1. “Advocating for Children” Gareth Noble of KOD Lyons

2. Overview Representing children in Court Children’s Referendum
Children in Criminal Justice System
Children in Care and In Need of Protection
Children with Disabilities and Education Law

3. Representation of Children In Court
In Criminal Proceedings – Legal Aid Act
In Judicial Review / Administrative Proceedings through Parents or Guardians ad Litem
In Care Proceedings
By Solicitor directly (s.25 Child Care Act 1991)
By Guardian ad Litem (s.26 Child Care Act 1991)
In Asylum Applications
Social Work Department
Private Law Proceedings eg Family Law, divorce, custody etc.
Role of Advocate Groups

4. Children’s Referendum
Article 42A of the Constitution
Recognises Children directly for the first time
Power of HSE to intervene in exceptional cases
Adoption Law
Best Interests of Child Test
Views of the Child
Limitations of the new provisions

5. Children In Criminal Justice System
Juvenile Liaison Scheme
Age of Criminal Liability – 12 (Except for cases of murder, manslaughter, rape, aggravated sexual assault)
Detention in a Garda Station – Rights of Children in Garda Custody
The Children’s Court
s.75 Procedure
s – Family Conferences
Media Coverage
Sentencing and Places of Detention

6. Children in Care and In Need of Protection
Legal Framework
UN Convention on the Rights of the Child
European Convention on Human Rights
Constitution of Ireland 1937
Child Care Act 1991
Children Act 2001
Statutory Instruments
Caselaw

7. Children in Care and In Need of Protection
Childcare Act 1991 – Obligations
s3 – general obligation on HSE
Rights and duties of parents
‘Welfare of the child s the first and paramount consideration’
Evolving capacity of the child
‘Own family is best’

8. Children in Care and In Need of Protection
Test – Compelling Reasons
Test: ‘Why the welfare of the child cannot be secured to it, in it’s own family unit and by it’s parents’
Welfare of the child as the first and paramount consideration
Capacity of the child
Representation full party
Guardian ad Litem

9. Children in Care and In Need of Protection
Promoting the Welfare of Children
s3(3) Child Care Act
Child care and family support services
‘Positive obligation to support family life’
Interference proper and proportionate
Section 4 Voluntary Care

10. Children in Care and In Need of Protection
Protection in Emergency
Section 12 Action by An Garda Síochána
Enter if needs be by force
Deliver into the custody of the HSE
Application to court within 72 hours
Emphasis is protection
National Guidance – Children First

11. Children in Care and In Need of Protection
Emergency Care Order – s13
s13 threshold criteria – court is of the opinion that
there is a reasonable cause to believe that:
(a)There is an immediate or serious risk to the health or
welfare of a child which necessitates him
being placed in the care of a health board, or
(b) there is likely to be such a risk if the child is
removed from the place where
he is for the time being

12. Children in Care and In Need of Protection
Practice and Procedure and ECO
District Court Rules – Sworn statement
Executing warrant / Ex-parte urgent application
Any DJ otherwise than in public
Appeal does not stay the order
Identification is not necessary
Directions – address, treatment, access
s14 Notification, s15 Accommodation

13. Children in Care and In Need of Protection
Practice Issues
Parents not represented at ECO
Difficulty getting legal aid
Interpretation facilities
Cultural issues
Placement issues for children – food, faith, contact

14. Children in Care and In Need of Protection
Interim Care Order – s17
Threshold criteria: DJ is satisfied that
(a) an application for a care order has been or is about to be made
(b) there is reasonable cause to believe that any of the circumstances of s18(1) exists or has existed... child be placed and maintained in the care of the HSE pending the determination of the care order

15. Children in Care and In Need of Protection
Practice and ICO
Child placed / maintained in the care of HSE
Valid for 28 days or on consent longer
On notice to parents
Existing court orders / directions continue to operate
Can have several ICO’s before final determination

16. Children in Care and In Need of Protection
Care Order – s18
On the application of a health board, ... The court is satisfied that (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
And child requires care or protection he is unlikely to receive unless an order is made

17. Children in Care and In Need of Protection
Consequences of Care Order
Commits child to care of HSE until 18 or less
HSE has control over child as if a parent
Do what is reasonable
Consent to medical treatment, passport
Decide on type of care
s47 Applications
Caselaw

18. Children in Care and In Need of Protection
Rights of children
s36 – Placement
s37 – Access
s47 – Question affecting the welfare of a child
Duties of HSE
s23 Non Fatal Offences Against Person Act
Education Welfare Act 1998 – school attendance

19. Children in Care and In Need of Protection
s45 – Aftercare
Exercise of HSE discretion
Care planning
Statutory review
Court review

20. Children in Care and In Need of Protection
s19 Supervision Order
Reasonable grounds for believing that
(a), (b) and (c)... And it is desirable that a child be visited periodically
Give necessary advice to parents
Right to complain
Duration 1 year, renewable
Consequences of obstructing

21. Children with Disabilities
Early Intervention team
Domiciliary Care Allowance
Carer’s Allowance
Disability Allowance
Respite Grant
Adaptation Grants
Assessment of Need under Disability Act 2005

22. Children with Disabilities
Education for Persons with Special Needs Act 2004
SNA Support and resource hours
Home Tuition Scheme
National Education Welfare Board

23. Gareth Noble, Partner at KOD Lyons Solicitors T: E: W: