The Irish Constitution and the Child Care Act 1991 (as amended) A report by APS.

In Brief
APS is of opinion that the Child Care Act (CCA) is not in conflict with the Constitution of Ireland. The problem is that the implementation and enforcement of the CCA is clearly done without respect for the Constitution, Conventions, adherence to law, case law, work instructions, standards or guidelines, The Children First Guidelines and UNCRC. A contributing factor is the in Camera Rule (ICR) giving Social Services (SS), the legal representatives, professionals and judges total protection from scrutiny, even protecting them against Garda investigation where offences were committed. The children, parents, society, superior courts and the state are the looser. The only winners in this are the Social Services (SS) and HSE management and the Legal Fraternity. Until now, nobody was willing to listen to the plight of children and parents. Few politicians are willing to listen and the Minister of Children is either not notified of communications and pleas or is ignoring it. This report was drafted by lay persons and must be seen in that light. Some points mentioned is hear-say and cannot be confirmed by the author due to the in camera rule. Such points will be identified as such with the word apparently. If asked, the main author of this document will attend court to ground these facts as evidence.

(Continued on next page)

The Irish Constitution and the Child Care Act 1991

Table of Contents
In Brief...................................................................................................................................1 About APS..............................................................................................................................2 The Child Care Act and the Constitution...............................................................................3 The Social Services and the District Courts ignore the Constitution.....................................3 Constitution: Article 15.....................................................................................................4 Constitution: Article 30.....................................................................................................5 Constitution: Article 37.....................................................................................................6 Constitution: Article 38.....................................................................................................6 Constitution: Article 40. 1.................................................................................................7 Constitution: Article 40.3..................................................................................................9 Constitution: Article 40.3.................................................................................................11 Constitution: Article 40.4................................................................................................12 Constitution: Article 40.4................................................................................................12 Constitution: Article 40.5................................................................................................13 Constitution: Article 40.6................................................................................................13 Constitution: Article 41.1 ...............................................................................................13 European Convention on Human Rights: Article 8.........................................................14 Constitution: Article 41.3 ...............................................................................................18 Constitution: Article 42.1 ...............................................................................................20 Constitution: Article 42.5 ...............................................................................................21 Constitution: Article 43.1................................................................................................22 Constitution: Article 44 ..................................................................................................22 Regarding the in camera rule................................................................................................24 Conclusion............................................................................................................................24

About APS
Aps.ie was a web page of a thriving business which was destroyed when the SS acted on false reports, manufactured evidence and destroyed the family of the owner. The business closed down. The web page was revived under the name Abstergo Puto Scio the Latin for I think, I know, wipe clean. Parents, friends and children (now adults) that felt that they were unjustly targeted by the SS joined the group supporting each other and educating interested persons. The sub web page containing case law is also widely accessed by legal professionals. In 2012 the page name was changed to Alliance of Parents against the State opposing the Childrens Referendum. Since 2009 APS assisted several families where there were clear miscarriages of justice in Child Care cases, helping parents in the District, Circuit, High and Supreme Court, drafting paperwork and acting as Mc Kenzie friends (MKF). In two cases the MKF was allowed to be heard by the High Court and to Litigate on behalf of the client.

The Irish Constitution and the Child Care Act 1991

APS also submitted reports to the Court on 4 occasions as Amicus Curiae. Although two reports were rejected by the courts after objections by the SS, the facts in the reports were proven to be 100% accurate during the final judgements. In the other 2 cases the reports were accepted, in one case strengthening the case of the SS. The main author was appointed, in a cases now closed, as Guardian ad Litem. The work was appreciated by the court and the cases ended to the satisfaction, as expressed in court, of the parents and the HSE. After a suggestion by a High Court judge, registration with the Social Workers Registration Board has been applied for to comply with proposed legislation. We have not been established as a formal society or entity as we are not funded and undertake all work pro bono. The two family support workers did spend many thousands from own resources in costs occurred in assisting families. We have over 600 supporters. (This information was correct on 1 March 2013)

The Child Care Act and the Constitution

In several sections the CCA and regulations mention the rights of the parents under the Constitution or otherwise. We believe that the word otherwise refer to (including but not limited to) other law and conventions. The CCA place this obligation on the SS, the Courts and the foster parents. Unfortunately the rights of the child is not mentioned directly in the CCA but are addressed in the Foster Care Regulations and the National Standards for Foster Care Unfortunately these obligations are regularly ignored, even on request, by the SS and the District Courts. Although it is an offence to ignore the obligations, summary prosecution of said offence has never taken place. See later the section in this document regarding offences. At least section 18 of the CCA is seen as implemented in conflict with the Constitution by giving the courts the right to separate the child from the family for life on the flimsiest evidence of social workers and/or opinion of so called expert (psyhco-babble) that the welfare of the child might be at risk in the future, even if the welfare was never at risk in the past. The Constitution clearly refers to the past before children can be removed.

