I move amendment No. 7:—
In page 12, Section 21, to add at the end of the section a new sub-section as follows:—
( ) Nothing in this section shall authorise a health authority to exercise its powers under this section in respect of a child contrary to the wishes of a parent or guardian expressed in writing.
Section 21 deals with the attendance to health of children who are not pupils of schools, that is, children either too young to go to school or who are being educated at home. It proposes that the health authority shall, in accordance with regulations that the Minister proposes to make under powers conferred on him by Section 27, take steps in respect of those children—that is, those who are not pupils of any school—to:
(a) safeguard and improve their health and physical condition;
(b) arrange for their medical inspection at schools or other places;
(c) provide for their education in matters relating to health;
(d) provide for treatment of their illnesses and defects;
(e) ascertain cases of mental deficiency.
The parents are, under the Constitution and under the natural law, the persons responsible for the health of their children and for their education, both in matters of health and otherwise, and I ask that their rights and their sphere of responsibility be not invaded by a health authority. If the intention is, as I suggest it is and ought to be, to provide facilities through State co-operation or State assistance to have this work done, that is a reasonable thing. As the section stands, however, if it proposes to give the health authority power to interfere in matters that are constitutionally and by natural law the rights and responsibilities of the parents, then the Minister is only looking for trouble. He is introducing into this scheme an element of compulsion which may easily wreck a scheme which is intended to be beneficial and which is required to assist persons who want this type of assistance.
We dealt with this matter before and at this stage I merely want to refer again to Article 42 of the Constitution, paragraph (1) of which says:—
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.
Paragraph 5 of the same Article says:—
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.
On Committee Stage, we endeavoured to remind the Minister of the circumstances which arose when the School Attendance Bill, 1942, was referred by the Uachtarán, on representations made by a number of Deputies and Senators, to the Supreme Court. It was adjudged to be unconstitutional to impose on parents the requirement to send their children to a school. Part of the judgment then given, as reported in Irish Reports, 1934, page 344, runs:—
"Clause 5 of Article 42 is limited to exceptional cases where the failure of the parents is due to physical or moral reasons and may be disregarded for the purpose of this opinion. Apart from that clause, the only right of the State to interfere in the education of children springs from Clause 3 (2). Having declared in Clause 1, that the State guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the education of their children, the Constitution, in Clause 2, expressly declares that parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. In Clause 3 (1) the State declared that it will not oblige parents, in violation of their conscience and lawful preference to send their children to schools established or designated by the State. So far there is nothing to indicate any right or intention on the part of the State to interfere in any way in the education of children."
I ask the Minister, with regard to a matter which is in some ways analogous to that, but, in other ways, goes further, where in the Constitution there is any indication that the State has any right or any intention to pursue children and parents into their homes and to impose on them the necessity of accepting, by positive interference by a State machine, regulations or Acts intended to safeguard and improve their ordinary health and not intended to safeguard the public generally from anything in the home which may in any way radiate danger to the public health. In the same way, I ask where there is anything in the Constitution which says there is any right or intention on the part of the State to invade the home for the purposes of medical inspection in the interests of ordinary health, for education in relation to ordinary health, for treatment in relation to either illnesses or defects, or as to the mental efficiency or otherwise of the occupants.
I feel that there is a sufficiently large amount of work to be done by the State in helping people who are interested in getting the best out of themselves in a physical way, improving their health, and, with improved personal health, improving their capacity to serve the State and to live a full personal life, and a sufficient number of people are looking for assistance to occupy the State very fully to-day without tracking down into their homes people who resent interference of that kind or people who object to their inalienable rights to look after the education of their children. I plead with the Minister to accept the amendment, and then any regulations made or any scheme of assistance set up under a health authority would be a scheme of service to be used by persons who wanted to use it.
I again remind the Minister that there are sufficient people who want to use it to occupy that machinery fully without overworking it or stirring up, in relation to a scheme intended to be beneficial and constructive, the feeling that there is positive interference with the natural rights and dignity of the individual and the sacredness of the family. If interference of that kind is allowed or tolerated now, the question arises: where will it stop? The Government had their warning in relation to the School Attendance Act. It would be disastrous, even in relation to education generally, if they should receive any reverse in the courts on a measure of this kind which would indicate that there was an influence, perhaps through ignorance, which was invading the constitutional rights of the family, because if these can be invaded and prejudiced through ignorance to-day, they could easily on some future occasion be invaded and prejudiced through malice or desire.