Child Care (Amendment) Act 2011

(ii) the residence of the child with a parent or relative, referred to in subsection (2)(a), outside the State,

before it varies the special care order or the interim special care order concerned.

Release from special care unit for purposes of sections 23D and 23E.

23NG.— (1) Notwithstanding the detention of a child in a special care unit pursuant to a special care order or an interim special care order, the Health Service Executive may apply to the High Court to vary that special care order or interim special care order to authorise the release of the child from the special care unit for all or any of the following:

(a) for the purposes referred to in section 23D(3)(c);

(b) for the purposes referred to in section 23D(4)(i) and section 23D(5);

(c) for the purposes of complying with any terms, conditions and other requirements of a Children Act order referred to in sections 23E(5)(i), 23E(8) and 23E(13);

(d) for the purposes of complying with any terms, conditions and other requirements of a children detention order the making of which has been deferred under section 144 of the Act of 2001, referred to in sections 23E(4)(i), 23E(8) and 23E(12);

(e) for the purposes of complying with any terms, conditions and other requirements of the suspension, under section 144(9)(b) of the Act of 2001, of a period of detention referred to in sections 23E(4)(i), 23E(8) and 23E(12);

(f) for the purposes of complying with a suspended custodial sentence referred to in sections 23E(3)(i), 23E(8) and 23E(11);

(g) for the purposes referred to in section 23E(6);

(h) for any other purpose in respect of which the release of the child is required pursuant to section 23D or 23E.

(2) An application under this section may be made—

(a) with an application for a special care order or interim special care order, at a review under section 23I or with an application under section 23J or 23N, or

(b) at any other time during the period for which the special care order or interim special care order has effect.

(3) An application referred to in subsection (2)(b) shall be made, subject to a direction under section 23NA(2)(a), on notice to the persons referred to in, and in accordance with, paragraphs (a) to (c) of section 23G(1).

(4) The High Court may—

(a) vary the special care order or interim special care order to authorise the release of the child from the special care unit during the period for which the special care order or interim special care order has effect for all or any of the purposes referred to in subsection (1),

(b) make such other provision and give directions in respect of the release under this section as the High Court, having regard to all the circumstances of the child, considers necessary and in the best interests of the child,

(c) without prejudice to the generality of paragraphs (a) and (b), vary the special care order or interim special care order for a specified period or a number of specified periods and may include terms and conditions as the High Court, having regard to all the circumstances of the child, considers necessary and in the best interests of the child,

and without prejudice to the generality of the foregoing where the release is for the purposes referred to in paragraph (a) or (b) of subsection (1) or for any other purpose for which the release of the child is required pursuant to section 23D, the variation shall be made in accordance with section 23D(3).

(5) Where a child is released from the special care unit pursuant to this section the period of the release shall be included in the period for which the special care order or the interim special care order has effect.

Hearing of proceedings.

23NH.— Proceedings under this Part shall be heard otherwise than in public.

Return of child to Health Service Executive in certain circumstances.

23NI.— (1) Where a child, in respect of whom a special care order or an interim special care order has been made—

(a) is, without lawful authority or the consent or the knowledge of the Health Service Executive, removed from the custody of the Health Service Executive or a special care unit,

(b) absconds from a special care unit or the custody of the Health Service Executive,

(c) fails to return, or is prevented from returning, to—

(i) a special care unit, or

(ii) the custody of the Health Service Executive,

or

(d) is missing or is otherwise absent, without the consent or knowledge of the Health Service Executive, from the special care unit or place to which he or she has been released in accordance with section 23NF or 23NG,

the Health Service Executive shall request the Garda Síochána to search for the child and return the child to the custody of the Health Service Executive at the special care unit specified by the Health Service Executive.

(2) Where a request has, in accordance with subsection (1), been made, the Garda Síochána may take all reasonable measures to comply with the request.

(3) Where the Health Service Executive has reasonable grounds for believing that a person can produce a child referred to in subsection (1), the Health Service Executive shall apply to the High Court for an order directing that person to deliver the child to the care of the Health Service Executive.

(4) Where an application referred to in subsection (3) is made and the High Court is satisfied by information on oath that there are reasonable grounds for believing that a person specified in the information can produce that child, the High Court may make an order directing that person to deliver up that child to the custody of the Health Service Executive and may, for the purpose of that order, give directions as it considers necessary and in the best interests of the child.

(5) A person shall be deemed to have been given, or shown, a copy of a warrant issued under subsection (6) if that person was present at the sitting of the High Court at which the warrant was issued.

(6) Where the High Court is satisfied by information on oath that there are reasonable grounds for believing that a child referred to in subsection (1), and who is named in an application, is in a house or other place, including any building or part of a building, tent, caravan or other temporary or moveable structure, vehicle, vessel or aircraft, specified in the information, the High Court may, on the application of the Health Service Executive in respect of a child referred to in subsection (1), 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, and to search any house or other place specified in the warrant, where the child is, or where there are reasonable grounds for believing that he or she is, and to return the child to the custody of the Health Service Executive at the special care unit specified by the Health Service Executive.

(7) An application for an order under subsection (3) may be made ex parte and may be heard if the High Court is satisfied—

(a) of the urgency of the matter,

(b) that it is necessary for the purpose of protecting the life, health, safety, development or welfare of the child, or

(c) that it is in the interests of justice to do so.

