The Minister for Health to reply to the Second Stage debate.
Children (Care and Protection) Bill, 1985: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time".
I would like to thank Deputies who contributed to the debate on this Bill. I am pleased at the general welcome which it has received from all sides of the House. Quite a number of helpful and constructive comments have been made. I look forward to teasing these out on Committee Stage so that the Bill can be improved and strengthened.
Before I respond to the points made on specific provisions, I would like to deal with a number of general issues which have been raised.
The first and most important of these is the concern which has been expressed about the constitutionality of certain proposals contained in the Bill. The main provisions involved are, firstly, sections 33-40 which enable the courts, in certain circumstances, to place children in the care of or under the supervision of health boards and, secondly, Part V of the Bill which proposes new procedures for granting custody rights to foster parents and other persons who are caring for children on a long term basis.
The doubts which have been expressed about these provisions arise directly from a judgement of the Supreme Court in March 1985 in the case of MC and MC and KC and EC and An Bord Uchtála. The case involved an application by the natural parents of a child for her return from a couple who had hoped to adopt her but who, for reasons that we need not go into here, were not able to do so. The court held that the issue of custody had to be determined in accordance with section 3 of the Guardianship of Infants Act, 1964 and in the light of Articles 41 and 42 of the Constitution.
Section 3 of the Act sets down the general principle to be followed by the courts in determining proceedings as to the custody of children. The part of the section which is relevant here reads:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant... is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
In Article 41 of the Constitution, the State recognises the family as the natural, primary and fundamental unit group of society and guarantees to protect the family in its constitution and authority. In Article 42, the State acknowledges the family as the primary and natural educator of the child. It goes on to provide in Article 42.5 that, and I quote:
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.
In the case before the court, the natural parents and the child, who had been legitimated by her parents' marriage, constituted a family within the meaning of the Constitution. The court held that in that particular case, section 3 of the Act of 1964 had to be constructed as involving a constitutional presumption. This presumption was that the welfare of the child was to be found within her family unless the court was satisfied that there were compelling reasons why this could not be achieved or unless the court was satisfied that it was an exceptional case where the parents had failed to provide education for her and continued to fail to do so for moral or physical reasons.
The Supreme Court remitted the case to the High Court to be determined in accordance with this test. On 25 May 1985, the High Court, applying this new test, ordered that the child be taken from the prospective adopters, with whom she had lived for two and a half years, and returned to the custody of her natural parents.
I am concerned at the possible implications of these decisions for the new care proceedings and custody procedures proposed in the Bill. It has been suggested that the Supreme Court and High Court decisions leave the proposed new provisions open to serious constitutional attack. It does not seem to me that there is an essential difference between the case which was the subject of the recent judgments and the type of cases that are likely to arise under the proposed care and custody proceedings. In the former case, what was at issue was a custody dispute between two couples, both of whom were fit, willing and able to look after the child. In care and custody proceedings, on the other hand, the parents would have to be shown to be unfit, unwilling or incapable of caring for their child. These are fundamentally different situations.
Article 42.5 of the Constitution, which I quoted a moment ago, expressly provides for intervention by the State where parents fail in their duty towards their children. The judgement of the Supreme Court has not altered this in any way. I believe that what the Supreme Court has said, in effect, is that, while there is a constitutional presumption that the welfare of a child is to be found within the family, the courts may decide otherwise where there are compelling reasons why this cannot be achieved or in exceptional cases where the parents have failed in their duty towards their children.
It is for these exceptional cases that we are trying to legislate in this Bill. Section 33 envisages the taking of care proceedings only in exceptional situations where the parents have failed or where there are compelling reasons why the child's welfare is not to be found within his family. I consider that, on careful examination, the section would be found to be in general accord with the Constitution. However, in view of the critical importance of section 33 in the overall context of the Bill and the need to ensure that it is constitutionally sound, I have sought the advice of the Attorney General on the points which have been raised during this debate. In the light of the Attorney General's advice I will take whatever action may be necessary on Committee Stage to remove any doubts that may exist and to ensure that there are no legal barriers in the way of the health boards intervening to protect a child where this becomes necessary.
