Ireland

Summary and Analysis

There are two main statutes that govern the protection of children in Ireland.  First, the Child Care Act of 1991 gives the power of Health Boards to promote the welfare of children who are not receiving adequate care and protection.  Subsection 3(2)(b)(ii) of the Act requires that Health Boards “in so far as is practicable, give due consideration, having regard to his age and understanding, to wishes of the child.”  Health Boards are required to initiate proceedings when they believe that a child needs protection he is unlikely to receive unless a court interferes.  Subsection 25(1) of the Child Care Act gives the power to the court to join a child as a party in any proceedings where the court determines, while considering the wishes of the child and the circumstances, that it is “necessary in the interests of the child and in the interests of justice to do so.”  Subsection 25(2) of the Act gives the court power appoint a solicitor for a child when the child is a party to a proceeding either because of a court order or because of other circumstances.  In cases where the child is not a party to the case, the court may appoint a guardian ad litem for the child.  The exact role of the guardian ad litem is not well defined.

The second main statute that provides for children’s welfare in Ireland is the Children Act of 2001.  This Act discusses family welfare conferences, which are convened by a Health Board to discuss the appropriate course of action for a child who the Board believes may need protection.  Section 9 of this Act states that the child in respect of whom the conference is being convened is entitled to attend the conference, unless the coordinator of the conference believes that this is not in the best interests of the child or conference. 

Ireland has recently committed to listening to the voice of children in matters that affect them. After twelve months of collaboration and public consultation, a variety of government officials, academics, and individuals from non-profit organizations published Ireland’s National Children’s Strategy, a ten year plan with three main goals.  One of these goals is to insure that children will have a voice in matters which affect them and their views will be given due weight in accordance with their age and maturity. 

Chapter Three of the National Children’s Strategy discusses Ireland’s plans to realize this goal.  This goal covers a wide range of areas, including child protection proceedings.  The government of Ireland has or is in the process of undergoing a number of changes in order to give children more of a voice.  First, the Office of the Ombudsman was established in 2002, per the recommendation of the Strategy.  The role of the Ombudsman is to act as an independent office whose focus is to: 1) promote the welfare and rights of children generally; 2) investigate complaints from children on issues which affect them; 3) consult with children on issues of importance to them; and 4) to advise government on issues of importance to children.  The staff of the Ombudsman’s office consists of eight individuals in addition to the Ombudsman.

Ireland is also focusing on areas related specifically to the representation of child in child protection proceedings. First, Ireland has adopted Family Welfare Conferences.  These are meeting which are convened with the purpose of empowering both children and their families to have a say in the planning and decision-making of their individual care at times of crisis in children’s lives.  These conferences bring the child’s social and family support networks together to identify what options best meet the needs of the child.  Children are allowed to attend Family Welfare Conferences convened about their care unless the coordinator of the conference believes that the presence of the child is not in the best interests of the conference or the child.

Additionally, Ireland is focusing on the role of guardians ad litem.  GALs are provided to children under Section 26 of the Child Care Act, 1991.  The guardian ad litem is appointed to represent the child’s interests in care proceedings.  However, by the recommendation of the National Children’s Strategy a review is being undertaken to examine:

The government is also in the process of creating an additional voice for children who are in care or are involved with the State’s welfare services.  Thus, the state is working to establish a formal system of representation and complaint for these children. 

Currently, the Ombudsman for Children has called on the All Party Oireachtas Committee of Ireland to amend the Constitution to include express rights for children.  The current Constitution of Ireland does give children express rights independent of their family or the State.

Sources of Law (In Order of Authority)

Statutes

Child Care Act, 1991[2]

Part II.  Promotion of Welfare of Child

3—Functions of Health Boards

(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

(2) In the performance of this function, a health board shall—

( a ) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

( b ) having regard to the rights and duties of parents, whether under the Constitution or otherwise—

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

( c ) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

Part IV.  Care Proceedings

16—Duty of Health Board to Institute Proceedings

Where it appears to a health board with respect to a child who resides or is found in its area that he requires care or protection which he is unlikely to receive unless a court makes a care order or a supervision order in respect of him, it shall be the duty of the health board to make application for a care order or a supervision order, as it thinks fit.

