New study reveals ‘systemic weaknesses’ in child care legal proceedings

A study on child protection proceedings in the courts has revealed key “systemic weaknesses” such as untrained judges, conflicting application of the law and a failure to include the views of children.

The findings come as an independent inquiry is about to get under way into the State’s handling of two cases in which Roma children were removed from their families on the basis that they did not look like their parents.

The study by academics at UCC has exposed what the authors describe as significant systemic weaknesses in the way child protection legislation is implemented.

The research involved case studies of court cases in a single county last year and interviews with 33 professionals – such as judges, solicitors, social workers and guardians ad litem – working in these proceedings.

“The net result is a system that falls short – at least in the county studied for the project – of the key objectives of the Child Care Act 1991, despite the presence of worthy mechanisms in the legislation and the best efforts of highly committed professional participants.”

Welfare of children
While the legal system is designed to give priority to the welfare of children, the study found little evidence that judges and solicitors were provided with adequate training in dealing with childcare cases.

In addition, it found the law was interpreted and applied in an inconsistent way and different judges had contrasting approaches, with little awareness of what other members of the judiciary were doing.

The study also found children were rarely given any meaningful opportunity to participate or express their views in issues affecting them.

The adversarial model of the court was also found to shift the focus of proceedings from the welfare of the child to conflict between the HSE and parents.

While the system was designed to strongly presume the welfare of children is best served within the family, it found parents in some cases had to defend applications for care orders by social services in often difficult circumstances.

In many cases, parents found themselves defending applications in a system where HSE applications were successful in the overwhelming majority of cases. Some parents – particularly those with learning difficulties or mental health or addiction issues – may have difficulty understanding and participating in the proceedings.

Legal representation was provided for parents under legal aid, but in many cases solicitors were able to spend only minimal time with their clients in advance of proceedings.

There were some key strengths within the system, however. It found that professionals were highly committed and acutely aware of the importance of parental participation and legal representation,

There was also no evidence of avoidable delays in accessing proceedings, while professionals were positive about those judges who had a dedicated role in childcare proceedings.

Increasing caseloads
"All of the professionals in these proceedings are working under increasing caseloads, but seek to prioritise this work due to its sensitivity and importance and to make the best of the resources available to them," the study found.

Overall, however, it found key weaknesses that needed to be addressed to ensure childcare legislation and the legal system offered full protection to those who needed it.

The UCC study was conducted by academic researchers from the college’s school of applied social studies and the faculty of law.