162 / 270
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
156