Child Care (Amendment) Act 2011

PART 1 Preliminary and General

1.. Short title, collective citations and commencement.

1.— (1) This Act may be cited as the Child Care (Amendment) Act 2011.

(2) The Child Care Acts 1991 to 2007 and this Act, other than sections 27, 32, 33,35,36,37 to45, 47and49may be cited together as the Child Care Acts 1991 to 2011.

(3) The Children Acts 2001 to 2007, sections 27, 32,33,37to45 and 47 may be cited together as the Children Acts 2001 to 2011.

(4) The Health Acts 1947 to 2010 and sections 35and36 may be cited together as the Health Acts 1947 to 2011.

(5) The Adoption Act 2010 and section 49may be cited together as the Adoption Acts 2010 and 2011.

(6) This Act, other than sections 7 and 49, shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.

2.. Interpretation.

2.— In this Act—

“Act of 2001” means the Children Act 2001;

“Act of 2004” means the Health Act 2004;

“Act of 2007” means the Health Act 2007;

“Minister” means the Minister for Health;

“Principal Act” means the Child Care Act 1991.

PART 2 Amendment of Principal Act

3.. Amendment of section 2 of Principal Act.

3.— Section 2 (as amended by the Act of 2007) of the Principal Act is amended in subsection (1)—

(a) by inserting the following definitions:

“ ‘Act of 2001’ means the Children Act 2001;

‘interim special care order’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011);

‘special care’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011);

‘special care order’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011);

‘special care unit’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011).”;

and

(b) in the definition of “children’s residential centre” (inserted by the Act of 2007), by inserting the following paragraph after paragraph (d) of that definition:

“(da) a special care unit,”.

4.. Amendment of section 3 of Principal Act.

4.— Section 3 of the Principal Act is amended by deleting subsection (4).

5.. Amendment of section 4 of Principal Act.

5.— Section 4 (as amended by the Act of 2004) of the Principal Act is amended in subsection (2), by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “IV”.

6.. Amendment of section 9 of Principal Act.

6.— F1[…]

7.. Amendment of section 12 of Principal Act.

7.— Section 12 (as amended by the Act of 2004) of the Principal Act is amended—

(a) in subsection (1)(b) by inserting “or an application for a warrant under section 35” after “under section 13”, and

(b) in subsection (4) by inserting “or an order referred to in section 35 has been made in respect of the child” after “person acting in loco parentis”.

8.. Amendment of section 18 of Principal Act.

8.— Section 18 (as amended by the Act of 2004) of the Principal Act is amended by inserting the following subsections after subsection (8):

“(9) Where a care order—

(a) has been made in respect of a child and—

(i) during the period for which the care order has effect a special care order or an interim special care order is made in respect of the child, and

(ii) the care order ceases to have effect during the period for which the special care order or interim special care order has effect,

or

(b) has not been made in respect of a child and a special care order or an interim special care order has been made in respect of that child,

the Health Service Executive may apply for a care order in respect of that child during the period for which the special care order or interim special care order has effect.

(10) Where the District Court makes a care order, pursuant to the application referred to in subsection (9), during the period for which the special care order or interim special care order has effect, it shall direct that the care order shall take effect immediately following the expiration of the special care order or, as the case may be, interim special care order.”.

9.. Amendment of section 19 of Principal Act.

9.— Section 19 (as amended by the Act of 2004) of the Principal Act is amended by inserting the following subsections after subsection (7):

“(8) Where a supervision order—

(a) has been made in respect of a child and—

(i) during the period for which the supervision order has effect a special care order or an interim special care order is made in respect of the child, and

(ii) the supervision order ceases to have effect during the period for which the special care order or interim special care order has effect,

or

(b) has not been made in respect of a child and a special care order or interim special care order has been made in respect of that child,

the Health Service Executive may apply for a supervision order in respect of that child during the period for which the special care order or interim special care order has effect.

(9) Where the District Court makes the supervision order, pursuant to the application referred to in subsection (8), during the period for which the special care order or interim special care order has effect, it shall direct that the supervision order shall take effect immediately following the expiration of the special care order or, as the case may be, interim special care order.”.

10.. Amendment of Part IVA of Principal Act.

10.— Part IVA of the Principal Act (inserted by the Act of 2001) is amended by substituting the following Part for Part IVA—

“PART IVA

Provision of special care in special care units

Interpretation.

