I move amendment No. 107:
In page 12, line 16, after "determination." to insert "The hearing of any appeal under this section will not postpone or delay the effect of any order, or the renewal of any order, previously made by the court.
In moving this amendment I might reiterate that the professional coalition of child care groups agree with this practical amendment.
It might be helpful if I began by explaining the purpose of section 18. Normally where a court makes an order and the person affected appeals against it the operation of the order is suspended pending the outcome of the appeal. For obvious reasons this is not appropriate where there is a risk to the health or well-being of a child. This section provides that an appeal will not normally delay the coming into effect of a care order, a supervision order or an access order. It would be delayed only if the court gave a direction to that effect. Even then the court could impose conditions. For example, in an appeal against a care order the court could allow the child to remain at home but grant the relevant health board the right to visit him or her at home pending the outcome of the appeal.
It is not clear what the Deputy is endeavouring to achieve by this amendment. It appears that what is intended is that an appeal could not delay the operation of the order under any circumstances. This might be going a bit too far. I consider we should depend on the good sense of the courts to decide in each case whether the operation of the order should be delayed. What is contained in section 18 is the standard provision in relation to appeals used in family law cases. I see no good reason to depart from that. Therefore, I would be grateful if the Deputy would consider withdrawing this amendment.
In that event we are prepared to withdraw the amendment.
Before we conclude our discussion on section 18 I would like to give notice of something to which we may need to revert on Report Stage. I am concerned about the possibility of a care order being appealed or otherwise challenged, the court deciding that the order is invalid perhaps due to a technical mistake but that nevertheless the child would be at risk if he or she were allowed to return home. As the Bill is now drafted the court would have no discretion to refuse to allow the child home. The onus would be on the relevant health board to apply immediately for an emergency care order under amendment No. 58 to seek authority to keep the child in care or, alternatively, to allow the child return home and apply for a fresh care order. There might be some merit in allowing the court — which finds the original care order invalid but is nevertheless concerned about the child's safety — to immediately make an order keeping the child in care. Deputies may recall that the Children Act, 1989, contains a provision in section 6 which enables a court which finds or declares that a fit person order is invalid to refuse to order the return of the child to its parents if this would not be in his or her best interests; instead to either make a fresh fit person order or remit the case to the District Court so that it can consider the need for such an order. It is something broadly along these lines I am examining in consultation with the Attorney General. I am not yet in a position to say for certain whether such a provision would be required. I thought I should inform the Committee and should mention it now so that there would be no bar to moving an amendment on Report Stage if it were considered desirable to do so. I hope we agree on that.
