Child Care Act 1991

Recovery of children removed from care etc.

46

46. (1) The provisions of this section shall apply to any child who is in the care of F276 [ the F277 [ Child and Family Agency ] ] F278 [ , other than special care under Part IVA , ] and who is, without lawful authority, removed from the custody of F276 [ the F279 [ Agency ] ] or from the custody of any person who is taking care of him on behalf of F276 [ the F279 [ Agency ] ] or prevented from returning to such custody at the end of any period of leave.

(2) The F276 [ the F279 [ Agency ] ] may request the Garda Síochána to search for the child and to deliver him up to the custody of the F279 [ Agency ] and the Garda Síochána may take all reasonable measures to comply with such a request.

F280 [ (2A) A request made by the Health Service Executive to the Garda S í och á na under subsection (2) before the establishment of the Child and Family Agency shall be deemed to have been made by the Child and Family Agency if the child in respect of whom the request was made is not delivered up to the Health Service Executive before the establishment day of the Agency. ]

(3) A justice of the District Court may, if satisfied by information on oath that there are reasonable grounds for believing that a person specified in the information can produce the child named in the application, make an order directing that person to deliver up the child to the custody of the F276 [ the F277 [ Child and Family Agency ] ].

(4) Without prejudice to the law as to contempt of court where the District Court has made an order under subsection (3) directing that a child be delivered up to the care of F276 [ the F277 [ Child and Family Agency ] ], any person having the actual custody of the child who, having been given or shown a copy of the order and having been required, by or on behalf of F276 [ the F279 [ Agency ] ], to give up the child to F276 [ the F279 [ Agency ] ], fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.

(5) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order made under subsection (3) if that person was present at the sitting of the court at which such an order was made.

(6) A justice of the District Court may, if satisfied by information on oath that there are reasonable grounds for believing that the child named in the application is in any house or other place (including any building or part of a building, tent, caravan or other temporary or moveable structure, vehicle, vessel, aircraft or hovercraft) specified in the information, issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or such other persons as may be necessary to enter (if need be by force) and to search the house or other place for the child; and if the child is found he shall be returned to the custody of F276 [ the F277 [ Child and Family Agency ] ].

(7) An application for an order under subsection (3) may, if the justice is satisfied that the urgency of the matter so requires, be made ex parte.

(8) An application for an order under subsection (3) or for a warrant under subsection (6) may, if the justice is satisfied that the urgency of the matter so requires, be heard and an order made thereon elsewhere than at a public sitting of the District Court.

(9) Without prejudice to section 28

( a) an order under subsection (3) may be made by a justice of the District Court for the time being assigned to the district court district where the person specified in the information resides or is for the time being, and

( b) a warrant under subsection (6) may be issued by a justice for the time being assigned to the district where the house or other place specified in the information is situated,

and, in either case, where such justice is not immediately available the order may be made, or the warrant issued, by any justice of the District Court.

Annotations:

Amendments:

F276

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 7 part 6 item 52(a), (b), (d), (e) and (f), S.I. No. 887 of 2004.

F277

Substituted (1.01.2014) by Child and Family Agency Act 2013 (40/2013), s. 97 and sch. 2 part 4 item 1, S.I. No. 502 of 2013.

F278

Inserted (31.12.2017) by Child Care (Amendment) Act 2015 (45/2015), s. 13 and sch. 1 part 1 item 10, S.I. No. 636 of 2017.

F279

Substituted (1.01.2014) by Child and Family Agency Act 2013 (40/2013), s. 97 and sch. 2 part 4 item 2, S.I. No. 502 of 2013.

F280

Substituted (1.01.2014) by Child and Family Agency Act 2013 (40/2013), s. 97 and sch. 2, part 4 item 15, S.I. No. 502 of 2013.

Modifications (not altering text):

C29

Application of subs. (4) affected (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2), (3), S.I. No. 662 of 2010. The Euro equivalent of £500 is €634.87.

Definitions

3.— In this Part— ...

“class D fine” means a fine not exceeding €1,000;

...

Class D fines

7.— ...

(2) Subject to subsection (3), where an enactment enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table provides that a person who commits an offence under the enactment shall be liable, upon summary conviction, to a fine not exceeding an amount that falls within the range of amounts specified in column (3) of the Table opposite the same reference number, a person who commits that offence after the commencement date shall, upon summary conviction, not be liable to that fine, but shall instead be liable to a class D fine.

(3) Where an enactment enacted before the commencement date provides that a person who commits an offence under the enactment shall be liable, upon summary conviction, to a fine not exceeding an amount that—

( a) was provided for by virtue of a subsequent enactment enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table, and

( b) falls within the range of amounts specified in column (3) of the Table opposite the same reference number,

a person who commits that offence after the commencement date shall, upon summary conviction, not be liable to that fine but shall instead be liable to a class D fine.

TABLE

Reference Number

(1)

Period

(2)

Range of amounts

(3)

...

...

...

2.

1 January 1990 to 31 December 1996

Not greater than €692 but greater than €346

...

...

...

Editorial Notes:

E124

Previous affecting provision: words inserted in subs. (1) by Child Care (Amendment) Act 2011 (19/2011), s. 24, not commenced; s. 24 repealed (31.12.2017) by Child Care (Amendment) Act 2015 (45/2015), s. 15 and sch. 2, S.I. No. 636 of 2017.

E125

The insertion of subs. (2A) by Child and Family Agency Act 2013 (40/2013), s. 97 and sch. 2 part 4 item 15, S.I. No. 502 of 2013, is here treated as a substitution, and the previous subs. (2A) is mentioned below as a previous affecting provision.

E126

Previous affecting provision: “Health Service Executive” substituted for “health board” (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 7, part 6 item 52(b), S.I. No. 887 of 2004; substituted as per F-note above.

E127

Previous affecting provision: subs. (2A) inserted (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 7 part 6 item 52(c), S.I. No. 887 of 2004; substituted as per F-note above.