THE IRISH CHILD WELFARE SYSTEM:
HIGH THRESHOLDS, VOLUNTARY PLACEMENTS,
CHILDREN’S PARTICIPATION AND TRANSPARENCY
Kenneth Burns, Aisling Parkes, Caroline Shore and Conor O’Mahony
Child Care Proceedings Research Group, UCC, Ireland
Wenzel
Hollar’s
historical
map of
Ireland
Presentation overview
◦ Introduction to the child welfare system in Ireland
◦ Decision-making systems for child protection removals
◦ Children’s participation in District Court child care proceedings
1916
Proclamation
and our 2016
celebrations
The meaning of
this phrase
Democratic Programme (1919) vs. 1937
Constitution
◦ It shall be the first duty of the Government of the Republic to
make provision for the physical, mental and spiritual well-being
of the children, to secure that no child shall suffer hunger or
cold from lack of food, clothing, or shelter, but that all shall be
provided with the means and facilities requisite for their proper
education and training as Citizens of a Free and Gaelic Ireland.
(Dáil Éireann, 1919)
Ireland and children
Historical themes
Poverty and emigration
New nation state
Culture of suppression and denial (sexuality,
children, child abuse)
Children as subservient citizens
Catholic ethos
Pro-family Constitution
Non-interventionist state; Subsidiarity and Catholic
Church
Republican politics
Small welfare state; catholic provision of social
services
Current themes
Ireland and children
Historical themes
Current themes
Poverty and emigration
Very high child poverty and continued emigration
New nation state
Reflective State; ongoing peace process
Culture of suppression and denial (sexuality, children, First state to legalise same-sex marriage; one of youngest
child abuse)
populations in EU + % of population; ongoing process of addressing
historical and current child welfare issues; socially liberal (?)
Children as subservient citizens
Limited children’s rights in our Constitution (2015)
Catholic ethos
Separation of church and state
Pro-family Constitution
Pro-family, but recognition of children’s rights and childhood
Non-interventionist state; Subsidiarity and Catholic
Church
High threshold for interventions; good policies and legislation; stateled; low market participation in social services
Republican politics
Neo-liberal politics (?); open economy; pro-FDI; sovereignty
Small welfare state; catholic provision of social
services
Average social provision; growing privatisation; questionable tax base
to support social services and welfare state; poverty and inequality
The Irish child welfare system
Key features
Risk-orientated
Means-tested social provision
High intervention thresholds
Exceptional circumstances threshold for child protection
removals
Greater public recognition of child abuse and child welfare
Low to moderate public/media criticism of child welfare
Social work-led
Child protection response
Operation of the system, particularly removals = opaque?
Predominance of voluntary removals
Children’s services lost in monolithic health service
Current themes
Irish constitution
◦42A.2.1° In exceptional cases, where the parents,
regardless of their marital status, fail in their duty
towards any of their children to such extent that their
welfare is likely to be prejudicially affected, the State as
guardian of the common good shall, by proportionate
means as provided by law, endeavour to supply the
place of the parents, but always with due regard for the
natural and imprescriptible rights of the child.
Irish constitution
◦42A.2.1° In exceptional cases, where the parents,
regardless of their marital status, fail in their duty
towards any of their children to such extent that their
welfare is likely to be prejudicially affected, the State as
guardian of the common good shall, by proportionate
means as provided by law, endeavour to supply the
place of the parents, but always with due regard for the
natural and imprescriptible rights of the child.
The Irish child welfare system
Key features
Current themes
Risk-orientated
New dedicated child welfare agency (2014); limited integration of
children’s services; insufficient progress in sharing responsibility
Means-tested social provision
Economic strain on families and service provision
High intervention thresholds
‘Battle’ over the welfare state
Exceptional circumstances threshold for child protection
removals
Under-resourcing of CFA and civil society groups (staff and
funding)
Greater public recognition of child abuse and child welfare
Very good legislation and social policy
Low to moderate public/media criticism of child welfare
Proposed introduction of mandatory reporting and implementing
children’s rights in the Constitution
Social work-led
Shift towards early intervention, prevention and family support
through a differential response model (ongoing)
Child protection response
Greater involvement of civil society organisations
Operation of the system, particularly removals = opaque?