(8) Where a member of the Garda Síochána has reasonable grounds for believing that—

(a) there is an immediate and serious risk to the life, health, safety, development or welfare of a child referred to in subsection (1), and

(b) it would not be sufficient for the protection of that child from such immediate and serious risk to await the making of an application for a warrant under subsection (6),

the member, accompanied by such other persons as may be necessary, may, without a 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 or aircraft, and remove the child to safety and return the child to the custody of the Health Service Executive at the special care unit specified by the Health Service Executive.

(9) Subsection (8) is without prejudice to any other powers exercisable by a member of the Garda Síochána.

(10) Where a child is removed to safety by a member of the Garda Síochána in accordance with subsection (8), the child shall be returned to the custody of the Health Service Executive at the special care unit specified by the Health Service Executive.

Applications for special care orders or interim special care orders generally.

23NJ.— (1) Nothing in this Act shall be construed as preventing the Health Service Executive from applying for a special care order or an interim special care order, in respect of a child who has previously been the subject of—

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

(b) a special care order, whether or not the period for which it had effect was extended in accordance with section 23J, or

(c) an interim special care order, whether or not the period for which it had effect was extended in accordance with section 23N.

(2) Where a special care order has been made in respect of a child, whether or not the period for which it had, or has, effect was extended in accordance with section 23J, the Health Service Executive may apply for another special care order in respect of that child—

(a) at any time after the first-mentioned special care order ceased to have effect, or

(b) during the period for which the first-mentioned special care order has effect,

and where the High Court, pursuant to an application to which paragraph (b) refers, makes the special care order, the first-mentioned special care order shall cease to have effect immediately following the making of that special care order.

(3) Where an interim special care order has been made in respect of a child, whether or not the period for which it had effect was extended in accordance with section 23N, the Health Service Executive may apply for another interim special care order in respect of that child, subject to subsection (4), at any time after the first-mentioned interim special care order ceased to have effect.

(4) Subsection (3) shall not apply in respect of a hearing, referred to in section 23M(1)(a), held pursuant to the making of an interim special care order ex parte.

(5) Where an interim special care order has been made in respect of a child, whether or not the period for which it had, or has, effect was extended in accordance with section 23N, the Health Service Executive may apply for a special care order in respect of that child—

(a) at any time after the interim special care order ceased to have effect, or

(b) during the period for which the interim special care order has effect,

and where the High Court, pursuant to an application to which paragraph (b) refers—

(i) makes the special care order, the interim special care order shall cease to have effect immediately following the making of that special care order, or

(ii) if the High Court refuses to make the special care order it shall discharge the interim special care order.

(6) The Health Service Executive may apply for a special care order, or an interim special care order, in respect of a child who is, or has previously been the subject of an order of the High Court the effect of which was to detain a child in secure residential accommodation and such application may be made, in accordance with this Part—

(a) at any time after that High Court order ceased to have effect, or

(b) during the period for which that High Court order has effect,

and where the High Court, pursuant to an application to which paragraph (b) refers, makes the special care order or, as the case may be, the interim special care order it shall give directions in respect of the cessation of the effect of that High Court order.

Application for directions.

23NK.— Where a child is in the care of the Health Service Executive pursuant to a special care order or an interim special care order, the High Court may—

(a) of its own motion, or

(b) on the application of the Health Service Executive, a parent, the guardian of the child or a relative,

give directions or make an order on any question affecting the welfare of the child as the High Court thinks proper and may vary or discharge any such direction or order.

Existing orders.

23NL.— (1) Where an existing order has effect in respect of a child on the day on which a special care order or an interim special care order is made in respect of that child, subject to subsection (2), the provision of special care to that child by the Health Service Executive shall take precedence over the care provided to the child pursuant to such existing order during the period for which the special care order or interim special care order has effect.

(2) Where an existing order has effect for a specified period, nothing in subsection (1) shall be construed as affecting that period.

(3) In this section ‘existing order’ means—

(a) an interim care order made under section 17,

(b) a care order made under section 18,

(c) an emergency order made under section 13, or

(d) a supervision order made under section 19.

Provision of information to certain persons.

23NM.— (1) The Health Service Executive shall, from time to time during the period for which a special care order or an interim special care order has effect and subject to a direction under section 23NA(2)(a), provide—

(a) a parent having custody of the child unless the parent is dead, missing or cannot be found, and

(b) a guardian of the child unless the guardian is missing or cannot be found, or a relative,

with information relating to the child having regard to the special care provided to him or her, his or her care requirements, the behaviour of the child before the provision of special care and the risk it poses to his or her life, health, safety, development or welfare.

(2) The Health Service Executive shall, for the purposes of subsection (1), take all steps reasonably open to it to locate a person referred to in paragraphs (a) and (b) of subsection (1).

(3) Without prejudice to the generality of subsection (1), information provided pursuant to that subsection includes information in respect of—

(a) the benefits of special care having regard to the care requirements of the child, and

(b) an incident, if any, relating to the child which—

(i) has occurred in the special care unit or during a period for which the child was released from the special care unit pursuant to section 23NF or 23NG, and

(ii) has had, or is likely to have, an adverse affect on that child.

Request for appraisal of special care provided to child.

