Section 12 used ‘regularly enough’

Q. Under what law did gardaí move to take the child into care on Monday?

A. Section 12 of the Childcare Act 1991.

Q. What does that entitle them to do, exactly?

A. Under the heading ‘Protection of Children in Emergencies’ it states: “Where a member of the Garda Síochána has reasonable grounds for believing that — (a) there is an immediate and serious risk to the health or welfare of a child, and (b) it would not be sufficient for the protection of the child from such immediate and serious risk to await the making of an application for an emergency care order by a health board under section 13, the member, accompanied by such other persons as may be necessary, may, without warrant, enter (if need be by force) any house or other place (including any building or part of a building, tent, caravan or other temporary or moveable structure, vehicle, vessel, aircraft or hovercraft) and remove the child to safety.”

It adds that the provisions of the act are without prejudice to any other powers exercisable by gardaí and that the child shall “as soon as possible” be delivered into custody of the health board, who must then either return the child to the parent having custody of him or a person acting in loco parentis, or else make application for an emergency care order.

Q. In other words?

A. According to Sinead Kearney, a solicitor with Byrne Wallace in Dublin: “The unique thing about that section is that it is the gardaí’s subjective view.”

Q. Do children get taken into care by gardaí under section 12 that often?

A. According to Ms Kearney, it doesn’t happen every day, but it happens “regularly enough” — for example, gardaí could be called to the scene of a fracas at a house, and any children there could be deemed to be at risk.

Q. If it happens quite regularly, why don’t we hear about it more often?

A. Two reasons: In the first instance a child could come under an emergency care order and into the care of the HSE, typically a foster family, and this court process is in camera, meaning details cannot be publicised. The other is where the child is simply returned home.

Q. Who’s decision is it as to whether the child is returned home or taken into care?

A. The courts. According to solicitor Rosemary Gantly, “courts do not just rubberstamp these things — they have to be satisfied there was an immediate risk”. Similarly, the child can be taken into the care of the HSE but only for a limited time period and the court is central to what happens to the child and can appoint a guardian ad litem to represent the voice of the child.

Q. What, if anything, could the parents have done to try and prevent the child from being taken from their care?

A. According to Ms Gantly, options include going to the High Court to seek a judicial review on the granting of an interim care order, or make a representation at the district court hearing.

Q. Do we know what was said in court in this case?

A. No, due to the in camera rule.

Q. How certain would a garda need to be before acting under section 12?

A. According to Conor O’Mahony, of the law faculty in UCC, “the gardaí would want to be pretty certain that waiting to make the application to court would not be sufficient to protect the child”. “What seems unusual about the two Roma cases is that there seems to have been no concern for the child’s immediate welfare — there was a concern about identity, but it is not at all clear that the children were at immediate risk. Moreover, because the families were living at identifiable addresses and were not transient, the question of a flight risk does not seem to have been pressing. It is therefore questionable whether the removal of the children into care, without an application to the District Court which the parents could have contested, was really justified within the terms of the act.”

Q. Is DNA testing rare in cases involving children?

A. Not entirely. According to Ms Kearney, you can have cases where someone claims to be a child’s father and this is contested by the mother. DNA testing might then be required.

Q. What of the criticism of gardaí in this case?

A. Pavee Point and others have queried the handling of the case but under the law, the gardaí could claim that they legitimately formed the view that they needed to act under section 12 and fulfil their statutory functions.

Q. As DNA testing proved the child does belong to the Roma family, could they launch a legal action?

A. Conceivably, and possibly against Ireland, the attorney general, the minister for justice and the Garda commissioner. However, they could counter by claiming that they had formed the legitimate view that they needed to act.