Barry Andrews (Dún Laoghaire, Fianna Fail)

Special care involves the civil detention of a child in the interest of his or her welfare and protection in a special care unit where educational and therapeutic supports are provided to the child in a secure environment. Special care is provided where it is in the best interests of the child and as a last resort when other forms of residential or community care are considered to be unsuitable. The objective of special care is to provide a stabilising period of planned care, which will enable a child to return to less secure care or to return home as soon as possible.

During the period of special care the child and his or her family are supported by a range of staff including social care workers, psychologists, social workers and teachers who work to achieve the objectives set out in the care plan specifically developed for the child. The special care may include medical and psychiatric assessment, examination and treatment, as appropriate.

The Children Act 2001 amended the Child Care Act 1991 to allow for applications for special care orders to be heard at District Court level. The High Court, under its constitutional power of inherent jurisdiction, is currently hearing applications for children to be detained for special care to be provided to them by the Health Service Executive. The objectives of the Child Care (Amendment) Bill 2009 are to amend Part IV (A) of the Child Care Act 1991 to allow the HSE to apply to the High Court for special care orders to detain children who are in need of special care services. The Bill sets out the processes to be followed from consideration of 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 discharge of the order. The Bill also provides for the dissolution of the Children Acts Advisory Board in accordance with Government policy on efficiency savings and the need for the rationalisation of State agencies.

I will turn to the provisions of the Bill. Part 1 comprises sections dealing with Short Title, collective citations, commencement and definitions.

Part 2 provides for amendment of the Child Care Act 1991. In this respect, the Bill provides that in determining whether a child requires special care, the Health Service Executive must be satisfied that the behaviour of the child poses a real and substantial risk to his or her life, health, safety, development or welfare. The HSE must assess the child's care requirements and be satisfied that care other than special care cannot address the child's needs. The Bill provides for the HSE to consult the child's parents or a person acting in loco parentis and also to convene a family welfare conference. The HSE may decide not to consult the child's parents or a person acting in loco parentis or not to convene a family welfare conference where it is satisfied that it is not in the best interests of the child to do so. Where the HSE applies for a special care order without having carried out the consultation or not having convened a family welfare conference, it shall inform the High Court of this and the grounds for not doing so. The Bill also provides that the HSE will be required to publish procedural guidelines for carrying out consultations and convening family welfare conferences.

The Bill allows the HSE to apply to the High Court for a special care order for a child between the ages of 11 and 17. If the High Court grants the order, the HSE will provide special care to the child who will be detained in a special care unit.

The Bill also provides for various circumstances where the child is, or has been, the subject of criminal proceedings, including provisions whereby the HSE may apply for a special care order or may continue to provide special care where a child has been charged. The HSE may also apply for a special care order for a child who has been found guilty or convicted of a criminal offence and where, following that conviction, a custodial sentence has been imposed and that sentence has been served. Similarly, the Health Service Executive may 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. However, the HSE shall not apply for a special care order where a child is remanded in custody or where a custodial sentence is imposed on a child. If these arise while the child is the subject of a special care order, the HSE shall apply to the High Court to discharge it. The HSE is also obliged to make arrangements to allow the child to meet any person for the purpose of his or her representation and for the child's attendance in court in respect of any criminal charge.

As mentioned earlier, special care is providing a child with care which addresses his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare. Special care also addresses the child's care requirements. It includes medical and psychiatric assessment, examination and treatment, and educational supervision. While such care is provided in a special care unit, it may include the release of the child from the unit during the period of the order. The Bill provides that where the Health Service Executive considers such a release necessary, it is required to apply to the High Court to vary the special care order to authorise the release of the child from the unit.

The Bill provides that such releases may be for placing the child in a children's residential centre or for permitting the child to reside with a parent or a relative for a specified period or to provide medical or psychiatric examination, treatment or assessment and for educational and recreational outings from the special care unit. Releases may also be to allow the child reside with a parent or a relative who resides outside the State or to provide medical or psychiatric examination, treatment or assessment to the child outside the State.

The Bill provides that where a special care order has effect, 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 or welfare, and has the authority to decide on the special care to be provided to the child. The Health Service Executive is also given the authority to give consent to any medical or psychiatric examination, treatment or assessment in respect of the child. The HSE is also given the authority to give consent to the application for and issuing of a passport for the child. The Bill provides that a special care order shall cease to have effect when a child attains 18 years of age.