23NN.— (1) A parent of a child who is the subject of a special care order or an interim special care order, a guardian or a person who has a bona fide interest in the child, may request, in writing, the Health Service Executive to carry out an appraisal of the child in respect of the special care provided to him or her, the care requirements of the child, the behaviour of the child before the provision of such special care and the risk such behaviour poses to his or her life, health, safety, development or welfare.

(2) Where a request under subsection (1) is made, the Health Service Executive shall, subject to subsection (3), carry out an appraisal referred to in subsection (1).

(3) Where, pursuant to a request referred to in subsection (1), the Health Service Executive decides not to carry out an appraisal, the Health Service Executive shall inform, in writing, the person who made the request of that decision and the reasons for it.

(4) Where the Health Service Executive decides not to carry out an appraisal pursuant to a request referred to in subsection (1), the person who made that request may appeal the decision in accordance with this section within 14 days of receipt of the written notification in the prescribed form stating the reasons for the appeal.

(5) Where the Health Service Executive receives an appeal under subsection (4) it shall, with the consent of the Minister, appoint a person who—

(a) has, in the opinion of the Health Service Executive, the necessary qualifications, training or experience, or a combination thereof, and

(b) is not an employee of the Health Service Executive.

(6) The person appointed pursuant to subsection (5) to consider an appeal under subsection (4) shall—

(a) be independent in the performance of his or her functions,

(b) comply with guidelines issued under subsection (10) by the Health Service Executive in respect of the procedure to be followed with respect to the consideration of the appeal,

(c) consider any written or oral objections made by the appellant in support of the appeal,

(d) make a decision in writing determining the appeal as soon as practicable in all the circumstances of the case, and

(e) send a copy of the decision referred to in paragraph (d) to the appellant and the Health Service Executive together with the reasons for that decision.

(7) The appellant or the Health Service Executive may appeal to the High Court against the decision referred to in subsection (6)(d) on a point of law.

(8) An appeal under subsection (7) shall, where the appellant requests, be heard otherwise than in public.

(9) A decision of the High Court on an appeal under subsection (7) shall be final except that, by leave of the High Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.

(10) The Health Service Executive shall issue guidelines in respect of the procedure to be followed in respect of an appeal under this section.

Guidelines.

23NO.— The Health Service Executive shall prepare and publish guidelines in respect of—

(a) the procedures for—

(i) the discharge of children from special care units including the discharge or release of children who are to remain in the care of the Health Service Executive pursuant to an order under the Act other than under this Part, and

(ii) the release, in accordance with section 23NF and 23NG, of children from a special care unit,

(b) the provision of care under this Act, including aftercare referred to in section 45, to a child when a special care order or an interim special care order made in respect of that child ceases to have effect, and

(c) informing the Garda Síochána and other persons, of children—

(i) who are, without lawful authority or the consent or knowledge of the Health Service Executive, removed from the custody of the Health Service Executive or a special care unit,

(ii) who abscond from a special care unit or the custody of the Health Service Executive,

(iii) who fail to return, or are prevented from returning, to a special care unit or the custody of the Health Service Executive, or

(iv) who are missing or otherwise absent, without the consent or knowledge of the Health Service Executive, from the special care unit or place to which children are released in accordance with sections 23NF and 23NG.

Offences.

23NP.— (1) Without prejudice to the law relating to contempt of court, where the High Court—

(a) makes an order under section 23H(3)(a),

(b) makes an order under section 23L(4)(a), or

(c) makes an order under section 23NI(4),

and the person who has actual custody of the child has been given or shown a copy of the order referred to in paragraph (a), (b) or (c) and has been required, by or on behalf of the Health Service Executive, to give up that child to the Health Service Executive, and that person fails or refuses to comply with the order, that person shall be guilty of an offence and shall be liable on summary conviction to a class B fine or imprisonment for a term not exceeding 6 months or both.

(2) Without prejudice as to the law as to contempt of court, where a special care order or an interim special care order has been made in respect of a child, a person who—

(a) without lawful authority, removes that child from—

(i) a special care unit,

(ii) the custody of the Health Service Executive, any person who is taking care of the child on behalf of the Health Service Executive or a person referred to in section 23B(4), or

(iii) the place to which he or she has been released under section 23NF or 23NG,

or

(b) prevents the child, where that child is released from the special care unit in accordance with section 23NF or 23NG, from returning to—

(i) the special care unit, or

(ii) the custody of the Health Service Executive or a person referred to in paragraph (a)(ii),

shall be guilty of an offence and shall be liable on summary conviction to a class B fine or imprisonment for a term not exceeding 6 months or both.

(3) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order referred to in paragraph (a), (b) or (c) of subsection (1) if that person was present at the sitting of the High Court at which that order was made.”.

11.. Amendment of section 24 of Principal Act.

11.— Section 24 of the Principal Act is amended by inserting “, and in proceedings before the High Court under Part IVA (as amended by the Child Care (Amendment) Act 2011) in relation to special care” after “the care and protection of a child”.

12.. Amendment of section 25 of Principal Act.

12.— Section 25 (as amended by the Act of 2004) of the Principal Act is amended—

(a) in subsection (1), by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part IV”, and

(b) by inserting the following subsection after subsection (5):

“(6) In this section, where the proceedings are proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

13.. Amendment of section 26 of Principal Act.