Part V. Jurisdiction and Procedure

25—Power of court to join child as a party and costs of child as a party

(1) If in any proceedings under Part IV [Care Proceedings] or VI [Children in the Care of Health Boards] the child to whom the proceedings relate is not already a party, the court may, where it is satisfied having regard to the age, understanding and wishes of the child and the circumstances of the case that it is necessary in the interests of the child and in the interests of justice to do so, order that the child be joined as a party to, or shall have such of the rights of a party as may be specified by the court in, either the entirety of the proceedings or such issues in the proceedings as the court may direct. The making of any such order shall not require the intervention of a next friend in respect of the child.

(2) Where the court makes an order under subsection (1) or a child is a party to the proceedings otherwise than by reason of such an order, the court may, if it thinks fit, appoint a solicitor to represent the child in the proceedings and give directions as to the performance of his duties (which may include, if necessary, directions in relation to the instruction of counsel).

(3) The making of an order under subsection (1) or the fact that a child is a party to the proceedings otherwise than by reason of such an order shall not prejudice the power of the court under section 30 (2) to refuse to accede to a request of a child made thereunder.

(4) Where a solicitor is appointed under subsection (2), the costs and expenses incurred on behalf of a child exercising any rights of a party in any proceedings under this Act shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.

(5) The court which has made an order under subsection (2) may, on the application to it of a health board, order any other party to the proceedings in question to pay to the board any costs or expenses payable by that board under subsection (4).

26—Appointment of Guardian-Ad-Litem for a child

(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint a guardian ad litem for the child.

(2) Any costs incurred by a person in acting as a guardian ad litem under this section shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.

(3) The court which has made an order under subsection (1) may, on the application to it of a health board, order any other party to the proceedings in question to pay to the board any costs or expenses payable by that board under subsection (2).

(4) Where a child in respect of whom an order has been made under subsection (1) becomes a party to the proceedings in question (whether by virtue of an order under section 25 (1) or otherwise) then that order shall cease to have effect.

30—Power to Proceed in Absence of Child

(1) It shall not be necessary in proceedings under Part III, IV or VI for the child to whom the proceedings relate to be brought before the court or to be present for all or any part of the hearing unless the court, either of its own motion or at the request of any of the parties to the case, is satisfied that this is necessary for the proper disposal of the case.

(2) Where the child requests to be present during the hearing or a particular part of the hearing of the proceedings the court shall grant the request unless it appears to the court that, having regard to the age of the child or the nature of the proceedings, it would not be in the child’s interests to accede to the request.

Children Act, 2001[3]

Part 2 – Family Welfare

7—Convening of Family Welfare Conference

(1) Where-

(a) a health board receives a direction from the Children Court under section 77 to convene a family welfare conference in respect of a child, or

(b) it appears to a health board that a child who resides or is found in its area may require special care or protection which the child is unlikely to receive unless a court makes an order in respect of him or her under Part IVA (inserted by this Act) of the Act of 1991, the health board shall appoint a person (in this Part referred to as a ”coordinator”) to convene on its behalf a family welfare conference in respect of the child.

(2) The coordinator shall act as chairperson of a family welfare conference.

(3) A health board may direct that a family welfare conference shall consider such matters in relation to the child as the health board considers appropriate.

8—Functions of conference

(1) A family welfare conference shall-

(a) decide if a child in respect of whom the conference is being convened is in need of special care or protection which the child is unlikely to receive unless an order is made in respect of him or her under Part IVA (inserted by this Act) of the Act of 1991,

(b) if it decides that the child is in such need, recommend to the health board concerned that it should apply for an order under that Part, and

(c) if it does not so decide, make such recommendations to the health board concerned in relation to the care or protection of the child as the conference considers necessary, including, where appropriate, a recommendation that the health board should apply for a care order or a supervision order under the Act of 1991 in respect of the child.

(2) Any recommendations made by a family welfare conference shall be agreed unanimously by those present at the conference, unless the disagreement of any person present is regarded by the coordinator as unreasonable, in which case the coordinator may dispense with that person’s agreement.

