The Childcare Act

The Childcare Act 1991 was a milestone act which brought about huge positive changes in the way children at risk were dealt with in Ireland. In order to discuss this statement I will firstly look briefly at the way children at risk were dealt with in Ireland prior to the act. I will then look at the effect the Act has had since its enactment and at areas in which the Childcare Act could be improved upon.

As recently as thirty years ago, issues relating to our views on child protection have changed dramatically. In 1978 a child care worker kidnapped a child under his care and took him to Scotland. While there, he murdered the child. The Minister for Health at the time, Charles Haughey, refused the call for a public inquiry into the case saying it “would serve no useful purpose” (Doyle 2003). This example gives an idea of where children at risk came on the list of the States priorities at the time.

For over eighty years The Children’s Act 1908 was the governing legislation concerning the welfare of children in this state (Ward 2005). The Children’s Act defined religious orders as responsible for the feeding, clothing, housing and teaching of young offenders and instigated annual visits by an Inspector of Industrial Schools. The Children’s Act also allowed destitute children who had not committed a crime to be housed within the schools. During this time, there was no training for the men and women placed in charge of these children and there were no national standards for the level of upkeep involved in these buildings or of any of the needs of the children within them. It would be more than sixty years later when the Kennedy Report would shine a light on the deplorable state of the Industrial Schools and the extreme neglect and abuse that was known to be happening within them across the country. Incidents such as the Kilkenny Incest Case and the Michael McQualter case are only a few examples of the major degree of deficiency this country has shown in relation to the welfare of its children.

Only since the 19th century have we begun to see children as individuals that deserve their own voice and protection. The Childcare Act 1991 represented a significant improvement in childcare legislation. The primary purpose of the Childcare Act 1991 is to provide for the care and protection of children at risk, a statutory obligation is placed on health boards to promote the welfare of children who are not receiving adequate care (Nestor 2003). In doing this The Childcare Act has outlined a framework designed to allow the HSE to take a range of steps to best promote the welfare of children at risk. In order to look more closely at some of these obligations, I will look at specific areas of The Childcare Act 1991 and the affect they have had since being enacted.

The Childcare Act, as well as promoting the welfare of children at risk, also extends to children who have not yet been identified as being at risk but may be at risk in the future. This involves identifying areas which may be of a specific hazard to them. One such example of this is the case M.Q.-v-Gleeson and Others (1997). In this case the applicant had been accepted onto a childcare course which would qualify him to work with children in the future. On learning that the man in question had allegations of child abuse raised against him, the Health Board sent a report to the courts and the man was removed from the childcare course (Nestor 2003). This case highlights the way in which the HSE can intervene, where it deems necessary, in a matter where a child is at subsequent risk in the future.

Section 4 of The Childcare Act, Voluntary Care, allows for parents who are unable to care for their children, due to illness or family issues, to place the children in care of the Health Service Executive. The Childcare Act 1991 Section 4 states as follows

“Without prejudice to the provisions of Parts III, IV and V, nothing in this section shall authorise (the Health Service Executive) to take a child into its care without the wishes of a parent having custody of him or of any other person acting in loco parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him” (Ward 2005).

While on work placement I saw the effect this act had in practice. I worked directly with a child who, under a Voluntary Care Order had been placed in the care of her maternal grandmother. The child’s mother deemed herself unfit to care for the child and wished her to be placed in the care of her own mother. The courts deemed this action to be in the best interest of the child as the child maintained ties with the maternal family. The relationship between the child’s mother and her grandmother was also seen to be very strong and would provide a stable environment in which the child could develop. This section of The Childcare Act shows that, although the welfare of the child is paramount, the Health Service will try to keep the child within their family where possible.

Another example of The Childcare Act 1991 being used was the issue of a young boy who had been removed from his grandmother’s home under Section 18 of The Childcare Act. This had been due to threats of violence he had made against himself and his grandmother. I came across this case during a previous work experience and found it to be extremely relevant. While under the care of the HSE, the boy’s grandmother applied to have him returned home through her solicitor. Both the boy’s school principal and the local Gardai made statements against this proposal due to the high certainty that violence would occur within the home should the boy be returned. However, on closer inspection of the case, the judge ruled that the boy be returned home on the grounds that his social workers and care staff had not used any preventative measures before taking the child from his home. In this case, no family welfare conference had been put in place prior to the boy’s removal and no supervision order had been maintained at any stage. The judge saw this as a violation of the rights of the child under the Childcare Act as the preventions hadn’t been put in place to keep the child at home. This can be seen in the following quote taken from Section 3 of the Childcare Act.

“It shall be a function of the Health Service Executive to have regard to the principle that is generally in the best interests of a child to be brought up in his own family” (Ward 2005).

Both these examples show the affect The Childcare Act has in everyday life and its relevance as a milestone in the Social Care field.

Another huge area The Childcare Act has had an impact on is The National Standards for Residential Care. These guidelines are directly informed by The Childcare Act, Section 69 and are referred to constantly by members of the health care profession. It is used so much that it is referred to as “The Blue Bible” in residential care settings. The National Standards inform all policies and procedures within residential homes, as well as all matters relating to staffing, childcare procedures, best practice guidelines and more. The National Standards show the application and importance of The Childcare Act on a daily basis. The Childcare Act also allows any person, so authorised by the HSE, to enter the premises of a residential centre for the purposes of inspection (Shannon 2005). This can be seen in the following quote from The Childcare Act.

“The Minister shall, for the purpose of ensuring proper standards in relation to children’s residential centres, including adequate and suitable accommodation, food and care for children while being maintained in centres, and the proper conduct of centres, make such regulations as he thinks appropriate in relation to centres” (Ward 2005).

