Frances Fitzgerald (Dublin Mid West, Fine Gael)

When a young child is placed in care in a residential centre it is termed a "placement". Special care involves the detention on an exceptional basis of an unoffending child for his or her own welfare and protection in a special care unit with on-site educational and therapeutic support. It is very different to an ordinary placement. It is important this is understood from a legal point in the courts.

Thankfully, there are not that many children in such circumstances. The latest figures on 8 July show that 16 children are in special care orders. Several children, three in Scotland and one in the USA, have been placed abroad on the equivalent of special care orders, which shows it is hard to access these kind of care units in this country.

I understand the Deputies' concerns about the term. I have given much consideration to the legal advice on the use of the word "detention". The legislation must be clear that special care involves the detention of a child. Using another word could mislead and make the position uncertain in the courts and for the Health Service Executive, parents, guardians and the children themselves that special care does involve the detention of the child unlike other care services. The word "placement" does not reflect the child's situation.

The High Court makes the orders to provide special care for children which are called detention orders. In successive court judgments the term "detention" has been used. They have also been clear in their distinction between detention in a special care facility and detention under criminal statutes. Its use is not connected with any criminality on the part of the child. I accept Deputy Ó Caoláin's point about the implications of the term in common usage but it is exceptional for a child to be detained for his or her own care.

The Bill provides that the orders made by the High Court will be called special care orders. Nevertheless, the use of the word "detention" makes it clear that a child is detained under a special care order in a secure unit. There is no getting away from the fact that to provide this special care, the child requires to be detained. If this was not in place, the child could theoretically leave the care unit and would not be able to avail of the care he or she needs. From past experience we are aware that children can leave residential care and go missing.

Special care is only provided where it is in the best interests of a child and is used as a last resort when other forms of residential or community care are considered to be unsuitable in the circumstances. The Bill provides, however, that the duration of the order will be no longer than three months and that there will be a review every four weeks to ensure that a child is benefiting from being in special care. Regard is had to ensuring that a child will not be kept for unnecessarily long periods without a review taking place.

As already stated, special care is provided for children who require care to address behavioural issues, taking into account the risk of harm their behaviour poses to their life, health, safety, development, welfare and care requirements. Special care is provided for the most difficult care and welfare cases of children with the most severe social problems. The objective of special care is to provide a stabilising period of planned short-term care which will enable a child to return to less secure care as soon as possible or to return home. A special care order may be extended beyond three months on application to the High Court on two occasions only and to a maximum duration of nine months detention.

On the basis of the information I have provided, Deputies can see that special care is an extremely particular circumstance. Very few children are subject to special care orders. Where such orders are in place, they are subject to fairly rigorous review. I understand the concerns relating to this matter. However, I am strongly advised, from a legal perspective, that in the context of the courts, the Judiciary and the decision-making process relating thereto, it would cause extreme confusion if this term were not used in the Bill in this way.

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