13.— Section 26 (as amended by the Act of 2004) of the Principal Act is amended—

(a) in subsection (1), by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part IV”,

(b) in subsection (2), by inserting “reasonably” after “Any costs”,

(c) by inserting the following subsections after subsection (2):

“(2A) Where the court makes an appointment under subsection (1) (as amended by the Child Care (Amendment) Act 2011), without prejudice to the generality of subsection (1), the court shall give directions relating to the service of documents for the proceedings concerned on the guardian ad litem.

(2B) A guardian ad litem shall for the purpose of the proceedings for which he or she is appointed promote the best interests of the child concerned and convey the views of that child to the court, in so far as is practicable, having regard to the age and understanding of the child.

(2C) Where the court makes an appointment under subsection (1) (as amended by the Child Care (Amendment) Act 2011)—

(a) the guardian ad litem concerned may instruct a solicitor to represent him or her in respect of those proceedings and, if necessary, having regard to the circumstances of the case, may instruct counsel in respect of those proceedings, and

(b) where a guardian ad litem instructs a solicitor or counsel or both pursuant to paragraph (a), the costs and expenses reasonably incurred for that purpose shall be paid by the Health Service Executive and the Health Service Executive may apply to the court to have the amount of any such costs or expenses measured or taxed.”,

(d) by inserting the following subsection after subsection (3):

“(3A) The court may, on the application to it of the Health Service Executive, order any other party to the proceedings in question to pay to the Health Service Executive any costs or expenses payable by the Health Service Executive under subsection (2C).”,

and

(e) by inserting the following subsection after subsection (4):

“(5) In this section, where the proceedings are proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

14.. Amendment of section 27 of Principal Act.

14.— Section 27 of the Principal Act is amended—

(a) in subsection (1), by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part IV”, and

(b) by inserting the following subsections after subsection (5):

“(6) In this section, a reference to the party or parties includes a guardian ad litem, if any, appointed in accordance with section 26 (as amended by the Child Care (Amendment) Act 2011) in respect of the proceedings concerned.

(7) In this section, where the proceedings are proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

15.. Amendment of section 28 of Principal Act.

15.— (1) Section 28 of the Principal Act is amended—

(a) in subsection (1) by inserting “and summary proceedings for an offence under section 23NP (inserted by the Child Care (Amendment) Act 2011)” after “Part III, IV or VI”, and

(b) in subsection (2) by inserting “, and summary proceedings for an offence under section 23NP (inserted by the Child Care (Amendment) Act 2011),” after “Part III, IV or VI”.

(2) Section 28 of the Principal Act is amended by inserting the following subsections after subsection (2):

“(3) The High Court shall have jurisdiction to hear and determine—

(a) proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), other than proceedings under section 23NP (inserted by the Child Care (Amendment) Act 2011),

(b) any application or other matter under, and in accordance with, this Act (as amended by the Child Care (Amendment) Act 2011) that relates to a special care order, an interim special care order or the hearing and determination of proceedings for special care under Part IVA (as amended by the Child Care (Amendment) Act 2011),

(c) without prejudice to the generality of paragraph (b), any application or other matter under, and in accordance with, Part V (as amended by the Child Care (Amendment) Act 2011) that relates to proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011) for special care, and the hearing and determination of such proceedings other than proceedings under section 31(3) which relate to proceedings under Part IVA, and

(d) without prejudice to the generality of paragraph (b), any proceedings relating to section 37 (as amended by the Child Care (Amendment) Act 2011) in so far as they concern a child who is the subject of a special care order or an interim special care order during the period for which the order concerned has effect.

(4) The District Court, and the Circuit Court on appeal from the District Court, shall have jurisdiction to hear and determine an application for a care order or a supervision order notwithstanding that, at the time that application is made, a special care order or an interim special care order has effect in respect of the child concerned.”.

16.. Amendment of section 30 of Principal Act.

16.— Section 30 of the Principal Act is amended—

(a) in subsection (1) by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part III, IV”, and

(b) by inserting the following subsection after subsection (2):

“(3) In subsection (1) and (2), where the proceedings are proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

17.. Amendment of section 31 of Principal Act.

17.— Section 31 of the Principal Act is amended—

(a) in subsection (1) by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part III, IV”, and

(b) by inserting the following subsection after subsection (5):

“(5A) In this section, where the proceedings are proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

18.. Amendment of section 32 of Principal Act.

18.— Section 32 of the Principal Act is amended by—

(a) inserting “, or for a special care order or an interim special care order under Part IVA (as amended by the Child Care (Amendment) Act 2011), the High Court”, after “Part III, IV or VI, the court”, and

(b) inserting “, or as the case may be, the High Court,” after “declared by the court”.

19.. Amendment of section 33 of Principal Act.

19.— Section 33 of the Principal Act is amended—

(a) by inserting the following subsection after subsection (1):

“(1A) For the purposes of ensuring the expeditious hearing of applications and proceedings under, and in relation to, Part IVA (as amended by the Child Care (Amendment) Act 2011), rules of court may make provision for the service of superior court documents otherwise than under section 23 of the Courts Act 1971.”,

and

(b) in subsection (2), by inserting “, IVA (as amended by the Child Care (Amendment) Act 2011)” after “Part III, IV”.

20.. Amendment of section 36 of Principal Act.

20.—F2[…]

21.. Amendment of section 37 of Principal Act.

