An emergency care order is a Court order that places a minor child (person under 18 years of age) into the full or partial custody of the Health Service Excutive. It is usually made in circumstances where a social worker or other health care professional has formed a view that a child is at risk of harm. Frequently, parents or the parent of the child, is given very short notice of the intended application (sometimes less than 24 hours). Parents are entitled to be legally represented at the hearing in the District Court. A parent can object or consent to their child being placed in care. Due to a loophole in our law and the fact that the Legal Aid Board are not in a position to come on record immediately for a parent in such a situation, it will generally mean that the HSE is heavily represented with experienced solicitors and the parent or parent will have to appear in Court without any solicitor unless they are in a position to pay for one. Parents at the margins of society are often reliant on social welfare payments and as such, although they are entitled as of right, to have legal aid there is a time delay of three to four weeks in practice before they have legal representation. Justice is denied to them and more importantly to the child,during that time.
At that stage, in practice the emergency care order will have already been granted and a number of interim care orders may have been made. Child care law is predicated on the concept of the welfare of the child being vindicated under the Constitution. One has to wonder how this “legal service gap” vindicates this principle. Thankfully, several District Court Judges have recognised the lack of equality of arms in that the HSE will have laywers and the parents or guardians of a child will be unrepresented. If you are about to lose your child or children to the HSE and you cannot afford a solicitor it is possible to retain a solicitor of your own choice up to the time the Legal Aid Board are in a position to come into the case.
This firm was recently involved in such a case in Re K.
That decision was handed down in Dublin District Court by His Honour Judge Toale on the 9th June, 2010 the relevant wording of the Judgement is as follows “if the Respondent [Parent} cannot access Legal Aid for the emergency care order and interim care order applications, then the Parent, for cost reason, may not be able to secure private representation. Teh absence of representation may result in the parent failing to properly and fully present his or her case which failure is detrimental to the welfare of the subject child. In order to ensure the paramountcy of the welfare of the child , the matter of costs of representation should not prevent the parent from being represented”.
Peter Connolly Solicitors were successful in applying for an order for costs against the HSE in the above case and more crucially, the parent of the child the subject of the Emergency Care order was able to instruct a solicitor immediatlely without having to wait for the Legal Aid Board to come into the case.
If you have any queries regarding this blog post please do not hesitate to contact Peter Connolly Solicitor.