International conference on “Child Protection and the Law”
The Child Care Law Reporting Project, in conjunction with the Professional Training unit of the Law Society, organised a conference on “Child Protection and the Law” on Monday 13th April, with speakers from Scotland, England and Finland as well as Ireland. The aim of this conference was to examine the results of the research of the Child Care Law Reporting Project into the operation of the Child Care Acts in the courts, and research undertaken by UCC into experience of the child care courts, and to look at the approaches taken to child protection and the law in a number of other jurisdictions.
This conference, chaired by Dr Geoffrey Shannon, Government rapporteur on child protection and by Tanya Ward, chief executive of the Children’s Rights Alliance, was an inter-disciplinary one, designed for all who might have an interest in child protection and the law. Its aim was to bring together legal practitioners, social workers, politicians and public servants, as well as academics, NGOs and members of the public, to explore these issues.
The conference was opened by the Minister for Children and Youth Affairs, and the opening address was given by Mrs Justice Catherine McGuinness, former judge of the Supreme Court and former President of the Law Reform Commission. The other speakers included Dr Carol Coulter, director of the Child Care Law Reporting Project; Janice McGhee of Edinburgh University; Sophie Kershaw, of the Family Drug and Alcohol Court in England; Professor Tarja Poso, of the University of Tampere, Finland and Dr Conor O’Mahony, University College Cork.
We publish below the papers delivered to the conference and recordings of the speakers.
Speech by Minister James Reilly
Launch of the International Conference on Child Protection and the Law
Law Society, Blackhall Place, Dublin 7 on 13th April 2015
I am delighted to be here today to launch this international conference on Child Protection and the Law. I would like to begin by thanking Dr Carol Coulter, Director of the Child Care Law Reporting Project for inviting me to take part in this important event. I want to acknowledge the support provided to the Project by the One Foundation, Atlantic Philanthropies, Free Legal Advice Centres (FLAC) as well as my own Department.
I would also like to take this opportunity to welcome the other speakers, some of whom have travelled a considerable distance, to be here with us today. I have no doubt that, as with the work of this project in general, today’s conference will prove very valuable to all of us interested in how the law protects children in Ireland.
Every one of us has a duty and responsibility to protect children from neglect and abuse; children trust us as adults to keep them safe from harm. It is a trust that once shattered can be very difficult to repair. Because experiencing the trauma of neglect and abuse can not only destroy a childhood, it can have a permanent, and devastating, impact throughout a person’s life.
Too often in our past, we have failed to protect all of our children, and to recognise the impact of cruelty and abuse on their lives. Too many of our citizens have experienced life-long scars as a result of the trauma they have experienced, whether in their own home or in institutions of the state.
Every one of us has a responsibility to ensure that future generations of children have a different experience. The state has a particular duty to act to protect and support children, and keep them safe from harm.
That’s why this government made a commitment to overhaul and reorient the way we make policy and provide services for our children and families.
On taking office in 2011, we established a government department solely dedicated to children and young people. In 2012, we held a referendum to insert specific protection of children’s rights into the Irish constitution. Last year, we published Better Outcomes, Brighter Futures, our first national policy framework for children and young people.
In January 2014 Ireland’s first Child and Family Agency was formally established, representing, I think it is fair to say, the most comprehensive ever reform of child protection, early intervention and family support services in the history of the state.
Under the Child Care Act 1991, the Child and Family Agency has a statutory duty to promote children’s welfare where they are not receiving adequate care and protection.
While the welfare of children is, and must be, the first and paramount consideration, under the Irish Constitution the Agency is obliged to have regard to the rights and duties of parents. It must also respect the principle that it is generally in the best interest of the child to be brought up in their own family.
This brings me to the work of the Child Care Law Reporting Project. Because as Dr. Coulter notes in her reports, the decision to remove a child from their parents raises very fundamental issues about the balance to be struck between the rights of families, recognised as the fundamental unit of society in the Irish Constitution, and the rights of children that may be at risk within what should be the safe environment of their home. However, despite the very fundamental nature of these issues, very little was known about how, and in what circumstances, the state makes the decision to remove a child from the care of its parents.
We cannot hope to successfully reform our system of child protection unless we fully understand its dynamics; thus the need for the Child Care Law Reporting Project was clear.
The Child Care Law Reporting Project
This innovative project examines the approaches taken by child protection services and the courts regarding applications and proceedings taken under the Child Care Act 1991.
