WHEN PARENTS IN Ireland are unable to care for their own children, there are a number of pathways into alternative care.
There are two formal pathways. If parents do not consent, a district court can grant a care order, following an application by Tusla, and provided certain thresholds are met.
If the parents do consent, they may sign a voluntary care agreement with Tusla, under which the agency assumes the care of the children until such time as the parents seek their return.
In either scenario, the majority of children will be placed in foster care, sometimes with a relative. However, ultimate responsibility for the care of the children will rest with Tusla, which provides a range of supports to both the children and the foster carers.
Less well-known is a third scenario. Professionals refer to it as “private family arrangements”. These placements arise where Tusla is involved with a family but an agreement is reached for children to be placed in the care of a relative without a care order or a voluntary care agreement put in place.
Often this family member will be a grandparent or an aunt. Such arrangements are seen by some professionals as advantageous as they respect the primacy of the family and provide care at a local level with minimal State intervention.
They are also cost-effective for the State as the number of children in State care is reduced, relieving pressure on overstretched child protection resources.
‘Significant disadvantages’
However, private family arrangements also carry significant disadvantages. They do not have any clear legal basis, meaning that the family members have no legal authority to care for, or make decisions, in respect of the children. Tusla has no legally mandated role to inspect such placements or to provide resources to support the children or the carers.
In essence, the cost falls on the carers who receive no financial support. This is in contrast to €300-plus per child per week paid to foster carers under one of the two formal care pathways.
Private family arrangements are also precarious for the children, who can be removed at any time by the natural parent. This may be potentially detrimental to their welfare, and given Tusla’s hands-off approach to these arrangements, a rapid intervention might not happen quickly enough to mitigate this risk.
In 2018, for example, the High Court ordered Tusla to make an application for a care order in a case where a private family arrangement had placed children in the care of their grandmother.
An initial care conference took place five months into the placement, yet, no further formal review took place in the four years prior to the High Court judgement. In contrast, formal foster care placements would have several reviews a year during the first two years, and annually thereafter.
When a dispute arose between the grandmother and the children’s mother, a Circuit Court judge expressed concern at the precarious situation in which the grandmother found herself. This concern was echoed in the High Court, where the judge rejected Tusla’s argument that no child protection concern arose in respect of the children.
Lack of data available
This case illustrates how private family arrangements which are not working well can place children at risk, and raises questions as to their suitability as a form of alternative care.
In this light, the absence of concrete data and research is concerning. At present, Tusla has no formal policy on private family arrangements, with no reliable data available regarding the number of such arrangements, their duration, or their outcomes.
To date, research by the current authors provides the only available data, and this is preliminary in nature. It reveals that, for some professionals, private family arrangements are considered to be the best option for alternative care of children.
However, other professionals are concerned about their precarious nature, the absence of oversight, and the shifting of the burden of alternative care from the State to private citizens.
Another reason for using private family arrangements is as a creative solution to a shortage of foster carers that can arise from increasingly strict approval criteria and Garda vetting.
In some cases, a close relative might be the most suitable person to care for children, but might not meet the criteria for formal approval as a foster carer. This can lead to social workers using a private family arrangement in preference to a formal placement.
Ultimately, the State has a clear legal obligation under the Constitution and international human rights law to provide alternative care for children who are not being cared for by their own parents.
It also has an obligation to review the care being provided in alternative care placements. Both Tusla and the Department of Children need to interrogate their use through targeted research, and implement legal and policy measures that address the risks arising from them.
While private family arrangements are often underpinned by good intentions, their ad hoc nature and the absence of clear legal and policy foundations, oversight, support and resources raise serious questions about their sustainability in their current form.
By Professor Conor O’Mahony, School of Law; Dr Kenneth Burns, School of Applied Social Studies; and Dr Rebekah Brennan, Institute for Social Science in the 21st Century, University College Cork.
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