The Gazette 1980

GAZETTE

SEPTEMBER 1980

seeking a Fit Person Order. I normally proceed under sub-clause (I) (b) on the ground that the child has been found having a parent or guardian not exercising proper guardianship. That is a broad ground in contrast to the three narrower grounds in section 24. It is much easker to prove a case under it, particularly in the emotional battering type of case. It should be noted that the opening words of the section are: 'Any person may bring before a pretty sessional court any person. . . .' In other words, it is an essential part of the application that the child in respect of whom the Fit Person Order is sought must be brought before the court. Thus, the section cannot be invoked if the child in question is still in the custody of the parents and they are unwilling to bring him to court. The section can be availed of when the circumstances permit, for instance when the child is in the custody of some third party such as in hospital or has been temporarily placed in care and it is certain that he or she can then be brought to court. To establish that the child has a parent or guardian who does not exercise proper guardianship within the meaning of sub-clause (I) (b) it is not necessary to prove the equivalent of mens rea against the parent or guardian. The parents may be doing their best within the limits of their capabilities yet they may be hopelessly inadequate and unable to care for a child. I had a case once of a mother who was mentally underdeveloped. Though she was over twenty years of age she herself only had the mental development of a child of about half her age. Within her limitations she looked after her baby as best she could. In practice she was like a young child playing with a doll. When she was in the mood she looked after the baby reasonably well. But when her interest flagged, as it frequently did, the child was left outside for long periods even in the rain, unattended to and unfed. In that case the court upheld my contention that the mother was not exercising proper guardianship even though she could not, because of her own underdeveloped mental state, be held culpably in default. An application under section 58 is based on a summons. In it the health board can be named as the complainant. That is because the opening words of section 58 empower 'any person' to bring the child before the court. There is a very useful proviso at the end of rule 16 in the 1909 Rules whereby the taking out of a section 58 summons may be dispensed with if it is inexpedient or impracticable to take it out. Thus, when a health board has got de facto custody of a child but the whereabouts of the parents are unknown, or they are known to be outside the jurisdiction, it is still possible to seek a Fit Person Order under the section. In the form of Fit Person Order used on foot of the section 58 summons it is customary to make it effective until the child attains sixteen years of age unless sooner varied or revoked. I have only had one case in which a Justice declined to make an Order until the child attained sixteen years of age. He said he would never make one beyond the child's attaining seven years, though he allowed for the possibility that when the child attained that age an extension of the Order could be applied for. I do not know how that will fare out when the child in question attains seven years of age. It could well be that there will be no improvement in the home circumstances so that it would be totally contrary to the interests of the child to send him home. Yet how could it be said that the parents

were still not exercising proper guardianship if the child had been compulsorily taken out of their custody under a court order and kept away from them?

DISCUSSION Fosterage

The effect of a Fit Person Order is defined in Section 22 (1) of the Children Act 1908. In part it reads: Any person to whose care a child or young person is committed under this Part of this Act shall, whilst the order is in force, have the like control over the child or young person as if he were his p a r e n t, and shall be r e s p o n s i b le f or his maintenance, and the child or young person shall c o n t i n ue in t he c a re of such p e r s o n, notwithstanding that he is claimed by his parent or any other person. . . . When the child is in its care the Eastern Health Board considers that, by reason of that section, it has a right to make whatever arrangements it deems fit in a parental capacity for the child. Fosterage is usually preferred to institutional care because in a foster-home the child will enjoy a family environment. Enforcement of Orders A weakness in the legislation is that it lacks proper 'teeth' for the enforcement of Place of Safety Orders and Fit Person Orders. Section 22 of the 1908 Act deals with the 'escape' of a child or concealing a child who has escaped. This concept of escape is not always applicable to cover every type of incident. Section 22 vests parental control in the fit person to whom the child has been committed. I would argue that that includes a power to retake a child who has been wrongfully taken away from thé fit person. But such retaking may not always be practicable, foe instance if the child cannot be found or there is a threat of violent resistance to the retaking. It is important that the legislation be tightened up to make any improper interference with the custody of a child under a Place of Safety Order or a Fit Person Order an offence and to provide for clear Garda 'back up' for the retaking of a child improperly removed from a place of safety or a fit person. The Task Force There is a special Task Force reviewing children legislation. I hope that its report when made will quickly result in new legislation which will deal with child care in a different context from that of the present provision in the 1908 Act and, in particular, will not be primarily working on the basis of offences by or against children. I would like to see new legislation simply dealing with children at risk and their families as social problems. I would like to see procedures for getting them into care simplified and the welfare of the children being given priority over the rights of parents where a conflict of interests arises. Warrants It is important there should be an assured right of entry to a home and to get information if there is reasonable cause to suspect that a child is or has been at risk in the

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