State Intervention, FLCL Flashcards
What statute governs state intervention
The “Child Care Act (1991) As Amended”
Intro- O’Mahony- Quote
“persistent struggle to reconcile the twin imperatives”
Intro-essay thesis
Map legislative amendments, review leading case law, analyse strengths and shortcomings, assess balance, propose reform
(2) Core Statutory Duties- S.3
Broad obligation- Tusla- “promote the welfare of children who are not receiving adequate care and protection”
(2) Core Statutory Duties- echoes?
Echoes UNCRC, with ref to ‘Childs welfare and best interests’
Early threshold for intervention- little change since bar for ECO
- has been/likely to be, assaulted/ ill-treated/ neglected/ sexually abused
- health, development, welfare- has been/ likely to be impaired or neglected
(2) Voluntary Care Arrangements- Info (All)
Parents- consent to Tulsa assuming care without court proceedings- enables foster placements, family assistance, support services- whilst consensual, must still respect autonomy and minimise intrusiveness
(3) Court Orders- ECO
S.13 - Allows for up to 8 days removal of child- “serious risk of imminent harm”
(3) Court Orders- ICO
S.17- ‘bridges the gap between ECO AND CO’- removal of child for up to 8 weeks
(3) Court Orders- CO
S.18 Long-term statutory custody- Fulfilment of threshold 1,2 or 3- established on BOP
(3) Court Orders- SO
S.19- Least invasive order. Mandates ongoing oversight and supervision, but child remains at home. S.19 orders may accompany other orders.
(3) Court Orders- SPCO
S.23- Most invasive order. Secure placement of child, in specialised facility, whose own behaviour poses a serious risk to themselves/ another.
(III) Key Amendment One
CFAA (2013)- Established Tusla, in place of Regional Health Boards- centralisation- quest for consistency and efficiency
(III) Key Amendment Two
CFA (2015)- Section 12A into act- statutory duty to report child protection concerns- backed by national guidelines and mandatory training for professionals
(III) Key Amendment Three
CCA (2022)- Expansion of funding for early intervention support, and new statutory limits for HSE/ Tusla- “ties up loose ends rather than creating new strands”- O’Reilly
(IV) Jurisprudence- Case One
“Re H (2011) IESC”- Confirmed significant harm means actual/ likely I jury, NOT “mere parental imperfection”
(IV) Jurisprudence- Case Two
“OO (2016) ECHR”- 4 step proportionality test- ECHR upheld states right to use orders, emphasised regular review and minimal intrusion.
(IV) Jurisprudence- Case Two- What is the 4 step test?
LA - Does this order have a Legitimate Aim?
SU- Is the order Suitable given the circumstances?
NC- Is this order Necessary given the circumstances?
FB- Does this order strike a Fair Balance given the cirumstances?
(V) Analysis- A Fair Balance Struck?
Clear hierarchy of rights
4 Step proportionality test
Scrupulous following of procedure
(V) Analysis- A Fair Balance Struck?- O’Reilly quote
“rooted in proportionality… family supervision indisputably insufficient… resorption to full removal… exceptional cases of special care”
(V) Analysis- A Fair Balance Struck?
Issue One- Threshold Creep
O’Mahony: Definition of ‘significant harm’ has expanded since 2011, despite ECHR ruling- undermines family autonomy
(V) Analysis- A Fair Balance Struck?
Issue Two- Resource Constraints
O’Reilly- chronic underfunding of TUSLA, and lack of specialised Family Court- undermines investigation, inquiry and hearings- undermines everyone’s rights and hr compliance
(V) Analysis- A Fair Balance Struck?
Issue Two- Interim Care Order
Lacks maximum time limit via 1991 loophole- open to abuse
(VI) Reform, on the Horizon Once More- CCLRP Proposal One
Est. a specialised Family Court- nuanced and sensitive approach.