The Social Services and the District Courts ignore the Constitution
Here are some examples:

The Irish Constitution and the Child Care Act 1991

Constitution: Article 15
2. 1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. The interpretation of current law is twisted to create new law: The SS, with the help of psyhco-babble, and District Court judges are creating law acceptable in child care matters by the District Court. Reasonable Parental Chastisement, which is not properly defined in Irish law or case law is seen as assault and used to take children into care. Even though parental rights are terminated in these cases, Garda will not investigate or the DPP will not prosecute. Religious Teaching to a child and prayer is seen as emotional abuse and seen as grounds to keep a child in care Having been member of a radical political organisation during youth is sufficient reason to take children in care as well as removing future new-born babies into care due to the Risk of Future Emotional Abuse, this has been described as the Thought Police approach to Child Protection and Punishment Without Crime. Being a strict parent who does not allow abusive language, lying, stealing and the like, punishing a child is seen as abusive parenting and grounds for keeping a child in care Being a person that was in care as a child, is seen as a future risk of emotional abuse of children and that person's child may be taken into care at birth If a family are deemed too close and loving, this is seen as abuse as the family are described as Enmeshed and must be broken up Every Human Emotion is now seen as a Mental Disorder even though there is no Medical Laboratory Test to prove or disprove these Psychological findings. On the basis of subjective opinion, often of one person, a child can be torn from their parents, siblings and extended family. The Outcomes for Care Alumni are dismal as many District Court Judges will attest to and have indeed pointed out in the past. If a single mother require her child to assist in house work, assigning regular tasks to a 13 year old child, it is classed as emotional abuse. and more

Even though the DPP refuse to prosecute parents, not seeing any of the above as a crime, SS is allowed to take children into care, will not return

The Irish Constitution and the Child Care Act 1991

the children and usually obtain Full Care Orders in respect of the child. In many documented cases parental rights have been terminated in Family Court on Evidence insufficient to warrant a Criminal Prosecution.

Constitution: Article 30
3. All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose. Section 18 of the CCA clearly refers to indictable offences as reason to take and keep a child in care These offences are not prosecuted in the name of the People but in the name of the HSE. The cases are investigated, prosecuted and punished by the same body whereas in Criminal Law, separate bodies are responsible for each stage. Many parents are coerced into placing their children into Care voluntarily under the threat If you dont we will obtain a court order. Once children are in the system it is very difficult to get them returned to their parents as the reasons why the children were removed change from week to week. Private law firms have a vested financial interest in keeping the child in Care for a long as possible. These offences are not prosecuted at the suit of the Attorney General but at the suit of the HSE SS or other professionals

As mentioned above, other points is seen as offences, classified as the child's health, development or welfare has been or is being avoidably impaired or neglected which is vague and open to interpretation. The effectiveness of the SS versus the legal representation of the parent and the history and experience of the judge determine the outcome. In a recent case senior counsel was enlisted at 3000/day when the judge decided that if they could prove their case that he was willing to quash the Care Order. The HSE had the same contracted solicitor firm involved for four years and suddenly found it necessary to bring in the most expensive barrister in Ireland. These crimes carry in some cases a harsher sentence in District Court than what is sentenced by the Central Criminal Court. I am referring to up to 18 years for the parent and the child and an exorbitant financial fine in legal cost. (Cases known range from 50.00 in case of legal aid to many thousands of Euro. (In one case the cost were apparently as much as 272,425.00 ). There is no legal justification for the Burden of Proof to be lowered to Mere Suspicion as happens in many cases.

The Irish Constitution and the Child Care Act 1991

Constitution: Article 37
1. Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution. The SS regularly act with a heavy hand in removing children, ignoring guidelines that place an obligation on them to attempt to keep the family together than to break them up. Removal is performed by default in many cases and the ex parte hearing is abused in most cases by judges. Many Apprehensions are performed illegally by social workers invoking Section 12 of the CCA. Garda are led into believing that the Social Workers were in possession of court orders. HSE solicitors will then claim that the child was in such danger, needed to be removed by Garda. The hearing is granted ex parte with no legal justification as the child is already in State Care. Kinship Care is rarely considered as the family have not been vetted. Limited functions are prescribed in guidelines and working practice but ignored.

