‘Grace’ case must prompt reform after foster care scandal shocked the nation

It is time to demand our watchkeepers protect the country’s most vulnerable children and make tangible changes to our child protection system and processes, writes Linda Gibbons

THE case of ‘Daniel’ highlighted this week follows that of Grace, a case described “as the most savage rape, physical abuse, and neglect ever to emerge”. The case of Grace and the foster care scandal has deeply shocked the nation.

Grace, who is “unable to speak and with a profound intellectual disability”, was an exceptionally vulnerable child when referred to the State for care at 11 years of age.

However, it was not Grace’s inability to speak that really silenced her, but rather the inaction by the State that muted her for 20 years. Inexcusably, despite the State being alerted to the abuse allegations in 1989, and indirectly acknowledging them in 1995 by ceasing to send any more children to the home, it took another 14 years before Grace was removed.

Equally for the 47 children previously placed there and for those who remained there, the State continued to ignore their vulnerability, with a child reportedly still in their care as recently as 2013.

There have also been several media reports that the authorities tried to remove Grace in 1995 but after an appeal by the foster family, the need for intervention appears to have been disregarded until the actions of several whistleblowers ensured Grace’s removal in 2009. What stopped the HSE disregarding their appeal and removing Grace immediately has not been clarified. HSE director general Tony O’Brien’s recent response that “it is not clear if the HSE has a legal capacity to take such action”, illustrates the failures that have surrounded this case.

Such a case fails to instil confidence in the State’s ability to act as a guardian. It also raises several legal questions that demand urgent clarification:

  • Firstly, does the law impose different legal standards for the State as a parent than for the natural parent?
  • Does the legislation that protects the child from enduring such abuse in the family home not protect the child in the same way if the abuse happens in a State-funded home?
  • Does the Child Care Act, 1991, not obligate the State to intervene and remove children when they are satisfied that the child “has been or is being assaulted, ill-treated, neglected or sexually abused” when the child is already under the responsibility of the State?
  • Does the Constitution under Article 42A obligate the State to act as the “common guardian of good and to protect children” above all else?

This also raises doubts as to the effectiveness of existing legislation such as the recent Children’s First Act 2015, if those in power don’t know what to do when given reports of abuse outside the family home. As Fergus Finlay accurately states, such legislation is “insulting and meaningless” if it doesn’t serve to protect our most vulnerable citizens.

INDEFENSIBLY for Grace, those who perpetrated the abuse will never be brought to justice as her disability rendered her to be deemed “not a good witness”. The Criminal Evidence Act 1992 will only allow those with intellectual disabilities who are deemed “capable of giving an intelligible account of the events…” act as witnesses in court.

Further adding to this dysfunction is the reports by the media that the professionals who allowed this abuse to remain un-investigated, have never been sanctioned for their failures, and some are now “working for the State’s child protection agency”. If this is correct, it is simply unacceptable and raises serious doubts as to the integrity of those people still tasked with child protection.

What needs to be done to maximise the safeguarding of children in State care?

With a new government elected into power, this must be seen as a chance to make real, tangible reforms to our child protection system and processes.

These changes should include the introduction of legislation governing state-funded care homes to incorporate stronger accountability on the State. This should ensure that the same legal duty of the State to intervene in the family home is also in place in state-funded homes.

Perhaps it is also now

time to review the Children’s First Act 2015 with a view to enacting a system similar to that found in Newfoundland and Labrador in Canada, which have enacted both civil and criminal penalties for failure to report child abuse. Although those working with children have a legal obligation to report abuse, there are currently no sanctions for failure to comply. This has led to criticism from leading children’s groups including Barnardos and the Children’s Rights Alliance.

As a nation, it is time to demand that our watchkeepers protect the country’s most vulnerable children, in the name of Grace, and every other child let down by the State.

Linda Gibbons is studying for a Child and Family Law MA degree in UCC


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