Waiting lists and unallocated cases
Predominance of voluntary removals + Children’s services
lost in monolithic health service
Historical abuse (mother and baby homes); adult disclosures of
CSA; increased bureaucratisation and standardisation
Analysis of referrals to HSE child protection and welfare teams, 1984-2014
50000
43179
45000
40187
40000
35000
31626
30000
24668
25000
21040
18 438
20000
15000
10031
10000
5152
7732
8042
5000
479
0
1984 1985 1986 1987 1988 1989 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2002 2003 2004 2006 2007 2008 2009 2011 2012 2013 2014
Total Referrals
Analysis of referrals to child protection and welfare teams, 2004-2014
50 000
45 000
40187
40 000
43179
41599
35 000
31626
30 000
26888
25 000
24668
23268
24638
20 000
15808
18 438
14875
12013
15 000
10 000
5 000
9 714
12 932
11736
12 715
10553
11 579
9461
22192
19407
21143
19044
21040
18541
15818
8 724
0
2004
2006
2007
2008
Total Referrals
2009
Child Abuse
2011
2012
Child Welfare
2013
2014
Admissions of children to care 2006-2013
2500
2400
2372
2291
2300
2200
2248
2134
2100
2070
2013
2000
1900
1800
1869
1845
1700
1600
2006
2007
2008
2009
2010
2011
2012
2013
Source: Burns et al. (2016); CFA (2015)
Total numbers of children in care, 2006-2014
6460
6 400
6463
6332
6 200
6160
6 000
5965
5 800
5674
5 600
5 400
5 200
5 247
5307
5357
5 000
2006
2007
2008
2009
2010
2011
Children in care per 1,000: 2008 (5.02); 2014 (5.6)
2012
2013
Source: Burns et al. (2016)
2014
Care status of children in care at the end
of December 2012
Voluntary Care
42% (2,666)
Care Order
46% (2,927)
Interim Care
Order
9% (536)
Detention Order
0% (8)
Emergency Care Order
2% (155)
Other Care Order
1% (40)
Admissions to care by care type, 2013
4%
15 %
13 %
5%
63 %
Source: Tusla (2015)
Voluntary care agreement
Care order
Emergency care order
Interim care order
Other care orders
1. OPAQUE REMOVALS SYSTEMS
------> GROWING TRANSPARENCY?
2. PREDOMINANCE OF VOLUNTARY REMOVALS
3. CHILDREN’S REFERENDUM - CHILDREN’S
PARTICIPATION IN COURT REMOVALS
Out-of-Hours
Emergencies
(s.12)
3 Care Orders –
District Court
4 CP removal
systems
‘Voluntary’ Care
Special Care –
High Court
Out-of-Hours
Emergencies
(s.12)
3 Care Orders –
District Court
4 CP removal
systems
‘Voluntary’ Care
Special Care –
High Court
Out-of-hours
emergencies
(s.12)
3 Care Orders District Court
Children
and parents
‘Voluntary’ Care
Special Care –
High Court
Out-of-hours
emergencies
(s.12)
3 Care Orders District Court
Children
and parents
‘Voluntary’ care
Special Care –
High Court
Background to the study
Inter-disciplinary
research team
2011-2015
Key themes
◦ adversarial process
◦ participation of children
◦ representation of parents
◦ timeframe of proceedings
◦ interaction between professionals
◦ legal and constitutional framework
◦ facilities
Ireland’s International Legal Commitments
◦ “Children who are capable of forming their own views have the right to express
those views freely in all matters affecting them, with those views being given due
weight in accordance with the age and maturity of the child concerned” - Article
12 (1)
◦ “[f]or this purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child, either
directly, or through a representative or an appropriate body, in a manner
consistent with the procedural rules of natural law.” - Article 12 (2)
◦ 2012 Council of Europe guidelines on child-friendly justice
Constitutional amendment on children’s
rights (2012)
◦ Amendment became law in May 2015
◦ Shift from discretion to ascertain views of the child, to a mandatory model
◦ Views of children capable of forming views must be ascertained
◦ Best interests of the child placed on a constitutional level
◦ Unclear yet how this new amendment will be translated into law and
practice
Essential pre-requisites to effective
participation
1. Information
◦ fully informed ...about the matters, options and possible decisions to be taken and their
consequences by those who are responsible for hearing the child, and by the child’s
parents or guardian. The child must also be informed about the conditions under which
she or he will be asked to express his or her views.
2. Environment
◦ Voluntary
◦ Not open to Public Scrutiny
◦ Must be in a Safe Space
Research questions
1.
2.
3.
4.
To what extent does Irish Law, in particular, under the Child Care Act
1991 and the Irish Constitution 1937, support children having a
voice in child care proceedings in the District Court in accordance
with the minimum standards set out under Article 12 CRC?
To what extent are children heard in these cases in practice?
