Proceedings under the Child Care Act 1991 - Parents with Impaired Capacity

1. Proceedings under the Child Care Act 1991 - Parents with Impaired Capacity Law and People with Intellectual Disability Conference October 19th 2011 Teresa Blake BL

2. 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

3. Legal Framework Irish Law/Intl /European Article 42.5 Constitution • 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. • 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.

4. Legal Aid Board Circular 2/2007. • 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. • 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

5. Representation /Setting Context • 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. • 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.

6. Welfare of the child as the first and paramount consideration • Sec 3 Child Care Act • HSE ..to promote the welfare of 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 • 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

7. Orders- sec 12/13 Sec 17/ 18/19. • 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 • 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

8. 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 – • Citizens Information Service • Inclusion • National Advocacy services • Payment by the LAB at agreed rates.

9. How 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

10. International Research Findings • The Support Gap • Problems with Assessment • Perceptions of in competence • Top down approach Expert opinion prevails • System abuse /reasonable adjustment /accommodation absent • 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

11. Conclusion -suggestions • Immediate need for legal clarity in respect of legal capacity • -assistance with accessing/giving instructions • Assisted decision making. • 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.

12. references • http://www.supportedparenting.com/projects/NuffieldReport.pdf • http://www.dcya.gov.ie/viewdoc.asp?DocID=1665&ad=1&mn=chia&nID=2 • http://www.communitycare.co.uk/Articles/06/03/2011/116387/support-that-produces-good-outcomes-for-parents-with-learning-disabilities.htm • http://www.leeds.ac.uk/disability-studies/archiveuk/Booth/parents%20with%20lea%20diff.pdf • http://www.aifs.gov.au/nch/pubs/issues/issues31/issues31.html