Complex child protection cases are taking years to move through the courts, plagued by multiple adjournments, poor co-operation between gardaí and social workers, limited judicial resources and limited specialist services for the victims of child sex abuse.
Even though the cases involve applications for care orders to remove children from risk, they can take up to three years to conclude, often with multiple lawyers, and multiple expert witnesses involved.
The deficiencies in the process are highlighted in a new report by the Child Care Law Reporting Project (CCLRP) which looked at 10 lengthy complex cases and interviewed 40 of the key personnel involved.
Among its findings were:
Inadequacy of social worker training, particularly in relation to the assessment of sex abuse symptoms and allegations;
Shortage of specialist nterviewers to follow up sex abuse suspicions or allegations. Some parts of the country have no access to specialist assessments;
Poor case preparation;
No consistent cooperation between the gardaí and child protection services in relation to collecting evidence on child sex abuse;
Contention around the use of hearsay evidence;
Not enough judges and insufficient support services in the district court in view of the responsibility involved.
Report author and director of the CCLRP, Dr Carol Coulter, said it would require a multi-pronged approach to resolve the problems, that goes beyond the Department of Children and Youth Affairs, and the Child and Family Agency (CFA).
“Government policy in relation to resourcing the judiciary and the courts, the priority given to services in other government departments which bear on vulnerable children, along with legislation, policy and practice in child care and the courts, will all play a major role,” she said.
Children’s Minister Katherine Zappone said the report, launched by the Hon Mr Justice Frank Clarke, Chief Justice, “provides empirical evidence for the complexities that can arise in child care proceedings”.
Ms Zappone said the report was timely as her department is undertaking a review of the Child Care Act 1991 and the Department of Justice is preparing the heads of a Family Courts Bill.
She said these developments “provide a unique opportunity and potential gateway to address the challenges identified in the report”.
The report makes a series of recommendations including that the government appoint a sufficient number of district court judges to ensure child care cases can be prioritised, with dedicated child care days, in all areas.
The report says where cases are routinely heard by the same judge “who is very clear on what he or she requires, it is much easier for the social workers and their legal team to focus on the threshold and the evidence needed to support it”.
It points out that in Dublin Metropolitan District Court, three judges are assigned on a full-time basis to hearing child care law, “and they have built up a huge amount of expertise”, while in Cork and Limerick, where the District Court has more than one sitting judge, one is allocated to child care cases and two days a week set aside to hear them.
The report says not all child care cases are heard by a regular judge on dedicated child care days, “leading to uncertainty and inconsistency in the presentation of cases”.
It calls for careful case preparation by the CFA, adding that “a universal case management system, with deadlines for the production of reports and affidavits, the narrowing of the issues to those in dispute, the winnowing of witnesses so that only necessary evidence is given, meetings between experts so that they could present agreed evidence separately from what was disputed, would all help”.
One case ran for almost three years
Of 10 child protection cases examined by the CCLRP:
One ran for almost three years, with 52 days in court and multiple adjournments. It involved an application for care orders for two children where the main grounds were neglect and sexual abuse. Ten lawyers were involved. The application was withdrawn by the Child and Family Agency (CFA).
A case involving an application for care orders for eight children on the grounds of alleged physical and sexual abuse and neglect ran for more than two years (27 months) with 45 days in court and 22 adjournments. Six lawyers were involved. Care orders were granted.
A case that ran for six months, with 17 days in court, involved 13 expert witnesses and nine lawyers.
A case involving an application for care orders for four children on the grounds of neglect and sexual abuse had been running for 26 months, with 51 days in court and multiple adjournments.
There were 24 witnesses called in a case involving an application for care orders for five children on the grounds of neglect and sexual abuse. The case moved, on appeal, from the District Court to the Circuit Court, with 67 days hearing in the District Court and 47 days in the Circuit Court over the course of a year. There were 12 adjournments, 10 in the district court and two in the circuit court. Twenty-three of the 24 witnesses were from the Child and Family Agency.
Seven of the prolonged cases were heard outside Dublin, with six of them heard by moveable judges.
Recommendations from Child Care Law Reporting Project
Should appoint a sufficient number of district court judges to ensure that child care cases can be prioritised
Provide sufficient resources to the district court to enable judges institute a national system of case management for child care cases.
Adequately resource all State agencies involved in providing assessments of children and parents in care proceedings so that they can provide them in a timely manner.
The Child and Family Agency/Tusla
The CFA should consider developing a strategy to identify early cases with potentially complicating features, so they can be referred to an appropriate senior level within the CFA and the necessary resources brought to bear. This should include a unified national legal strategy in child protection cases, covering such areas as the preparation of cases for court, the identification of appropriate experts, the approach to the exchange of reports and documents and the approach to the issue of hearsay evidence.
The CFA should consider developing a specialism to deal with child sex abuse, which, along with other appropriate agencies, could establish multi-agency centres available to all CFA areas when allegations of child sex abuse are made in the context of child protection proceedings. This should include the development, in cooperation with the Garda Síochána and the HSE, of a national child sex abuse assessment and intervention practice, following the recommendations in the Garda Inspectorate 2017 report, Responding to Child Sexual Abuse.
(Currently Tusla is on an interagency group looking at developing multi-agency responses where services would be delivered to child victims of sexual abuse.)
The Department of Justice
Should consideration legislating to permit district court judges to decline jurisdiction in complex child care cases, and refer them to a higher court, as happens with criminal matters.
Should consider including a reference in the forthcoming Judicial Council Bill to the need for the education of relevant judges in child protection as well as information technology.
Should consider the establishment nationally of dedicated child care days, heard by the same judge, in all district court areas or in regions.
Should examine the development of a case management template for all district court areas.
In cooperation with the Government, should provide additional administrative resources to the district court to assist in the rolling out of case management policy and practice.
The professional bodies should consider the establishment of a panel of specialist child care legal practitioners, with appropriate training.