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Annual Report of the Ombudsman 2003

Chapter 2 - South Western Area Health Board - Foster Care Allowance

This complaint against the South Western Area Health Board in relation to a grandmother's entitlement to Foster Care Allowance highlights a difficulty which I understand faces many others in a similar position. I hope that by drawing attention to the matter the Oireachtas might consider alterations to the legislation.

A woman complained to me about the rejection by the South Western Area Health Board (SWAHB) of her application for Foster Care Allowance (FCA) in respect of her two grandchildren. Her daughter, a chronic drug addict, had two young children and they all lived together for a period in the grandmother's home. Her daughter and her two children moved to a house nearby, but when it became evident that she could not cope with caring for the children, the grandmother took the children into her care.

She then applied for and received Orphan's Allowance (currently €97 per child per week) from the Department of Social and Family Affairs. This allowance can be paid in circumstances where a child's parent has failed to provide for the child. Under the Child Care Act, 1991 there is provision whereby a relative can become a foster parent and, if so, may become entitled to FCA (currently €289.50 per child per week under 12 years and €316.15 per child per week over 12 years of age).

The woman applied for FCA but her application was rejected on the basis that the allowance is only payable in situations where a child has been in the care of a health board prior to fostering, either on a voluntary basis or by way of a court order. In this instance the woman contended that if it were not for her intervention the children would have had to be taken into care and, as a result, she could have applied to foster the children, and if her application was granted, she would have qualified for FCA. She also contended that the SWAHB social services were aware, all along, of her daughter's drug addiction and that she, as the children's grandmother, had also expressed her concerns about the children's welfare in her dealings with the Board. In this regard she believed that the Board had failed in its duty to identify that the children were not receiving adequate care and attention as is required under the Child Care Act, 1991.

This complaint raised very complex issues centring on the exercise of professional judgement by the Board's social work staff. The Child Care Act, 1991 specifies the manner in which children are taken into the care of health boards, either on a voluntary basis with the co-operation of parents or those who are acting in loco parentis, or by way of an Emergency Care Order granted by the courts. The primary objective is to safeguard the welfare of children and there is a presumption that the best interest of the child is served by being brought up within his/her own family. In deciding to take a child into its care it must be apparent to the Board that the care and protection of the child cannot otherwise be achieved, and then only as a matter of last resort.

I approached my examination of the complaint by way of a consideration of the relationship between the daughter and her children with the social workers, with a view to establishing if there was prima facie evidence of maladministration on the part of the Board in not taking the children into care under the provisions of the Child Care Act, 1991. During the course of my examination it became clear that, since the birth of the children, it had been the professional opinion of the social services staff in the SWAHB that they had no concerns about their care and protection. In this case it was the Board's expert and professional opinion that no child protection concerns had been identified as the children were being adequately cared for under the grandmother's supervision.

The Board accepted that there were many situations such as this in its area. Having considered the matter I formed the view it would not be open to me to suggest an alternative to the professional opinions expressed by the Board in relation to the care of the children. Consequently, I was unable to pursue the issue as to whether the children might have been placed in the care of the grandmother under a fostering arrangement. I could only develop that issue if I could conclude that the Board was careless or negligent in not taking her grandchildren into care, and the available evidence did not provide a basis to support such a position.

I had considerable empathy with the woman in relation to the predicament in which she, as a grandmother, found herself. It seems to me that, in all the circumstances, she had taken all possible steps to deal with a very difficult situation. This is, of course, of little assistance to her in the ongoing full time care of her grandchildren. Any relaxation of the conditions pertaining to the granting of FCA would obviously have to be considered in a budgetary context, and this is a matter for the Oireachtas. Whilst I do not have any direct role in such considerations, I would like to take this opportunity to highlight the general situation facing grandparents, which has been identified in this case.

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