Constitution: Article 38
1. No person shall be tried on any criminal charge save in due course of law. 2. Minor offences may be tried by courts of summary jurisdiction. 3. 1 Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order. 5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury. As previously mentioned, reasons for taking a child in care is criminal offences except in offences, classified as the child's health, development or welfare has been or is being avoidably impaired or neglected which is vague and open to interpretation. These offences are not Minor as seen in law and in the sentences passed. It is clear that the legal requirement under the CCA section 29.3 creating a Special court is ignored as matters under the CCA is not heard at a different place or at different times or on different days from those at or on which the ordinary sittings of the Court. As this is ignored, it cannot be

The Irish Constitution and the Child Care Act 1991

classified as a Special Court. It is well known that there is a lack of effective administration of justice, and the preservation of public peace and order. . A look at social media, the underground press and the number of incidents at courts is proof of this statement. As it is not a minor offence or a special court, it should be heard by a jury. Matters under the Child Care Act is seen as civil but the courts can punish the parent and the child involved with a sentence as high as 18 years which is a very serious sentence. To clarify the parent is sentenced as an outcast in the community and the child is sentenced to detention. This is not the only sentence for the parent. If the parent is of opinion that the matter is unreasonable and the parent fights back, the financial implications are huge. In a recent case, the High Court heard of a parent where the legal and other costs and losses exceeded 700,000.00 over a period of 5 years and is still growing. This caused him not only losing his life savings, his pension, his businesses, his good name and more, but also his good health. Independent research also showed that the sentence to the child is more than the mere detention. 80% of children who were in care suffer from serious consequences. That child is also sentenced to a lifelong risk that his/her children will be taken into care. (See previous mention) In a criminal matter, the District Court may not pass a sentence exceeding one year. In a Child Care Matter the same court can pas a sentence of up to 17 years and 364 days detention. How can this be legal? With a sentence such as this, a matter under the CCA should be seen as a serious matter not to be heard by a court of summary jurisdiction, but higher, and to be heard by a jury. Presently not even a family member may attend the court hearing or be told about it. If child abuse and neglect are crimes, they should be investigated by Garda and prosecuted by the DPP in a criminal court, for the vast majority of children in care, their parents have not even been accused of a crime.

Constitution: Article 40. 1

1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. Part of equality before the law is innocence until proven guilty. A parent in a matter under the CCA is seen as guilty from day one. The

The Irish Constitution and the Child Care Act 1991

children is kept in care until the parents is proven not guilty beyond reasonable doubt. Even in cases where parents have proven their innocence, the HSE still pursue keeping the child and judges are reluctant to go against the wishes of the HSE. We can provide witnesses and documentary evidence where this has occurred. The difficult part in proving innocence is of evidence created by the SS with the help of experts. In criminal cases the judge and jury will listen to evidence of the prosecuting side as well as the defence. In child care cases expert evidence presented by the SS is accepted but expert evidence to the same effect, presented by the parents will not be accepted. The court usually only gives effect to the SS evidence. Experts, that is nowhere known as experts, is regularly used by the SS in court hearings. The HSE have MSbP listed on their website and recently paid 30,000 to an Expertin one case. The expert is not listed by any professional body but on the basis of their testimony, a Full Care Order was granted for three children Parents representing themselves are not entitled to know what evidence will be used against them and evidence is withheld by the SS. In criminal cases, a detention order is only granted after the court heard evidence sufficient to warrant the detention. In Child Care matters the flimsiest evidence, usually that of a social worker giving manufactured or hear-say evidence is sufficient to detain the children. Interim Care Orders are regularly granted on ex parte Emergency Care Order evidence, without a hearing. Full Care Orders 17 and 8 year sentences - was apparently on at least one occasion granted on ex parte Emergency Care Order evidence. Equality before the law also mean there should be a fair trial. Although numerous pieces of case law from Superior Courts and more address this, it is clearly ignored in most hearings under the CCA. Some examples sometimes evident Parents not given notice or adequate notice of hearings. Parents not allowed to see evidence in summary if not supervised by a court official or a solicitor. The time is limited at the discretion of the supervisor or the amount of money available to pay the supervising solicitor Parents not allowed to receive a copy of evidence in summary or SS reports Parents not allowed to file replying evidence in summary Parents not allowed to call professional evidence of equal or better quality than the professional evidence called by the SS. This specifically refers to psychological and psychiatric reports. Parents compelled to use Legal Aid solicitors when they qualify for it,

The Irish Constitution and the Child Care Act 1991

not allowed to use private solicitors that is more trustworthy and/or experienced Parents sometimes compelled to have separate legal representation (one team per parent) Parents limited to the quality of legal representation as some District Court judges are known to site with HSE not granting order for cost even after Care Orders are not granted. Parents sometimes victim to legal cost inflation and legal abuse syndrome by legal representation deliberately allowing more hearings to ensure further income. Cases apparently known of family homes and farms signed over to solicitors before representation can continue. Justice is only available to those who can afford it. Perjury and perversion by SS allowed and not prosecuted apparent immunity in camera rule. There should be no immunity in law for persons who do not act within the law and who act incompetently, yet judges are reluctant to prosecute perjury or perverting the course of justice. Tiring out of parents using bullying and criminal means, including torture during proceedings outside the court to weaken the parents and create more evidence Guardians ad Litem not acting independently, siding with SS. Children old enough to be considered Gillick Competent not being heard in person by the judge, even when the child requests it. Judges not allowing the time needed to hear the case comments by judges include halfway during the evidence of a social worker: I have heard enough for today, I have other things to do 28 days ... and, regarding the welfare of a 6 year old child in care that wanted to go home and attempted suicide: Do you expect me to hear evidence after five? You know how to handle it..