If children are heard, what direct and indirect methods are used to
facilitate their participation?
What factors influence whether and how children are heard in these
proceedings?
Parkes, A., Shore, C., O’Mahony, C. and Burns, K. (In press) ‘The right of the child to be
heard? Professional experiences of child care proceedings in the Irish District Court’, Child
and Family Law Quarterly.
In camera rule
District Court Model
Adversarial
System
Environment
Professional skill,
training and empathy
Taking
children’s
views
seriously
The right of a
child to be
heard
(direct &
indirect
participation)
Safe and
Confidential
Age
In camera rule
Buildings
District Court Model
Information
In camera rule
District Court Model
Adversarial
System
Environment
Professional skill,
training and empathy
Taking
children’s
views
seriously
The right of a
child to be
heard
(direct &
indirect
participation)
Safe and
Confidential
Age
In camera rule
Buildings
District Court Model
Information
Information
◦ I think children are extremely aware of what’s going on, you know, they are
aware of social workers calling to the house. They’re aware of the changes
in their care arrangements… The social workers will be talking to the child
and then if the court appoints a guardian the guardian will be talking to the
child and then there will usually be some form of assessment phase that’s
begun so there’ll be Lord knows how many professionals talking to the
child. (Judge, County 2)
Information
◦ … at times I’ve had the judge say you know there should be no discussion
with young children about a court process because how do they
understand anyway and I’ve heard Judge [name removed] state to parents,
“you will not discuss court with your children in relation to care” … ... but it’s
about them so I have ... and I suppose how do you get around to saying
“well look this is actually impacted on your life but I’m not allowed to talk to
you about it?” (Social Worker, County 1)
◦ I don’t think it’s a child-centred thing for them to have to do. Kids should be
carefree and you know not even be aware this court process is going on.
(Social Worker, County 2)
Environment
◦ You are actually packed like sardines into this really small space and it’s quite an
intense space, you know, because you’ve social workers there, you’ve parents
there, you’ve young people there … There’s nothing anonymous about it … you’ve
solicitors having consultations surrounded by sort of a dozen ears (Social
Worker, County 1)
◦ It’s very intimidating. The association of a court is criminal, let’s be fair. We are
often next to the criminal proceedings waiting for the judge … (Social Worker,
County 1)
Environment
◦ They’re not particularly child friendly. There’s no children’s room here for
instance. There’s no, as far as I’m aware there’s no witness waiting room
or equivalent facility for a child. I know from being in practice how awful it
is standing outside in that corridor. (Judge, County 2)
Taking children’s views seriously (age)
◦ … only age appropriate cases, so I do it for ... well usually the child by 9 or
10 (Social Worker, County 1)
◦ I’d find it very difficult to involve a child of less than 12 in the proceedings.
And why is that? Rigid thinking on capacity I guess ... (Judge, County 1)
◦ I would say I haven’t seen any child under the age of 13 but it’s not
necessarily that I put a strict rule on it but that has just been the reality of
what has happened, (Judge, County 3)
Taking children’s views seriously
(maturity)
◦ … really all children are so different. There are some very, very bright
children who could participate in something like, at eight years and there
are, you know kids who mightn’t fully be able to you know, participate at
fifteen. (Judge, County 1)
Skills of the listener (decision-maker)
◦ I have had very good experiences where the judge has been excellent. I
had one recently which was excellent and I think it was heard outside of the
(named days of the week) and I thought it made an awful difference
because he made a specific time to see this girl and it went extremely well.
And he was good with her and she was good with him and I felt she got a
hearing that day. (GAL, County 1)
◦ I can’t think of any circumstance in which I think it’s appropriate, where
judges have no training as to how to communicate with children, so if
there’s training there and if there’s a capacity for a judge to learn how to go
about doing that then maybe there’s scope for it. (Solicitor, County 1)
Skills of the listener (decision-maker)
◦ I think it would depend on the judge. I think a child meeting Judge [X] in
chambers would be fine. But … I suppose I just don't think … Judge [Y] is
child friendly, and I think he'd terrify the living daylights out of a child.