21.— Section 37 of the Principal Act is amended—

(a) by inserting the following subsection after subsection (1)—

“(1A) Where a child is in the care of the Health Service Executive pursuant to a special care order or an interim special care order, the Health Service Executive shall, subject to this Act, and to a direction, if any, given under section 23NA(2)(a) (inserted by the Child Care (Amendment) Act 2011), and in accordance with that special care order or interim special care order and that direction, if any, facilitate reasonable access to the child in the special care unit by his or her parents, a person acting in loco parentis, a guardian or any other person who, in the opinion of the Health Service Executive, has a bona fide interest in the child.”,

(b) in subsection (2) by inserting “or with arrangements made by the Health Service Executive under subsection (1A) (inserted by the Child Care (Amendment) Act 2011)” after “Health Act 2004” (inserted by the Act of 2004), and

(c) by inserting the following subsection after subsection (4):

“(5) In this section, in proceedings under Part IVA (as amended by the Child Care (Amendment) Act 2011), ‘court’ means the High Court.”.

22.. Amendment of section 42 of Principal Act.

22.— Section 42 (as amended by the Act of 2004) of the Principal Act is amended by inserting the following subsection after subsection (2):

“(3) Regulations under this section shall not apply to children who are the subject of special care orders or interim special care orders during the period those orders have effect.”.

23.. Amendment of section 45 of Principal Act.

23.—F3[…]

24.. Amendment of section 46 of Principal Act.

24.— F4[…]

25.. Amendment of section 47 of Principal Act.

25.—F5[…]

26.. Amendment of section 69 of Principal Act.

26.— Section 69 of the Principal Act is amended—

(a) in subsection (2) (amended by section 75 of the Health Act 2004), by substituting “maintained by the Health Service Executive, or by a person who is taking care of a child on behalf of the Health Service Executive, under this Act, or by a person referred to in section 23B(4) (inserted by section 10 of the Child Care (Amendment) Act 2011)” for “maintained by the Health Service Executive under this Act”,

(b) in subsection (4)(a) (amended by section 75 of the Health Act 2004), by substituting “maintained by the Health Service Executive, or by a person who is taking care of a child on behalf of the Health Service Executive, under this Act, or by a person referred to in section 23B(4) (inserted by section 10 of the Child Care (Amendment) Act 2011)” for “maintained by the Health Service Executive under this Act”, and

(c) in subsection (4)(b) (amended by section 75 of the Health Act 2004), by substituting “employees of the Health Service Executive or of a person referred to in paragraph (a)” for “employees of the Health Service Executive”.

PART 3 Amendment of Act of 2001

27.. Amendment of section 3 of Act of 2001.

27.— Section 3 (as amended by the Act of 2004) of the Act of 2001 is amended, in subsection (1), by inserting the following definition after the definition of “school”:

“ ‘special care order’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011) of the Act of 1991;”.

28.. Amendment of section 7 of Act of 2001.

28.— Section 7 (as amended by the Act of 2004) of the Act of 2001 is amended in subsection (1), by substituting the following paragraph for paragraph (b):

“(b) a family welfare conference is to be convened pursuant to section 23F (as amended by the Child Care (Amendment) Act 2011) of the Act of 1991,”.

29.. Amendment of section 8 of Act of 2001.

29.— Section 8 (as amended by the Act of 2004) of the Act of 2001 is amended—

(a) in subsection (1) by substituting “A family welfare conference” for “A family welfare conference shall”,

(b) in paragraph (a) of subsection (1)—

(i) by substituting “referred to in section 7(1)(b), shall consider whether” for “decide if”,

(ii) by substituting “requires” for “is in need of”, and

(iii) by substituting “under Part IVA (as amended by the Child Care (Amendment) Act 2011)” for “or protection which the child is unlikely to receive unless an order is made in respect of him or her under Part IVA (inserted by this Act)”,

(c) in paragraph (b) of subsection (1)—

(i) by substituting “referred to in section 7(1)(b), shall, if it is considered that the child requires special care” for “if it decides that a child is in such need”, and

(ii) by substituting “a special care order,” for “an order under that Part, and”,

(d) in paragraph (c) of subsection (1)—

(i) by substituting “referred to in section 7(1)(a) shall,” for “if it does not so decide,”,

(ii) by substituting “a care order, a supervision order, a special care order or other care” for “a care order or a supervision order”, and

(iii) by substituting “in respect of the child, and” for “in respect of the child.”,

and

(e) in subsection (1) by inserting the following paragraph after paragraph (c):

“(d) referred to in section 7(1)(b) shall, if it is considered that the child does not require special care, make such recommendations to the Health Service Executive in relation to the care or protection of the child as the conference considers necessary, including, where appropriate, care, other than special care, under the Act of 1991.”.

30.. Amendment of section 10 of Act of 2001.

30.— Section 10 of the Act of 2001 is amended by inserting the following subsection after subsection (3):

“(4) The procedure referred to in subsection (1) shall—

(a) be consistent with fairness and natural justice, and

(b) include a procedure for consulting with the child and for ascertaining the wishes of the child in respect of whom the conference, referred to in subsection (1), has been convened.”.

31.. Amendment of section 13 of Act of 2001.

31.— Section 13 (as amended by the Act of 2004) of the Act of 2001 is amended in subsection (1) by deleting paragraph (a).

32.. Amendment of section 71 of Act of 2001.

32.— Section 71 of the Act of 2001 is amended in subsection (1)(a) by deleting “, IVA (inserted by this Act)”.