The High Court, in any proceedings under this Bill, is required to have regard to the rights and duties of parents, whether under the Constitution or otherwise, to regard the welfare of the child as the first and paramount consideration and, as far as is practicable, to give consideration, having regard to the child's age and understanding, to the 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 legal representation for the child. Costs and expenses incurred in the proceedings on behalf of the child shall be paid by the Health Service Executive.

The Bill 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 interests, appoint a guardian ad litem for the child. A guardian ad litem shall promote the best interests of the child and, in so far as it is practicable, having regard to the age and understanding of the child, shall convey the views of the child to the court. Costs and expenses reasonably incurred on behalf of the guardian ad litem shall be paid by the HSE. The High Court has discretion to appoint legal representation for the guardian ad litem.

The Bill provides that a special care order may be up to three months' duration. The High Court, on the application of the HSE, may extend the period of the order by up to three months, and only two such applications to extend the period of the order may be made. The High Court, in granting an extension, must be satisfied that the child is benefiting from the special care being provided, that the risk of harm to the child posed by his or her behaviour continues to exist, and that the child requires the continuation of special care.

The Bill provides that the High Court 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. The court will take account of the assessment of the child's care requirements and the child's need for special care which the HSE is required to undertake while the child is in its custody. On foot of a review, the High Court may vary the special care order and may make other provisions or directions.

The Bill provides that the HSE may apply to the High Court for an interim special care order. An interim special care order may be 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. The HSE can apply to extend the period of the interim special care order by up to a further 21 days, and only one such extension may be granted.

The Bill provides that an ex parte application for an interim special care order may be made to the High Court by the HSE. Such an order may be for a period of up to eight days and cannot be extended. When granting an interim special care order on foot of an ex parte application, the High Court sets a day, no more than eight days later, for which the hearing of an application for an interim special care order is returnable to the High Court. This hearing is on notice to a parent having custody of the child, a guardian or a person acting in loco parentis and the child's guardian ad litem.

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 to the custody of the HSE. The Bill provides that the High Court may issue a warrant authorising the Garda Síochána to enter, if need be by force, 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 that person or persons to the child while the child is in the special care unit.

The Bill provides that the HSE may enter into an arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit, that is, with a service provider from the private or voluntary sector. Where such an arrangement is made the special care unit will be subject to any standards and any regulations under the Health Act 2007. Also, the Health Service Executive is required to supervise and monitor the special care unit under such an arrangement. Where a child is placed in such a special care unit, he or she remains in the custody of the HSE. The person with whom the arrangement is made cannot apply for a special care order or related orders and the HSE remains responsible for dealing with any subsequent court proceedings in respect of the child.

The HSE may release a child where he or she requires immediate medical treatment, assessment or examination or where the release is required immediately on compassionate grounds. Where this occurs, the HSE is required to inform the High Court as soon as possible.

In respect of court proceedings provided for under the Bill, notice shall be provided to the parent having custody of the child, a guardian or a person acting in loco parentis and to a guardian ad litem and where the Bill provides for the proceedings to be instituted by any of the foregoing, the Bill allows for notice to be provided to the HSE. However, where it is considered to be in the interests of justice and the best interests of the child, the High Court may direct that notice not be given or make other provisions in this regard as it sees fit.

Where the High Court makes an order under this Bill directing a person who has custody of a child to deliver the child to the custody of the HSE and the person fails or refuses to comply with the order or removes a child from the custody of the HSE without lawful authority, that person shall be guilty of an offence and be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding six months or both. Proceedings in respect of these offences will be heard in the District Court. The Bill provides that where a special care order or an extension of such an order is appealed, the High Court may direct the order to be stayed pending the hearing of the appeal. The High Court may discharge or vary a special care order and may give directions or make an order on any question affecting the welfare of the child as it believes proper on the application of the HSE, a parent of the child, a guardian of the child, a person acting in loco parentis or on its own motion.

The Bill provides that proceedings in respect of special care orders shall be heard otherwise than in public. Subject to a direction of the High Court, the HSE shall during the period of special care take all reasonable steps to locate and provide a parent and a guardian or a relative with relevant information relating to the special care and the child's care requirements.