(3) Where any such recommendations are not agreed unanimously (disregarding any disagreement mentioned in subsection (2)), the matter shall be referred to the health board for determination.

9—Persons entitled to attend conference      

(1) The following persons shall be entitled to attend a family welfare conference-

(a) the child in respect of whom the conference is being convened,

(b) the parents or guardian of the child,

(c) any guardian ad litem appointed for the child,

(d) such other relatives of the child as may be determined by the coordinator, after consultation with the child and the child’s parents or guardian,

(e) an officer or officers of the health board concerned,

(f) any other person who, in the opinion of the coordinator, after consultation with the child and his or her parents or guardian, would make a positive contribution to the conference because of the person’s knowledge of the child or the child’s family or because of his or her particular expertise.

(2) If, before or during a family welfare conference, the coordinator is of opinion that the presence or continued presence of any person is not in the best interests of the conference or the child, the coordinator may exclude that person from participation or further participation in the conference.

(3) The coordinator shall take all reasonable steps to ensure that notice of the time, date and place of a family welfare conference is given to every person who is entitled to attend.

(4) Failure to notify any person entitled to attend a family welfare conference, or failure of any such person to attend it, shall not invalidate its proceedings.

10—Procedure at conference        

(1) Subject to the provisions of this Part or any regulations under section 15 , a family welfare conference may regulate its procedure in such manner as it thinks fit.

(2) Subject to any direction of the Children Court pursuant to section 77 , a family welfare conference may be adjourned to a time and place to be determined by it.

(3) The coordinator of a family welfare conference shall ensure, as far as practicable, that any information and advice required by the conference to carry out its functions are made available to it.

12—Notification of recommendations of conference

The coordinator of a family welfare conference shall notify the following persons or bodies in writing of any recommendations of the conference:

(a) the child in respect of whom the conference was convened,

(b) the parents or guardian of the child,

(c) any guardian ad litem appointed for the child,

(d) any other persons who attended the conference,

(e) the health board concerned,

(f) if the child was referred to the health board by another body, that body, and

(g) any other body or persons who should, in the coordinator’s opinion, be so notified.

13—Action by health board on recommendations

1) On receipt of the recommendations of a family welfare conference, the health board concerned may-

(a) apply for an order under Part IVA (inserted by this Act) of the Act of 1991,

(b) apply for a care order or a supervision order under that Act, or    

(c) provide any service or assistance for the child or his or her family as it considers appropriate, having regard to the recommendations of the conference.

(2) Where a family welfare conference has been convened following a direction of the Children Court under section 77, the health board shall communicate with that Court in accordance with subsection (2) of that section.

14—Privilege

(1) No evidence shall be admissible in any court of any information, statement or admission disclosed or made in the course of a family welfare conference.

(2) Subsection (1) does not apply to a record of decisions or recommendations of a family welfare conference.

(3) Section 51 shall apply, with the necessary modifications, in relation to publication of proceedings at a family welfare conference and the protection of the identity of a child in respect of whom such a conference is being held.

15—Regulations

The Minister for Health and Children may make regulations prescribing any or all of the following matters:

(a) the arrangements for convening a family welfare conference and the appointment and role of the coordinator,

(b) subject to section 9, the categories of persons who shall be entitled to attend such a conference and the conditions under which a person or category of persons may so attend, and

(c) the arrangements for notifying any other body or person of any recommendations of such a conference, or for the purposes of enabling any provision of this Part to have full effect and for its due administration. 

Ombudsman for Children Act, 2002[4]

Part 2 – Ombudsman for Children

4—Appointment and term of Office

(1) There is established the office of Ombudsman for Children and the holder of the office shall be known as the Ombudsman for Children.

(2) The appointment of a person to be the Ombudsman for Children shall be made by the President upon resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

6—Performance of Functions

1) The Ombudsman for Children shall be independent in the performance of his or her functions under this Act.

(2) The Ombudsman for Children shall, in the performance of his or her functions under sections 8 and 9, have regard to the best interests of the child concerned and shall, in so far as practicable, give due consideration, having regard to the age and understanding of the child, to his or her wishes.

