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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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