PROCEEDINGS UNDER THE CHILD
CARE ACT 1991 - PARENTS WITH
IMPAIRED CAPACITY
Law and People with Intellectual Disability
Conference
October 19th 2011
Teresa Blake BL
OVERVIEW
Child Protection and Welfare Law -Child Care
Act 1991
 Representing parents with impaired capacity.
 Legal Aid Board Circular 2/2007
 Practical Issues –in court process
 Learning from Experience/Research
 Conclusion –some suggestions
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LEGAL FRAMEWORK
Irish Law/Intl /European
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Constitution of Ireland 1937
Child Care Act 1991-[as amended]
Children Act 2001
Statutory Instruments
Caselaw / Guidlines /Protocols.
UN Convention on the Rights of the
Child
UN Convention on the Rights of
People with Disabilities
European Convention on Human
Rights (1950)
European Convention on Human
Rights Act 2003
Monitoring OCO, HIQUA,SSI.
Article 42.5 Constitution
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In exceptional cases, where
parents for physical or moral
reasons fail in their duty towards
their children, the State as
guardian of the common good , by
appropriate means shall
endeavour to supply the place of
parents, but always with due
regard for the natural and
imprescriptible rights of the child.
LEGAL AID BOARD CIRCULAR 2/2007.
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Origin/Background to
case LAB v Judge
Brady and Case Stated
on questions of law
arising in child care case
LAB will fund the
engagement of
appropriate persons
where the clients
capacity is impaired.
Client will have some
capacity – legal rep
needs assistance to
communicate effectively
Take instructions etc.
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Purpose of appointment
–ensure an effective
legal service/
representation
Regard to particular
circumstances of the
client , the case and the
availability of a suitably
qualified person:
Clients level of
comprehension in
relation and potential
outcomes
REPRESENTATION /SETTING CONTEXT
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Parents with learning disability
Have the same rights/duties as
any other parent. Family life,
rear and educate etc
Have a right to equality of
access to support services to
assist in being a ‘good enough
parent’ to their children.
Where a child protection
concern is raised
a determination as to how a
parent’s learning disability may
impact on parenting ability and
child’s development has to be
made.
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Family may be known to
service provider.
Referral – allegations of
physical abuse ; emotional
abuse or sexual abuse.
Investigation /Assessment
process within legal framework
Children have a right to be
protected and for their
interests to be paramount
They have the right to receive
the necessary support for
themselves and their families
so that they remain living with
their parents.
WELFARE OF THE CHILD AS THE
FIRST AND PARAMOUNT
CONSIDERATION
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Sec 3 Child Care Act
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HSE .. to promote the welfare of
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children .....who are not receiving
adequate care and protection
Identify, co-ordinate
information,
Own family is best
principle
Section 4 Voluntary Care
Child care and family
support services
Assessment Process
Adhering to protocols and
guidelines
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Timing of intervention
Level of neglect of abuse in
a family
Weakness in proper
provision of placement
Lack of long term secure
placements
Funding implications
ORDERS- SEC 12/13 SEC 17/ 18/19.
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On the application of HSE
…the court is .......
(a)child has been or is being
assaulted ill-treated, neglected
or sexually abused;
(b)Child’s health development
or welfare has been or is being
avoidably impaired or
neglected;
(c) the child’s health
development or welfare is
likely to be avoidably
impaired or neglected.
Supervision order /Interim
Care order /Care order
Sec 12/13
 Immediate and serious
risk to the health or
welfare of a child
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Rights of children in care –Access
Family reunification.
Child Care Amend Act 2007 Orders.
Duties of HSE/Passport,
Consent to medical treatment
Sec 23 Non Fatal Offences Against Person Act.
Education Welfare Act 1998 School
attendance
HOW IT WORKS
Application for
assistance is treated
as an application to
amend the Legal aid
Certificate. Reg 9(1).
Board decides
The person appointed is
not a guardian ad
litem
 Identifying suitable
persons to provide
assistance –
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Citizens Information
Service
 Inclusion
 National Advocacy
services
 Payment by the LAB
at agreed rates.
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HOW
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IT WORKS
Attend court /court
informed of
qualifications and
nature of role
Attendance at
consultations /Reading
reports e.g every court
20 -60 pages of
professional reports/etc
Giving instructions.
Present at all hearings
Specific child
protection Issues
Nature of Evidence
Assessments /Parental
Capacity sought
Consequences of
clinical Findings
INTERNATIONAL RESEARCH FINDINGS
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The Support Gap
Problems with
Assessment
Perceptions of in
competence
Top down approach
Expert opinion prevails
System abuse
/reasonable adjustment
/accommodation absent
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Family
Support/Informal
support network.
Competency building
support –
achieve/succeed
Joined up work
/protocols between adult
disability services and
child protection services.
Info /support adapted to
parents particular needs
CONCLUSION -SUGGESTIONS
Immediate need for
legal clarity in respect
of legal capacity
 -assistance with
accessing/giving
instructions
 Assisted decision
making.
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Properly trained
advocacy service.
 remove barriers to
full engagement in
decision making
processes, courts etc
by people with
learning disability.
 Inform child
protection services
 Research into current
cases in CP.
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REFERENCES
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http://www.supportedparenting.com/projects/Nuffi
eldReport.pdf
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http://www.leeds.ac.uk/disabilitystudies/archiveuk/Booth/parents%20with%20lea%
20diff.pdf
http://www.dcya.gov.ie/viewdoc.asp?DocID=1665&
ad=1&mn=chia&nID=2
http://www.communitycare.co.uk/Articles/06/03/20
11/116387/support-that-produces-good-outcomesfor-parents-with-learning-disabilities.htm
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http://www.aifs.gov.au/nch/pubs/issues/issu
es31/issues31.html