Analysis: a new study later this year will provide long overdue scrutiny of the system for voluntary care agreements in Ireland

By Conor O'Mahony, Kenneth Burns and Rebekah Brennan, UCC

When people think of children entering state care, the image that is conjured up is one of social workers entering homes with court orders empowering them to remove children from their families due to abuse or neglect. This is often a lengthy, legalistic and adversarial process. However, it is not commonly known that in many jurisdictions (including Ireland), the majority of children who enter state care do so without any court order being obtained. This is not as alarming as it sounds and relates to a system known in Ireland as "voluntary care agreements".

Once signed by a parent, a voluntary care agreement allows Tusla (the statutory body charged with child protection and welfare) to accept a child into state care without the need for a court order. Around 55% of admissions to state care in Ireland take place pursuant to voluntary care agreements. Some transition to a court order and 70% of children in care are on a court order at year end. Some voluntary agreements relate to short-term respite for a parent (for example, to receive treatment for addiction or mental health issues), but others can persist for years.

The relatively unknown issue of voluntary care agreements has been the subject of some media attention since a recent article in The Irish Times. The discussion has arisen from correspondence in which HIQA raised concerns with Tusla about the manner in which voluntary care agreements are used. These concerns included some agreements having an indefinite duration, and an absence of independent reviews of the care placement.

Very limited scrutiny

To date, there has been very limited scrutiny of the system for voluntary care agreements. However, this will change later this year with the publication of the findings of the Voluntary Care in Ireland Study, which we are conducting at the Schools of Law and Applied Social Studies at UCC. The study has identified the same issues raised by HIQA in the correspondence mentioned above; but it has also examined a wide range of other issues.

Broadly speaking, our study found that voluntary care has an important role to play in the Irish child protection system, but that it is regulated quite loosely by international standards. This creates risks that it may be used in ways in some cases that are not compliant with national and international standards governing parental and children’s rights.

Voluntary care agreements have several advantages over court proceedings. They are less adversarial; this reduces parental stress and facilitates a more collaborative relationship between parents and social workers, which benefits all parties (including children). Parents retain more decision-making power under voluntary care agreements than under court orders, which allows them to remain more involved in their children’s lives and increases the chances of eventual reunification. Voluntary care agreements can also avoid significant costs associated with court proceedings in cases where the parents are happy to consent to the care placement.

Significant weaknesses in voluntary care agreements 

For these reasons, it is important that voluntary care agreements remain part of the child protection system in Ireland. However, the Voluntary Care in Ireland Study has also identified a number of significant weaknesses in the manner in which voluntary care agreements are currently regulated.

In addition to the issues raised by HIQA, we identified concerns about the fact that voluntary care agreements can be cancelled at any time by parents without any notice period being required. This can lead to an element of instability and potential risk to children. In practice, Tusla can apply to the court for a care order if it feels it is not safe for the child to go home; but this may take some time in some cases.

Further points raised by study participants include that scarce resources are more likely to be allocated to cases where Tusla has to account to a judge for the child’s care plan rather than to children in voluntary care placements. Children in voluntary care can have less opportunity to express their views on decisions affecting them. Unlike in court proceedings, there is no provision for a guardian ad litem to be appointed in voluntary care cases to make representations on the child’s views and best interests.

Voluntary care has an important role to play in the Irish child protection system, but that it is regulated quite loosely by international standards

The evidence gathered by the study also raises significant concerns from the perspective of parental rights. Parents entering into voluntary care agreements are frequently challenged by mental health issues, cognitive impairments or substance addiction, which can raise questions about the extent to which they fully understand the nuanced legal agreement that they are signing. These concerns are heightened by the fact that our study found that parents almost never receive independent legal advice before signing (unlike parents in child care court proceedings, who almost always have legal representation).

The combination of the above factors can increase parents’ vulnerability. Social workers, who have a statutory duty to protect children, often explain to parents that they can sign a voluntary care agreement, or Tusla will have to make an application to court instead. There might not be any intention to pressure parents into signing, but the power imbalance between social workers and parents can create this effect.

In summary, voluntary care agreements have important advantages, and these should be retained. However, the risks associated with loose regulation should be addressed as part of the ongoing review of the Child Care Act 1991. The Voluntary Care in Ireland Study will make detailed recommendations in the autumn.

Dr Conor O’Mahony, Dr Kenneth Burns and Dr Rebekah Brennan are the research team on the Voluntary Care in Ireland Study at the Schools of Law and Applied Social Studies at UCC. Dr Burns and Dr Brennan are former Irish Research Council awardees. Dr O'Mahony was appointed Special Rapporteur on Child Protection by the Government of Ireland in 2019.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