Differences of capacity, physical and moral, and of social function of the parents to that of the satisfaction of SS is evidence that the parent is guilty and such accepted in many a hearing.

Constitution: Article 40.3

3. 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The Irish Constitution and the Child Care Act 1991

Existing laws does not protect a person investigated under the CCA. While the matter is in the Court system, no authority are allowed to investigate any allegation of offences or injustices committed by the SS. Even after the matter is concluded, the in camera rule and relevant legislation prevent An Garda Sochna to investigate offences. The High Court has ruled and refused to issue an Order of Mandamus to have offences committed during a Child Care matter investigated. (An appeal to the Supreme Court is awaiting a court date. A date is expected in 2016) When a father approached the Garda to report offences, the SS was contacted. The father was warned the next day by the District Court judge that he is in breach of the in camera rule and threatened with jail. When new evidence uncovered a death due to medical negligence and consequent perjury and perversion, the Garda openly stated that they are prevented from investigating the matter due to the in camera rule. When a mother reported the rape of her daughter who is in care, the report was accepted but the investigation suddenly stopped. Perjury and perverting the course of justice by the SS or experts is regularly recognised by District Court judges, even noted in written judgement, but never is the matter referred to the DPP or the Garda. The worst punishment was an order that the culprit should write a letter of apology. It happened in a case where a clear injustice was performed by the SS that the judge commented on several occasions using the words inhumane and degrading treatment of the parents and torture of this family. Although the offence under the UN Convention was clearly identified, the judge did not refer the matter to the DPP. He did order the parents to report it to An Garda Sochna. It was reported but, due to the in camera rule not investigated as the judge did not give a written order. The Minister of Children was asked on several occasions to use powers under the Health (Amendment) Act 2010 to have offences investigated. None of the requests even warranted an answer.

In one recent case the following offences were committed by the SS and criminal investigation started but was stopped after objection by the SS and is never completed nor files submitted to the DPP At least 27 offences under the Child Care Act Perverting the course of justice Perjury

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The Irish Constitution and the Child Care Act 1991

Abduction Unlawful disappearance False imprisonment Causing serious harm Coercion Endangering a child Reckless Endangerment Giving false information Harassment Assisting offenders Concealing offences Torture Concealing torture

The life, person, good name, and property rights of a parent is never vindicated after an unjust attack under the CCA. In most cases the parents suffer such from legal abuse syndrome (a post traumatic stress disorder) that some just want to walk away and attempt to rebuild their lives. At least one case is known where the SS apparently threatened the parents to take the children in care again if they pursue civil legal action against the HSE. In a recent case where the parent as litigant in person issued Plenary Summons, the HSE tired out the parent, waited till the family was at the most venerable state and offered a settlement of less than 10% of the financial damage. The vindication of life, person and good names of the family were not addressed. This case is now waiting for a ruling of the Supreme Court. With a Supreme Court waiting list of 48 months, the parents are silenced for at least 4 years. The father in this case suffers from stress induced illness with a life expectancy not much more than the 4 years and highly risked of sudden death syndrome.

Constitution: Article 40.3

3. 3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

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The Irish Constitution and the Child Care Act 1991

It apparently happened in the past that the SS decided, against the wishes of a teenage mother in care that it is in the best interest of the child that she be transported against her will for the termination of her pregnancy. It apparently happened in the past that the SS warned a mother who has another child in care, that their unborn child will be taken into care at birth if it is not aborted. The mother decided to have it aborted. New evidence came to light that the child that was taken in care was wrongly seen to be at risk.

Constitution: Article 40.4

4. 1 No citizen shall be deprived of his personal liberty save in accordance with law. (and more) Taking the child into care should not be seen as depriving him/her from liberty. Unfortunately this is what happens, notwithstanding the National Standard for Foster Care and more. The child is usually prohibited from having contact with family, grown up siblings, school friends, intimate friends and more. The contact with parents is limited at the mercy of the SS and has been suspended indefinitely without court orders. Even where the court orders specify contact, the visits are at the whim of the SS. In many cases where the High Court was asked to intervene, the cases were apparently sent back to the District Court and the process started all over again. In at least one case this apparently ended in a suicide pact between a girlfriend in care and a boyfriend outside. The suicide rate of children in care is 10 times higher than children in the general population as studied by UCD.

Constitution: Article 40.4

4. 6 Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person. It is clear that bail should be allowed for a person (child) detained in care that has committed no offence nor have not been accused of a crime. When the extended family offered 800,000 bail or security to get a 6 month old and a 6 year old out of foster care into kinship care, with 24 hour protection by the same security company that secures private prisons and CCTV accessible any time by the SS to verify the welfare of

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The Irish Constitution and the Child Care Act 1991

the children, it was opposed by the SS and refused by the court. 8 Months later the parents were exonerated and the children returned. Unfortunately the elder child was permanently scarred and is now under psychiatric treatment.