The issue at the heart of public child care cases is whether the State should remove the child from their parents’ care.
Previously shielded from public scrutiny by the in camera rule, the Child Care Law Reporting Project shines a light on the proceedings of child care cases in the courts, while protecting the identity of vulnerable children and families.
It is in the public interest that we all have a better understanding of the practices and trends in our child care courts, and the Project is providing a valuable service in that regard. It is also generating analysis that is critical for the development and reform of our system of child protection; for example:
- The work of the project thus far has already contributed to a better understanding of the dynamics of child neglect and abuse, about the impact of family dysfunction, and the tragic consequences of failing to intervene early enough to prevent a problem from escalating.
- It has raised questions about our values and norms in relation to raising children, for example, how do we respect cultural differences in parenting styles, while ensuring that children from ethnic minorities are protected from harm? How should we reconcile recognition of diversity with rigorous child protection? The terrible tragedy of the systematic abuse of children in Rotherham illustrates the terrible consequences of failing to fully consider such questions.
- It has also revealed variations in practice around the country, with for example, different types of care orders being more prevalent in different parts of the country, and differences in the appointment of guardians ad litem in urban and rural areas.
While the learning from the Project is not yet complete, and many of its findings are likely to require further research, it is already contributing to a greater depth of knowledge about child care cases, and increasing the evidence base for future policy and practice. And I’d like to outline some relevant developments for you now.
Relevant Developments in DCYA
A key commitment of this government was to place the Children First child protection guidance on a statutory footing, and we published the Children First Bill in April of last year.
A core aim of this Bill is to strengthen our legislative provisions on child protection, and to raise awareness of our collective responsibilities in relation to child abuse and neglect. This legislation will ultimately operate as part of a wider suite of legislation aimed at protecting children from all forms of abuse.
Amongst the provisions of the Bill is a legal requirement on certain individuals working with children to report harm, or the risk of harm, to the statutory authorities, so that the appropriate action can be taken. In addition, all organisations providing services to children will be required to reflect on and consider any potential risks to children using those services, and to respond to these in a publicly available Child Safeguarding Statement.
Our aim is to make best safeguarding practice the ‘cultural norm’ for everyone working with children, and to help embed this understanding, the Children First National Guidance 2011 will continue to operate in tandem with the legislation.
In addition to its legislative programme, we are also progressing a challenging reform agenda within the Department of Children and Youth Affairs, and I would also like to mention some relevant developments in that regard, in particular, reform of the guardian ad litem system, reviewing the 1991 Child Care Act, and publication of a High-Level Policy Statement on Parenting and Family Support.
Reform of Guardian ad Litem Services
The guardian ad litem is very much an established part of public law child care proceedings in Ireland. The Court may appoint an independent guardian ad litem to represent the child’s views and to give the Court a professional assessment of the child’s best interests. However, the current operation and management of these services is ad hoc – a point well illustrated in the work of the Child Care Law Reporting Project – and this is an issue we are currently working to address.
Our objective is to fundamentally reform the basis on which guardian ad litem services operate, and to ensure the delivery of a transparent and cohesive national service. This reform is a priority for me, not only to ensure that the voices and best interests of all vulnerable children are properly represented to the Court, but also to ensure that our child protection resources are used to best effect. To that end, officials from my Department are currently working with the Child and Family Agency to deliver much needed reform in this important area.
Issues raised by the Child Care Law Reporting Project are also informing the Department’s review of the 1991 Child Care Act.
Reform of the Child Care Act 1991
In Better Outcomes, Brighter Futures this Government committed to reviewing and reforming the 1991Child Care Act. Although the Act has undergone some amendment since it was enacted, many of its key provisions have been in force for nearly 25 years, and need to be updated to reflect modern policy and practice, and to strengthen the focus on protecting children.
Work has already started in the Department of Children and Youth Affairs on this review, which aims to strengthen the recognition of a child welfare perspective – which would not have been current in 1991 – and to update provisions on taking children into care, providing care, and leaving care.
Of course, the 1991 Child Care Act also includes a clear statutory commitment to supporting children within their families, so that taking a child into care is always a measure of last resort to protect the child.
Policy Statement on Supporting Parents and Families
The first ‘transformational goal’ identified in Better Outcomes, Brighter Futures is to support parents, and in that context we committed to developing a high-level Policy Statement on Parenting and Family Support.
