Children Act 2001

Amendment (new Parts IVA and IVB) of Act of 1991.

16

16.—The Act of 1991 is hereby amended by the insertion of the following Parts after section 23:

“PART IVA

Children in need of Special Care or Protection

Duty of health board where child requires special care or protection.

23A.—(1) Where it appears to a health board with respect to a child who resides or is found in its area that the child requires special care or protection which he or she is unlikely to receive unless a court makes an order under this Part in respect of the child, being either—

( a) an order under section 23B (in this Part referred to as a ‘special care order’), or

( b) an order under section 23C (in this Part referred to as an ‘interim special care order’),

it shall, subject to subsection (2), be the duty of the health board to apply for whichever of such orders is appropriate in the particular circumstances.

(2) Before applying for an order under this Part the health board shall—

( a) arrange for the convening of a family welfare conference (within the meaning of the Children Act, 2001) in respect of the child, and

( b) where, on the conclusion of the conference proceedings, it proposes to apply for a special care order in respect of the child, seek the views of the Special Residential Services Board established under section 226 of that Act on the proposal.

(3) Where a parent or guardian of a child requests a health board to apply for an order under this Part in respect of the child and the board decides not to do so, it shall inform the parent in writing of the reasons for its decision.

Special care order.

23B.—(1) A court may, on the application of a health board with respect to a child who is in its care or who resides or is found within its area and having taken into account the views of the Special Residential Services Board referred to in section 23A(2)( b), make a special care order in respect of the child if it is satisfied that—

( a) the behaviour of the child is such that it poses a real and substantial risk to his or her health,safety, development or welfare,and

( b) the child requires special care or protection which he or she is unlikely to receive unless the court makes such an order.

(2) A special care order shall commit the child to the care of the health board concerned for so long as the order remains in force and shall authorise it to provide appropriate care, education and treatment for the child and, for that purpose, to place and detain the child in a special care unit provided by or on behalf of the health board pursuant to section 23K.

(3) Where a child is detained in a special care unit pursuant to a special care order, the health board may take such steps as are reasonably necessary to prevent the child from—

( a) causing injury to himself or herself or to other persons in the unit, or

( b) absconding from the unit.

(4) ( a)  Subject to subsections (5) and (6), a special care order shall remain in force for a period to be specified in the order, being a period which is not less than 3 months or more than 6 months.

( b)  The court may, on the application of the health board concerned, extend the period of validity of a special care order if and so often as the court is satisfied that the grounds for making the order continue to exist with respect to the child concerned.

(5) If, while a special care order is in force in respect of a child, it appears to the health board concerned that the circumstances which led to the making of the order no longer exist with respect to the child, the board shall, as soon as practicable, apply to the court which made the order to have the order discharged.

(6) A special care order shall cease to have effect when the person in respect of whom it was made ceases to be a child.

(7) Where a special care order is in force, the health board may—

( a) as part of its programme for the care, education and treatment of the child, place the child on a temporary basis in such other accommodation as the board is empowered to provide for children in its care under section 36, or

( b) arrange for the temporary release of the child from the unit on health, education or compassionate grounds,

and any such placement or arrangement shall be subject to its control and supervision.

(8) Subject to this section, subsections (3), (4), (6), (7) and (8) of section 18 shall apply in relation to a special care order as they apply in relation to a care order, with any necessary modifications.

Interim special care order.

23C.—(1) Where a judge of the Children Court is satisfied on the application of a health board—

( a) that the health board is complying with the requirements of section 23A(2) in relation to the making of an application for a special care order in respect of a child, and

( b) that there is reasonable cause to believe that—

(i) the behaviour of the child is such that it poses a real and substantial risk to his or her health, safety, development or welfare, and

(ii) it is necessary in the interests of the child, pending determination of the application for a special care order, that he or she be placed and detained in a special care unit provided under section 23K,

the judge may make an interim special care order in respect of the child.

(2) An interim special care order shall require that the child named in the order be placed and detained in a special care unit—

( a) for a period not exceeding twenty-eight days, or

( b) where the health board and the parent having custody of the child or a person acting in loco parentis consent, for a period exceeding twenty-eight days,

and the judge concerned may be order extend any such period, on the application of any of the persons specified in paragraph ( b) and, where the period of the extension exceeds twenty-eight days, with the consent of those persons, if he or she is satisfied that the grounds for making the interim special care order continue to exist with respect to the child.