Constitution: Article 40.5

5. The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. Lawful entry is only permitted after an allegation of child endangerment is confirmed or at least reasonably grounded. At present, An Garda Sochna does use force to enter the dwelling on the sole allegation of the SS. Threatening the parent with arrest to gain access is seen as forcible entry. Section 12 of the CCA allows any Garda to remove any child without warrant if they reasonably believe the child to be in danger. The Garda must establish the danger but there is no obligation for the SS to present any evidence other than suspicion or, as recently published in a judgement, lies.

Constitution: Article 40.6

6. 1 The State guarantees liberty for the exercise of the following rights, subject to public order and morality: 1. The right of the citizens to express freely their convictions and opinions. A person that is convinced that s/he is innocent and is of opinion that the SS and the courts is not treating him/her fairly, may not express it due to the in camera rule. In the same way the press is gagged from reporting on any matter. A parent of a child in Care may not report a crime to Garda. In a recent case, a 15 year old girl was raped in State Care. The mother would have been in violation of the In Camera Rule. Even the victim herself would have been in violation. When a parent attempted to report offences to the Garda, she was warned by the District Court Judge not to discuss anything about the case or the children with anybody. You are not even allowed to discuss with your husband what was discussed between you and the social worker.

Constitution: Article 41.1

1. 1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing

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inalienable and imprescriptible rights, antecedent and superior to all positive law. 2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. (See also Article 41.3.2) This article is huge. Similar to this is article 8 of the European Convention on Human Rights and argument based on case law in this respect will also be used. European Convention on Human Rights: Article 8 Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Points, clarified in case law and ignored by the District Courts, HSE and SS is mentioned. (Where the case law reference is readily available it is inserted) Some applicable case law mentioned was not in child care or family hearings but is mentioned as the ECHR ruled that Article 8 had been breached if it was not a fair hearing affecting the family:

Proportionality:- The actions of the social worker should be proportional to the alleged threat to the child. de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others (Antigua and Barbuda) [1998] UKPC 30 (30th June, 1998) para 25 The matter must be investigated adhering to relative guidelines, (today Children First). G.H. v A.F., District Court 11, Dolphin House, 18 October 1995, Unpublished, Judge William Early, Last paragraph: Efforts must be made to prevent taking the child unnecessary into care. Moser v Austria - 12643/02 [2010] ECHR 381 (4 March 2010) paragraph 73. Child must have regular contact with parents and family. Moser v Austria - 12643/02 [2010] ECHR 381 (4 March 2010) paragraph 73. There must be sufficient involvement in the decision making process, not one social worker only. Moser v Austria - 12643/02

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[2010] ECHR 381 (4 March 2010) paragraph 73.

The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life thus should be promoted. KEEGAN v. IRELAND - 16969/90 [1994] ECHR 18 (26 May 1994) paragraph 50 Removal and orders only allowed if danger is actually established. HAASE v. GERMANY - 11057/02 [2004] ECHR 142 (8 April 2004) at paragraph 99. P, C and S v United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 para 116 Removal on a child into care only in extreme cases. North Western Health Board v. W. (H.) [2001] IESC 90 (8th November, 2001) at paragraph 230. The parents must be served with notice of the hearing (notwithstanding the ex parte allowance) X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (iii) The parents must be served with evidence in summary (not only told about it or allowed to read it under supervision). X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (iii) Emergency Care Orders only to be granted in case of a real emergency. X, Re Emergency Protection Orders [2006] EWHC 510 (Fam) (16 March 2006) paragraph 71 The fullest possible information must be given to the court. The evidence in support of the application for such an order must be full, detailed, precise and compelling. X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (ii) Unparticularised generalities will not suffice. X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (ii) The sources of hearsay evidence must be identified. X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (ii) Expressions of opinion must be supported by detailed evidence and properly articulated reasoning. X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) paragraph 44 (ii) Work towards reunification compulsory and should commence immediately after taking the child into care. JOHANSEN v. NORWAY 17383/90 [1996] ECHR 31 (7 August 1996) at paragraph 78 and