The Bill provides that a parent of a child who is the subject of a special care order, a guardian or a person acting in loco parentis or who has a bona fide interest in the child may request the HSE, in writing, to carry out an appraisal of the child in respect of the special care provided for him or her, the child's care requirements, the behaviour of the child before the provision of the special care and the risk such behaviour poses to his or her life, health, safety, development or welfare. Where the HSE decides not to carry out an appraisal, it shall notify, in writing, the person who made the request of the reasons for its decision. That person may appeal the decision within 14 days of being notified. The appeal will be heard by an independent person appointed by the HSE with the consent of the Minister for Health and Children. The HSE will issue guidelines on the procedure to be followed in respect of an appeal. Either the person who made the request or the HSE may appeal on a point of law to the High Court against the decision. A decision of the High Court on an appeal shall be final except that, by leave of the High Court, an appeal against the decision of the High Court shall lie to the Supreme Court on a specified question of law.

The Bill provides for an amendment to section 12 of the Childcare 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 an immediate and a serious risk to the health or welfare of the child. The effect of the amendment to section 12 is that a garda who believes there is an immediate and a 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 Childcare Act 1991 to execute an order made by a judge directing that a child be placed or maintained in the care of the HSE.

Part 3 provides for the amendment of the Children Act 2001. The Bill provides that a family welfare conference convened by the HSE shall consider whether the child requires special care and other care forms that may meet his or her needs. The Bill also provides that family welfare conferences should be conducted in a manner consistent with fairness and natural justice and should include a procedure for consulting the child and to ascertain the wishes of the child in respect of whom the conference is convened.

Part 4 provides for the amendment of the Health Act 2007 which applies the inspection provisions of that Act to special care units. Part 5 provides for the dissolution of the Children Acts Advisory Board. The board was established under Part 11, sections 225 to 244, of the Children Act 2001 and has functions as set out in the Childcare (Amendment) Act 2007. The functions include providing advice on policy relating to the co-ordinated delivery of services under the Childcare Act 1991 and the Children Act 2001; promoting inter-agency co-operation; publishing criteria for the admission to and discharge from special care units; publishing guidance on qualifications and training of guardians ad litem; organising seminars and conferences; conducting research; and providing its views on any proposal of the HSE pursuant to section 23A(2)(b), Part IV A of the Act of 1991 in respect of special care applications made by the HSE to the District Court for an order to detain a child to provide special care services for him or her.

As previously stated, part IV A of the Childcare Act 1991 was not brought into operation and applications for such orders have not been heard in the District Court. However, since 1996 the High Court has used its power of inherent jurisdiction to hear applications for detention orders for children in need of special care or protection. In such cases the Children Acts Advisory Board has given its views on such applications made by the HSE to the High Court. It has now been decided, in the context of the need to rationalise State agencies, to subsume many of the functions of the Children Acts Advisory Board into the Office of the Minister for Children and Youth Affairs. The staff of the Children Acts Advisory Board will transfer to my office and the Department of Health and Children. There will be virtually no loss of functions resulting from the disestablishment of the Children Acts Advisory Board because much of its work will transfer. My office promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children, functions carried out also by the Children Acts Advisory Board.

Two of the Children Acts Advisory Board's functions relating to special care for children are not being subsumed by my office: the publication of criteria, in consultation with the HSE, for the admission to and discharge from special care units pursuant to section 227(1)(c) of the Children Act 2001 and the provision of views on any proposal of the HSE to apply to detain children for the purposes of providing special care pursuant to section 23A(2)(b) of the Childcare Act 1991. These functions were provided in the context of applications for special care orders heard in the District Court. It may be argued that the non-continuance of these functions may impact on children who are the subject of applications for special care orders and their parents. However, the Childcare (Amendment) Bill 2009 will provide that the High Court will have statutory jurisdiction to decide on applications by the HSE for special care orders for children. This is a high but appropriate level for such cases, given that the effect of a special care order is the civil detention of a child. It is considered that, given the high level and nature of this jurisdiction, there is no need to specifically provide for the aforementioned Children Acts Advisory Board functions. Also, the HSE has in place an admissions and discharge committee which examines all proposed applications being considered by the HSE for the detention of children for the purposes of providing special care services. In addition, the Childcare (Amendment) Bill 2009 will provide for the HSE to publish guidelines in respect of the procedures for the discharge and release of children from special care units and the provision of care and aftercare for such children.

Part 6 sets out transitional measures on the commencement of the Bill which I commend to the House. I look forward to hearing the views of Senators.