33.. Amendment of section 77 of Act of 2001.

33.— Section 77 (as amended by the Child Care (Amendment) Act 2007) of the Act of 2001 is amended—

(a) in subsection (1) by inserting “or for the provision to that child of other care under the Act of 1991 (as amended by the Child Care (Amendment) Act 2011) or otherwise” after “Act of 1991 with respect to the child”, and

(b) in subsection (1)(a) by substituting “circumstances.” for “circumstances,”.

34.. Amendment of section 267 of Act of 2001.

34.— Section 267 of the Act of 2001 is amended, in subsection (2), by substituting “Part” for “Parts IVA and”.

PART 4 Amendment of Act of 2004

35.. Amendment of Part 7A of Act of 2004.

35.— Part 7A (inserted by section 1 of the Health (Amendment) Act 2010) of the Act of 2004 is amended—

(a) in section 40B—

(i) in subsection (1)(a), by substituting “functions,” for “functions, and”,

(ii) in subsection (1)(b)(ii), by substituting “Minister,” for “Minister.”,

(iii) by inserting the following after subsection (1)(b):

“and

(c) without delay, furnish the Minister for Children and Youth Affairs with information regarding—

(i) any such occurrence or development that, in the opinion of the Executive, that Minister is likely to consider significant for the performance of his or her functions, or

(ii) any other occurrence or development that falls within a class of occurrences or developments of public interest or concern that has been specified in writing by that Minister.”,

and

(iv) in subsection (2), by inserting “, in consultation with the Minister for Children and Youth Affairs,” after “Minister may”,

(b) in section 40C—

(i) by inserting the following subsection after subsection (1):

“(1A) The Minister for Children and Youth Affairs may, where he or she considers it necessary in the public interest to do so for the performance of his or her functions, require the Executive to furnish him or her with such information or documents as he or she may specify that are in the Executive’s procurement, possession or control, and the Executive shall do so within any period that that Minister may specify and, in any event, without delay.”,

(ii) in subsection (2), by inserting “or the Minister for Children and Youth Affairs” after “furnish the Minister”,

(iii) in subsection (3), by inserting “or the Minister for Children and Youth Affairs” after “furnishing the Minister”, and

(iv) in subsection (4)(a), by inserting “or the Minister for Children and Youth Affairs” after “furnishing the Minister”,

(c) in section 40D—

(i) in subsection (1), by inserting “to him or her” after “has been furnished”,

(ii) by inserting the following subsection after subsection (1):

“(1A) Where the Minister for Children and Youth Affairs has appointed a person to examine or inquire into any matter, and considers that any information or document that has been furnished to him or her under section 40B or 40C may be relevant to that examination or inquiry, that Minister may furnish that information or document to the person, and that person may receive that information or document.”,

(iii) in subsection (2), by substituting “the Minister or the Minister for Children and Youth Affairs to furnish a person referred to in subsection (1) or, as the case may be, subsection (1A), with information” for “the Minister to furnish a person referred to in subsection (1) with information”,

(iv) in subsection (3), by substituting “the Minister or the Minister for Children and Youth Affairs from furnishing a person referred to in subsection (1) or, as the case may be, subsection (1A), with information” for “the Minister from furnishing a person referred to in subsection (1) with information”, and

(v) in subsection (4)(a), by substituting “the Minister or the Minister for Children and Youth Affairs from furnishing a person referred to in subsection (1) or, as the case may be, subsection (1A), with information” for “the Minister from furnishing a person referred to in subsection (1) with information”,

(d) in section 40E—

(i) in subsection (1), by inserting “to him or her” after “documents furnished”, and

(ii) by inserting the following subsection after subsection (1):

“(1A) Subject to subsection (2), the Minister for Children and Youth Affairs may use information and documents furnished to him or her under this Part as he or she requires for the performance of his or her functions.”,

and

(e) in section 40F—

(i) by substituting “any power of the Minister or the Minister for Children and Youth Affairs” for “any power of the Minister”, and

(ii) to substitute “the functions of the Executive, the Minister or the Minister for Children and Youth Affairs” for “the functions of the Executive or the Minister”.

PART 5 Amendment of Act of 2007

36.. Amendment of Act of 2007.

36.— (1) Section 2 of the Act of 2007 is amended—

(a) in subsection (1), in the definition of “designated centre”—

(i) by inserting the following paragraph after paragraph (a):

“(aa) that is a special care unit,”

(ii) by deleting paragraph (v),

(b) in subsection (1), by substituting the following definition for the definition of “special care unit”:

“ ‘special care unit’ has the meaning assigned to it by Part IVA (as amended by the Child Care (Amendment) Act 2011) of the Child Care Act 1991;”,

(c) in subsection (2), by inserting “unit,” after “home,” in each place where it occurs, and

(d) by inserting the following subsection after subsection (2):

“(2A) For the purposes of the definition of designated centre (as amended by the Child Care (Amendment) Act 2011) in subsection (1) and construing references to persons resident in, residents of, and persons who can be accommodated in, a designated centre, such references shall be construed as including children detained in a special care unit in accordance with the Child Care Act 1991 (as amended by the Child Care (Amendment) Act 2011).”.

(2) Section 8 of the Act of 2007 is amended in subsection (1)(c) by deleting “, special care units”.

(3) Section 41 of the Act of 2007 is amended in subsection (1) by deleting paragraph (d).

