OPINION:The latest example of welfare services failing a vulnerable child in their keeping underlines the need for transparency in childcare proceedings
THE DEATH of Daniel McAnaspie is a shocking first in the sad history of children who have died in the care of the State in that this boy was murdered. This alone justifies the public inquiry being called for by his family.
However, inquiries following tragic deaths will not of themselves bring transparency to our system of caring for children in need of protection.
The whole system needs to be open to public scrutiny so that the process whereby children are taken into care, and the quality of the care they receive, can be known and discussed and, if necessary, changed.
This will require a reinterpretation of the way in which the in camera rule is interpreted by the courts in childcare cases.
There are more than 5,000 children in care, most of them as a result of care orders. The granting of a care order often does not end the matter as the case can come back before the courts in cases where a guardian ad litem is seeking a specific course of action on behalf of the child. There could be many such appearances.
A guardian ad litem is an advocate appointed by the court to speak on behalf of the child, reflecting his or her best interests and needs. They are highly trained social workers, paid by the HSE but operating independently of it. They liaise with the families of the children, talk to their teachers and to the children themselves in attempting to establish what is really in their best interests. Often they are pitted against the HSE in their view of what is best for the child, and they will be the only voice speaking on behalf of that child.
In 2008, the last year for which figures are available, 1,044 care orders were granted in the District Court. This does not include interim care orders. In addition, 804 supervision orders, where the child remains with his or her family and the family is visited regularly by social workers, were granted. Thus there were almost 2,000 court cases involving the HSE and vulnerable children.
These figures do not include cases where there were repeat appearances on behalf of the child, where the guardian ad litem was seeking assessments and/or services which were being opposed by the HSE.
All these cases are heard in camera, with no members of the media present. Therefore we have no way of knowing what are the circumstances leading to children being taken into care, what arguments are made on their behalf and what policies are pursued by the HSE in relation to vulnerable children.
The 1991 Childcare Act states: “No matter likely to lead to members of the public to identify a child who is or has been the subject of proceedings . . . shall be published,” with penalties including 12 months’ imprisonment or a €1,270 fine. This has been interpreted to mean that no journalist may attend childcare cases and report the proceedings, even while protecting the anonymity of the child and his or her family.
However, such an interpretation is overly rigid as the reference to the non-publication of material that might identify the child clearly contemplates the publication of some material. This means that the background facts, the arguments and the outcome of the case could be published provided that the anonymity of the child was protected.
This is the regime that operates in criminal cases involving children, and in criminal cases involving sexual offences, where children are often the victims. It is a regime that has worked well. Asked on Morning Ireland this week about a relaxation of the in camera rule in such cases, Aidan Waterstone, head of childcare services with the HSE, said this would be contrary to the UN Convention on the Rights of the Child. This is not so. There is not a word in this convention supporting the holding of care proceedings in secret.
The only reference to any reporting restrictions is in relation to children who are the subject of criminal proceedings, who have the right “to have his or her privacy fully protected at all stages in the proceedings” – a right which at present is protected by the regime covering media reporting of such cases.
What the UN convention does stress is the right of the child to be heard in any proceedings involving him or her. In this regard, proposals in the Childcare (Amendment) Bill currently before the Dáil to restrict the rights of guardians ad litem to legal representation in such proceedings runs directly counter to this convention, to which we are signatories.
It is an ominous development at a time when the actions of the HSE in relation to children in care are under fire and when we need more transparency and accountability, not less.
Carol Coulter is legal affairs editor