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Dáil Éireann debate -
Tuesday, 20 Jun 1967

Vol. 229 No. 6

6½ Per Cent Exchequer Stock, 2000-2005. - School Attendance (Amendment) Bill, 1967: Committee Stage.

Section 1 agreed to.
SECTION 2.

I move:

In page 2, between lines 18 and 19, to insert the following paragraph:

"(i) the service shall be deemed to be good service on the person unless it is proved that the warning was not delivered,".

This provides for the amendment of section 17 of the Principal Act on the lines of section 7 (6) of the Courts Act, 1964. In the original Act, section 17 (1) provided for the serving of a warning notice on the parent of a child who is not attending school, and section 17 (2) and (3) provided for the taking of proceeding against a parent if he failed to comply with the warning notice. Subsection (4) enabled the court to commit the child of a parent who had been twice convicted to an industrial school. Under the Act as it stood, personal service of the warning notice had to be made and there have been considerable practical difficulties, as I stated here the last day, especially in Dublin, in regard to the personal service, because in many of the worst cases, the parent will not answer the door. The purpose of the amendment is to ensure that there will be no quibbles as to whether or not the service of the warning notice was good.

This is in conflict with what is the generally accepted law. Here is another tendency to throw over on the person answering a warning or a summons the onus of proof of innocence. I take it that the onus of proof that the warning was not delivered rests upon the person to whom it was directed. If a person does not open a door, who can prove that there was somebody inside to open the door? Deeming service good is something well known to our courts and other aspects, but it is far removed from the example which the Minister has given, that where people are seeking to effect a warning notice and the door is not opened, it is immediately presumed, I take it, that there is somebody inside who is able to or should open the door. It may well be that there is nobody inside, and deeming service good in such circumstances is a very serious contravention of the principle of deeming service good, as we know it. I do not think that this is very good, even in itself, apart altogether from the fact that it is a further extension of the tendency to depart from the established practice by throwing the onus of proof over on the accused person. For that reason I would not be too happy about deeming the service good in the sense in which it is deemed to be good here.

There is one feature in regard to this amendment about which I am in some doubt. Up to this the warning was delivered in the ordinary way by a member of the Garda Síochána to one of the parents concerned. Now it is to be sent by registered prepaid post in an envelope addressed to the person. In the ordinary way, a registered letter means that somebody has to sign for the letter. That is the receipt which is taken back to the office, and is proof that the letter has been received. It is in the light of that that I cannot understand the amendment: "the service shall be deemed to be good service unless it is proved that the warning was not delivered". I fail to see how this fits in with the matter of the acceptance of a registered letter for which somebody signs a receipt. Perhaps the Minister would be able to elaborate on that.

I should like to know from the Minister at what stage an officer may serve the notice by registered post. Is it after he has taken all reasonable care to have it delivered personally? For a long period, school attendance officers in Dublin were allowed to serve those notices on either parent, but at one stage the courts decided that it had to be served on the father only. If it is served by registered post, will it be sufficient to serve it on either parent, or must it still be served on the father? I know that school attendance officers in the Dublin area find it almost a nightmare trying to deliver these notices, because, as the Minister said, although in cases they had seen the father going into the house, somebody else would answer the door and say the father was not in. It was practically impossible for these officers to serve a notice. It will greatly relieve the situation if the notice can be served by registered post, although as Deputy Lindsay has pointed out, there may be some difficulty in proving that it has been delivered.

Mr. O'Malley

I never thought there would be such tremendous attention given by the Opposition to these matters into which I went in the greatest detail the last day. I wonder have they any other purpose in view tonight. Have any of them been stuck in to keep things going in order to keep out the Marts Bill?

We are subject to attendance as well as the children.

Mr. O'Malley

Yes; so am I. Anyway, Deputy Lindsay must know only too well that in regard to service of a warning notice by registered post, a precedent has been established and followed down the years, and there is nothing unusual in it.

Would the Minister quote the precedent?

Mr. O'Malley

Certainly: the Courts Act of 1964.

What does that say?

Mr. O'Malley

I quote section 7 (4).

Service of a Circuit Court document or a District Court document upon a person pursuant to subsection (3) of this section shall——

What does subsection (3) say?

Mr. O'Malley

Will the Deputy wait and let me deal with one thing at a time?

Service of a Circuit Court document or a District Court document upon a person pursuant to subsection (3) of this section shall, upon proof that the envelope containing a copy of the document was addressed, registered and posted in accordance with the provisions of that subsection, be deemed to be good service upon the person unless it is proved that such copy was not delivered.

The Minister was going to quote subsection (3).

Mr. O'Malley

I cannot see the point.

I am just taking up the offer. I understood the Minister offered to do it.

Mr. O'Malley

I shall send him over the whole lot.

Would the Minister be nice and read out subsection (3)?

Mr. O'Malley

It says:

Service of a Circuit Court document or a District Court document may be effected by sending a copy of the document by registered prepaid post in an envelope addressed to the person to be served at his last known residence or place of business in the State and the document may be posted by the person on whose behalf it purports to be issued or a person authorised by him in that behalf.

But surely there is a document to be signed, as Deputy Jones has said? When the person delivering the registered letter comes to the house for the purpose of effecting delivery, as I understand it, he has a little chit that must be signed by the recipient or on the recipient's behalf, and that little document is proof of service. Surely that should be good enough for the authorities here? If the letter is not delivered and cannot be delivered, the postman takes it back and you get a little note saying that a registered letter awaits you at a certain post office for which you may call. I do not see why you should be deeming service good and throwing proof of delivery on the person who is to receive it, when there is available the best evidence, namely, a signed chit that the document was received by the person for whom it was intended or by somebody on his behalf.

Mr. O'Malley

This is a very good attempt by Deputy Lindsay to justify himself when I have caught him out on the point that he obviously did not read the section. May I say that if Deputies would only read the Bill in front of them, they would see that where service of a warning upon a person is effected pursuant to subsection (1) of this section, under subsection (ii) a certificate purporting to be signed by the person who posted the envelope containing the warning and to be so signed not earlier than ten days after the day on which the envelope is posted and exhibiting the certificate of posting of the envelope and stating, if it be the case, that the envelope has not been returned undelivered to the sender, shall be evidence, until the contrary is proved, of the addressing, registering and posting, in accordance with subsection (1) of this section, of the envelope. I do not think anything could be clearer than that and the purpose of the amendment to section 2 of the Bill, which I now propose, is to ensure that there will not be any argument as to whether the service of the warning notice was good.

I know, but that does not justify the method. The end never justifies the means.

Mr. O'Malley

Sometimes it does. That is only a cliché.

Is the Minister referring to his amendment as a cliché?

Mr. O'Malley

I was only exchanging pleasantries with Deputy Lindsay.

The Minister is introducing an amendment which is designed to shift the onus of proof to the person who, in relation to proceedings that might be taken under section 17 of the Principal Act, would be in the position of a defendant. The Minister, in the course of his arguments, mentioned that there were precedents for this, going down through the years. I asked him to quote some and he quoted only one, the provision regarding service of court documents under the regulations under the Act of 1964. I do not know if the Minister has inquired to any extent as to the reason for these provisions. I may be incorrect in this, but I have a recollection that there was some difficulty in some areas in regard to getting a sufficiency of summons servers, and that it was decided that rather than hold up court proceedings, this particular method of service should be permitted. Perhaps there are arguments in favour of it. The Minister did not tell us the nature of the documents permitted to be served under the Order which he read out.

Under his amendment, there is no doubt that the onus of proof is being put on the defendant. The whole question has arisen in this House on a number of occasions, particularly in recent years when Ministers come in with proposals in legislation, which can be justified, I suppose, on the grounds of streamlining things, taking the trouble and inconvenience away from the administration and putting them on the person who is in the position of being the defendant. That is what is being done here. There are cases when that can be justified. For example, if the Minister reads the discussion on the recent Road Traffic Acts, he will find that cases have been made that it is unreasonable to have the gardaí spending all their time in court for the purpose of giving purely technical evidence that might be supplied in some other way.

We find that also in regard to the production of registers of one type or another in court as being evidence of the matters contained in them. This is in a rather different position. Here, as Deputy Lindsay has pointed out, when a registered letter is delivered, proof of delivery is obtained and if proof of delivery cannot be obtained, so far as I know, the letter will not be delivered. If the house is empty or if whoever offers to take in the letter refuses to sign, so far as I know, that letter will not be delivered.

If I am correct in that, and if Deputy Lindsay is correct in the point he has raised, surely there is no difficulty in the Minister in this case proving that the letter has been delivered and all that is necessary then to tie up the State's case against the poor infant who has not gone to school is that the Minister should have a witness available to prove that the warning notice was placed in the letter and that the letter was registered and despatched.

It may be of great convenience for the Minister to introduce this amendment. I do not know how serious a problem it will be for him if this amendment is defeated but I think he should put forward a much stronger case for it. When I invited him to tell the House about the precedents he was referring to, I think he should have gone much further back than 1964, if he wants to make the case that there is a long list of precedents for this kind of legislation.

I have not been in on this on the Second Stage but may I pose a question, which I do not propose to answer, to the Minister, to Deputy O'Higgins and Deputy Lindsay, but perhaps more to the Minister than anybody else? Is it possible that this amendment is included in order to provide against a situation where a householder, knowing or guessing what is in the envelope, refuses to take delivery?

Mr. O'Malley

Hear, hear.

Surely then you would have to have proof of refusal to take delivery?

Surely the postman could provide that?

He could not. He could not know if there was anybody in the house.

The Deputy misunderstands me. There could be a situation in which if I knew that this letter was going to be delivered, I would not take it. Does delivery also mean acceptance?

We want proof of acceptance rather than proof of delivery.

I know quite a few people who do not get many registered letters, and if they did get one, they would know what was in it and would not take it.

I do not know if the Minister proposes to deal in any detail with Deputy Corish's intervention. It is a point he might deal with. If the Minister can make out a case on the basis that there is widespread knowledge among the parents of defaulters of the provisions of the 1926 Act and that, down through the last 40 odd years, there has been extensive evasion in relation to the service of these notices, then obviously there is something to be said for the point of view advanced by Deputy Corish, but I think it unlikely. Am I correct—the Minister will correct me, if I am not— in saying that heretofore it has not been necessary to serve notice by registered post and, if that is the case, it does not seem to me there can be any knowledge on the part of parents that something that arrives in a registered envelope is likely to be a warning under section 17 of the Principal Act of 1926?

We seem to be taking a great many precautions in relation to the attendance of children at school, but, in the case of rates, the notice is either posted or handed in. Nobody requires proof of delivery.

As far as rates are concerned, there must ultimately be proof of service before a decree is given. I do not know whether the Minister would be interested in a discussion on rates procedure.

I do not think he is in the mood for that.

If he is, I am quite prepared to go into it.

He is not obliged to Deputy Corish at the moment for introducing the question of rates.

Mr. O'Malley

How long am I supposed to be kept here?

As long as we want the Minister.

Mr. O'Malley

I marvel at lawyers and solicitors. I have three brothers solicitors and they can argue on anything ad nauseam. This will be an improvement on the position that obtains.

An improvement from whose point of view?

Mr. O'Malley

Deputy Belton is on the school attendance committee and he knows, and Deputy O'Higgins should know it too, what the position of the unfortunate school attendance officer is. He has to look for the parents and when the parents hear he is in the vicinity, they duck out. Deputy Belton's committee, of which he is a most assiduous member, have got reports time and again from the school attendance officers that they cannot carry out their duties and have given it as their view that the only satisfactory way of ensuring that such cases will be dealt with immediately —our prime consideration is the child or children—is service through registered post. Deputy O'Higgins may be surprised to learn that some parents evade service for months.

The Minister misunderstands me. I am not objecting per se to the registered post system. I am objecting to the shifting of the onus of proof on to the parents. By all means, serve by registered post, but prove the service. Do not accept proof by default.

Mr. O'Malley

Nobody ever had any difficulty in finding me by these methods.

Surely it was not for failure to attend school? What we want to do is to preserve the established practice of not throwing the onus of proof over on to the proposed defendant. Surely the Minister could devise some other method, such as nailing a notice on the door of the house, as is done with notices to quit? To legislate that a court should accept the fact of delivery from the fact of posting is outrageous in the extreme. An extension of that kind of thing could lead to chaos and to the most extraordinary infringement of the liberty of the individual and, in particular, of the liberty of the child who is helpless in these matters.

I have no objection at all to the Minister's alteration with regard to the method. I can see the line of argument when he says people may evade the school attendance officer and personal service is too difficult. I can see that the Minister has a point there and, so far as I am concerned, I would not resist strongly if the Minister introduced an amendment such as this, even if it were by ordinary prepaid post, and without insisting that it should be registered, provided he were prepared to face up to the situation that proper evidence of service of the notice could be given. Obviously personal service can be evaded.

Deputy Corish referred to the rates procedure and I told him that, as far as the six-day notice is concerned, which is an integral part of the procedure, where a decree or order is sought from the court for failure to pay rates, whoever serves the notice must ultimately come along to the court and give evidence that the notice was served by him on such and such a date. The method of service may consist of simply dropping the notice into the letter box.

It might ease the position for the Minister if, instead of introducing what could be a cumbersome procedure, a procedure which contains objectionable features from the point of view of proof, he provided for service of the warning notice at the house, without requiring it to be personal service. As against that, the Minister would, I think, be justified in pointing out that the danger of the parent not getting the warning notice, if it were simply served by dropping it into the letter box, would obviously be increased, as against the procedure in which the warning notice is to be served either by registered letter or by ordinary prepaid post, but that is not the particular objection I have. My objection is on the score of the onus of proof being put on the defendant and the State or the authorities being relieved of any obligation to give proper proofs in court, should the matter go into court.

Civil bill officers have no trouble in effecting service in relation to the matters in which they are instructed. Policemen have no trouble in getting their particular notices served. Officials of the Post Office have no trouble in effecting service in relation to unpaid television and radio licences. Why should the whole structure in relation to the onus of proof be eased for school attendance officers who are quite obviously as nimble, as able-bodied and as alert in the area in which they operate as are civil bill officers, civic guards or officials of the Department of Posts and Telegraphs?

I agree completely with the Minister when he says that Dublin School Attendance Committee find the position practically impossible. A great many of these cases are hardy annuals. As each child comes to schoolgoing age, the trouble starts. The school attendance officers are well-known.

So are the gardaí.

That may be so, but the school attendance officers have great difficulty. They have even had cases where they knew the father was in at lunchtime and they have sat outside waiting and the father would not come out while they were there. They have even gone to his place of employment and they have not been very welcome there. As a matter of fact, some of them have even gone so far as to try to watch for the father coming home from the publichouse at night. Those people are experts at evading the school attendance officer. Anything that can be done should be done. Some of the school attendance officers are on duty more or less 24 hours a day to try to effect delivery of these notices.

Deputy Belton has quite properly made the Minister's case for departing from a system of personal service. Any of us can appreciate the case Deputy Belton has made.

However, I should like the Minister to direct his attention not to the method of service but to the question of the onus of proof. I should be glad if the Minister could set my mind and the minds of other Deputies at rest on that point.

Mr. O'Malley

Is it not extraordinary that Deputy Lindsay and Deputy O'Higgins can come in here tonight on Committee Stage with all these brainwaves which they are getting every second—and they will have a few more brainwaves when I sit down? Why did they not put down amendments? After all, they had a week to do so. Deputy Lindsay is talking about nailing the notice to the door. Maybe that would be a good suggestion. Why not put down an amendment to that effect?

The Minister has all the machinery to do these things on Report Stage.

Mr. O'Malley

The purpose of putting legislation through the House is to enable the Opposition, if they think a Minister's proposal is insufficient or unsatisfactory, to put down an amendment. They have a duty to do so.

They have a duty merely to tell him. There is no duty on an Opposition to put down amendments. It may, on Committee Stage——

If the Minister is inviting us to put down amendments on Report Stage, will the Minister agree to having the Bill recommitted?

Mr. O'Malley

What I say tonight is immaterial because I am to be kept here for a certain fixed time. I do not mind. I shall come back in August, if you like.

Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.

Mr. O'Malley

I move amendment No. 2:

In page 2, lines 33 to 40, to delete subsection (1) and substitute the following subsection:

"(1) For the purposes of section 17 (4) of the Principal Act, an order may be made under section 18 of that Act in relation to a person after conviction of the person for a second or subsequent offence under the said section 17 in respect of the same child, and, if a person fails to comply with any order under the said section 18, a justice of the District Court may issue a warrant directing and authorising the Superintendent of the Garda Síochána in whose district the child to whom the order relates resides to procure the attendance of the child at a sitting of the District Court at a time and place specified in the warrant."

Section 18 of the Principal Act provided that the second conviction having been made the Justice might, on his own initiative or on the application of the School Attendance Officer, cause the child's name to be entered in the Industrial School Book for a certain date. The School Attendance Officer then made a deposition averring to the conviction and notified the parent and child to be present. If they appeared the Justice might commit or not as he saw fit. If they did not appear, the Justice might issue a summons under Section 18 (1) ordering the parent to produce the child on a certain date. If the child was not produced there was legal doubt as to whether a warrant could be issued.

There is no machinery under the Act to ensure presence of child if parent does not produce child. The authority to issue a warrant to procure the attendance of the child has been called in question legally and the amendment is designed to provide authority to gardaí to cause the child to attend the court.

It is questionable whether section 3 as it stands provides sufficiently for the issue of a warrant to compel the attendance of a child at the hearing of an application to commit him to an industrial school. The amendment clears up that point.

As far as I can see, in section 18 there is no point of doubt as to whether or not the child could be brought before the court. It simply is not there. It is not a question of doubt. I refer the House to section 18 (1). There is no doubt there. There is not a word about any power to bring a child before the court. My objection to this amendment is that it does not add to or extend section 18 (1) in any way. It is something completely new, in conjunction with the Principal Act, that a child can be brought before a court without any reference at this stage to the parent. It is well recognised practice that an infant cannot be asked by the police to make a statement of any kind in the absence of a parent or guardian and if such a statement is taken it is not admissible. This effort to bring the child before the court, without a parent, by any garda whom the superintendent shall direct is in conflict with existing law both statutory and practice. This is an amendment that certainly would not stand a test if it were subjected to it, as I believe it will be.

Is it the position that a child can be brought to a court for non-attendance at school without a parent being present?

Mr. O'Malley

Invariably, the procedure is—as Deputy Belton, who has far more knowledge of this matter than I, can bear out—that these matters are done in a most discreet manner. The effort is to ensure that the parent or parents is or are present with the child. There are some cases in which this is not possible and the child, in its own interest, which is our primary consideration, would then be brought before the court.

It is all very well to say that these things are done with discretion, and so on. I am amazed to discover that a child of seven years of age can be brought to the Children's Court for non-attendance at school without having the comfort or benefit of a parent or both parents with it. If there is any amendment to be made in the original Act, I think that that should be one of them. The superintendent has power to take a child of seven years of age along to the court to answer why it did not attend school.

It is for an even more serious purpose: it is for the purpose of committing it to an industrial school or into the care of a relative, without a parent being present.

That should be cleared up before we go any farther.

Mr. O'Malley

Right. We must not lose our sense of proportion in this. The primary consideration is the child. Perhaps it is a natural reaction for Deputy Corish and myself and other Deputies not to like to see the spectacle of a child of such tender years produced before a court but every effort has been made before such a contingency arises and——

Has the superintendent the legal authority to insist that the parents will go?

They have.

I appreciate that the gardaí do all this with discretion. I do not know of a case in which a child of seven or eight years of age was taken to court to answer for non-attendance at school but I presume——

Mr. O'Malley

Unfortunately, there are certain parents—there are very few such parents in Ireland but they exist—who cannot be found and who do the disappearing act, with the result that the child is left. Now, in the child's interest and for its future welfare, we are doing the proper thing because if the parents are so ruthless as to leave an unfortunate child of seven years of age possibly alone in a dwelling—there are a lot worse conditions too, I might say, on which I shall not dwell now—then the action proposed here, while on the surface or at first glance it might appear a bit harsh, in actual fact, in the final analysis, is in the child's interest.

We can understand this in regard to the type of child who of necessity must be taken to the court but the law means that my child of seven years can be taken to the district court——

No; this is what the Minister is seeking to do in the amendment.

Mr. O'Malley

The Deputy is of no assistance to me. He is trying to cloud the issue further. This happens only after the parent fails to produce the child. Only then does this arise.

The Minister could put it even more strongly than that. This amendment should not go through without some modification. Under section 17 (4) of the Principal Act, you may come across a case where the parent himself has satisfied the court that he was unable to get the child to attend. There is even that kind of case where the child may be in rebellion, so to speak, against the parents. Possibly that is a point which might be helpful to the Minister in arguing out this. Even then I really feel quite strongly that the Minister should reconsider what he is doing in this amendment. I invite Deputies to visualise the effect this procedure, if operated harshly, could have on the mind of a child of seven or eight years, particularly a child who might have been difficult and who might have been told by the parents, or those in authority, about the dreadful consequences of coming into conflict with a policeman. If a child of seven or eight years who has been conditioned in that way suddenly finds a posse of policemen calling to the house to produce him to the court, then irreparable or long-lasting damage could very well be done to the child and to the character of the child. It is something that might have lasting effects that none of us would like to be responsible for.

If the Minister wants to get a measure of agreement on a step of this sort, then at a very minimum he should provide in this amendment that the warrant will also require the attendance of the parents or those in loco parentis. It is absolutely necessary to ensure that a measure of this sort will not be implemented and cannot be implemented at least without the parents being aware of the fact not only that a warrant has been issued but of when and where it is intended that the child should be brought to the court. Certainly to my way of thinking it would be desirable to go a lot further than that, and if this amendment is to be operated, to require that the superintendent should also have the responsibility of ensuring the attendance of the parent, the guardian or whoever is in loco parentis.

I know that in drafting amendments of this sort, it is not always possible to take every contingency into account and I know that there is the old cliché that hard cases make bad law, but we are dealing with children of very tender years, children whose minds and outlook are likely to be affected for life by actions of this sort. In the amendment which the Minister proposes, what is designed to happen is that the justice of the district court will issue a warrant "directing and authorising the superintendent of the Garda Síochána in whose district the child to whom the order relates resides to procure the attendance of the child at a sitting of the district court at a time and place specified in the warrant". I should imagine that by and large the Garda superintendents, if they get a warrant of this sort, will endeavour to operate it in the most reasonable and humane way possible. I should imagine the kind of procedure would be that they would go along and discuss the position with the parents and probably be satisfied with an unequivocal assurance from the parents that they will bring the child to court on a particular day.

I am quite sincere in this. I imagine that would be the reaction of Garda superintendents generally, but remember we cannot afford to guess about these things. What is important when legislation goes through here is what appears in the legislation and all the Minister is having appear in this amendment is that the district justices will issue a warrant authorising the Garda superintendent to ensure the attendance of the child in court. No guideline is being laid down in the amendment as to the manner in which the superintendent is to achieve that result and it would be possible, if this amendment goes through, for the superintendent to despatch a couple of guards to the child's house and bring the child to court. Perhaps it is stretching the thing a bit far but it is at least possible under the wording of the amendment that the Garda superintendent would feel himself authorised in implementing the warrant issued by the district justice, and carrying out his duties under it, to take the child to the Garda station for some period prior to the court to ensure his attendance in court.

I would strongly urge the Minister to consider this matter again between now and Report Stage, and if he is particularly anxious to have a procedure of this sort, at least to make it obligatory on the superintendent also to ensure that someone, the parent or guardian or whoever is in loco parentis will attend with the child on foot of the warrant.

Mr. O'Malley

I am afraid Deputy O'Higgins is clouded in this regard. He talks about also ensuring that the parents would attend. Does he realise that we have made every effort to get the parents to produce the child and failed?

I am giving the Minister that argument.

Mr. O'Malley

I listened to the Deputy. This is only as a last resort. The Deputy talks about having the parent with the child. There is no reason why we should not if we could get the parent. I jotted down some of Deputy O'Higgins's words: "the effect of this procedure on the mind of a child; the long-lasting damage to the mind of a child; the long-lasting effect it would have on the child." Does the Deputy realise that the whole purpose of the amendment is to ensure that there is no long-lasting damage to the child due to the neglect of the parent to exercise his right and duty? That is where you can have long-lasting damage to the mind and soul and body of a child. That is happening in this country at present when the child is neglected.

It is because we want to improve that position that we are bringing in this measure. We want to ensure as speedily as possible that we will get the child before the court so that the district justice can have a chat with him, see his condition, and ask a few questions. These men have a tremendously humanitarian outlook. They have a close liaison with the school attendance officers and committee. I am introducing this legislation, having received the considered views of the school attendance committees and officers, and after the greatest deliberation, I think this is the soundest and most just measure that could be introduced.

Has the district court the power to get a superintendent of the Garda to produce the parents?

Mr. O'Malley

Section 18 of the Principal Act quoted by Deputy O'Higgins deals with the second conviction and the rights of the district justice. If the school attendance officer applies, he can call the child and his name can be put on an industrial school book for a certain date. The school attendance officer makes a deposition referring to the conviction and notifies the parents and the child. If they do appear, the district justice can come to his own decision. He might decide to commit or he might not. On the point raised by Deputy Corish, the justice can issue a summons ordering the parent to produce the child on a certain date. There is a legal doubt as to whether the warrant can be issued and that is why we are doing this.

Does the Minister mean in respect of the parent?

That is the point. A distinction is being made between the parent and the child.

Would it weaken the Minister's case if the warrant were against the parent as well?

Mr. O'Malley

To compel the parent to produce the child? Can Deputies not see that there are unscrupulous parents who cannot be located in many instances? There are such unfortunate cases, but the child would be found. On humanitarian grounds, I think we are acting in the best interests of the child. Deputies can talk about constitutional rights.

They are important.

Mr. O'Malley

They are important. We are trying to ensure that these children get proper schooling and an opportunity of going to school. It is only if the parents neglect the child that the State will ensure that something is done.

I see the Minister's dilemma.

Mr. O'Malley

It is very easy to talk about constitutional rights and about damage to the mind of a child if he is brought to court, but we hear very little talk about this type of parent who could not care less about his constitutional rights and has very little interest in the welfare of the child. For goodness sake, let us stop talking nonsense and legal jingo.

"Jargon" is the word.

Mr. O'Malley

I am learning every day.

The Minister seems to think that failure to send the child to school constitutes all the neglect, or the ultimate in neglect. I do not agree. There are many parents who are not terribly interested in sending children to school but who would love them very much in other ways. The mother may be a widow or there may be an ailing father. The household may not be very well off. There may be a lack of energy, or the parent may be dispirited and have no faith in the world around him, and not be very interested in education, or the child may have begun to run a little wild. Let us take the situation then as envisaged by this amendment where the superintendent, or such member of the Garda Síochána as would be designated by him, could go to the village green, as it were, down a little boreen, along a blackberry path——

Mr. O'Malley

With frogs hopping along.

You would find them too. Those frogs of mine seem to have stirred the imagination of many, including the Minister for Education. A child who was sent on a message or a child who was expected back for a meal might be apprehended, to use the language of the Garda, by a member of the Garda, whipped off to court and committed to an industrial school or put into the care of a relative. Who will tell the parents about this?

Mr. O'Malley

We could not find the parents to tell them anything. That is why we are contemplating this.

Can the Minister envisage the kind of parent I am talking about? There must be a phrase which corresponds to the one used in the ordinary criminal law that it is better that ten guilty persons should go free rather than that one innocent person should be convicted. Would it not be better that ten guilty parents should go free rather than that one innocent parent should be submitted to the heartache, the hardship, and the mental anguish which would be bound to follow such procedure as this?

Mr. O'Malley

Yes.

I do not see any reason why, when the child would have been picked up around his home—in a lane, on the village green or in any part of a town or city—it would not be very easy to get the parent. The parents should be got instead of bringing the child alone to the court. I do not think you could do it, once the action of bringing the child to court without its parents or guardians is challenged. I doubt if a district justice could deal with a case in such circumstances.

Mr. O'Malley

I appreciate the position in which Deputy Lindsay finds himself but I cannot see the analogy here. He cited the case of a parent, a widow perhaps, who so loves her child that she would send him on a message and before he could go back home with the message, he could be whipped off by the gardaí. Does the Deputy not appreciate that there would be no whipping off if we could locate the parent who so loves her child?

Sending the child to school is not the ultimate in love.

Mr. O'Malley

Complete nonsense is being uttered here tonight. May I point out once more that this provision would be used only as a last resort? If a parent so loved a child that he would look after the welfare of the child, if a parent were so attached to a child it would be easy to serve notice on the parent and this would not arise. Deputy Lindsay knows this is a last resort to cover a certain category of parent who has no regard for the welfare of his child. He will not get very far by trying to tie me up in legalistic jargon.

Nonsense. Will the Minister take the case of itinerant parents? Does he say that because they do not send their child to school, they do not love their child? I do not know who better would defend their children in times of danger.

I do not wish to hold the Minister up——

Mr. O'Malley

You do not? As far as I can see this is a Fine Gael campaign to hold me up, to hold up the Marts Bill and the Minister who is waiting to introduce it.

I do not wish to discuss the Marts Bill during the debate on the School Attendance Bill.

Mr. O'Malley

The sooner these local elections are over, the sooner we shall return to normal.

The Minister referred to the constitutional provisions in regard to education. It would be very well if he were to keep them in mind. Article 42 of the Constitution deals with the question of education and sets out:

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.

Then it goes on to say:

Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

The Minister has pointed out that he is aiming to deal with a particular type of case here. I recognise the Minister's dilemma. Later on in Article 42, the Constitution envisages the point the Minister has been making:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardians 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.

The Minister presumably did not intend to scoff at the Constitution's provisions when he made his earlier remarks. I say these provisions are important not only in regard to the recognition of the family as the primary and natural educator of the child but also with regard to paragraph 5 of Article 42 which envisages the intervention of the State in the interests of the child.

The Minister, in reply to the remarks I made earlier as regards the possible lasting or long-lasting effect on the mind of the child, said that what he is trying to do here is to bring in machinery which will benefit the child by ensuring that greater damage, by reason of neglect, will not ensure to the child. That is the Minister's dilemma. I am not for a moment suggesting that he is concerned to bring in harsh measures for the sake of bringing in harsh measures. I am sure he is not. I am sure his interest in this is on behalf of the child to ensure that the constitutional provision in relation to the intervention of the State will be scrupulously carried out. All I am asking is that in relation to this amendment the Minister should go some distance to meet us—that he should thereby ensure that if it can be avoided there will be no question of a warrant being issued to a Garda superintendent which will enable the superintendent to bring the child to the court without the knowledge of the parents or guardians and possibly in a manner which would be frightening to the child.

I am suggesting that as a possible via media the warrant issued to the superintendent should require him to ensure the attendance of the parent or guardian. The Minister says that the whole reason for the amendment is to deal with cases in which parents cannot be found. If that is the difficulty I find it hard to see the force of the argument or the extent of the difficulty. We are talking of children of tender years and it seems to me unlikely that they would be left to fend for themselves by their parents. The police force in this country are as competent as any in the world and I do not think it would be beyond their ability to enforce a warrant directing attendance of parents or guardians.

If the Minister does not go the whole length with me in this argument, I ask him at least to ensure that before any such warrant would be executed notice of the issue of the warrant would be given to the parents or guardians. I do not think that would hinder the matter in any way and at least it would ensure, in so far as the Minister can do it, that the parents will get an opportunity of attending court when their child is brought before it. Under the amendment as it stands a situation can arise in which the child could be brought before a court without the parents' knowledge and the court could proceed to order that the child, without the parents' knowledge, be sent to an industrial school or even to the care of somebody else. That will happen and that is happening.

Mr. O'Malley

I never thought I should see the day when Deputy Michael J. O'Higgins would so avidly quote the Constitution which he was so deadly against in days gone by. Apparently the Constitution is Scripture now. All I shall do is refer the Deputy to section 3 (2) of the Bill:

Where a warrant is issued under this section, the Superintendent of the Garda Síochána to whom it is addressed and any member of the Garda Síochána acting on the instructions of that Superintendent shall be entitled to take steps as the Superintendent or member, as the case may be, reasonably considers necessary to ensure the attendance of the child to whom the warrant relates at the sitting of the District Court to which it refers.

That, of course, sums up my whole objection to this procedure.

This entitles the Garda to do anything they think is necessary without any reference to the parents.

Mr. O'Malley

Still bearing in mind it is a last resort, and having endeavoured to go through the normal channels, so to speak.

I consider this an unfair burden to add to the already heavy burden of tasks on members of the police force that they have to go out, bring in a child, take care of that child and do what the parents should be doing. They might have to bring the child to the court and then bring the child to some institution, if the court made such an order. The Minister should reconsider this.

Mr. O'Malley

Which is the lesser of two evils: a child to be brought up as a moral delinquent, due to conditions in the home in question, or to have the odium, so to speak, of being produced in court?

If there is a moral delinquent, that is a different matter.

Mr. O'Malley

Deputy M. J. O'Higgins quoted Article 42 of the Constitution. This happens only in certain cases where the parents, for physical or moral reasons fail to do their duty. Those parents have failed in their moral duty. They have no interest in the child. We cannot get them and in the interest of the child, we want to produce the child in court.

Would the Minister safeguard the position by providing that parents should be notified of the issue of the warrant?

Mr. O'Malley

Does the Deputy not realise that an attempt to do this has in fact been made?

On the issue of the warrant?

Mr. O'Malley

We have already asked the parents or the Garda to produce the child.

I know all that. Now you have failed in that and you are going to get a warrant. I would just ask the Minister to consider putting in some provision that the parents be notified. Would the Minister not consider that?

It is not outside the bounds of possibility that one parent or both parents may be somewhat retarded and might not appreciate this. It is also within the bounds of possibility that the child so brought before the court would be a retarded child. Of what possible assistance can the evidence of such a child be to a district justice, unless there is some other evidence from either the parents, the doctor, a nurse or somebody locally?

Mr. O'Malley

I know of such instance. Deputy Belton quoted two. May I say that there is no one whose assistance is more valued than the school attendance officer by the school attendance committee and by district justices. There are two or three cases I am aware of in which there was a child of possibly handicapped or retarded parents and consideration was given to this. It is not necessary to go through all this rigmarole, as I am sure Deputies will appreciate that in such instance provision is there for action with regard to the welfare of such a child. The cases we are after are the tough parents. May I repeat that we are after the people who have no interest in the moral welfare or future of their child? This is a good measure.

I do not know why the Minister is introducing moral welfare into this. I thought it was purely a matter of attendance in educational establishments. It is a well-known fact that the people to whom I have referred already, the itinerant people, who might not be sending their children to school, have a very high moral code.

Would the Minister consider notification at the point of the issue of the warrant?

Mr. O'Malley

Naturally, with my usual courtesy, I will consider everything that has been said.

That is what we expect.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill".

I take it that the substitution of " five pounds" for "twenty shillings" and of "ten pounds" for "forty shillings" is to bring this in line with the values in 1967?

Mr. O'Malley

It is not revenue collecting.

Is it punitive?

Mr. O'Malley

It is certainly punitive.

I would imagine that £10 would be very punitive.

Mr. O'Malley

But the person who elects not to send his child to school must be dealt with in this way.

There must be some element, maybe not of revenue collection, but some collection, through a fiscal imposition, if one might call it so in this. Is this to bring it up to date?

Mr. O'Malley

There would be that in it. The other thing is that the value of money has decreased.

That is what I thought.

Surely between 1926 and 1967, 41 years, £5 has gone higher than that?

Mr. O'Malley

Ten pounds is higher.

Is this in line with the values in relation to the years?

Mr. O'Malley

It is.

Question put and agreed to.
Section 5 agreed to.
Title agreed to.
Bill reported with amendments.

Mr. O'Malley

Now.

The Minister is going to consider some points. If the Minister wants it before 4th July, he could have it on Thursday.

Mr. O'Malley

I wanted it the last day. Is Deputy O'Higgins serious in telling me that he is facilitating me?

Mr. O'Malley

I could have got it the last time.

No one was here.

Mr. O'Malley

Deputy L'Estrange was here.

Do not tell me that Deputy L'Estrange is at last accepted as reasonable? The Minister has promised to look into something. There are some things which can be done.

Report Stage ordered for Tuesday, 4th July, 1967.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 21st June, 1967.
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