(4) Section 73 of the Act of 2007 is amended—

(a) in subsection (2)(c), by deleting “or special care unit”, and

(b) in subsection (4)(a) by deleting “or a special care unit”.

(5) Section 75 of the Act of 2007 is amended—

(a) in subsection (2)(a), by substituting “registered provider or designated centre” for “registered provider, designated centre or special care unit,”,

(b) in subsection (2)(b)(iii), by deleting “or (d)”.

(6) Schedule 2 of the Act of 2007 is amended in Part 1 by deleting Item 3.

PART 6 Dissolution of Children Acts Advisory Board

37.. Definition.

37.— In this Part “Board” means the Children Acts Advisory Board.

38.. Dissolution of Board.

38.— The Board shall be dissolved on the commencement of this Part.

39.. Transfer of rights and liabilities.

39.— (1) All rights and liabilities of the Board arising by virtue of any contract or commitment (expressed or implied) entered into by the Board before the commencement of this Part shall, on such commencement, stand transferred to the Minister.

(2) Every right and liability transferred by subsection (1) may, on and after the transfer, be sued on, recovered or enforced by or against the Minister in his or her name and it shall not be necessary for the Minister to give notice to the person whose right or liability is transferred by that subsection of such transfer.

40.. Transfer of certain property.

40.— (1) All land which, immediately before the commencement of this Part, was vested in the Board and all rights, powers and privileges relating to or connected with that land are, on such commencement, without any conveyance or assignment, transferred to and vested in the Minister.

(2) All property other than land, including choses-in-action, which immediately before the commencement of this Part was the property of the Board shall, on such commencement, stand transferred to the Minister without any assignment.

(3) Every chose-in-action transferred by subsection (2) may, on and after the commencement of this Part, be sued upon, recovered or enforced by the Minister in his or her name and it shall not be necessary for the Minister to give notice to any person bound by the chose-in-action of the transfer effected by that subsection.

(4) Any moneys, stocks, shares and securities transferred to the Minister by subsection (2) which, immediately before the commencement of this Part, are in the name of the Board shall, upon the request of the Minister, be transferred into his or her name.

41.. Final accounts.

41.— (1) As soon as may be after the commencement of this Part, but not later than one year thereafter, the Minister shall cause to be prepared final accounts of the Board, in respect of the accounting year or part of an accounting year of the Board ending immediately before the commencement of this Part.

(2) Accounts prepared pursuant to this section shall be submitted as soon as may be by the Minister to the Comptroller and Auditor General for audit, and, immediately after the audit, a copy of the accounts as audited and a copy of the Comptroller and Auditor General’s report on the accounts shall be presented to the Minister who shall cause copies of those audited accounts and that report to be laid before each House of the Oireachtas.

42.. Preparation of final report.

42.— (1) As soon as may be after the commencement of this Part, but not later than one year thereafter, the Minister shall cause to be prepared a final report of the Board’s activities in respect of such period as has not already been the subject of a report to the Minister and ending immediately before the commencement of this Part.

(2) The Minister shall cause copies of the final report referred to in subsection (1) to be laid before each House of the Oireachtas.

43.. Pending legal proceedings.

43.— Where, immediately before the commencement of this Part legal proceedings to which the Board is a party are pending, the name of the Minister shall be substituted in the proceedings for the name of the Board and the proceedings shall not abate by reason of such substitution.

44.. Transfer of staff of Board.

44.— (1) (a) Subject to paragraph (b), every person who, immediately before the commencement of this Part is an employee of the Board shall, on such commencement, hold an unestablished position in the Civil Service.

(b) Every person who, immediately before the commencement of this Part, is a fixed-term employee of the Board shall, on such commencement, hold an unestablished position as a fixed-term employee of the Minister for the duration of his or her contract of employment.

(2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (1) shall not, on the commencement of this Part, be brought to less beneficial conditions of remuneration than the conditions of remuneration to which he or she was subject immediately before the commencement of this Part.

(3) The previous service of a person referred to in subsection (1) shall be reckonable for the purposes of, but subject to any exceptions or exclusions in:

(a) the Redundancy Payments Acts 1967 to 2007;

(b) the Protection of Employees (Part-Time Work) Act 2001;

(c) the Protection of Employees (Fixed-Term Work) Act 2003;

(d) the Organisation of Working Time Act 1997;

(e) the Terms of Employment (Information) Acts 1994 and 2001;

(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

(g) the Unfair Dismissals Acts 1977 to 2007;

(h) the Maternity Protection Acts 1994 and 2004;

(i) the Parental Leave Acts 1998 and 2006;

(j) the Adoptive Leave Acts 1995 and 2005;

(k) the Carer’s Leave Act 2001.

(4) Any superannuation benefits awarded to or in respect of a person referred to in subsection (1) and the terms relating to those benefits shall be no less favourable than those applicable to or in respect of that person immediately before the commencement of this Part.

(5) The pension payments and other superannuation liabilities of the Board in respect of its former employees become on the commencement of this Part the liabilities of the Minister for Public Expenditure and Reform.

(6) A person referred to in subsection (1) shall undertake such duties as the Minister may from time to time direct.

(7) A person referred to in subsection (1) shall be subject to and employed in accordance with the Civil Service Regulation Acts 1956 to 2005 and the Ethics in Public Office Acts 1995 to 2001.

