IT is only in exceptional circumstances that a child should be removed from his or her family and there is a robust system of checks and balances in place to ensure that this is so.
There are clearly defined circumstances in which the State is not merely entitled but obliged to intervene to safeguard children from harm, even from within their own families.
The Child Care Act, 1991 imposes a positive duty on the HSE to promote the welfare of children in its area who are not receiving adequate care and protection. Where the HSE acts in accordance with the 1991 Act it must adhere to a strict framework and meet the requisite thresholds. While there is a duty to give due consideration to the rights and duties of parents, the 1991 Act is clear that the child's interests are "first and paramount".
Section 12 of the 1991 Act permits a member of An Garda Siochana to remove a child to safety in specified circumstances where there are reasonable grounds for believing that there is an immediate and serious risk to the health or welfare of the child. In order to remove a child from danger the garda is fully empowered to enter any house or other place. Following this the HSE will usually apply to court for an emergency care order. Section 13 of the 1991 Act allows a district court judge, once satisfied that the legal threshold has been reached, to make an emergency care order.
It is inarguable that society as a whole must be vigilant where the safety and welfare of children is concerned and that we must take each and every referral relating to child welfare seriously. It must be remembered that where there are competing rights of the parents and the child, the bottom line legally is that the child's interests are the first and paramount consideration.
There may be occasions when the HSE, in good faith, intervenes in a situation and it emerges that the welfare of the child was not actually under threat. In the case of an emergency care order being granted, new information may be available to the court on the next occasion which will allow the parents to show the court that their child should be returned immediately. The parents may challenge, by way of judicial review, the initial decision to remove the child. In the event that the Irish courts do not vindicate the parents' rights to their satisfaction, the parties have the option of taking the case to the European Court of Human Rights, given that Article 8, the right to private and family life, is a Convention right.
It is no longer the case that family and child law hearings are conducted absolutely in camera (in private). For example, there are already various forums where decisions of the district court in family and child law matters are published online such as the Child Care Law Reporting Project and the Courts Services website. This area has become and is becoming much more transparent and accountable and will no longer be shrouded in secrecy. We can now see what happens behind previously closed doors which, in the event of perceived wrongs, can help individuals challenge unfavourable decisions.
Dr Geoffrey Shannon is a solicitor and the State Rapporteur on Child Protection