A study of solicitors found that the voice of the child is not as well represented in voluntary care arrangements as where there is a care order, and this is largely due to the absence of a guardian ad litem (GAL).
Solicitors expressed fears that children in voluntary care are “unseen and unheard”, and can’t be appointed a GAL because they are not subject to court proceedings.
A sizeable minority of solicitors favour older children being required to consent to voluntary care arrangements.
The broad consensus from the study cited was that children on care orders get access to better resources than children in voluntary care.
The reason for this was the independent oversight provided by the courts.
Voluntary cases are seen as “low maintenance” due to their consensual nature, and after leaving this set-up teens are “bottom of the list for everything”, the report notes.
Benefit of legal advice
Parents in court proceedings concerning care orders almost invariably have the benefit of legal advice and representation before a full care order is made, the report says.
Before full care orders are made, judges have stated that parents should get a lawyer “no matter what”.
The Legal Aid Board prioritises child care cases within its overall workload.
Independent legal advice is essential in voluntary care given the risk that consent may not be fully understood, the Special Rapporteur believes.
However, one solicitor questioned whether the opportunity to consult a lawyer would really overcome parental barriers to understanding,
“A legal advisor can’t make the person have capacity to understand what they are doing,” one solicitor said.
A national ‘Voluntary Care in Ireland’ survey asked social workers whether they advise parents to seek legal advice before signing a voluntary care agreement, and also whether the parents actually obtain such advice.
The results indicated that while a large majority of social workers (68%) said that parents are encouraged to seek legal advice, an even larger majority (78%) said that parents do not actually secure such advice.
Legal Aid Board solicitors confirmed that it is rare for them to be approached to offer advice on a voluntary care agreement; when they do encounter them, it is usually in the context of providing representation at a later point when the case escalates to court proceedings.
Legal Aid Board solicitors stress that they would not turn away requests for advice from parents considering a voluntary care agreement.
However, given resources issues, the service would likely be unable to respond within the necessary timeframes.
While voluntary care arrangements reduce adversarial set-ups, stigma and cost, the “sparse legal framework” gives rise to numerous risks to the rights of children and parents involved in voluntary care agreements, the Special Rapporteur says.
The report lists the following risks to children’s rights:
- Potentially unlimited duration and absence of independent oversight,
- Weak mechanisms for ascertaining the views of the child,
- Inferior resource allocation,
- Potential instability.
Risks to parental rights include barriers to parental understanding of agreements; questions about voluntariness; and the absence of independent legal advice
An alternative to legal advice is the use of parental advocates, who are specially qualified to assist parents to understand and participate in decision-making processes.
While this may be a desirable safeguard, such advocates are often not available, the report says.
The report concludes that Section 4 of the Child Care Act 1991 should be reformed so that voluntary care agreements have a maximum duration of three months (renewable once) in the absence of legal advice for parents, or 12 months (renewable more than once) where parents have received legal advice.
A formal review should be triggered at least four weeks prior to the expiry of a voluntary care agreement.
Reviews should be chaired by an independent person with experience of child care who would be empowered to make a binding recommendation as to whether the agreement should be renewed.
Children in voluntary care should have access to an advocate who would participate in reviews.
Children who are too young to work with an advocate should have access to a guardian ad litem who could represent the child’s views and best interests in the review process.
Cancellation of voluntary care agreements by parents should be subject to a statutory 72-hour notice period.
The Act should stipulate that parental consent to voluntary care agreements must be supplemented by the assent of the child where the child is 12 years or older.
The report also finds that 3,826 children were homeless in October 2019, a 3% increase on the previous year and a 24% increase since 2017.
The Special Rapporteur draws a link between homelessness and child neglect, abuse and exploitation.
A full 97 reports of suspected abuse or neglect were made by homeless hostel managers to Tusla in six months between January and June 2019, a 27% increase that outstrips the homelessness rate.
Children in homelessness shelters have a heightened risk of sexual exploitation and often share space with adults who are abusing drugs or alcohol, the report says.
“They are exposed to inappropriate adult behaviour or to distressing incidents such as stabbings or attempted suicides,” the report continues.
Even in family hubs, children witness distressing fights between adults.
Dr O’Mahony is a senior lecturer at the school of law at University College Cork, where he specialises in child law, children’s rights and constitutional law.
He is the director of the Child Law Clinic, which supports litigation and advocacy on a range of children’s rights issues and has published research on child protection law, children’s rights, educational rights and constitutional law.
With colleagues in UCC, he has jointly produced award-winning research on District Court child care proceedings.