7—Function to Promote Rights and Welfare of Children

(1) The Ombudsman for Children shall promote the rights and welfare of children and, without prejudice to the generality of the foregoing, he or she shall—

(a) advise the Minister or any other Minister of the Government, as may be appropriate, on the development and co-ordination of policy relating to children,

(b) encourage public bodies, schools and voluntary hospitals to develop policies, practices and procedures designed to promote the rights and welfare of children,

(c) collect and disseminate information on matters relating to the rights and welfare of children,

(d) promote awareness among members of the public (including children of such age or ages as he or she considers appropriate) of matters (including the principles and provisions of the Convention) relating to the rights and welfare of children and how those rights can be enforced,

     (e) highlight issues relating to the rights and welfare of children that are of concern to

     children,

(f) exchange information and co-operate with the Ombudsman for Children (by whatever name called) of other states,

(g) monitor and review generally the operation of legislation concerning matters that relate to the rights and welfare of children, and

(h) monitor and review the operation of this Act and, whenever he or she thinks it necessary, make recommendations to the Minister or in a report under section 13(7) or both for amending this Act.

(2)

(a) The Ombudsman for Children shall establish structures to consult regularly with groups of children that he or she considers to be representative of children for the purposes of his or her functions under this section.

(b) In consultations under this subsection, the views of a child shall be given due weight in accordance with the age and understanding of the child.

(3) The Ombudsman for Children may undertake, promote or publish research into any matter relating to the rights and welfare of children.

(4) The Ombudsman for Children may, on his or her own initiative, and shall, at the request of the Minister or any other Minister of the Government, give advice to the Minister of the Government concerned on any matter (including the probable effect on children of the implementation of any proposals for legislation) relating to the rights and welfare of children.

(5) For the purposes of this section, persons under the age of 18 years who are enlisted members of the Defence Force shall not be regarded as children in any case where they are subject to military law under the Defence Forces Acts, 1954 to 1998.

(6) In this section “the Convention” means the United Nations Convention on the Rights of the Child done at New York on 20 November 1989, as amended by any protocol thereto that is for the time being in force in the State.

8—Function to Examine and Investigate Complaints Against Public Bodies

Subject to this Act, the Ombudsman for Children may investigate any action taken (being an action taken in the performance of administrative functions) by or on behalf of a public body where, upon having carried out a preliminary examination of the matter, it appears to the Ombudsman for Children that—

     (a) the action has or may have adversely affected a child, and

     (b) the action was or may have been—

(i) taken without proper authority,

(ii) taken on irrelevant grounds,

(iii) the result of negligence or carelessness,

(iv) based on erroneous or incomplete information,

(v) improperly discriminatory,

(vi) based on an undesirable administrative practice, or

(vii) otherwise contrary to fair or sound administration.

Additional Resources and Links

Website for the Ombudsmen of Children

http://www.oco.ie/

This website provides information about the role of the Ombudsmen for Children, updates on current legislative efforts on behalf of children, publications about the state of children in Ireland, and other relevant information.

Website of the national children’s office

http://www.nco.ie/

The website provides updates about the activities of the National Children’s Office.  It offers publications, resources for parents and children, and other information about current issues affecting children. 

http://www.oasis.gov.ie/birth/adoption_and_fostering/fostering.html

This government website provides basic information about foster care and adoption in Ireland

Link to National Children’s Strategy

http://www.nco.ie/national_childrens_strategy/

Local Contact Information

Nina Kirwan
National Children’s Office
First Floor
St. Martin’s House
Waterloo Road
Dublin 4
Tel: 01 242 00 14
Fax: 01 664 1929

Nina_Kirwan@health.irlgov.ie

 

Endnotes

1This page is also available as a .pdf Document, and Word Document.

[2] Child Care Act (Act No. 17/1991) (Ir.) available at http://www.irishstatutebook.ie/ZZA17Y1991.html (last visited January 12, 2006).

[3] Children Act (Act No. 24/2001) (Ir.) available at http://www.irishstatutebook.ie/ZZA24Y2001.html (last visited January 12, 2006).