Wednesday, 30 January 2019
Ceisteanna Eile - Other Questions
39. To ask the Tánaiste and Minister for Justice and Equality if An Garda Síochána has a written policy regarding the use of section 12 of the Child Care Act 1991 in respect of newborn infants; and if he will make a statement on the matter. [3959/19]
All Deputies will be aware that matters of policy and procedure within An Garda Síochána are matters for the Garda Commissioner. I do not have a role in the implementation of practice and procedures. I can inform Deputy Maureen O'Sullivan, however, that I am advised by the Garda Commissioner that An Garda Síochána has a specific policy regarding section 12 of the Child Care Act 1991. The relevant directive from the Garda's policy on the investigation of sexual crime, crimes against children and child welfare states:
When members encounter incidents where the removal of a child to safety must be considered, pursuant to section 12 of the Child Care Act 1991(as amended), two central tenets of the Act of 1991 should be borne in mind:That it is generally in the best interests of a child to be brought up in her or his own family, and
That the welfare of the child is the first and paramount consideration.A balance must be achieved between those two issues when deciding whether or not to remove a child [to a place that might be regarded as a place of greater] safety.
Section 12 of the Act gives authority to An Garda Síochána to invoke its provisions where a member has reasonable grounds for believing that there is an immediate and serious risk to the health or welfare of the child. For example, Tusla personnel may form an opinion, usually as a result of an interaction with a family, that there is an immediate and serious risk to the health or welfare of a child or children. In such circumstances, Tusla may request a member of An Garda Síochána to invoke section 12 of the 1991 Act.
While an individual garda may base his or her decision on the information provided by Tusla and its personnel, it is the garda removing the child to safety who must be satisfied that there is an immediate and serious risk to the health and-or welfare of the child concerned. I acknowledge the serious nature of this authority and An Garda Síochána works diligently at all times to adhere to the principles of the Act to protect the safety and welfare of all children.
I thank the Minister. My question relates to newborn babies, which is a very sensitive and emotive topic. No one denies that there are times when - for their safety and welfare - babies need to be removed from the care of their parents. Section 12 allows the Garda some discretion and my understanding is that it is used in a humane way. Difficulty arises when there is a court order and gardaí must forcibly remove a newborn baby. Forcibly removing a baby is not good childcare practice. It causes great distress for everybody involved, the parents, the gardaí, the hospital staff, Tusla staff and the legal people involved. We have examples of where that has happened.
I take the point that a baby's welfare and health are paramount. The court order, however, does not give any room for alternatives to be considered, for example, detaining a baby in hospital for a few more days with supervised access for the mother. The European Convention on Human Rights makes it clear that all possible alternatives to removal have to be considered and that it has to be proportionate. There have been cases where it has not been proportionate.
Moving from the general to the more detailed, as the Deputy has done in her supplementary question, I have to say that there is no specific policy applicable to newborn babies. However, the Garda policy relating to section 12 strictly follows the requirements laid down in the 1991 Act. That Act defines a child as a person under 18, and this, of course, covers newborn infants along with all other children. The removal of a newborn infant under section 12 is a rare occurrence. It is only considered in cases where there is an immediate and serious risk to the health and welfare of the child. In all cases, regardless of the age of the child, the overriding consideration for members of An Garda Síochána is the safety and welfare of the child. As Deputy Maureen O'Sullivan will acknowledge, An Garda Síochána engaged the professional services of Professor Geoffrey Shannon to conduct an independent audit of the exercise by An Garda Síochána of section 12. His report was published in May 2017 and was welcomed by An Garda Síochána.
I refer to section 13 of the Child Care Act 1991. I want to return to the forcible removal of a newborn baby from its mother. I agree with the Minister that the welfare of the child is paramount. I ask him, however, to consider that there is a need for a more detailed protocol for a better partnership in those situations where there is a court order or where section 13 is applied. There must be a better protocol between Tusla, hospital staff, the parents or the guardian ad litemof the child and the Garda. I refer to there being planned guidance and direction. Perhaps there is a need to consider setting up an expert group that would consider this particular aspect of the forcible removal when there is a court order. That would definitely be for very valid reasons but this issue of forcible removal has caused great distress when it has been used. There was a particular case before Christmas. I know the Minister does not want to comment on individual cases but there was much distress caused to everybody involved. My concern is to avoid that kind of distress arising in similar situations.
I acknowledge the expertise and experience of people such as Professor Shannon. I am sure Deputy Maureen O'Sullivan will agree with me in that regard. One of the main findings of Professor Shannon's report was that the exercise of section 12 of the Child Care Act 1991 by members of An Garda Síochána has been necessary, proportionate and legally sound, and that it has been done without any form of discrimination. I assure the House that An Garda Síochána continues to work to ensure that all children under the age of 18, including newborn infants, are fully protected. Members of An Garda Síochána use their statutory powers appropriately with the sole aim of protecting children. I am advised by the Garda Commissioner that the directive to all members of An Garda Síochána covering the use of section 12 is in accordance with all aspects of the Child Care Act 1991.