The Gazette 1980

GAZETTE

SEPTEMBER 1980

as the parents themselves. Even when a Fit Person Ordered is obtained committing a child into the care of the Eastern Health Board there is further social work with the parents with a view to bringing about an improvement in the home conditions which put the child at risk in the first instance. Continuing contact between the parents and the child allows the parents to visit the child. As things improve the child may be allowed out, initially for short periods with the parents and then for increasingly longer periods. Eventually things may improve to the point where the child can go home permanently. Children Act 1908 Before getting down to a detailed consideration of some of the procedures available under the Children Acts there are two important factors which should be borne in mind: (1) the limitations of the Children Act 1908, as amended, in the light of modern needs; (2) the possible risk of conflict with constitutional rights and natural justice. So far as the first point is concerned, it is understandable that as the Children Act 1908 was drafted just over seventy years ago, and at a time when social services such as we have them today were simply not available, it is not ideally suited to modern-day needs. Indeed, its main provisions are concerned with offences against children and offences by children. Nowadays in working practice social workers are not concerned with offences as such but rather with problem families wherein children are at risk and which need a good deal of help and guidance. As regards the second point, constitutional rights and natural justice are nowadays readily invoked in all kinds of situations. Traditionally the family unit has always had a special place in Ireland and this is reflected in some of the provisions of our Constitution. Indeed, I think it has been said in some of the cases argued before the High Court in relation to the custody and adoption of children that the legislation is more concerned with the rights of parents than the rights of children. In moving to have children committed into care one must, therefore, move carefully notwithstanding that the known ill-treatment of a child may scream out for 'instant action' to get the child away from the home. I have had a few cases in which action taken at District Court level was challenged in the High Court. I am happy to sáy that the lawyers in those cases acting for the parents were very concerned by the imlications of winning their cases with a consequential return of the children to the parents. That was very proper. I believe a judge of the High Court on one occasion when addressing lawyers reminded them that when acting for parents in child custody cases they should always hear in mind that in the background they had another client, namely the child concerned in the case. As a consequence of this philosophy my High Court cases just mentioned were settled out of court in a manner that reasonably protected the interests of the children. While the 1908 Act is a very good Act in many respects it is not completely suited to modern-day needs. As I commented before, it is more concerned with offences against children and by children. Nowadays we are not really concerned with offences as such but rather with child and family welfare as social matter. I will not attempt a detailed analysis of the unsatisfactory features

of the Act as regards present-day needs. Space and time really only allow for the consideration of a few sections and the procedures they provide which are .mostly invoked for the purpose of getting children into care. The Children Act 1908 was amended by some succeeding Children Acts but the details of the amendments need not be dealt with in this paper. In conjunction with the 1908 Act one must consider the Summary Jurisdiction Rules 1909 (S.R.O. 1909 No. 952). When I first came across these Rules I was in considerable doubt as to whether they were still in force. I then found they had been amended by the District Court Rules (1942) (No. 2) (S.R.O. 1942 No. 144). The 1942 Rules really only substituted new forms for those in the 1909 Rules. None of the new forms was directly and immediately usable for the type of cases I was dealing with so modified ones had to be prepared. I now comment on some of the sections in the 1908 Act. Section 20 Superficially, section 20 seems a very useful section in that it provides a means whereby a child may very quickly be taken to a place of safety. Under it a constable can act on his own initiative to remove a child at risk to a place of safety. Another person may do so if authorised by a Justice. But that section only deals with cases in which offences have been committed against children or there is reason to believe they have been committed. Furthermore, it is a limiting one in that the child may only be detained while a decision is being made to prosecute in respect of the offence and, if a prosecution is brought, until it has been determined. Section 21 Section 21 enables a Fit Person Order to be made in respect of the child if the person having the custody, charge or care of the child is convicted of an offence of the type mentioned in the section, is committed for trial for such an offence or is bound over to keep the peace towards the child. If the person committed for trial is found not guilty or the charge dismissed for want of prosecution the Fit Person Order already made becomes void. As I have already mentioned, social workers are not concerned with having prosecutions brought so this particular procedure is only of limited interest so far as health boards are concerned. Section 24 Section 24 is a more useful section and has a two-stage procedure. Firstly it provides a means whereby a child can be quickly removed to a place of safety if there is reasonable cause to suspect that a child or young person has been or is being assaulted, ill-treated or neglected in a manner likely to cause the child or young person unnecessary suffering or to be injurious to his health or if an offence of the type mentioned has been committed against him. A 'place of safety' is defined as any workhouse or police station, or any hospital, surgery or other suitable place, the occupier of which is willing temporarily to receive an infant, child or young person. Secondly, the removal is a temporary one until the child can be brought before the court, at which stage the court may commit him to the care of a relative or other fit person. Some comments on section 24 are appropriate. To

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