First Previous (PART IV Care Proceedings) Next (PART VI Children in the Care of Health Boards)

17 1991

CHILD CARE ACT, 1991

PART V

Jurisdiction and Procedure

Welfare of child to be paramount.

24. —In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.

Power of court to join child as a party and costs of child as a party.

25. —(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not already a party, the court may, where it is satisfied having regard to the age, understanding and wishes of the child and the circumstances of the case that it is necessary in the interests of the child and in the interests of justice to do so, order that the child be joined as a party to, or shall have such of the rights of a party as may be specified by the court in, either the entirety of the proceedings or such issues in the proceedings as the court may direct. The making of any such order shall not require the intervention of a next friend in respect of the child.

(2) Where the court makes an order under subsection (1) or a child is a party to the proceedings otherwise than by reason of such an order, the court may, if it thinks fit, appoint a solicitor to represent the child in the proceedings and give directions as to the performance of his duties (which may include, if necessary, directions in relation to the instruction of counsel).

(3) The making of an order under subsection (1) or the fact that a child is a party to the proceedings otherwise than by reason of such an order shall not prejudice the power of the court under section 30 (2) to refuse to accede to a request of a child made thereunder.

(4) Where a solicitor is appointed under subsection (2), the costs and expenses incurred on behalf of a child exercising any rights of a party in any proceedings under this Act shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.

(5) The court which has made an order under subsection (2) may, on the application to it of a health board, order any other party to the proceedings in question to pay to the board any costs or expenses payable by that board under subsection (4).

Appointment of guardian ad litem for a child.

26. —(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint a guardian ad litem for the child.

(2) Any costs incurred by a person in acting as a guardian ad litem under this section shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.

(3) The court which has made an order under subsection (1) may, on the application to it of a health board, order any other party to the proceedings in question to pay to the board any costs or expenses payable by that board under subsection (2).

(4) Where a child in respect of whom an order has been made under subsection (1) becomes a party to the proceedings in question (whether by virtue of an order under section 25 (1) or otherwise) then that order shall cease to have effect.

Power to procure reports on children.

27. —(1) In any proceedings under Part IV or VI the court may, of its own motion or on the application of any party to the proceedings, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child.

(2) In deciding whether or not to request a report under subsection (1) the court shall have regard to the wishes of the parties before the court where ascertainable but shall not be bound by the said wishes.

(3) A copy of any report prepared under subsection (1) shall be made available to the counsel or solicitor, if any, representing each party in the proceedings or, if any party is not so represented, to that party and may be received in evidence in the proceedings.

(4) Where any person prepares a report pursuant to a request under subsection (1), the fees and expenses of that person shall be paid by such party or parties to the proceedings as the court shall order.

(5) The court, if it thinks fit, or any party to the proceedings, may call the person making the report as a witness.

Jurisdiction.

28. —(1) The District Court and the Circuit Court on appeal from the District Court shall have jurisdiction to hear and determine proceedings under Part III , IV or VI .

(2) Proceedings under Part III , IV or VI may be brought, heard and determined before and by a justice of the District Court for the time being assigned to the district court district where the child resides or is for the time being.

Hearing of proceedings.

29. —(1) Proceedings under Part III , IV or VI shall be heard otherwise than in public.

(2) The provisions of sections 33 (1), 33 (2) and 45 of the Judicial Separation and Family Law Reform Act, 1989 , shall apply to proceedings under Part III , IV or VI as they apply to proceedings to which those provisions relate.

(3) The District Court and the Circuit Court on appeal from the District Court shall sit to hear and determine proceedings under Part III , IV or VI at a different place or at different times or on different days from those at or on which the ordinary sittings of the Court are held.

(4) Proceedings before the High Court in relation to proceedings under Part III , IV or VI shall be as informal as is practicable and consistent with the administration of justice.

Power to proceed in absence of child.

30. —(1) It shall not be necessary in proceedings under Part III , IV or VI for the child to whom the proceedings relate to be brought before the court or to be present for all or any part of the hearing unless the court, either of its own motion or at the request of any of the parties to the case, is satisfied that this is necessary for the proper disposal of the case.

(2) Where the child requests to be present during the hearing or a particular part of the hearing of the proceedings the court shall grant the request unless it appears to the court that, having regard to the age of the child or the nature of the proceedings, it would not be in the child's interests to accede to the request.

Prohibition on publication or broadcast of certain matters.

31. —(1) No matter likely to lead members of the public to identify a child who is or has been the subject of proceedings under Part III , IV or VI shall be published in a written publication available to the public or be broadcast.

(2) Without prejudice to subsection (1), the court may, in any case if satisfied that it is appropriate to do so in the interests of the child, by order dispense with the prohibitions of that subsection in relation to him to such extent as may be specified in the order.

(3) If any matter is published or broadcast in contravention of subsection (1), each of the following persons, namely—

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(b) in the case of any other publication, the person who publishes it, and

(c) in the case of a broadcast, any body corporate who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both.

(4) Nothing in this section shall affect the law as to contempt of court.

(5) In this section—

broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

written publication” includes a film, a sound track and any other record in permanent form (including a record that is not in a legible form but which is capable of being reproduced in a legible form) but does not include an indictment or other document prepared for use in particular legal proceedings.

Presumption and determination of age.

32. —In any application for an order under Part III , IV or VI , the court shall make due inquiry as to the age of the person to whom the application relates and the age presumed or declared by the court to be the age of that person shall, until the contrary is proved, for the purposes of this Act, be deemed to be the true age of that person.

Rules of court.

33. —(1) For the purpose of ensuring the expeditious hearing of applications under Part III , IV or VI , rules of court may make provision for the service of documents otherwise than under section 7 of the Courts Act, 1964 (as amended by section 22 of the Courts Act, 1971 ) in circumstances to which the said section 7 relates.

(2) Rules of court may make provision for the furnishing of information and documents by parties to proceedings under Part III , IV or VI to each other or to solicitors acting for them.

(3) This section is without prejudice to section 17 of the Interpretation Act, 1937 , which provides for rules of court.

Failure or refusal to deliver up a child.

34. —(1) Without prejudice to the law as to contempt of court, where the District Court has made an order under Part III or IV directing that a child be placed or maintained in the care of a health board, any person having the actual custody of the child who, having been given or shown a copy of the order and having been required, by or on behalf of the health board, to give up the child to that board, fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.

(2) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order made under Part III or IV if that person was present at the sitting of the court at which such an order was made.

Warrant to search for and deliver up a child.

35. —Where a justice has made an order under Part IV directing that a child be placed or maintained in the care of a health board, a justice may for the purpose of executing that order issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or such other persons as may be necessary, to enter (if need be by force) any house or other place specified in the warrant (including any building or part of a building, tent, caravan, or other temporary or moveable structure, vehicle, vessel, aircraft or hovercraft) where the child is or where there are reasonable grounds for believing that he is and to deliver the child into the custody of the health board.