This section of the act highlights the stark comparison between how our residential centres are being run today and the tragedies that went unnoticed for so long in Ireland’s industrial schools, due to lack of proper inspection and accountability.

Section 20 of The Childcare act is another area of the Act which can be seen in action during guardianship and custody cases within the courts. Often a mother and father will both be applying for guardianship of their child and will both state that the other is unfit in order to gain sole custody of the child. In this situation the Health Service Executive will appoint an independent body to investigate into both households. On doing so the social worker appointed to the case will then put forward their view on what they deem best for the child in question, based on what they have observed. Whereas in the past a child would almost certainly be placed with their mother, now both parents have a voice. With this in place due to The Childcare Act, it comes into play in the majority of custody and guardianship cases.

Although The Childcare Act represented a milestone in the way we deal with children at risk, it is also deficient in a number of aspects. While the Act does impose a duty to the HSE to promote the welfare of children, it provides little by way of powers and resources to enable them to do so (Ward 2005). The following are some examples of areas which, in my opinion, need to be improved upon.

In Section 45 of The Childcare Act it states that the HSE “may” provide assistance to a young person on leaving care, if it deems it necessary. This is a major issue of concern, as the wording of this act means that the HSE, by law, does not have any obligation to provide leaving care to young people. The current provision of aftercare services throughout Ireland is inadequate and needs to be changed to ensure all children leaving care are given the opportunity to access supports (Barnardos 2009). I am currently undertaking a group project in Juvenile Justice, which is looking into young people leaving care and the supports which are available to them. There is, to say the least, a severe shortage of services that provide the support needed to make the transition from a life in care, to a life entirely under your own control. Many of these young people turn eighteen and leave the residential homes they are in with no idea how to manage money or pay bills. Services simply must be put in place. The Child Care Amendment Bill 2009 is currently going through the Oireachtas. It is hoped that the Bill will be amended to include a mandatory provision for aftercare.

A case which is in the news lately also highlights the areas in which the Childcare Act has failed to protect children. The case I’m referring to is based on the impact statement of a 20 year old man, whose father had raped him over a four year period. What has come out of this case, is that the mother of the boy, who had witnessed the rape and indeed pleaded guilty herself to incest with another of her children, had sought an injunction against the Health Service Executive in 2000, preventing the HSE from taking her children into care. As the application for the injunction was made ex parte, the HSE did not realise the order had been made, until it received it some days later. The case was put forward based on an affidavit signed by the woman stating that she had “a good marriage” and that there was “no abuse”.

This injunction effectively froze the HSE and its efforts to look into the child abuse allegations. It was more than a decade after the first complaint had been made to the HSE about the children’s welfare, before something was done to protect them and by that time they had suffered years of sexual abuse and neglect by both parents (McCarthaigh 2010).

How is it possible for a woman whose children are suspected of being neglected and uncared for to be allowed seek an injunction against the High Court? There needs to be a full inquiry into the failings of the HSE to protect these children. Section 3 of the 1991 Act imposes a duty upon every health board, to promote the welfare of children in its area, who are not receiving adequate care and protection (Nestor 2003). In this regard, a health board must take positive steps to identify children who are at risk. This was not put into effect for this family. Even when the school reported the children having a worrying lack of hygiene as well as allegations of neglect from other sources there still wasn’t a full inquiry into the situation these children were living in.

A home help service was provided to the family service but with home help not needing any qualifications to work in this field, the person in question did not have the training to notice or understand fully what was going on within that home or indeed how to provide proper support for those children. Professionals should have been involved with that family from when the first allegations of neglect were reported but instead it took over ten years to remove the children from their parents care. At which stage the damage done had been unimaginable. The Childcare Act had failed to protect these children. A report into how social services dealt with this family is due to be published shortly, which will hopefully shed some light on how the state let these children down so horribly.

Lastly, an area I wish to look at with regards change to the Childcare Act is that of the assessment of children at risk. While on placement in an assessment unit, I saw the huge benefits these assessments had for the children in question. Although the Childcare Act must put provisions in place, such as family support and child care, assessments of children at risk are not a statutory obligation. In having worked in two very different placements, it easy to see, that instead of Social Care being preventative, it is really a response to what has already happened in children’s lives. Assessments and the recommendations that come from them, are put together by a highly qualified multi disciplinary team. As well as assessments not being an obligation by the HSE, the recommendations that come from them are also not an obligation. Valuable research goes into these assessments though the majority are never followed through on. The Childcare Act is about protecting and safe guarding the welfare of children but where can that be seen, when assessments go unheeded.

If a child at risk is assessed and recommendations from this are acted on, that child is at a much lower risk of coming back into the care system again. The cost of court cases alone, to take children into care, let alone the price of keeping a child in care, pale in comparison to assessments for these children while they are still within their homes. This isn’t something that just makes logical sense, it makes financial sense. Social care needs to stop being a reaction to a past event, it needs to be proactive and a service based on prevention. All the money and resources in the world can’t go back in time for a child who had been in the “at risk” category for years, but only got proper intervention after they had been abused.

In this way, The Childcare Act is not fulfilling its potential as a child protection framework. Assessments and their recommendations are the best chance of early prevention for children who are seen to be at risk. Although the Childcare Act has proved pivotal for children at risk, it also needs to be capable of adjusting with time but most of all, to learn from past mistakes. How many more cases do we have to hear about in the news, of children being left in an abusive situation under the nose of the HSE? Child protection must become more preventative. It can’t be about picking up the pieces of a broken home, damage done cannot be taken away. The Childcare Act must be built on, for the sake of the children of this state.