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more. HOKKANEN v. FINLAND - 19823/92 [1994] ECHR 32 (23 September 1994) paragraph 61. KOSMOPOULOU v. GREECE 60457/00 [2004] ECHR 58 (5 February 2004) paragraph 44. K. and T. v. Finland - 25702/94 [2001] ECHR 465 (12 July 2001) Para 179. OLSSON v. SWEDEN (No. 1) - 10465/83 [1988] ECHR 2 (24 March 1988) para 81
Parent have to be informed of evidence during Child Protection Conferences and other Tribunals and hearings and should be allowed to answer. Mantovanelli v France (1997) 24 EHRR 370 paragraph 32. MANTOVANELLI v. FRANCE - 21497/93 [1997] ECHR 14 (18 March 1997) para 33 Alternative to taking the child into care must be exhausted. P, C and S v United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 para 116 The impact of taking a child into care on the child and the parents must be accessed. P, C and S v United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 para 116 Judge must consider human rights of children and the family. Re B (Care: Interference with Family Life) [2003] EWCA Civ 786 Para 34 Judge must consider other options. Re B (Care: Interference with Family Life) [2003] EWCA Civ 786 Para 34 Judge must consider the proportionality of the actions. Re B (Care: Interference with Family Life) [2003] EWCA Civ 786 Para 34 The wishes of the child should be heard and considered. N. -v- N. [hearing a child] [2008] IEHC 382 paragraph 32 Ex parte hearings should be followed by full hearings. Toma Adam v. The MJELR and the AG [2001] 3 IR 53 Hardiman J para. 77 Evidence must be unchallengeable reports alone not sufficient as evidence. JF -v- Director of Public Prosecutions [2005] IESC 24 26 APRIL 2005 Justice Hardiman J. Paragraph 17 Taking a child into care should in principle be a temporary measure to be discontinued as soon as circumstances permit. JOHANSEN v. NORWAY - 17383/90 [1996] ECHR 31 para 74 and 78. OLSSON v. SWEDEN (No. 1) - 10465/83 [1988] ECHR 2 (24 March 1988) para 81. NB. THIS MAKE THE REGULAR IMPLEMENTING OF SECTION 18 OF THE CCA UNCONSTITUTIONAL (PERMANENTLY UNTILL THE CHILD IS 18) Siblings should be placed together in care. OLSSON v. SWEDEN (No. 1) - 10465/83 [1988] ECHR 2 (24 March 1988) para 81 Unfair and unjust actions by social service (SS) is unconstitutional. Garvey v. Ireland [1981] IR 75.

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Deprivation of personal liberties without legal grounds is not allowed. North Western Health Board -v- HW and CW [2001] 3 IR 635 Effective remedies must be in place referring to rehabilitation and reunion efforts. HOKKANEN v. FINLAND - 19823/92 [1994] ECHR 32 (23 September 1994) Para 61 Respondents must be afforded a reasonable opportunity to present their case under conditions which did not place them under a disadvantage vis a vis to their opponent. OCALAN v. TURKEY 46221/99 [2003] ECHR 125 (12 March 2003) Para 159 NB. THIS IS IMPORTANT IN CHILD CARE CASES WHERE McKenzie FRIEND IS USUALLY BANNED When new evidence is discovered it must be given to the court if such evidence will prevent an injustice. Vernon v Bosley [1996] EWCA Civ 1217 (13th December, 1996) Bottom page 48 Professionals and social workers do not have immunity against prosecution in case of perjury and perverting the course of justice. HARLOW V. FITZGERALD, 457 U. S. 800 (1982) Page 457 U.S. 817 and 818. Jones v. Kaney, [2011] UKSC 13 Evidence must be heard during Interim Care Order extension hearing. K.A. -v- Health Service Executive & Ors [2012] IEHC 288 (03 July 2012) at paragraph 23 and 29 HSE must facilitate breast feeding when the mother want to. HSE v AM Virginia District Court Judge Hammill 08/08/2012 and later. X and Y, R (on the application of) v Gloucestershire County Council [2003] EWHC 850 (Admin) (15 April 2003) at paragraph 44. If the child is separated from one or both of the parents both parents retain parental rights. B. -v- B. [1975] I.R. 54 SC One parent alone cannot give permission for voluntary care of children. D O'H -v- H S E [2007] IEHC 175 (19 February 2007) near bottom judgement Parent suspected of drug use can have independent test done. Bristol City Council v A and A and Others [2012] EWHC 2548 (FAM) Child can not be regarded as 'likely to suffer' harm if another child has been harmed in the past. In the Matter of J (Children) [2013] UKSC 9 paragraph 57 Judge are allowed to change judgements in child care cases. [2013] UKSC 8 | UKSC 2012/0263 In the matter of L and B (Children)

Parent can choose their own solicitor, not compulsory to use Legal Aid. Child Care Proceedings not exempt from cost ruling against HSE.

