Tusla Investigations. Powers and Procedures. The Law.

Background

Tusla, otherwise known as The Child and Family Agency, was established in January 2014 under the provisions of the Child and Family Agency Act 2013.
Section 3 of the Child Care Act 1991, as amended by the Child and Family Agency Act 2013, confers upon Tusla an overriding duty to promote the welfare of all children within the state who are not receiving adequate care and protection. For the purposes of the Act, the definition of a child is a person under 18 years of age. This duty has been interpreted quite broadly by the Courts and has been held to arise in situations as varied as preventing individuals from partaking in a childcare course if they are deemed unsuitable to work with children,1 and even blocking private adoptions.2

Tusla Investigations and Powers

Tusla embark on investigations in several circumstances.
The most common cause for investigation is in cases where it is alleged a child is experiencing abuse and the alleged abuser is a parent, carer, sibling or relative of the child. Tusla also begin investigations where it is alleged that a child is being abused by somebody outside of their family. Finally, Tusla frequently investigate allegations of a historical nature, where the victim is now an adult, and the alleged abuser is now in contact with children.

Tusla’s procedures for assessing a reported case of abuse and for testing the truth of allegations is set out in a document titled Policy and Procedure for Reponding to Allegations of Abuse and Neglect. The document is yet to be made available to the general public.

The Child Care Act 1991, as amended by the Children Act 2001 and the Child and Family Agency Act 2013, provides Tusla with a variety of tools to carry out their duties, some of which are quite significant. For example, Tusla may apply to the courts for a number of different orders that involve the child in question being taken into care by Tusla.

1 MQ v Eastern Health Board [1998] 4 IR 85
2 Eastern Health Board v E (No. 1) [2000] 1 IR 43

There are several categories of order utilised by Tusla in carrying out their duties.

Supervision Orders

Supervision orders do not involve children being taken into the care of Tusla. Instead, a supervision order gives Tusla the power to visit and monitor welfare of the child and to give the parents any necessary advice. The order is for a fixed period up to a maximum of 12 months but may be renewed. In some circumstances such orders are an interim measure used by Tusla while they seek a care order. In addition, the courts may grant a supervision order where they believe a care order would be too heavy-handed or inappropriate.

Care Orders

Tusla apply for a care order if they believe a child needs care that they will not receive without an order. If the application for a care order is granted in the District Court, the child is placed in the care of Tusla for 28 days. It may be extended if Tusla and the parents reach an agreement. The parents of the child must be given notice of an interim care order application. Furthermore, a care order will generally only be made when the court is satisfied that the child has been or is likely to be, assaulted, neglected or abused and the child needs care or protection which they will not receive without the order being made.

Special Care Orders

This type of order usually arises where a child poses a significant danger to their own safety and welfare. Tusla must convene a family welfare conference before applying to the court for a Special Care Order. In the application, the court must be satisfied that the child’s behaviour poses a real and substantial risk to their health, safety, development or welfare and that they need special care that they will not receive if an order is not made.

A special care order commits a child to Tusla’s care for as its entire duration. It also gives Tusla permission to provide appropriate care, education and treatment and, for that purpose, to detain the child in a special care unit. A special care order is initially for a period of between 3 and 6 months, but it may be extended.

Emergency Care Orders

Tusla can apply for an emergency care order for a child who is still at home or for a child who has been removed from their home by the Gardaí. Tusla can apply for this order without giving notice to the parents or guardians of the child as it is only used in situations of immense urgency. The order will be granted if the judge believes that there is an immediate and serious risk to the health or welfare of the child. The child is then required to be placed in the care of Tusla and must remain in the care of Tusla for a maximum of 8 days.

If the Gardaí have reason to believe that there is an immediate and serious risk to the health or welfare of a child which is too urgent to wait for an emergency care order to be made, they have the power to enter the home and remove a child to safety. The child must be given into the care of Tusla as soon as possible. At this point, Tusla can apply for the emergency care order.

Absolute power?

While the paramount consideration for Tusla is the welfare of the child, the powers conferred on the body are by no means absolute. Rather, they are subject to other competing rights, interests and considerations. For instance, a longstanding presumption exists in Irish constitutional law to the effect that the welfare of a child is best promoted in the context of their own family.3 The 1991 Act acknowledges this constitutional position and states that when performing its functions, Tusla must ‘have regard to the principle that it is generally in the best interests of a child to be brought up in his own family’.4 Tusla must also have ‘regard to the rights and duties of parents, whether under the Constitution or otherwise’ and ‘to the wishes of the child’ in any decisions to act.5 Furthermore, Tusla is required to provide support services to vulnerable families in order to avoid or lessen the need for compulsory action to be taken in the first instance.
Thus, in circumstances where Tusla seeks to remove a child from their home, they must establish that there is a very high chance of harm to the child in order to justify such a serious step. Where action is taken by Tusla, the Courts will ensure the welfare of the child while also considering the autonomy of the family unit where it is possible to do so. This approach was seen in the case of A. and B. v Eastern Health Board, District Judge Mary Fahy and C.6 where the High Court stated that in any proceedings brought pursuant to the 1991 Act, the Court must consider “…the welfare of the child as the first and paramount consideration” but also have regard to “the wishes of the child”. The Court further stated that intervention should only take place after all other means of remedying a situation have been exhausted and all family support services have been utilised.

3 Bunreacht na hÉireann 1937 Article 42
4 Child Care Act 1991 Section 3
5 ibid
6 [1998] 1 IR 464

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