Child Care (Amendment) Act 2007

4.

Amendment of Part VI of Principal Act.

4.— The following sections are inserted into the Principal Act after section 43:

“Orders relating to children in care of same foster parent or relative for five years or more.

43A.— (1) This section applies to a child in the care of the Health Service Executive whether in care under section 4 or under section 18 and whether the child has been placed under section 36(1)( a) with a foster parent or under section 36(1)( d) with a relative.

(2) On the application of a foster parent or relative with whom the child has been placed, the court may grant an order under this section, but only if it is satisfied that—

( a) the foster parent or relative has been taking care of the child for a period of not less than five years beginning on the date of placement in accordance with this Act and ending on the date of application,

( b) the granting of the order is in the child’s best interests,

( c) the Health Service Executive has consented in advance to the granting of the order,

( d) the Health Service Executive has, on behalf of the foster parent or relative—

(i) if the child is in its care under section 4, obtained the consent to the granting of the order of a parent having custody of the child at the relevant time or of a person (other than the foster parent or relative) acting in loco parentis to the child, or

(ii) if the child is in its care under section 18, given notice of the application to a parent having custody of the child at the relevant time or of a person (other than the foster parent or relative) acting in loco parentis to the child, and

( e) the child’s wishes have, in so far as is practicable, been given due consideration having regard to the age and understanding of the child.

(3) In determining whether a foster parent or relative has been taking care of a child for the period required by subsection (2)( a), any interruption of the placement during that period shall be disregarded unless the total number of days of interruption, whether consecutive or not, exceeds 30.

(4) The requirement of subsection (2)( d) as to the consent or notification of a parent or other person does not apply if—

( a) the court is satisfied that he or she is missing and cannot be found by the Health Service Executive, or

( b) the court, having regard to the child’s welfare, so directs.

(5) Subject to any conditions or restrictions imposed under subsection (6), an order under this section shall authorise the foster parent or relative to whom it is granted—

( a) to have, on behalf of the Health Service Executive, the like control over the child as if the foster parent or relative were the child’s parent, and

( b) to do, on behalf of the Health Service Executive, what is reasonable (subject to the provisions of this Act and of the regulations for the time being in force under this Act) in all the circumstances of the case for the purpose of safeguarding and promoting the child’s health, development or welfare and, in particular, give consent to—

(i) any necessary medical or psychiatric examination, treatment or assessment with respect to the child, and

(ii) the issue of a passport to, or the provision of passport facilities for, the child to enable the child to travel abroad for a limited period.

(6) In granting the order, the court may impose any conditions or restrictions it thinks fit as to the extent of the authority of the foster parent or relative to whom the order is granted.

(7) Any consent given by a foster parent or relative of the child in accordance with an order under this section shall be sufficient authority for the carrying out of a medical or psychiatric examination or assessment, the provision of medical or psychiatric treatment, the issue of a passport or the provision of passport facilities, as the case may be.

(8) In the absence of a consent referred to in subsection (5) being given by the foster parent or relative to whom an order under this section was granted, the Health Service Executive has authority to give consent in accordance with section 18(3) in relation to the child.

(9) Nothing in this section or section 18 shall be construed as making ineffective any consent that, by virtue of section 23 of the Non-Fatal Offences Against the Person Act 1997, would otherwise be an effective consent.

(10) Any arrangement that is in place or order that is in force under section 37 with respect to access to the child immediately before an order under this section is granted continues in place or in force, unless when granting the order—

( a) in the case of an arrangement under subsection (1) of section 37, the court makes an order under subsection (2) of that section, or

( b) in the case of an order under subsection (2) or (3) of section 37, the court varies or discharges that order.

(11) Subsection (10) is without prejudice to the jurisdiction of the court to make, at any time, an order under section 37 with respect to access to the child or to vary or discharge such an order, including an order continued or varied pursuant to that subsection.

(12) This section and section 43B are without prejudice to any other provisions of this Act, or any provisions of the regulations for the time being in force under this Act, that in the interests of a child in care assign functions to the Health Service Executive.

(13) For the purpose of this section and section 43B, ‘relevant time’ means—

( a) in relation to a child in care under section 4, immediately before the child was taken into care under that section, and

( b) in relation to a child in care under section 18, immediately before a care order was made in relation to the child.

Variation, discharge or cessation of order under section 43A.

43B.— (1) The court may vary or discharge an order under section 43A or any condition or restriction attaching to that order on the application of any of the following persons:

( a) the Health Service Executive;

( b) a foster parent or relative to whom the order was granted;

( c) a parent having custody of the child concerned at the relevant time;

( d) a person (other than the foster parent or relative to whom the order was granted) acting in loco parentis to the child concerned;

( e) a person who, in the opinion of the court, has a bona fide interest in the child concerned.

(2) An order under section 43A ceases to have effect—

( a) if the child concerned is in care under section 4, when care of the child is resumed by the parent or other person whose wishes the Health Service Executive is required under that section to have regard to,

( b) if the child concerned is the subject of a care order, when the care order is discharged under section 22 or ceases to have effect under section 44(2),

( c) if the child concerned is, in accordance with section 43 and regulations made by the Minister, removed from the custody of the foster parent or relative to whom the order under section 43A was granted, immediately on the child’s removal,

( d) if the foster parent or relative to whom the order under section 43A was granted requests the Health Service Executive to remove the child concerned from his or her custody, when the child is removed in accordance with the request, or

( e) when the child concerned attains the age of 18 years or marries,

whichever is the sooner.”.