“Advocating for Children”

Gareth Noble of KOD Lyons

Overview

•Representing children in Court•Children’s Referendum•Children in Criminal Justice System•Children in Care and In Need of Protection•Children with Disabilities and Education Law

Representation of Children In Court

• In Criminal Proceedings – Legal Aid Act• In Judicial Review / Administrative Proceedings through

Parents or Guardians ad Litem• In Care Proceedings

– By Solicitor directly (s.25 Child Care Act 1991)– By Guardian ad Litem (s.26 Child Care Act 1991)

• In Asylum Applications– Social Work Department

• Private Law Proceedings eg Family Law, divorce, custody etc.

• Role of Advocate Groups

Children’s Referendum

• Article 42A of the Constitution• Recognises Children directly for the first time• Power of HSE to intervene in exceptional cases• Adoption Law• Best Interests of Child Test• Views of the Child• Limitations of the new provisions

Children In Criminal Justice System

• Juvenile Liaison Scheme• Age of Criminal Liability – 12 (Except for cases of

murder, manslaughter, rape, aggravated sexual assault)• Detention in a Garda Station – Rights of Children in

Garda Custody• The Children’s Court

– s.75 Procedure– s.78-87 – Family Conferences– Media Coverage

• Sentencing and Places of Detention

Children in Care and In Need of Protection

• Legal Framework• UN Convention on the Rights of the Child• European Convention on Human Rights• Constitution of Ireland 1937• Child Care Act 1991• Children Act 2001• Statutory Instruments• Caselaw

Children in Care and In Need of Protection

• Childcare Act 1991 – Obligations• s3 – general obligation on HSE• Rights and duties of parents• ‘Welfare of the child s the first and paramount

consideration’• Evolving capacity of the child• ‘Own family is best’

Children in Care and In Need of Protection

• Test – Compelling Reasons• Test: ‘Why the welfare of the child cannot be

secured to it, in it’s own family unit and by it’s parents’

• Welfare of the child as the first and paramount consideration

• Capacity of the child• Representation full party• Guardian ad Litem

Children in Care and In Need of Protection

• Promoting the Welfare of Children• s3(3) Child Care Act• Child care and family support services• ‘Positive obligation to support family life’• Interference proper and proportionate• Section 4 Voluntary Care

Children in Care and In Need of Protection

• Protection in Emergency• Section 12 Action by An Garda Síochána• Enter if needs be by force• Deliver into the custody of the HSE• Application to court within 72 hours• Emphasis is protection• National Guidance – Children First

Children in Care and In Need of Protection

Emergency Care Order – s13•s13 threshold criteria – court is of the opinion that there is a reasonable cause to believe that:(a)There is an immediate or serious risk to the health or welfare of a child which necessitates him being placed in the care of a health board, or (b) there is likely to be such a risk if the child is removed from the place where he is for the time being

Children in Care and In Need of Protection

• Practice and Procedure and ECO• District Court Rules – Sworn statement• Executing warrant / Ex-parte urgent application• Any DJ otherwise than in public• Appeal does not stay the order• Identification is not necessary• Directions – address, treatment, access• s14 Notification, s15 Accommodation

Children in Care and In Need of Protection

• Practice Issues• Parents not represented at ECO• Difficulty getting legal aid• Interpretation facilities• Cultural issues• Placement issues for children – food, faith,

contact

Children in Care and In Need of Protection

• Interim Care Order – s17• Threshold criteria: DJ is satisfied that • (a) an application for a care order has been or is

about to be made• (b) there is reasonable cause to believe that any

of the circumstances of s18(1) exists or has existed... child be placed and maintained in the care of the HSE pending the determination of the care order

Children in Care and In Need of Protection

• Practice and ICO• Child placed / maintained in the care of HSE• Valid for 28 days or on consent longer• On notice to parents• Existing court orders / directions continue to

operate• Can have several ICO’s before final

determination

Children in Care and In Need of Protection

• Care Order – s18• On the application of a health board, ... The

court is satisfied that (a) child has been or is being assaulted, ill-treated, neglected or sexually abused; (b) Child’s health, development or welfare has been or is being avoidably impaired or neglected; (c) the child’s health development or welfare is likely to be avoidably impaired or neglected

• And child requires care or protection he is unlikely to receive unless an order is made

Children in Care and In Need of Protection

• Consequences of Care Order• Commits child to care of HSE until 18 or less• HSE has control over child as if a parent• Do what is reasonable• Consent to medical treatment, passport• Decide on type of care• s47 Applications• Caselaw

Children in Care and In Need of Protection

• Children in Care • Rights of children• s36 – Placement• s37 – Access• s47 – Question affecting the welfare of a child• Duties of HSE• s23 Non Fatal Offences Against Person Act• Education Welfare Act 1998 – school attendance

Children in Care and In Need of Protection

• s45 – Aftercare• Exercise of HSE discretion• Care planning• Statutory review• Court review

Children in Care and In Need of Protection

• s19 Supervision Order• Reasonable grounds for believing that (a), (b) and (c)... And it is desirable that a child

be visited periodically• Give necessary advice to parents• Right to complain• Duration 1 year, renewable• Consequences of obstructing

Children with Disabilities

• Early Intervention team• Domiciliary Care Allowance• Carer’s Allowance• Disability Allowance• Respite Grant• Adaptation Grants• Assessment of Need under Disability Act 2005

Children with Disabilities

• Education for Persons with Special Needs Act 2004

• SNA Support and resource hours• Home Tuition Scheme• National Education Welfare Board

Gareth Noble, Partner at KOD Lyons SolicitorsT: 01 6790780E: info@kodlyons.ieW: www.kodlyons.ieTwitter: @KODLyons