The Child Care Act, 1991

The Child Care Act, 1991 represents the first comprehensive legislation in relation to child welfare since the foundation of the State (Gilligan, 1992). The full implementation of this legislation signalled an end to the social, political and legislative impasse surrounding child welfare services. Under the Child Care Act 1991 Act, the health board (now the Health Services Executive) has a statutory duty to promote the welfare of children who are not receiving adequate care and protection. There are three philosophical principles underlying the Act. Firstly, that it is generally in the best interests of the child to be brought up in his/her own family. Secondly, having regard to the rights and duties of the parents, the welfare of the child is the first and paramount consideration and thirdly that, as far as is practicable, the wishes of the child should be considered (Section 3, Child Care Act, 1991). In essence, the Act mandates the HSE to identify children who are not receiving adequate care and protection and provide child care and family support services with the aim of helping parents to care for their children and to avoid the need for such children to be taken

into care. However, if a child is in need of care and protection and is unlikely to receive it at home, then the HSE must take them into care.

1.4.1.1 The Main Provisions under the Act for Admission to Care

Part IV of the Child Care Act, 1991 deals with care proceedings and details the various mechanisms available where a child requires care and protection. Legal orders include Voluntary Care Orders, Emergency Care Orders, Interim Care Orders and Care Orders. Section 4 of the Child Care Act allows the HSE to take a child/young person into voluntary care with the consent of the parent(s) where the child/young person’s care and protection requires it. Parent(s) of a child/young person can decide that they want or need to place their child/young person in the care of the HSE. In some cases where parents are unable to cope due to illness or other problems they may agree to their children being taken into voluntary care. In such cases, while the HSE has primary care of the children it must consider the parent(s) wishes as to how the care is provided. The HSE is obliged to maintain these children for as long as their welfare requires it. When the parent(s) is ready for their child/young person to come back and live with them, meaning when they are ready and able to meet the needs of the child/young person the child/young person returns home.

There are also a number of procedures which the HSE can use when dealing with children who are at risk or who are in need of care. The HSE can apply to the courts for a number of different orders which give the HSE as ‘corporate parent’ a range of powers including decisions about the kind of care and the access to the children for parent(s) and other relatives. Section 13 empowers the District Court to make an

Emergency Care Order which authorizes the placement of a child/young person in the care of the HSE for up to eight days where there is reasonable cause to believe that there is an immediate and serious risk to the child/young person’s safety which necessitates placement in care. The Interim Care Order is a short-term provision which may be made where an application for a full care order is likely or pending. This is designed to ‘bridge the gap’ between the expiration of an emergency care order (after eight days) and the determination of an application for a full care order (Section 17). The Care Order commits a child/young person to the care of the HSE until the child/young person attains the age of eighteen or for a shorter period determined by the court. This order requires evidence of a child having been abused or of being at risk. Where a child/young person is the subject of a full care order, the HSE shall do what is reasonable to safeguard and promote his or her welfare. In effect the HSE has the rights and duties of a parent(s) for the duration of the care order (Section 18). Under the terms of Section 5 of the Child Care Act, 1991 the HSE are also statutorily responsible for the provision of suitable accommodation for young people up to the age of eighteen who are homeless or in need of care. Youth homelessness has being defined as:

‘Any young person found sleeping on the streets or sleeping anywhere not intended for night-time accommodation or not providing safe protection from the elements or those whose usual night-time residence is a public or private shelter, emergency lodgings, Bed and Breakfast accommodation or such, providing protection from the elements but lacking the other characteristics of a home and/or intended only for a short stay” (Youth Homelessness Strategy, 2001: 11).

Also included within this meaning are:

‘Young people who look for accommodation from the Out of Hours Service and those in insecure accommodation with relatives or friends regarded as inappropriate, that is to say where the young person is placed at risk or where he or she is not in a position to remain’ (Youth Homelessness Strategy, 2001: 11).

Young people become homeless for a range of reasons and it is rare that one single event is the cause of leaving home. Instead, it is more likely that homelessness occurs following a series of events, or a build-up of situations. Triggers for youth homelessness in Ireland are varied. Examples include conflicts within the family and/or violence at home, parents being unable to cope due to issues such as addiction, mental health issues, housing or financial issues (Kelleher et al., 2000; Mayock, Corr and O’Sullivan, 2008; Mayock and Vekic, 2006). Services for homeless children are generally provided as part of the child protection and welfare services of the HSE. These services vary from region to region.

With regard to the Dublin region many young people who are out-of-home (have a home but cannot live or return there) come to the attention of the local Gardaí. Often, this is because the Gardaí come across these young people sleeping on the streets or in other places not designed for night-time use. In such situations, the common practice is for the Gardaí to contact the on-duty HSE social worker for the area so that emergency accommodation can be arranged. Following this, the short, medium and long-term needs of the young person are assessed by the HSE social worker and

where necessary, an appropriate plan is put in place. This may involve the young person being returned home or placed in the Youth Homeless Service otherwise known as the Out of Hours Service. The Out of Hours Service (OHS) was established (1992) in response to concerns raised regarding the situation of young homeless people in Dublin. The service offers emergency beds in a number of residential settings and short-term residential placements for young people up to three months.

When a child or young person is taken into the care of the State, the HSE take on parental responsibility in supporting that child/young person up to their eighteenth birthday and are referred to as the ‘corporate parent’. Upon reaching the age of eighteen these young people leave the care of the State and are considered independent adults no longer in need of ‘corporate parenting’.