Aspects of child care in the district court

• Author: Conal M. Gibbons
• Position: Judge of the District Court
• Pages: 169-196

2007] Child Care in the District Court

169

ASPECTS OF CHILD CARE IN

THE DISTRICT COURT

JUDGE CONAL M. GIBBONS*

INTRODUCTION

Childcare law is a hidden world in the sense that, like

private family law proceedings generally, public law child care

applications are also heard in camera. It is hidden in the sense

that citizens are not aware of it. Its workings do not permeate the

public consciousness as some of our other courts do. Much media

attention is focussed on the terrible abuses that happened in the

recent past in the 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. With the arrival of the

new Court Reporting System1 some changes are now occurring.

However, I feel that this issue of secrecy is one that will emerge

again.

According to Professor Powell, of the Department of

Applied Social Studies, UCC, Cork, in a letter to the Irish Times,

the powers of social workers came about because of rampant

child abuse in the late 19th century. Court provision and child

protection followed the successful Mary Ellen case in New York

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* Judge of the District Court. Text of address delivered at the Judicial Studies

Institute National Courts Conference, 17 November 2006. A short excerpt of

this paper appeared in Vol. 1 No.2 of Family Law Matters (Summer 2007). I

wish to acknowledge the assistance of The President of the District Court, Her

Honour Judge Miriam Malone, The Hon. Mr. Justice John McMenamin of the

High Court, Judge Oliver McGuinness, Judge Hamill, Judge Catherine Murphy

and Judge David Riordan of the District Court, Dolores Moore, President’s

Office, District Court, Anne Marie Melia, Madeline Moore, Mary I. Crowley

and Richard Kelly of the Courts Service, Jane O’Grady, Senior Judicial

Researcher in the Judicial Research Office, Elisha D’Arcy and Catriona

Gilheany of the Judicial Studies Institute, Aidan Browne, Seamus Mannion and

John Smith of the Health Service Executive. Thanks are also due to Catherine

Ghent, Solicitor, Freda McKittrick, Barnardos Beacon Guardian ad Litem

service, Mr Pol O’Murchu, Solicitor, and Mr Brian Horkan, Solicitor, BCM

Hanby Wallace.

1 S.40 Civil Liability Act 2004.

Judicial Studies Institute Journal [2007:2

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in 1875, when an abused child was brought to the courts under

animal welfare legislation as there were no child protection laws

in force then. He said that a vigorous child-protection movement

emerged, including organisations such as Barnardos, the ISPCC

(then NSPCC) and many others, which sought to uphold

children’s rights and insist they be treated as citizens with a right

to care and protection by the State.

The modern era of childcare in Ireland dawned quite

recently with passage of the 1991 Child Care Act. This Act

replaced the Act of 1908, which had provided, as Geoffrey

Shannon observed, “a legal framework that was best described as

‘skeletal’”.2 Under the 1991 Act the promotion of the welfare of a

child, defined as any person under 18 years of age, became the

focus of the courts. The concept of welfare, according to the

judgment of Kennedy C.J. in the case State (Kavanagh) v.

Sullivan,3 is to be taken in its widest sense rather than the narrow

confines of physical comfort.

The District Court, in dealing with matters that affect

children, bears a weighty responsibility. It has a power that is

similar to a life sentence in effect, because the consequences of

our decisions have lifelong impact on those whom we seek to

protect and care for. This is of course a complex area, one where,

as some decisions have shown, the courts have difficulty at times

in avoiding the various legal and constitutional minefields that

exist.4 The family law advocate Catherine Ghent has said that

litigation under Article 42.5 of the Constitution falls into two

distinct categories; namely, litigation in which parents and the

State are at odds in terms of how best to protect the child’s

interest and litigation taken where children allege the State has

failed in its duty to provide adequately for them.5 The work of the

District Court generally falls into the first category.

The main aspects I will deal with are:

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2 Shannon, Child Law (Thomson Round Hall, 2005).

3 [1933] I.R. 618 at 630. See also Shannon, Child Law (Thomson Round Hall,

2005) p. 111.

4 T.D. v. Minister for Education & Ors. [2000] 2 I.L.R.M (S.C.).

5 Ghent, “Young People and the Courts”, lecture delivered at the conference

‘Working with Young People who will Not Engage’, organised by the Special

Residential Services Board (SRSB), 14 November 2006.

2007] Child Care in the District Court

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1. Statistical Information

2. Children on the edge

3. Giving children a voice

4. Case review procedure

I. STATISTICAL INFORMATION

The number of children in care in the Irish republic,

according to Health Service Executive (hereinafter “HSE”)

figures revealed in a recent report in the Irish Times, is currently

over 5,000.6 It stated that there was a greater likelihood of

children going into care in the east than the west of Ireland –

twice as likely, in the case of children in the Greater Dublin area

compared to the west. Ironically, they found that the west had

higher investment in family support services than the east. In

1989, there were 2,700 children in care compared to the current

figures. It is not my intention to extrapolate from these statistics,

suffice to say they give a useful impression of the dimension of

the problem. I contacted the HSE seeking information and Mr

John Smith, from the Chief Executive’s office kindly obliged me

in this regard.

The figures garnered from the Courts Service with respect

to care orders reflect the urban/rural dimension shown in the HSE

figures. I was surprised to learn that the court only deals with

about 43% of children placed in care. This means that children

are being placed in care on a voluntary basis simpliciter or under

the section 4 procedure,7 without any court involvement at all.

Unfortunately, some confusion surrounds the accuracy of certain

statistics provided to me by the Courts Service, but this may be

due to the fact that they were given little time to formulate the

figures. My own cursory research indicates, or at least it is my

hunch, that there were more applications in 2005 than that

disclosed.

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6 See “Number of children in care doubles since 1989”, Carol O’Brien, p.1, the

Irish Times, 16th August 2006.

7 S.4 Child Care Act 1991.