(3) An application for an interim special care order or for an extension of a period mentioned in subsection (2) shall be made on notice to a parent having custody of the child or a person acting in loco parentis or, where appropriate, to the health board concerned, except where, having regard to the welfare of the child, the judge otherwise directs.

(4) Subsections (3) to (7) of section 13 shall apply in relation to an interim special care order as they apply in relation to an emergency care order, with any necessary modifications.

Duty of Garda Síochána where child needs special care or protection.

23D.—

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Notification by health board.

23E.—(1) Where a child is placed in a special care unit pursuant to an interim special care order, the health board concerned shall as soon as possible inform or cause to be informed a parent having custody of the child or a person acting in loco parentis of the placement unless the parent or person is missing and cannot be found.

(2) For the purposes of this section, a person shall be deemed to have been informed of the placing of a child in a special care unit if the person is given or shown a copy of the interim special care order or if the person was present at the sitting of the court at which the order was made.

Variation or discharge of special care orders.

23F.—(1) Without prejudice to section 23B(5), the court may, of its own motion or on the application of any person, vary or discharge a special care order.

(2) In discharging a special care order, the court may, of its own motion or on the application of a health board either—

( a) make a supervision order in respect of the child, or

( b) if the court is of opinion that—

(i) the child requires care and protection which he or she is unlikely to receive unless he or she remains in the care of the health board, or

(ii) the delivery or return of the child to a parent or any other person would not be in the best interests of the child,

make a care order in respect of the child.

Appeals.

23G.—Section 21 shall apply to an appeal from an interim special care order or a special care order as it applies to an appeal from an order under Part IV.

Powers of court in case of invalidity of order.

23H.—Section 23 shall apply to a special care order as it applies to a care order, with the modification that the court may, as an alternative to making a special care order, make a care order in respect of the child.

Application of Part V.

23I.—Part V shall apply to proceedings relating to an application for an interim special care order or a special care order, with any necessary modifications.

Application of Part VI.

23J.—Section 37, 42, 45 and 47 shall apply to a child who is committed to the care of a health board pursuant to an interim special care order or a special care order.

Provision of special care units by health boards.

23K.—(1) A health board may, with the approval of the Minister, for the purposes of section 23B and 23C—

( a) provide and maintain a special care unit, or

( b) make arrangements with a voluntary body or any other person for the provision and operation of such a unit by that body or person on behalf of the board.

(2) The Minister shall not approve of the provision of a special care unit unless—

( a) having caused the unit to be inspected by a person authorised in that behalf by the Minister, and

( b) having considered a report in writing of the inspection,

he or she is satisfied that the requirements of regulations under this section will be complied with by the health board, voluntary body or other person, as the case may be, in relation to the unit.

(3) The duration of an approval of a special care unit by the Minister shall be 3 years from the date of approval, and thereafter the Minister may renew the approval for a further period, or further periods, of the like duration.

(4) The Minister, on approving of a special care unit, shall cause a certificate to that effect to be issued to the health board concerned and the certificate shall without further proof, unless the contrary is shown, be admissible in any proceedings as evidence that the unit has been approved of by the Minister for the purposes of sections 23B and 23C.

(5) The Minister may cancel such a certificate if he or she is of opinion that the special care unit concerned is no longer suitable for use as such a unit or is no longer required for that purpose.

(6) The Minister shall make regulations with respect to the operation of special care units provided by or on behalf of health boards under this section and for securing the welfare of children detained therein.

(7) Without prejudice to the generality of subsection (6), regulations under this section may prescribe requirements as to—

( a) the maintenance, care and welfare of children while being detained in special care units,

( b) the staffing of those units,

( c) the physical standards in those units, including the provision of adequate and suitable accommodation and facilities,

( d) the periodical review of the cases of children in those units and the matters to be considered in such reviews,

( e) the records to be kept in those units and the examination and copying of any such records or of extracts therefrom by persons authorised in that behalf by the Minister, and

( f) the periodical inspection of those units by persons authorised in that behalf by—

(i) in case the units were provided under section 23K(1)( b) by a voluntary body or other person, the health board concerned, and

(ii) in any other case, the Minister n accordance with section 69.