(Solicitor, County 3)
Direct participation
◦ Children don’t get to go to court … they actually want to speak to the judge
… but our court system is not set up in child care in relation to that. (Social
Worker, County 3)
◦ ... it’s not common for me to meet the children. I appoint the guardian ad
litem but I have made it clear to the guardian ad litem if the child wants to
see the judge and wishes to speak to me I will but I will not seek to get the
child in … I would say I haven’t seen any child under the age of 13 but it’s
not necessarily that I put a strict rule on it but that has just been the reality
… (Judge, County 3)
Direct participation
◦ … I tend to shy away from that. I don’t think it’s proper to expose a child to legal
proceedings, coming to court, fretting and worrying. Occasionally if the child asks
to see the judge, I will say of course, come in, come in. But generally I would ask
her to come in accompanied, you know. But even then, it can be a little stilted … I
would for my own protection or most judges for their own safeguarding would say,
well the clerk will stay with us. So you end up, four people in a room who have
never really met, well just little or nothing in common with each other. So the
opportunity for a deep and meaningful exchange and a heart to heart is limited.
(Judge, County 1)
◦ … my own understanding is that often the people they are speaking with will try to
discourage them. (Judge, County 1)
◦ … you know children need to be kind of as far away from this process as possible
to make life as normal as possible for them. (Social Worker, County 2)
Direct participation
◦ I think the starting point is that they are entitled to a level of participation in
proceedings. They are at the centre of it and they need to have that. I
appreciate that people have strong views about children not being in court
and not being involved in the process. But on balance, I think I’ve had an
opinion about the traumatic or the potential trauma for children being
involved in court proceedings. That would be involved now at the extent of
being cross-examined and so on so forth. The opinion was that for some
children it could be very damaging. For some children it could be cathartic.
The problem is you wouldn’t know for 30 years which one it was. (Judge,
County 2)
Direct participation and the adversarial
model
◦ I mean, I’ve had guardians say, “Judge – the child wants to speak to you”
(well, now, in court, that would be). And I’ve had then – I have to be very
careful there, because the child gets into the witness box, and the next
thing is, the lawyer for mother or the father wants to cross-examine the
child. So you have to be kind of, well, “this is tricky now” – you know? If
somebody wants to come into an adversarial system, they’re entitled to –
the other side are entitled to cross-examine. So this is where – I spoke
about this welfare paradigm competing – and this inquisitorial paradigm –
competing with the adversarial (Judge, County 1)
Indirect participation
◦ Solicitor
◦ Guardian ad litem
◦ The voice of the child in social work reports
In camera rule
District Court Model
Adversarial
System
Environment
Professional skill,
training and empathy
Taking
children’s
views
seriously
The right of a
child to be
heard
(direct &
indirect
participation)
Safe and
Confidential
Age
In camera rule
Buildings
District Court Model
Information
Further reading and sources
1.
Buckley, H. and Burns, K. (2015) ‘Child welfare and protection in Ireland: Déjà vu all over again’ in Christie, A.,
Featherstone, B., Quin, S. and Walsh, T. (eds). Social Work in Ireland: Continuities and Changes. Basingstoke:
Palgrave Macmillan.
2.
Burns, K., Pösö, T. and Skivenes, M. (2016) Taking Children into State Care: A Cross-Country Analysis of Child
Welfare Systems. New York: Oxford University Press.
3.
Burns, K., O’Mahony, C., Shore, C. and Parkes, A. (2016) ‘Child removal decision-making systems in Ireland:
Law, policy and practice’ in Burns, K., Pösö, T. and Skivenes, M. (2016) Taking Children into State Care: A CrossCountry Analysis of Child Welfare Systems. New York: Oxford University Press.
4.
Parkes, A., Shore, C., O’Mahony, C. and Burns, K. (In press) ‘The right of the child to be heard? Professional
experiences of child care proceedings in the Irish District Court’, Child and Family Law Quarterly.
5.
O’Mahony, C., Burns, K., Parkes, A., and Shore, C., (Under peer review) ‘Representation and participation in child
care proceedings: what about the voice of the parents?’ Journal of Social Welfare and Family Law.
6.
O’Mahony, C., Burns, K., Parkes, A., and Shore, C., (Under peer review) ‘Child care proceedings in non-specialist
courts: lessons from Ireland’ International Journal of Law, Policy and the Family.
7.
Child and Family Agency, Tusla (2010-2015) Publications. http://www.tusla.ie/publications
8.
Burns, K. (Series editor) (2015) Child Protection Removal Systems in Europe Video Series,
http://www.ucc.ie/en/appsoc/cs/videoresources/ccpsvideos/
http://www.ucc.ie/en/appsoc/cs/videoresources/ccpsvideos/
http://www.ucc.ie/en/appsoc/cs/videoresources/ccpsvideos/
THANK YOU
Dr. Kenneth Burns, Child Care Proceedings Research Group (Principal Investigator),
University College Cork, School of Applied Social Studies, Cork, Ireland.
[email protected]