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The Irish Constitution and the Child Care Act 1991

Constitution: Article 41.3

3. 1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack. 2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. It is apparently standard practice by the SS to attempt to break up marriages when there is slight suspicion against one person. In many cases, families are not to be represented by one solicitor. Each parent must have their own. The mother is usually then represented by Legal Aid who is known to side with the SS Divide and conquer is the norm. Parents are individually coerced in giving information to social service regarding the other partner that can be used, usually in a twisted form, as evidence, One parent, usually the weaker one, is identified as the one to which the child will be returned if sufficient evidence is supplied against the other parent. This usually results in sufficient evidence for Full Care Orders with no return to either parent. This usually results in the breaking up of the marriage. The weaker or abusive parent is sometimes coerced in agreeing to Full Care Orders. This usually results in the breaking up of the marriage. Apparently, when the mother became ill, asking assistance from the SS in the day to day care of the children as the father is working, the children was taken into care on the mother's consent. After Full Care Orders and refusal of kinship care the marriage broke up. After a child was taken in care, accusing the father of shaken baby syndrome and the resultant death of a sibling, evidence was found that the deceased child was not a victim of shaken baby syndrome but of acute encephalitis after immunisation. After this new evidence the court indicated that the child in care should be reunited with the parents and that a program of reunification be put in place. SS decided that the child can be reunited with the mother on condition that the parents separate. When the SS realised that their original reason for initiating a Section 12 removal and resultant Emergency and Interim Care Orders was unfounded, they actively advocated the breaking up of the marriage by -

Some further examples in recent cases

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The Irish Constitution and the Child Care Act 1991

 Telling the parents that they should separate Prohibiting the parents travelling together to access (resulting in a 14 hour trip by public transport per access visit for the mother) When a social worker found that the parents travelled together on a rainy day, the parents were punished with no access (without a court order). This was also used as evidence against the parents in a Child Protection Conference and the chair did not question the validity. Visiting the mother at home promising her support and the return of the children as soon as she separates from her husband. Organising accommodation at a woman's refuge for the mother then announcing in court that the mother had to relocate to the Meath woman's refuge for abused women to get an extension of Interim Care Orders. There was no history of Domestic Violence and it was never stated but this was done in an attempt to convince the judge that domestic violence was an issue. Prohibiting all contact between the parents without an order of the court. (Phone, text, Skype, correspondence) After information that the husband send a text message to his wife, evidence was presented in court that she cannot prove that she will severe all contact with this man.. . The Judge did not ask why contact should be severed and granted an extension of the Interim Care Orders. While the mother was separated from the father, she was subjected to daily questioning for up to 5 hours a day and parental evaluation in an effort to get evidence against the father. (Torture). Questioning of the mother even involved bedroom matters and it resulted in the mother being convinced that the bedroom matters was classified as rape. When the parents attempted to get advice from the court under a Section 47 application on what they can do without having to end the marriage, the SS arrived at District Court with a full legal team, including junior and senior counsel, and hijacked the hearing. (The parents were litigant in person). The resultant hearing, with witnesses called by the SS, was an attempt to attack the mental state of the parents and the application of the parents was not heard. The parents were ordered to be detained until their residency status in Ireland can be verified. Even after the court exonerated BOTH the parents ordering the return of the children to the mother, who was still separated from the father, and the court from it's own indicating that the parents

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The Irish Constitution and the Child Care Act 1991

to reunite, the SS threatened the mother that they will take the children in care again if the family reunite. Only after threatened applications to the High Court was the family allowed to reunite. In another case, after the mother was coerced into separating, she unfortunately in her vulnerable state entered into a one night stand with a comforting friend. The resultant adultery resulted in a judicial separation followed by divorce.

It is a known fact that in many cases where the children is taken into care on Full Care Orders, the marriage also end, usually due to one parent blaming the other. Although procedures prescribe counselling and support for the parents to preserve the marriage, it is not known to have happened.

Constitution: Article 42.1

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. When the SS start an investigation against a parent several factors a parent see as educational, are often seen as abuse. (Only examples confirmed is mentioned) Religious: In a known case, the parent was accused of emotional abuse when the child was compelled to attend church services with the parents. In many religions, reasonable parental chastisement is prescribed. Although it is not seen as illegal in law it is punishable in a Family Court. Moral: In a case the mother prohibited her daughter to associate with immoral children friend outside school hours due to their known moral behaviour. The daughter complained, the mother was accused of emotional abuse and the child was taken in care until she was 18. (That daughter is now HIV positive and was prostitute in Amsterdam). When a parent refused the child to attend at 10 years of age a sex education class, the parent was warned that the child will be taken in care and will still attend the class at his new school. Intellectual:

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The Irish Constitution and the Child Care Act 1991

 Grounding a child who refused to do his homework too many times was seen as emotional abuse Social: Compelling a 13 year old girl to learn to cook and do household chores is seen as emotional abuse if she does not like it. When a child is taken in care, the parent is automatically denied any right to educate the child. The author must admit that one case is known where the child had weekend sleep over access with her parents. In that case the parent had some right to educate the child. In most cases the parents are denied the right to even know where the child is attending school or the academic achievements or failures. Religious education of the child during access is not allowed and is classified as emotional abuse and ground to suspend access permanently, even contrary to court orders. Intellectually the child is not assisted regularly while in care. Four days a week the child usually gets homework from the school. Some children in care attend homework classes presented once a week that is the only day the child is assisted with his homework and supervised that the homework is done. Normally parents assist their children daily if needed but there is no obligation on Foster Carers to do. Many children describe being locked in their rooms after supper. Due to the lack of assistance with homework many children fall behind and have to repeat academic years. Generally most children in Care have poorer educational and economic outcomes as most Circuit and District Court Judges will attest to. Many of the people standing before the judges have been in State Care at some point and an estimated 43% of the Irish Prison Population under the age of 25 have been in Care.