(8) Section 10 shall apply in relation to arrangements made under subsection (1)( b), with any necessary modifications.

(9) Nothing in this section shall empower a health board to delegate to a voluntary body or any other person the power to apply for an order under section 23B or 23C.

(10) Where a child is detained in a special care unit provided under subsection (1)( b), the provisions of section 23B(3) shall apply in relation to the voluntary body or other person providing or operating the unit.

(11) Nothing in this section shall authorise the placing of a child in a special care unit otherwise than in accordance with an interim special care order or a special care order.

Recovery of absconding child.

23L.—Section 46 shall apply to the recovery of a child who absconds from a special care unit.

Amendment of section 4.

23M.—References in section 4 to Parts III, IV and VI shall be construed as including references to this Part.

Restriction.

23N.—A child on being found guilty of an offence may not be ordered to be placed or detained in a special care unit.

PART IVB

Private Foster Care

Definitions.

23O.—In this Part—

‘authorised officer’ means a person appointed by a health board under section 23S;

‘health board’ means the health board for the area in which a child resides before being placed under a private foster care arrangement and also, if the child, on or after being so placed, goes to reside in the area of another health board, that other health board;

‘private foster care arrangement’ means any arrangement or undertaking whereby a child is for more than 14 days in the full-time care, for reward or otherwise, of a person other than his or her parent or guardian, a person cohabiting with a parent or guardian or a relative, except where the child—

( a) is residing at a boarding school and receiving full-time education,

( b) is in an institution managed by or on behalf of a Minister of the Government or a health board,

( c) is in an institution in which the majority of persons being cared for and maintained are being treated for acute illness,

( d) is in an institution for the care and maintenance of children with a disability,

( e) is in a mental institution within the meaning of the Mental Treatment Acts, 1945 to 1966,

( f) is detained in a children detention school or children detention centre within the meaning of the Children Act, 2001,

( g) is placed for adoption under the Adoption Acts, 1952 to 1998,

( h) is in the care of a health board,

( i) is on holidays for a continuous period not exceeding 42 days,

( j) is placed with a person or body for primarily educational purposes, or

( k) is placed with a friend of the child’s parent or guardian for a period not exceeding 42 days, while the parent or guardian is on holidays;

‘relative’, in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the whole blood, half blood or by affinity, and includes the spouse of any such person and any person cohabiting with any such person.

Notice of private foster care arrangement.

23P.—(1) A person arranging or undertaking a private foster care arrangement shall give notice to the health board in the manner specified in section 23Q not less than thirty days before the placement.

(2) Where a child is placed in a private foster care arrangement owing to an unforeseen emergency, both the person making the arrangement and the person undertaking it shall notify the health board in the manner specified in section 23Q as soon as practicable and not more than 14 days after the placement.

(3) Any person arranging or undertaking a private foster care arrangement on the commencement of this Part who has submitted to the health board before such commencement the information it requires in relation to the arrangement or undertaking shall be deemed to have complied with subsection (1).

Information to be submitted to relevant health board.

23Q.—(1) Any person arranging or undertaking a private foster care arrangement shall submit to the health board in writing—

( a) the person’s name and address,

( b) the name, sex, date and place of birth and address of the child concerned,

( c) the name and address of the parent or guardian of the child,

( d) if the child’s residence is changed, the child’s new address,

( e) if the private foster care arrangement terminates, the reasons for its termination,

and any other information that the health board may consider necessary in relation to any persons involved in the arrangement.

(2) Any person arranging a private foster care arrangement shall submit to the relevant health board, in writing, the name and address of the person undertaking the arrangement and any other information in respect of that person that the health board may consider necessary.

Duty in respect of children in private foster care.

23R.—Any person arranging or undertaking a private foster care arrangement in respect of a child shall regard the child’s welfare as the first and paramount consideration.

(2) Any person undertaking such an arrangement shall take all reasonable measures to safeguard the health, safety and welfare of the child concerned.

(3) Any person arranging such an arrangement shall make all reasonable enquiries to ensure that the person undertaking it is in a position to comply with subsection (2).

Authorised officers.

23S.—(1) A health board shall appoint such and so many of its officers as it thinks fit to be authorised officers for the purposes of this Part.