Parenting and family support is an area where a very considerable body of knowledge and experience has been established. The Policy Statement draws on this learning to provide a strong and focused policy mandate to guide the development of our services over the coming years.
The reports to date of the Child Care Law Project make clear that the failure to intervene early when problems arise, and to provide a holistic and integrated response to need, can mean that those problems escalate, sometimes to a very damaging level.
Therefore, the Policy Statement is part of a significant programme of action to change and develop the family support environment to one of early intervention and prevention. I will publish the Statement later today, and it will be available on my Department’s website. In addition, the Child and Family Agency will launch its new Prevention, Participation and Family Support Programme today, also provided with the invaluable support of Atlantic Philanthropies.
In conclusion, I would like to re-iterate this Government’s commitment to keeping our children and young people safe and protected from harm, and I would like to commend Dr. Coulter and everyone involved in the Child Care Law project for the valuable contribution they are making in that regard.
Child care proceedings have profound and long-term impacts on children and families. The work of this Project has vastly improved the transparency of those proceedings, and has deepened our knowledge and understanding of these cases. This not only continues to inform the development of policy and practice, it has also improved public awareness of child protection and the courts process.
I look forward to receiving Dr Coulter’s final report, with recommendations, later this year. I wish Dr Coulter and the other speakers every success with today’s conference and, while I am unfortunately unable to stay for the full programme, I look forward to a full report back on your considerations. I thank you for your attention.
Keynote Address by Mrs Justice Catherine McGuinness
This conference marks the very considerable achievement to date of the Child Care Law Reporting Project, which has been led by Dr Carol Coulter. As a country and as a society we have, through this project, moved away from a situation where we had little but anecdotal accounts or personal opinions about the vitally important court system whereby children who are at risk or who have suffered abuse or neglect are provided with a pathway to protection. As a result of the periodic reports and the case analyses published on the Project’s website we now have a wide-ranging account of what is actually happening in courts both in Dublin and across the country. As the title of this conference indicates, the stage has now been reached for an in-depth consideration of what we have learned from the information gleaned by the Child Care Law Reporting Project, and I look forward to hearing today the views of the expert speakers from Scotland, England and Finland, together with the analysis by Dr O’Mahony of UCC of the crucial place of parents in the child care courts.
Child protection law touches on very fundamental rights, the rights of parents, the rights of children to be brought up within their families, and, above all, the rights of children to be protected from harm, whether from outside sources or, on occasion, from their own family. It is important, therefore, that the law seeking to balance those rights is clear and understood by parents, by those working in the child protection system, and by society as a whole.
It would be a mistake to think that, because today we hope for improvement and reform in our present system, that we have failed to make any progress over recent decades. Even within my own “practice life” I have seen great change both in society and in the law – and in the interface between them. In the late 1970s early 1980s I began to appear as a barrister in cases involving children, in particular both adoption and child protection (childcare) cases. At that time adoption was ruled in the main by the original 1952 Adoption Act, which at the time of its enactment seemed to concentrate more on the prevention of religious proselisation than on other more important issues.
Private family law was governed largely by the Guardianship of Infants Act 1964 which reflected the view of the family contained in Articles 41 and 42 of the Constitution but did give equality to women in the guardianship of children. There was virtually no financial protection for women until the enactment of the 1976 Family Law (Maintenance of Spouses and Children) Act.
Above all the child protection system laboured under the 1908 Children Act. It must be admitted, as was stated by many superior court judges in their reflections on cases on child protection, that in its day the 1908 Children Act was a very progressive measure. This was accepted by all the rest of us in court, but we did long to say that this is no longer 1908, it is the end of the 1980s. I have a vivid memory of the preserved copy of the 1908 Act given to me by the famed solicitor Denis Greene – with his handwritten notes upon it. As I acted for many years for the old Eastern Health Board I knew that it was a precious document indeed and essential in the life of the practitioner.
It is extraordinary, when one thinks of it, that there was virtually no legislative change until the 1991 Childcare Act – and how we felt, rightly, that that Act would work to change the world of child protection law. But the main provisions about actually taking children into care did not come into effect when the Act was passed. As is so often true in this country, we waited until there was a crisis to take action – after the 1993 scandal about incest in Kilkenny. Following the Kilkenny Enquiry Report and the call to bring 1991 Act into effect that followed there was swift government reaction. And for this a due amount of credit must be given to Brendan Howlin, who was Minister for Health at the time. The 1991 Act included a power to appoint a Guardian ad Litem. This was a response to lobbying by childcare lawyers and others involved in child protection but was only an outline provision. No provision was made for appointment, regulation, payment or other detailed issues.