The irony of the case is that when the parent neglects the above to a degree determined by the SS, the child is also taken into care. A point mentioned above committed by a parent, seen by one SS as abuse will be seen by another SS as abuse if it is not done...

Constitution: Article 42.5

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

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The Irish Constitution and the Child Care Act 1991

A child in care is supposed to have rights according to the Foster Care Regulations and the National Standard for Foster Care. Unfortunately those rights are not always allowed or enforced. It is documented in many cases that the HSE do not have the financial resources to adhere to the request of a parent to honour the rights of his children in care. The UNCRC is blatantly ignored by some SS and District Courts. In one instance the judge commented go back to your own country we do not look at that ... An HSE Case Manager is on the record as saying that he has no obligation to follow the UNCRC, Children First, HSEs OWN guidelines or anything that is not on a statutory footing.

Constitution: Article 43.1

1 The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. This right is clearly attacked if all is lost and debts are to be incurred by a parent to pay for legal costs incurred during child care proceedings. Enough is mentioned earlier in this document. It appears that justice is available for those who can afford it and a recent case ruled that parents are now entitled to Equality at Arms by appointing their own chosen solicitor and not have to accept Legal Aid solicitors. This remains however to be tested in the future. Many parents are left jobless and bankrupt from having to take time off work for court, meetings and assessments. Child proceeding are often more lengthily that Capital Offences and parents, even when their children are returned, are left far worse by the intervention.

Constitution: Article 44
1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. 2. 3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Referring to the same God as is referred to in the Preamble of the Constitution: Some law and guidelines written in the Book associated with this religion and as practiced through the ages is disregarded by the SS and is seen as grounds for taking children into care. Some examples:

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The Irish Constitution and the Child Care Act 1991

Reasonable parental chastisement (previously mentioned) assault mistreatment Compelling a child to attend church (previously mentioned) emotional abuse Tithing (giving 10% of income for God's work) seen as affecting the welfare of the child if the parents is financially struggling. Prayer with children during access (previously mentioned) emotional abuse also, practising religion not allowed in HSE buildings Evangelical parents refusing the child in care to attend first communion Court ordered it on application by the SS as the refusal by the parents is seen as emotional abuse A devout Hindu father was apparently refused permission to have the baby's first hair cut being done at a temple dedicated to it. He was willing to pay a substantial amount as security for the return of the child and the cost of the foster carer's family to accompany the child. A Moslem child in care is not allowed to accompany the parents on a visit to Mecca, one of the Pilars of Islam Children of Hindu, Jewish and Islam Faith placed with Catholic or Atheist Families and the culture and religious belief destroyed. This is more a more widespread issue than many would believe as an inordinate number of children of Foreign Nationals are placed in State Care. You shall not kill the innocent - abortion (previously mentioned) As mentioned earlier under offences the Foster Care Regulations does address the religion of the parents this is regularly disregarded by the SS. Also, when parents of a child in care suggest a person of the same church as the parents to be considered as foster carer, said suggestion is never considered. Remark by Child Care Manager during Child Protection Conference: Church of Ireland? What is that? Is it a protestant church? This is a Catholic country .... and more

In other religions:

Further

The mentions in the Constitution as above are, according to our understanding drawn up on Christian principles therefore the breaches above can be seen also as breaches under this article also. Regardless of moral or religious beliefs, many girls have either been taken

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The Irish Constitution and the Child Care Act 1991

to the UK for abortions or denied the opportunity to be taken to the UK for an abortion based on the beliefs of the social workers rather than the child. (X Case, C Case, D Case and numerous cases that did not come before the courts as they were not contested)

Regarding the in camera rule

This report is written using the same guidelines as used in the Child Care Law Reporting Project as can be found at http://www.childlawproject.ie/protocol/

Conclusion
A lot more examples can be given, but the main points are mentioned. Evidence can be presented in forms of judgements, audio recordings, minutes of meetings and affidavits but only if the in camera rule on the cases involved are lifted for the purpose. Andries van Tonder Main author. Inputs and corrections made by Joe Burns Footnote: A special word of thanks to the following persons for their input, encouragement, criticism, support and more: Catherine, David, Berenice, Clifford, Natalie, Katie, Fergus, Roger, Kevin, John and others not remembered. (None of these are parents or children involved). A special thank you to the parents and children mentioned in this report. Mentioning your names will get us jailed. Copyright: This document may be copied and distributed in unedited form if the authors are recognised

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The Irish Constitution and the Child Care Act 1991