(2) Each authorised officer shall be given a warrant of his or her appointment and, when exercising any power conferred by this Part, shall, on request by any person affected, produce the warrant or a copy thereof, together with a form of personal identification.

Inspection by authorised persons.

23T.—(1) Where the relevant health board has received a notice in accordance with section 23P in respect of a private foster care arrangement, an authorised officer may at all reasonable times enter any premises (including a private dwelling) in which the child concerned is residing.

(2) A judge of the District Court may, if satisfied on the sworn information of an authorised officer that there are reasonable grounds for believing that a private foster care arrangement has been arranged or undertaken and that the health board has not received the requisite notice, issue a warrant authorising an authorised officer, accompanied if necessary by other persons, to enter, if need by reasonable force, and inspect any premises (including a private dwelling) in which the child may be residing.

(3) An authorised officer, on entering any such premises, shall investigate the care and attention that the child is receiving and the condition of the premises with a view to ensuring that the person undertaking the arrangement is complying with his or her duty to take all reasonable measures to safeguard the child’s health, safety and welfare.

(4) An authorised officer may request a member of the Garda Síochána to accompany him or her when carrying out an inspection.

Institution of proceedings by health board.

23U.—If a health board believes—

( a) that a person who is arranging or undertaking a private foster care arrangement has not notified it under section 23P, or

( b) that such a person is not taking all reasonable measures to safeguard the health, safety and welfare of the child concerned,

it may apply to the District Court for one of the following orders:

(i) that a supervision order under section 19 be made in respect of the child,

(ii) that the child be taken into the care of the health board under section 13, 17 or 18, or

(iii) that the arrangement be terminated and the child returned to his or her parents or guardian,

and the Court may order accordingly.

Restrictions on private foster care arrangements in certain cases.

23V.—(1) A person shall not arrange or undertake a private foster care arrangement for the purpose of adopting a child under the Adoption Acts, 1952 to 1998.

(2) Any person undertaking a private foster care arrangement in respect of a child shall not apply under those Acts to adopt the child unless—

( a) the child is eligible for adoption under the Adoption Acts, 1952 to 1998, and

( b) the relevant health board has consented to the continuance of the arrangement pending the completion of an assessment of that person under those Acts.

(3) If a health board believes that a person who is arranging or undertaking a private foster care arrangement is doing so in contravention of subsection (1) or (2), it may apply to the District Court for an order either—

( a) that the child be taken into its care under section 13, 17 or 18, or

( b) that the arrangement be terminated and the child returned to his or her parents or guardian,

and the Court may order accordingly.

Offences.

23W.—(1) Any person—

( a) who while arranging or undertaking a private foster care arrangement does not notify the relevant health board under section 23P,

( b) who contravenes subsection (2) or (3) of section 23R,

( c) who refuses to allow an authorised officer to enter any premises in accordance with subsection (1) or (2) of section 23T or obstructs or impedes an authorised officer in the exercise of his or her powers under that section,

( d) who while arranging or undertaking a private foster care arrangement knowingly or wilfully makes or causes or procures any other person to make a false or misleading statement to the relevant health board,

( e) who contravenes section 23V(1), or

( f) who does not comply with an order under paragraph (ii) or (iii) of section 23U or under section 23V(3),

is guilty of an offence and liable on summary conviction to a fine not exceeding £1,500.

(2) Where a person is convicted of an offence under this section, the District Court may by order prohibit the person from arranging or undertaking a private foster care arrangement for such period as may be specified in the order.

Saver.

23X.—This Part is without prejudice to any other provision of this Act or any provision of the Children Act, 2001, which imposes, in the interests of a child, duties or obligations on a health board or a member of the Garda Síochána.”.

Annotations

Amendments:

Amendments:

Editorial Notes:

E18

Child Care Act 1991 (17/1991), Part IVA, was subsequently amended by Child Care (Amendment) Act 2011, s. 10, not commenced as of date of revision, subject to transitional provisions in s. 48.

E19

Child Care Act 1991 (17/1991), ss. 23A(2)(b) and 23B(1), were subsequently amended (23.07.2007) by Child Care (Amendment) Act 2007, s. 21 and sch. part 1, S.I. No. 509 of 2007.