance of effective resourcing of the child care act 1991 can into light and that alarmed the need for improvement in both the constitution and the laws around reporting child abuse (Kilkelly, 2012). The Children involved in the Roscommon Child Abuse Inquiry, like the Kilkenny case were known to the HSE and the courts, however the HSE failed to remove the children who were at risk from the care of their abusive parents for a number of years. These children were highly at-risk and were being abused and neglected by their parents but the state failed in their duty to protect them. However, although the state failed in their duty at this time, a recommendation was made that “the government was committed to holding a referendum on inserting children’s rights into the Irish constitution and to legislative change to ensure that the voice of the child is heard when courts are considering matters that affect them” (Gibbons, 2010) it was after this report that the Children’s Referendum was held. From these reports three main issues emerged as to how the childcare act 1991 could be improved.

These were for mandatory reporting to be introduced, and from this recommendation Meithal was founded (a National Practice Model which ensures that children’s needs and strengths are effectively identified and understood and are responded to in a timely way in order for children and their families to get the help and the support that they need by immediate reporting of suspected abuse or where it seems a child is at risk or could be at risk in the future), robust systems to inspect and monitor the care of children and undertaking constitutional reform. The Child Care Act, 1991, is working to meet these recommendations and working to fulfil its purpose to protect children who are at risk. The law is constantly being updated to fulfil this purpose, the proposed article 42a, the new child and family relationship bill and the children’s referendum are all proofs of this, but work still needs to be done to perfect this act. Section 169 of the new Child and Family Relationships bill amends section 20 of the Child Care Act 1991. The amendment allows the powers of the court to be extended to adjourn proceedings under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Before this amendment proceedings under the child care act 1991 did not involve any dependent child of civil partners (TUSLA, 2015). The amendment to section 20 does not bestow any new function on the court but is intends to operate as an obvious signposting to judges and legal representatives of the powers which are already available to it under the Child Care Act 1991 (Family Law Ireland, 2015). Under the Child Care Act, 1991, children’s rights were ignored. Children had no right to protection from harm or to have their voices heard, their best interests were paramount but with respect to the rights of their parents (Kilkelly, 2012). The Children’s referendum was brought in to try and change this and to allow the voice of the child to be heard and to have a right to be heard under article 42A. Under article 42A “The state recognises and affirms the natural and impresciptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights” (TUSLA, 2015). In order for The Child Care Act 1991 to be fully effective changes need to be made ensure protection for all children in all situations are catered for.

Under the aftercare section where it states that the “state may provide aftercare for children leaving care” (The Child Care Act, 1991) needs to be changed to ensure that all children receive this care, it should be an entitlement to children as it is putting more children at risk as they enter their adulthood. Conclusion: The Child Care Act, 1991, emphasises the importance of the protection of children in Ireland, it places a legal responsibility on the HSE and the Child and Family Agency to promote the wellbeing of children in Ireland who are not receiving ample protection and care (Barnardos, 2010) and yet The Child Care Act 1991 is not satisfying its promise as a child protection structure. The Child Care Act 1991 is not being as effective as it could be. Assessments are key to positive outcomes in child protection and the recommendations which come out of these assessments are vital to be followed through. Failure to comply with these recommendations is putting children in Ireland at risk as these are the paramount opportunities for early preventions of harm. The Child Care Act 1991 has proved to be fundamental for children who are at risk, however, it must be able to adjust and improve with the times, and it is vital that it learns from the mistakes that were made in the past.

Even with the proposal of article 42A, children are still very much without a voice and vulnerable, more has to be done to give a voice to children in child protection cases. The Child Care Act 1991 has the potential to prevent risk to children, but it must be built on and fully implemented to be as effective as possible. Bibliography Barnardos. (2010). Information Pack Child Protection. Retrieved March 19, 2015, from Barnardos: https://www.barnardos.ie/assets/files/information-pack/Child-Protection-Pack 2010.pdf DCYA. (2011). Children First. Dublin: Department of Children and Youth Affairs. Family Law Ireland. (2015). Children and Family Relationships Bill,2015-the Guardianship, Custody and Access Changes.

Retrieved Arpil 2, 2015, from Family Law Ireland: https://familylawirelandhq.com/children-and-family-relationships-bill2015-the-guardianship-custody-and-access-changes/ Gibbons, N. (2010). Roscommon Child Care Case Report of the Inquiry Team to the Health Service Executive. Dublin: The Stationery Office.

Kilkelly, U. (2007). Barriers to the Realisation of Children’s Rights in Ireland. Cork: Ombudsman for Children. Kilkelly, U. (2012). Learning Lessons from the Past: Legal Issues. Irish Journal of Applied Social Studies , 12 (1), Article 2. Moore, K. A. (2006, October). Child Trends.

Retrieved March 24, 2015, from Defining the Term “At Risk”: https://www.childtrends.org/wp-content/uploads/2006/01/DefiningAtRisk1.pdf Nestor, J. (2011). An Introduction to Irish Family Law (4 ed.). Dublin: Gill & Macmillan. The Child Care Act. (1991). The Child Care Act, 1991. Retrieved March 18, 2015, from The Irish Statue Book: https://www.irishstatutebook.ie/1991/en/act/pub/0017/ TUSLA. (2015). Child Protection and Welfare. Retrieved March 19, 2015, from TUSLA: https://www.tusla.ie/services/child-protection-welfare  

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