I move amendment No. 58:
In page 9, lines 16 to 22, to delete subsection (1) and substitute the following:
"(1) If a justice of the District Court is of opinion on the application of a health board that there is reasonable cause to believe that—
(a) there is an immediate and serious risk to the health or wellbeing of a child which necessitates his being placed in the care of a health board; or
(b) there is likely to be such a risk if the child is removed from the place where he is for the time being,
the justice may make an order to be known and in this Act referred to as an ‘emergency care order'.".
Section 11 is one of the most important provisions of the Bill and because of that I am anxious to ensure that it covers every possible eventuality. I am advised that there is a gap in the existing subsection (1) and this amendment seeks to deal with it. What I am concerned about are cases where a child is in a safe place such as a hospital or is in the voluntary care of a health board and it is feared that the child would be at serious risk if he were to be taken home. Members of the Committee may recall that, when we were dealing with section 4 which provides for what is generally known as voluntary care, some concern was expressed about the possibility of parents demanding the return of children they had previously abandoned or deserted. In such cases what a health board requires is not so much authority to remove the child from home and take him into care, which is what the existing subsection provides for, but rather an authority to keep him where he is and to be able to refuse a request from his parents that he be returned to them. The existing subsection does not encompass this but it is covered in paragraph (b) of the proposed new subsection. Paragraph (a) is simply a repeat of what is in the existing subsection. I would like to emphasise that, before a health board could obtain an emergency care order on this ground, it will have to show the justice that the child would be at an immediate and serious risk if he were to be allowed to return home. There is no question of giving absolute discretion to a health board to refuse to return the child from voluntary care or to refuse to release a child from hospital.
There are two other technical changes which I would like to mention. The first is that the phrase "a justice of the District Court is satisfied", which occurs in the first line of the original subsection (1), is being replaced by the phrase "is of opinion". I am advised that requiring that the justice be satisfied that the child is at immediate and serious risk is too strict a test in an emergency situation. If it were to be applied strictly it could mean that the justice would be unable to reach a decision on an application for an emergency care order without hearing all the facts of the case. This could effectively set at nought the whole emergency procedure.
What is now proposed is that the justice having heard the evidence supplied by the health board would have to form an opinion that the child is at risk. Obviously the justice would still require that the health board show reasonable cause in support of the application, but it would not be necessary for him to satisfy himself that the child was definitely at risk. This is a matter for a full court hearing at which the parents would have a right to be represented and which would, in accordance with subsection (2), take place within eight days of the making of an emergency care order.
The second change is the deletion of the reference to information supplied on oath by any person. This was inserted here to enable a garda, who had removed a child from his home under section 10, to apply for an emergency care order. As a result of the changes made in section 10 by amendment No. 53 it is now provided that, where a garda removes a child under section 10, all subsequent action, including the question of seeking an emergency care order, will be a matter for the health board. There is, therefore, no longer any need for this phrase here so it does not appear in the new subsection (1).