Aspects of child care in the district court

AuthorConal M. Gibbons
PositionJudge of the District Court
2007] Child Care in the District Court
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
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
* 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
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:
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
1. Statistical Information
2. Children on the edge
3. Giving children a voice
4. Case review procedure
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
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.

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