Bobby Aylward (Carlow-Kilkenny, Fianna Fail)

I thank my colleague for sharing time with me. I am happy to speak in support of the Bill before the House today. I compliment the Minister of State on bringing this socially enlightened Bill before the Oireachtas. The proposed legislation is timely and I believe it represents a sensitive, fair and proper balance in reconciling the personal rights and liberties of a vulnerable child while also having due regard to the need for a third party to protect and uphold those rights in instances where it is necessary to have positive State intervention to promote the essential integrity and welfare of the child who may be at risk.

The Bill sets out a practical statutory framework and an exhaustive procedure to be adopted. It permits the HSE to apply to the High Court for special care orders to detain children who are in need of special care services. This type of detention is sought only as a last resort and where other forms of residential or community care are regarded as unsuitable or ineffective. The objective of such a drastic but necessary measure is to provide a supportive and stabilising period for a child. During that period, the child and his or her family receive the constructive support of a range of professional services from social care workers, psychologists, social workers and teachers. Each child has a specially devised care plan which is developed to meet individual needs and difficulties, and the application of this tailored plan is monitored and supervised by the HSE.

The Child Care Act 1991 was amended by the Children Act of 2001 and that legislation allowed for applications for special care orders to be heard before the District Court. At present, under its constitutional power of inherent jurisdiction, the High Court hears applications for children to be detained so that special care can be afforded to them by the Health Service Executive.

By definition, special care necessitates the civil detention of a child and that detention is secured in the best interests of the child's welfare, which is always the paramount consideration. The detention involves protection in a special care unit where suitable educational supervision and the necessary therapeutic supports are put in place for the child. This is conducted in a safe and secure environment which is conducive to the child's rehabilitation and adjustment. The objective of special care is to provide a period of structured and planned care to enable and equip that child to return to less secure care as soon as possible, or, if appropriate, to return to the family home. Under a special care order, the HSE effectively acts in loco parentis. It assumes full responsibility for the child as if it were a parent of the child and it is required to promote and protect the child's health, development and overall welfare.

The Child Care (Amendment) Bill 2009 will give legislative force to the High Court powers in respect of applications for child care orders. It will have original statutory jurisdiction to hear applications by the HSE for special care orders or interim special care orders and other related matters in respect of children where their welfare and well-being may require their detention in a special care unit. The Bill also provides that special care units will be rigorously inspected within the scope of the Health Act 2007. The Bill also proposes to dissolve the Children Acts Advisory Board which I support and which is fully consistent with stated Government policy on the imperative to achieve efficiencies and to rationalise Stage agencies.

The Bill is comprehensive and sets out in some detail the exact legal procedures to be observed throughout this delicate process from considering the child for special care, the application for the order, the hearing of the case, the granting of the order, the care of the child under the order, right through to the ultimate discharge of the order. In assessing objectively whether a child requires special care, the HSE must be absolutely satisfied that the behaviour of the child poses a real and substantial risk to his or her life, health, safety, development or welfare. The Bill then allows the HSE to apply to the High Court for a special care order for a child who is aged between 11 and 17 years.

The Bill also provides for various circumstances where the child is, or has been, the subject of criminal proceedings and it includes precise provisions whereby the HSE may apply for a special care order or may continue to provide special care where a child has been charged with an offence. The HSE may also apply for a special care order for a child who has been found guilty or has been convicted of a criminal offence and where, following that conviction, a custodial sentence was imposed and that sentence has been served.

The HSE may also apply for a special care order, or may continue to provide special care, where: a suspended custodial sentence has been imposed on a child; the making of a children detention order has been deferred or has been suspended; or a Children Act order has been made in respect of a child. The HSE shall not, however, apply for a special care order, or where a special care order is in place it shall apply to the High Court to discharge it, where a child is remanded in custody or where a custodial sentence is imposed on a child. The HSE is obliged to make arrangements to allow the child, who is the subject of a special care order, to meet any person for the purpose of his or her legal representation, and for the child's attendance in court on any criminal charge.

In any proceedings provided for under this Bill, the High Court is required to have cognisance of the rights and duties of parents, whether under the Constitution or otherwise, and to regard the welfare of the child as the primary and paramount consideration and, in so far as is practicable, to give consideration, in light of the child's age and understanding, to the express wishes of the child. The High Court may order that the child be joined as a party to the proceedings and may make an order appointing appropriate legal representation for the child. The Bill also provides that, where the child is not a party to the proceedings, the High Court may, where it is satisfied that it is necessary in the child's interest, appoint a guardian ad litem for the child and the High Court has discretion to appoint legal representation for the guardian ad litem.

Where a special care order has effect, the Bill provides that the HSE shall have the like control over the child as if the HSE were a parent of that child and may do what is reasonable to promote and protect the child's health, development and welfare, and has the authority to decide on the nature of the special care to be provided to the child. The HSE is also vested with the authority to give consent to any medical or psychiatric examination, treatment or assessment which the child may need. The HSE is also given the authority to give consent to the application for, and the issuing of, a passport for the child.

A special care order will cease to have effect when a child reaches the age of 18 years. A special care order may be of up to three months duration and the High Court may grant, on an application by the HSE, up to two extensions and each may be up to a maximum of three months duration. Accordingly, the maximum duration of a special care order will nine months in total. The High Court will continue to have an ongoing supervisory role and will undertake a review, in each four-week period for which the special care order has effect to consider whether the child continues to require special care to adequately address his or her conduct or behaviour, the risk of harm to his or her life, health, safety, development or welfare which may be posed by that behaviour, and individual care requirements for the child will be appraised.

The HSE may apply to the High Court for an interim special care order for a period of up to 14 days, including any period which has been granted on foot of an ex-parte application for an interim special care order, which can be extended by the High Court on application by the HSE up to a further 21 days. An ex-parte application for an interim special care order may be made to the High Court by the HSE for a period of up to eight days and this cannot be extended.

The High Court may make an order for the purpose of executing a special care order directing a person, having custody of the child, to deliver the child to the custody of the HSE or directing the Garda Síochána to search, find and deliver the child into the custody of the HSE. The Bill also provides that the High Court may issue a warrant authorising the Garda Síochána to enter - by force if necessary - any house or other premises where the child is thought to be for the purpose of executing a special care order.

Where the High Court makes a special care order, it may, in the interests of justice or the protection of the child, give directions in respect of a named person or persons, which may include a parent, a guardian or a person acting in loco parentis, on the withholding of the special care unit's address and the access of persons to the child while the child is resident in the special care unit.

The Bill provides for an amendment to section 12 of the Child Care Act 1991. Currently a garda can enter a building without a warrant if there is not sufficient time to make an application for an emergency care order and there is immediate and serious risk to the health or welfare of the child. The effect of the amendment to section 12 is that a garda, who believes that there is an immediate and serious risk to the health or welfare of a child, can also enter a building without a warrant if there is not sufficient time in the circumstances to obtain a warrant under section 35 of the Child Care Act 1991 to execute an order which has been made by a justice directing that a child be placed or maintained in the care of the HSE. I commend the Bill to the House.

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