23A.— In this Part—

‘Act of 2007’ means the Health Act 2007;

‘care requirements’ means the care a child requires having regard to his or her behaviour;

‘Children Act order’ means—

(a) a reprimand referred to in section 98 of the Act of 2001,

(b) an order referred to in paragraph (a), (b), (c), (d), (e) or (f) of section 98 of the Act of 2001, or

(c) a community sanction referred to in paragraph (a), (b), (c) or (d) of section 115 of the Act of 2001 and such sanction is not subject to a condition referred to in paragraph (d) of section 117 of the Act of 2001;

‘children detention order’ has the meaning assigned to it by section 3 of the Act of 2001;

‘custodial sentence’ means—

(a) a children detention order but does not include a children detention order the making of which has been deferred under section 144 of the Act of 2001,

(b) a detention and supervision order referred to in section 151 of the Act of 2001, or

(c) a sentence referred to in section 155 (as amended by the Criminal Justice Act 2006) of the Act of 2001;

‘family welfare conference’ has the meaning assigned to it by the Act of 2001;

‘guardian’, in relation to a child, means a person who—

(a) is a guardian of a child pursuant to the Guardianship of Infants Act 1964, or

(b) is appointed to be a guardian of the child by—

(i) deed or will, or

(ii) order of a court in the State,

and has not been removed from office;

‘interim special care order’ means an order made under section 23L;

‘relative’ has the meaning assigned to it in section 23O (inserted by the Act of 2001);

‘special care’ shall be construed in accordance with section 23C;

‘special care order’ means an order made under section 23H;

‘special care unit’ means premises, or a part of premises, comprising secure residential accommodation in which a child, in respect of whom a special care order or an interim special care order has been made, is detained for the purpose of the provision to that child of special care and includes accommodation and facilities required for the provision of special care;

‘suspended custodial sentence’ means a custodial sentence which does not take effect immediately it is imposed and does not include—

(a) a children detention order the making of which has been deferred under section 144 of the Act of 2001, or

(b) a period of detention which has been suspended under section 144(9)(b) of the Act of 2001.

Provision of special care and special care units.

23B.— (1) The Health Service Executive shall provide special care to a child in respect of whom a special care order or an interim special care order has been made for the period for which that special care order or interim special care order has effect.

(2) The Health Service Executive shall not detain a child in a special care unit unless the detention is pursuant to, and in accordance with, a special care order or an interim special care order made in respect of that child or the High Court has otherwise ordered.

(3) The Health Service Executive shall—

(a) provide special care units, and

(b) maintain and administer special care units provided by it under paragraph (a),

and shall comply with regulations, if any, made under the Act of 2007 in relation to special care units and standards, if any, set out under section 8(1)(b) of the Act of 2007.

(4) Notwithstanding subsection (3) and subject to subsection (5), the Health Service Executive may, for the purposes of this Part, enter into an arrangement with a person under section 38 (as amended by the Act of 2007) of the Health Act 2004 in respect of the provision by that person of special care and the provision, maintenance and administration of a special care unit.

(5) Without prejudice to the generality of section 38 (as amended by the Act of 2007) of the Health Act 2004 and to any term, condition of or other matter relating to an arrangement under that section as the Health Service Executive, in accordance with that section, considers appropriate, for the purposes of this Part—

(a) the provisions specified in subsection (6) shall apply to a person with whom that arrangement is entered into,

(b) the Health Service Executive, in relation to an arrangement referred to in subsection (4), shall—

(i) supervise and monitor the special care unit provided, maintained and administered under the arrangement and the provision of special care in that unit, and

(ii) establish procedures for the notification to it of the release of a child pursuant to and in accordance with section 23NF(9),

(c) where a child, in respect of whom a special care order or an interim special care order has been made—

(i) is, without lawful authority or the consent or the knowledge of the Health Service Executive or the person with whom such arrangement is entered into, removed from a special care unit provided pursuant to such arrangement,

(ii) absconds from a special care unit provided pursuant to such arrangement,

(iii) fails to return, or is prevented from returning, to a special care unit provided pursuant to such arrangement, or

(iv) is missing or is otherwise absent, without the consent or knowledge of the Health Service Executive or the person with whom such arrangement has been entered into, from a special care unit provided pursuant to such arrangement or place to which he or she has been released in accordance with section 23NF or 23NG,

the person with whom such arrangement has been entered into shall forthwith inform the Health Service Executive,

(d) guidelines prepared and published by the Health Service Executive under section 23NO in respect of the procedures referred to in paragraphs (a) and (c) of that section shall apply to a person with whom such arrangement has been entered into, and

(e) nothing in that arrangement or this Act shall be construed as permitting the person, with whom the arrangement referred to in subsection (4) was entered into, to apply for—

(i) a special care order or an interim special care order,

(ii) an extension, discharge or variation of such order, or

(iii) the release of the child under section 23NF(1) or 23NG,

or to make an application to the High Court in respect of proceedings under or pursuant to this Part.