(8) In this section—

“Act of 2004” means the Public Service Management (Recruitment and Appointments) Act 2004;

“Civil Service” has the meaning assigned to it by the Act of 2004;

“contract of employment” has the meaning assigned to it by the Protection of Employees (Fixed-Term Work) Act 2003;

“fixed-term employee” has the meaning assigned to it by the Protection of Employees (Fixed-Term Work) Act 2003;

“recognised trade union or staff association” means a trade union or staff association recognised by the Minister for the purposes of negotiations which are concerned with the remuneration or conditions of employment, or the working conditions of employees;

“unestablished position” has the meaning assigned to it by the Act of 2004.

45.. Expenses.

45.— The expenses incurred by the Minister in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

46.. Amendment of Principal Act.

46.— (1) The Principal Act is amended in—

(a) section 23A(2) (as amended by the Child Care (Amendment) Act 2007) by deleting paragraph (b),

(b) section 23A by deleting subsection (5) (inserted by the Act of 2004), and

(c) section 23B(1) (as amended by the Child Care (Amendment) Act 2007) by deleting “and having taken into account the views of the Children Acts Advisory Board referred to in section 23A(2)(b),”.

(2) Section 29 (as amended by the Child Care (Amendment) Act 2007) of the Principal Act is amended—

(a) in subsection (5)—

(i) in paragraph (a)(i) by inserting “or” after “solicitor,”,

(ii) by deleting paragraph (a)(ii),

and

(b) by deleting subsection (6).

47.. Repeal.

47.— Part 11 (as amended by the Child Care (Amendment) Act 2007) of the Act of 2001 is repealed.

PART 7 Miscellaneous

48.. Transitional provisions.

48.— (1) Where, immediately before the coming into operation of section 10 a child is detained in secure residential accommodation pursuant to an order of the High Court the effect of which is to permit the detention of, and care for, a child in secure residential accommodation to protect his or her welfare and that accommodation is, on the commencement of section 10, a special care unit, section 23B(2) (as amended by section 10) of the Principal Act shall not apply to the child who is the subject of that High Court order for the remainder of the period specified in that High Court order.

(2) Where, immediately before the coming into operation of section 10, a child has been placed and detained in a special care unit in accordance with a special care order made under section 23B (inserted by the Act of 2001) of the Principal Act—

(a) that special care order shall remain in force from the date on which that section comes into operation until the end of the period for which that order has effect, and

(b) section 23B(2) (as amended by section 10) of the Principal Act shall not apply to that child during the period for which that order has effect.

(3) Where, immediately before the coming into operation of section 10, a child has been placed and detained in a special care unit in accordance with an interim special care order made under section 23C (inserted by the Act of 2001) of the Principal Act—

(a) that interim special care order shall remain in force from the date on which section 10 comes into operation until the end of the period for which it has effect, and

(b) section 23B(2) (as amended by section 10) of the Principal Act shall not apply to that child during the period for which that order has effect.

(4) Where, before the coming into operation of section 10, proceedings have been instituted in the District Court under Part IVA (inserted by the Act of 2001) of the Principal Act and those proceedings have not been determined by the day on which section 10comes into operation—

(a) those proceedings shall continue to be determined pursuant to that Part notwithstanding its repeal by section 10,

(b) any order made pursuant to those proceedings shall remain in force from the date on which it is made until the end of the period for which it has effect, and

(c) section 23B(2) (as amended by section 10) of the Principal Act shall not apply to that child during the period for which that order has effect.

(5) An appeal from an order referred to in subsection (2), (3) or (4) shall be treated as proceedings under, and shall continue to be determined pursuant to, Part IVA (inserted by the Act of 2001) of the Principal Act notwithstanding the repeal of that Part by section 10, and subsections (4)(b) and (4)(c) shall apply to an order made pursuant to such appeal.

(6) A person who immediately before the relevant date was carrying on the business of providing special care to children in a special care unit may continue to do so, notwithstanding section 46 of the Act of 2007, for a period not exceeding one year from the relevant date.

(7) A person referred to in subsection (6) shall notify the chief inspector that the person is carrying on the business referred to in subsection (6), as soon as practicable, but not later than 6 months after the relevant date.

(8) During the period referred to in subsection (6), the Act of 2007 applies to the person referred to in subsection (6) and to the special care unit referred to in subsection (6) as if the special care unit were a registered designated centre under the Act of 2007 and that person is registered as its registered provider.

(9) In subsections (6) to (8)—

“chief inspector” has the meaning assigned to it by the Act of 2007;

“relevant date” means the date on which section 36 comes into operation;

“special care unit” means secure residential accommodation in which children are detained pursuant to an order of the High Court or a special care unit referred to in Part IVA (inserted by the Act of 2001) of the Principal Act, or both, that is a designated centre within the meaning of section 2(1) (as amended by this Act) of the Act of 2007.

49.. Amendment of Adoption Act 2010.

49.— The Adoption Act 2010 is amended—

(a) in section 3, by substituting the following definition for the definition of “bilateral agreement”:

“ ‘bilateral agreement’ means an agreement referred to in section 73 entered into by the Government and a non-contracting state concerning intercountry adoption;”,

(b) in section 157(f), by substituting “section 13” for “section 13(1)”, and

(c) in section 158(d), by substituting “section 23V(2)(a)” for “section 23V(2)(d)”.