And of course through all this period there was the glaring absence of children in their own right in the Constitution, although some judgements did find ways to express the principle that children actually had rights. But these were unexpressed and undefined, and were outweighed by the rights of “the family” which normally meant the married parents. While the constitutional amendment was passed by the votes of the people we are still living in hope that this vote and the constitutional change in favour of children will be confirmed. If I may be allowed an incidental comment, I find it strange that many of the people who oppose the current proposals on same-sex marriage, and who do so on the ground of the rights of children, are the same people who fought against the inclusion of the rights of children in the Constitution. But at the moment I won’t go into that question.
In the area of child protection we have seen over the years the interaction between law and society both in public debate and in practical implementation. Over the last 50 years Irish society, and in particular the Irish family, has undergone immense change. This is a cliché, but also a truth. In the thinking of jurisprudence (a subject that many aspiring lawyers love to study but can find difficult to use in practice) there is rightly much consideration of how law reflects society and how in turn society reflects the law. But in some cases law, and even the Constitution, may lag behind reality – and nowhere more clearly so that in the development of the concept of “family” in recent decades.
It is good to see that the recent passage of the Children and Family Relationships Act (which passed the final stages in the Senate on 30th March) brings legislation nearer to reflection of the variety of families today. It is also time to review the 1991 Childcare Act to provide a clear legislative basis for a consistent practice in the courts which deal with child protection issues. As things stand (and this is clear from the Project’s reports) both judges and those who practise and give evidence before them are in a position of making it up as they go along and doing the best they can. As I have said earlier, it is also important that parents and those working in the child protection system should have a clear understanding of the law. Social workers, more than most professionals in health and social care, must work within the framework of the law on a daily basis. But equally lawyers and judges should know what the profession of social work entails and the demands which are made on social workers, including the need to be flexible in meeting the needs of different families.
If I may be allowed to fall back on quoting myself (this is probably most inadvisable) it is now over 20 years ago since in the Kilkenny Incest Inquiry Report we (and I include the other members of the team) laid huge emphasis on interdisciplinary work in our recommendations. This recommendation has been repeated on many occasions since, and some progress is made, but in other areas a lack of co-operation – or even a sort of enmity between the professions involved – seems to linger on. It is a long time since those of us who represented Health Boards were derided as “child snatchers” by our colleagues in the Law Library – but is there a still a remainder of this attitude to be found? And how do social workers feel about lawyers, particularly lawyers who normally practise in other areas but who suddenly arrive to do one childcare case in the District Court? It still seems to me that inter-disciplinary and multi-disciplinary work is crucial – and this is the aim of this conference. It is also a major aim of the Child Care Law Reporting Project as a whole.
Finally, we need reform in the family court system, including the child protection courts. We are promised a new family court complex in Church Street, and this is excellent, but it must be properly resourced to provide not only courts but also the necessary ancillary services. The Law Reform Commission provided a Report on Family Courts in 1996 which contains relevant recommendations, and more modern experience will give new insights into what is needed. Of great importance, also, is the need to establish a proper system for the appointment and regulation of Guardians ad Litem, together with a definition of their role. In this context we could well look at the system which prevails in Northern Ireland.
Let us not wait for a new crisis before putting these changes into effect.
Findings of Project so far – Dr Carol Coulter, Director, Child Care Law Reporting Project
Forty-four years on – Reflections on the Scottish Children’s Hearings System – Ms Janice McGhee,Edinburgh University
Nordic and Finnish Child Welfare Systems – Professor Tarja Pösö, University of Tampere, Finland
Parental Representation and Participation in Child Care Proceedings: A Qualitative Analysis of the Irish District Court – Dr Conor O’Mahony, University College Cork
The Family Drug and Alcohol Court – Sophie Kershaw – Tavistock and Portman NHS Foundation Trust
The Children and Family Relationships Act 2015
The Law Society of Ireland is organising a conference on the Children and Family Relationships Act on 24th June in the Law Society. The conference, which will provide a comprehensive analysis of the Act, will be opened by the President of the District Court Ms Rosemary Horgan and the stellar line up of speakers is led by Dr Geoffrey Shannon. More information and a booking form can be found on: