This Bill is one of the most important to come before the House in recent times and has its origins in pressure groups such as the Council of Civil Liberties, Children First, Cherish and social workers' groups, very many of whom were opposed to the pro-life amendment, support contraceptives, divorce, sex education and multi-denominational schools. For years they have been proclaiming that the child care laws are out of date and that our adoption laws and administration need to be reviewed in unspecified areas. They have never indicated which areas need to be reviewed.
Since these people had something to do with the formation of the Bill it is necessary to know something about them. In Response, Volume 4, No. 2, a document brought out by The Responsible Society, Family and Youth Concern, 24 Upper Fitzwilliam Street, Dublin, a paragraph dealing with an information pack on child sexual abuse says that on 3 November 1984 Deputy Barry Desmond gave a grant of £25,000 to the Irish Council of Civil Liberties to conduct a study into the sexual abuse of children. They are regarded as a left wing pressure group, a most unusual body to have received an official grant for a study of this nature. At the launch of the study an information pack was promised for the use of teachers, parents, social workers, etc. It has now been printed and an expensive glossy folder produced with public money has been distributed free. It consists of 14 advice sheets but the information is mostly culled from abroad. It is filled with subjective experiences and figures for the incidence of incest and child abuse relate to other countries, not to Ireland.
The whole exercise seems to be an expensive promotion of the Irish Council of Civil Liberties. The document goes on to say that the ICCL executive committee includes homosexual campaigner, David Norris. The sub-committee investigating sexual abuse of children consists of people who organised demonstrations in favour of abortion, including Ann O'Donnell of the Rape Crisis Centre and Dr. Marie Woods of the Wellwoman Centre.
In the Irish Independent of Wednesday, 26 January 1977 there was an article calling for the end of inalienable rights for parents written by Kadar Asmal. It is stretching credibility to think that Irish parents should be expected to accept the recommendations of these kind of groups who cast a slur on them. There is a concerted campaign in the media at present aimed at influencing the people who will have to vote in a referendum if this Bill is to become law.
I watched a women's programme recently and they gave four different examples of how children had been abused in their homes. I can remember three of the examples given. Children were abused by a young babysitter in one instance, the other example was that of a mature adult who had been abused in her youth by an uncle, but none of them was abused by the natural father. That is a point worth nothing.
Having set out the reasons why I object to certain recommendations in this Bill, I will now outline in detail the aspects I find unacceptable. The thrust of the Bill is to allow the State greater power to interfere in the family and greater control over the education, upbringing and destiny of our children, overriding the constitutional rights of the parents. To effect this, it seeks to establish rights for the child independently of the parents. The child, being a minor, cannot speak on its own behalf; so its rights must be asserted by a third party, the State. The State can then move in on the family through its officials and direct parents about their children's upbringing, or even take the children into care.
State control of this kind operates in Great Britain and elsewhere, often in an arbitrary fashion, and always with disastrous results. The civilised world was shocked recently when it watched the fate meted out to Mrs. Gillick when she went through due process of law from bottom to the very top — the House of Lords — in an effort to protect not only her children, as she said in an interview, but all the children of Great Britain from the abuses to which they are being subjected. We all know she failed. Do we really want to introduce that type of situation for the parents of Ireland, because I believe that is what this Bill will do?
State intervention on this scale is prohibited in this country by Article 41 of the Constitution, which declares the rights of the family and of parents to control the education and upbringing of their children. State interference is limited by Article 42.5 to exceptional cases where the parents, for physical or moral reasons, fail in their duty towards their children. In such cases "the State as guardian of the common good, by appropriate means, shall endeavour to supply the place of the parents". The State, however, does not possess the full constitutional rights of the parents but only such rights as are necessary for the child's welfare. "In exercising the jurisdiction to control or to ignore parental right the court must act cautiously, not as if it were a private person acting with regard to his own child"— that was the judgment handed down in the Supreme Court in the Kindersley case in 1944, and it was a very important judgment.
It was therefore alarming to read an announcement in The Irish Times on Thursday, 20 May 1985 that the Government have agreed to hold a referendum to change the Constitution, if it were necessary, to implement the Children (Care and Protection) Bill. This is very ominous because it means that there has been a deliberate decision to take away, under this Bill, some constitutional rights of the parents and to extend State control over our children. The explanatory memorandum circulated with the Bill does not identify in any way the particular provisions which are in breach of the Constitution. Of course, it is altogether improper to promote a Bill which is considered to be in breach of the Constitution, all the more so when the existence of the unconstitutional provisions in the Bill were not revealed to this House. This Bill could be passed off as an innocuous measure, containing only good provisions, which needed constitutional amendment to ensure that it could not be challenged. The constitutional referendum could then be cunningly drafted and we could find ourselves in a very serious position.
The grounds on which a health board can interfere in a child's upbringing are set out in section 33. They are extended to include notably the grounds of the child receiving inadequate care such as to impair substantially the child's proper development. This is a sweeping provision which could allow the health board, through their social workers, to interfere in families on a multitude of pretexts. Interference would focus particularly on poor families who, under anti-family legislation, have been impoverished to the point where they cannot buy adequate food and clothing for their children let alone provide facilities which a middle class social worker might consider essential for the proper development of children. Arbitrary action by the health board through the social workers in such a case could be the subject of a constitutional challenge. We are all aware that many a well off and much loved child sits on a poor mother's knee. If those criteria were applied, social workers could say a home was inadequate because it did not have wall to wall carpets.
The machinery for State control, other than emergency "place of safety" provisions, is set out in sections 34 to 40. A health board, having reasonable grounds for believing that a child is not receiving adequate care or that a child is suffering assault, ill-treatment, abuse, neglect and so on, may apply to a District Court for a supervision or care order. It is satisfactory at least that the State interference in the family should not be allowed except with a court hearing and decision, although an in camera hearing for these cases makes the check less effective. Even when the court allows State interference there should be safeguards — they are conspicuously lacking in this Bill — against harmful or objectionable action by the State when it gets control of the child.
I will now deal with court orders, supervision orders and care orders under section 35. On the application of a health board the District Court can make a supervision order, which leaves a child at home; or a care order, which takes a child from its parents or guardians into the control of a health board. A child subject to a supervision order may be required to attend at a specified place for such assessment, education, training or medical attention as would, in the opinion of the court, facilitate its proper development.
This unfettered discretion could be very dangerous, as has been proved by examples already cited from Great Britain. Education, training and medical attention are fields in which not only reasonable divergencies of opinion exist, but serious moral issues on which no agreement is possible will arise. A possible example would require a child to attend education which included sex education of a kind unacceptable to its religion or objected to by its parents. There is no safeguard against this. Medical attention could involve the administration of sedatives or other drugs and devices which would not be in accordance with the wishes of the parents. There must be safeguards against such plenary power over the child by the State.
I now turn to religious safeguards. A very necessary safeguard is to provide that any requirement under a supervision order shall not be valid if it would involve any assessment, education, training or medical attention which is contrary to the teaching of the child's religions, or which takes place under conditions which are unacceptable to the authorities of the child's religion, or if it is contrary to the reasonable wishes of the parents.
Another very necessary safeguard is the Catholic Church, to which almost 95 per cent of the children likely to need health board care belong. It is the only body with sufficient resources to protect poor families against the arbitrary exercise of State power and it should be given a clear entitlement to do so. The reasonable objections of parents could be overridden by the courts. One may ask if there was any consultation with the authorities of the Catholic Church during the preparation of this Bill, or are we witnessing another arrogant example of the civil authority crashing like a mindless juggernaut through the delicate fabric of family life? Having regard to the people responsible for providing much of what has gone into this Bill, it is very unlikely that the Catholic Church has been consulted good, bad or indifferent about the effects of the Bill on children.
In section 36 (4) it is stated that the care order may include conditions regarding access by or consultation with a parent or guardian on matters relating to the child. A part from this there is nothing in the section to control or limit the health board in their dealings with the child by reference to the wishes of the parents or by reference to the protection of the child's religion. Even where a child comes into care in a health board there should be some safeguard for the child's religion, faith and morals and also provision for the role of the parents and family to continue to have the safeguards overseen.
There are two classes of children in care, those committed to care by court order and children in voluntary care. Paragraph 14 of the explanatory memorandum to the Bill states that at present the health board can receive children into voluntary care only if the parents are dead or have abandoned them or if the parents are destitute. Section 25 extends this to cover situations in which parents may need to place their children in voluntary care through illness, psychiatric problems or other difficulties.
It is acceptable that parents should be allowed to place children in voluntary care for short or long periods if it is not possible for them to care for the children themselves. However, there is a distinction between children in voluntary care and those committed by court order. A child in voluntary care could always be taken back by the parents on request. Section 49 (2) allows the health board to hold the child and to apply to court for a place of safety order if the child is believed to be at risk of any of the circumstances that would allow a care order to be made. These include the very dubious ground of "inadequate care such as to impair substantially the child's proper development". We have already dealt with what that could mean. It is also possible for a health board to delay the return of a child for up to 14 days if the child has been in voluntary care for six months. Presumably this delay is intended to give the health board an opportunity of applying to the District Court for a care order to commit the child to retention in care. Otherwise there would be no point in the delay of 14 days which is envisaged in the Bill.
One must feel uneasy at the possibility of parents who have left a child in voluntary care as a temporary measure finding that they cannot get the child back when they request it. The situation could develop where parents would be refused the return of their child, for example, if he were being fostered in a family that could provide better facilities for his "proper development" than the parents could provide. This dilemma is explicit whenever a child is placed elsewhere than with his parents.
The principle must be that a child cannot be separated from his parents except for a serious fault on the part of the parents. Otherwise any family could be broken up if bettering the child's prospects of development were to be the criterion — this was hinted at in the Seanad debate on adoption on 30 June 1982. While paragraph 21 of the explanatory memorandum states only that release of the child will be delayed pending application for a place of safety order, section 49 would go further.
I insist on the Government making it clear in what circumstances, other than where a child is at risk of neglect, ill-treatment or abuse, that a place of safety order must be made. A health board will be empowered to retain in care a child who has been in voluntary care and whose parents or guardians have requested his return. Perhaps this is one of the provisions on which a referendum is required.
At present the courts commit children into residential care. Subsequently the health boards may arrange fosterage for these children and also for children in voluntary care but with the provision that only children who are orphaned or deserted or whose parents are destitute may be placed in fosterage, and that the consent of the child's parents must be obtained if they are available.
Under sections 43 and 44 any child in the care of a health board, including those in voluntary care, may be placed in fosterage and the health board shall not place a child in residential care unless the necessary care of the child cannot be provided except by residential care. It would appear the consent of the parents is no longer to be required. This is very serious.
Pressure groups and a good deal of other opinion is strongly in favour of foster care for children as providing family life and they condemn institutional care as essentially bad for a child. I suggest that the alternatives are not just as black and white as that and many children could be happier in a modern children's home than in fosterage. Much depends on the child and on the kind of home life provided by the foster parents. A family of brothers and sisters might be better off in a children's home than if they were scattered among different foster parents. Cases of children unhappy in fosterage when separated from their siblings have been reported in England since this law was introduced there.
The Bill does not appear to contain any provision to safeguard the religion of children taken into care other than section 63 (3) which applies to custody cases only and also section 15 (7). The need for such a provision arises in an acute form in connection with fosterage. Prior to March 1983 children could be placed in fosterage only with foster parents of the same religion. In March 1983 the Minister amended the statutory regulations to allow children to be placed in the foster care of persons of other religions provided the child's parent or parents gave consent and to allow orphans or deserted children to be placed with foster parents of another religion provided that the foster parents undertook to bring the child up in its own religion. Non-Catholics cannot bring up a Catholic child in the fullness of a faith they have not got themselves. At present, when so many denominations of Protestants are in vociferous disagreement with practically every item of the Catholic moral code, it would be putting the faith and morals of a Catholic child in certain peril to place him in charge of any person other than a Catholic.
Therefore, it is essential to make specific statutory provision that children be placed in foster care only with foster parents of the same religion.
It would be advisable also to specify, as in section 13 of the Adoption Act, 1952, that the health board must be satisfied that each of the foster parents is of good moral character and is a suitable person to have parental rights and duties in respect of the child. At a time when we are being encouraged to take on alternative lifestyles it is imperative that these issues be written into any Bill dealing with the welfare of our children.
A similar provision should be made to ensure that children's homes are also satisfactory as regards the religious formation of the child, a provision that a child shall not be placed in any place of residential care unless such place is under the control and management of the Church to which the child belongs, or is approved by the authorities of the Church to which the child belongs is absolutely necessary.
In a Bill which introduces the concept of a child's proper development it is amazing that there is no provision to safeguard the child's formation in his religion, which is of the most importance in the development of any individual.
There is provision in the Bill prohibiting changing the religion of a child but this applies only where a custody order is made by the District Court vesting legal custody of a child in a person with whom the child has had his home, for a period of 12 months if parents or guardians consent to the order or for a period of three years in any other case. A parent or legal guardian who has been missing for 12 months and who cannot be found or who is incapable of giving consent by reason of mental infirmity is deemed to have given consent.
Section 63(3) prohibits a person granted legal custody of a child from changing the child's religion or arranging for the child's emigration, a legal custodian can, however, authorise medical treatment for the child, as provided in section 9. Medical treatment may involve moral issues. It is, therefore, essential that a child should not be given into the custody of anyone of a different religious persuasion. The prohibition against changing a child's religion does not guarantee that a child will be openly brought up in his own religion and never taught to do anything or subjected to any influence or treatment contrary to the teaching of the religion to which he belongs. There should be strict specific provision for this. A health board taking a child from his parents into care are bound to accept responsibility for the religious and moral education of the child under Article 42 of the Constitution, as well as for his intellectual, physical and social education, also referred to in Article 42.
There must be provision to ensure the proper religious and moral upbringing and formation of the child according to the teaching of the religion to which he belongs. In any law which transfers the care of a child to the State, with the responsibility of supplying the place of the child's parents, Article 42 of the constitution is specific in terms of this protection.
Section 15 provides for the registration of children's homes by health boards and for the making of regulations by the Minister for Health governing the design, maintenance, repair, ventilation, heating and lighting of the homes, the kind of accommodation, including washing and plumbing, the food and staffing, in fact most detailed control of the homes. There is a saver in subsection (6) that no requirement contrary to the religious beliefs of a religious body or organisation running a children's home can be imposed. All aspects of the care of the child are dealt with in detail, except that all important aspect of his religious background and formation.
Section 16 prohibits a children's home from receiving any child, save in emergency, except with the approval of a health board. This is in pursuance, presumably, of the policy of placing children in foster care rather than in a home. The health board will decide which is appropriate. It will be an offence with a penalty of £500 to receive or retain a child without the approval of a health board.
This is rather highhanded and could involve overruling the reasonable wishes of parents to place a child or children in a home for voluntary care, rather than in fosterage. The Bill does not provide any appeal to the District Court in case of dispute but a constitutional case could possibly be taken by a parent whose wishes were overruled.
Is it not most inconsistent to reject institutional care for children while we are talking about providing day care for the children of mothers who are being forced in greater numbers out of their homes in order to provide for their children? What is the difference between day care and institutional care? Day care represents the State providing for institutional care for a child during the greater part of his waking hours.
Paragraph 13 of the explanatory memorandum is to the effect that section 24 will enable day care services to be provided by the health boards for persons with special needs, for example, single parents and travellers. However, the section contains no such limitation.
It is necessary, too, to consider the extent of the problem because this is very much exaggerated and would be much less if the State was not co-operating in setting up alternative lifestyles. Of the children born to unmarried mothers, 40 per cent go into long term care.
In paragraph 5 of the explanatory memorandum it is stated that about 3,700 children spend time in care each year and that in 1984 the figure was 3,724. The number of children who are in long term care as a result of marital breakdown is small. Most of these are put into short term care while the problems are sorted out. The figures indicate that 50 per cent or more of those children return to their families when the parent's differences are resolved one way or another.
I am gravely concerned about the impact this Bill will have on society. What I find alarming is that, having listened during a long period to many of my colleagues speaking on the Bill, none of them seems to see any danger in it. That is very unfortunate.
Government intrusion into the family seems to be spreading with the notion that only the State can solve the human problems in the areas of health, education and welfare. Without the benefit of any consensus from the electorate, an unwritten family policy seems to be emerging. The Minister for Health seems to be intent on building up layer upon layer of legislation which would mean that the State, rather than the family, would have the primary responsibility to define and satisfy the full range of human needs. The State's response is always therapeutic. It never tries to identify and treat the causes of the problem. This Bill, together with the proposed changes in the adoption laws and the Status of Children Bill, is a classic example of the trend that has been emerging for some time. Some weeks ago in an article in one of the national newspapers, a senior civil servant was quoted as having described the proposed changes as a veritable minefield. I agree totally with that view.
One of the thorniest issues regarding child abuse and neglect is the difficulty of the definition. The goal is to strike a balance between protecting the rights of the parents and the integrity of the family while at the same time maintaining the legitimate interest of the State in the lives and limbs of defenceless children. The Government would do well to remove the obstacles to the growth and development of the family, namely, excessive taxation and misdirected Government spending. There is an awareness of the need to protect and defend the primacy of the family which it enjoys under Article 41 and Article 42 of our Constitution. There is an awareness among the electorate which was reflected in the results of the recent local elections, and I agree with Deputy John Kelly when he said yesterday that the people of this nation do not want the socialist policies in which we have been engaging for far too long. I look forward to the referendum on this Bill and it is my earnest hope that by the time it comes about there will be no family in Ireland left in any doubt as to the adverse effects of some of the sections in this Bill.