(6) The provisions referred to in subsection (5)(a) are—

(a) subsections (1), (2) and (3),

(b) subsections (1) and (5) of section 23D,

(c) section 23E(6),

(d) paragraphs (b) and (f) of subsection (1) of section 23ND, and

(e) paragraphs (a) and (b) of subsection (9) of section 23NF.

Special care.

23C.— In this Part ‘special care’ means the provision, to a child, of—

(a) care which addresses—

(i) his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and

(ii) his or her care requirements,

and includes medical and psychiatric assessment, examination and treatment, and

(b) educational supervision,

in a special care unit in which the child is detained and requires for its provision a special care order or an interim special care order directing the Health Service Executive to detain the child in a special care unit, which the Health Service Executive considers appropriate for the child, for the purpose of such provision and may, during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit—

(i) in accordance with section 23NF, and

(ii) where the release is required for the purposes of section 23D or 23E, in accordance with section 23NG.

Criminal proceedings and provision of special care.

23D.— (1) Where a child is charged with an offence and the proceedings in respect of that charge have not been determined, subject to subsection (6) and section 23E, nothing in this Act shall be construed as preventing the Health Service Executive from providing special care to such child in accordance with a special care order or an interim special care order.

(2) Without prejudice to the generality of subsection (1), subject to subsection (6) and section 23E—

(a) where a child is charged with an offence and the proceedings in respect of that charge have not been determined, nothing in this Act shall be construed as preventing—

(i) the Health Service Executive from applying for a special care order or an interim special care order and, where the order is made in respect of that child, from applying for an extension of that order under section 23J or, as the case may be, section 23N, in respect of that child, or

(ii) the High Court from hearing and determining an application referred to in subparagraph (i),

and

(b) where a special care order or an interim special care order has been made in respect of a child and that child is charged with an offence during the period for which a special care order or an interim special care order has effect, nothing in this Act shall be construed as—

(i) requiring the special care order or interim special care order to be discharged,

(ii) preventing the Health Service Executive from making an application to extend the period for which, under section 23J, a special care order or, under section 23N, an interim special care order, has effect, or

(iii) preventing the High Court from hearing and determining an application referred to in subparagraph (ii),

before the proceedings in respect of that charge are determined and the Health Service Executive shall, as soon as practicable, inform the Court hearing that charge that the child is the subject of a special care order, or an interim special care order, and of the period for which the order has effect.

(3) Where a child is charged with an offence and the proceedings in respect of that charge have not been determined, without prejudice to section 24, when considering—

(a) an application for a special care order or an interim special care order in respect of that child,

(b) an application, in respect of that child, to extend the period for which—

(i) under and in accordance with section 23J, the special care order has effect, or

(ii) under and in accordance with section 23N, the interim special care order, has effect,

or

(c) an application under section 23NG, in respect of that child, to vary the special care order or interim special care order to authorise the release of a child from a special care unit for the purposes of the hearing of that charge and any other matter relating to the conduct of the proceedings in which that charge is heard,

the High Court shall have regard, at all times, to the rights of the child who is the subject of that application including his or her rights in the proceedings in which that charge is heard and without prejudice to the generality of the foregoing, the High Court shall not make, or vary, such order or extend such period or give a direction in respect of such order, extension or variation which would prejudice, or otherwise interfere with, the rights of the child in the proceedings in which that charge is heard and the conduct of those proceedings.

(4) Where the Health Service Executive makes an application—

(a) for a special care order or an interim special care order, or

(b) to extend the period for which—

(i) under section 23J, the special care order has effect, or

(ii) under section 23N, the interim special care order has effect,

in respect of a child who is charged with an offence and the proceedings in respect of that charge have not been determined, the Health Service Executive shall—

(i) inform the High Court of—

(I) that charge and those proceedings,

(II) any matter requiring the release of the child from the special care unit, under section 23NG, for the purposes of the hearing of that charge and the conduct of those proceedings, and

(III) without prejudice to the generality of subparagraph (II), any matter requiring the release of the child from the special care unit, under section 23NG, for the purposes of subsection (5)(b) and (5)(c),

and

(ii) inform the Court hearing that charge—