The second area about which constitutional doubts were raised is Part V of the Bill. This proposes procedures which would enable foster parents and others who have been caring for a child on a long term basis to be granted custody rights in respect of the child. Deputies have suggested that such procedures might be in breach of parents' constitutional right to custody of their children. I would like to draw attention to section 66 of the Bill which states:
A court shall not make a custody order unless it is satisfied that—
(a) every person being a parent or legal guardian of the child consents to the making of the order, or
(b) the parent or legal guardian of the child is not capable of exercising proper guardianship or does not wish to have the care of the child.
It is clear, therefore, that the courts will not be empowered to grant a custody order against the parents' wishes unless the parents are incapable or unwilling to care for the child. This is an important safeguard. It will ensure that parents who are concerned and interested in their children cannot be deprived of the custody of their children. Custody orders will be available only where the parents are unfit, unwilling or unable to look after their children.
What is involved here is an extension of the provisions of the Guardianship of Infants Act which already enable the courts, in certain circumstances, to place children in the care of third parties. However, in the light of the points raised by the Deputies I shall seek further advice on this aspect also from the Attorney General.
I think, in view of the constitutional queries that have been raised, that I should make it absolutely clear to the House that, far from threatening the rights of parents or the integrity of the family, this Bill has quite the contrary intention. The whole thrust of the legislation, indeed its basic philosophy, envisages the child's own family as the setting most conducive to his well-being. In that respect it is far more protective of the family than previous child care legislation. Section 42, for instance, which deals with the promotion of the welfare of children by health boards, emphasises the principle that it is in the best interests of the child to be brought up within his own family.
I would make a point, in strenuous counterpoint to the observations of Deputy Alice Glenn, that she should make a serious effort to read the content and intentions of the Bill, because the enormous prejudice which she has displayed and the assumptions which she has cared to develop do not stand up one bit in relation to this Bill. I regret that I must be so emphatic and reject her serious misconceptions, and I wonder about the source of her advice and guidance in relation to this Bill.
Nevertheless, I should point out to the House that in quite exceptional and precise instances, as I have already indicated, parental rights will have to be circumscribed. These extreme cases would, for instance, include parents who brutalise or neglect their children to the extent that their entire well-being and occasionally their lives may be at stake. Such instances demand laws that guarantee intervention as quickly as possible and ensure effective protection. Provisions of that sort are central to this Bill. In drafting them, as I have indicated, the constraints of the Constitution have been fully respected. However, I would have to say that Articles 41 and 42 do pose problems for those of us who are faced with updating and extending laws touching on children and the family. I have encountered these problems not only in relation to the present Bill but also in connection with the further children legislation, namely that in regard to the amendment of the adoption laws, now being prepared in my Department. It seems that we shall inevitably have to face up to a review of those Articles if we are to continue to make progress in the area of family legislation.
A number of Deputies expressed regret at the fact that the Bill does not deal comprehensively with the reform of our child care legislation. For my part, I would have preferred to have been able to bring in a single Children Bill to deal with all aspects of the law in relation to children. I regret that it has not been possible to do so. In working on the preparation of this Bill over the last two years it has been brought home to me, as never before, just how complex and intractable are the problems that arise in the child care area. To have adhered to the ideal of a single Bill would have meant putting off any improvements in the law until all the issues had been resolved. I do not think anyone with an interest in child care would have thanked us for doing that. The Bill before the House marks a long-overdue start; the start of a process which will lead to the enactment of a comprehensive body of enlightened and up-to-date legislation in relation to children.
I would now like to turn to the queries which were raised in relation to the provisions of specific sections of the Bill. Some Deputies queried the definitions of child and young person. As this Bill stands a child is defined as a person under 15 years of age and a young person is defined as a person between 15 and 17 years of age. The provisions in regard to taking into care apply only to those defined as children. Fundamentally these provisions are concerned with protecting from abuse young children who because of their age and immaturity are entirely dependent and vulnerable. In general, young persons are much less dependent. They do not require, that is those between 15 and 17 years of age, the same degree of protection and, in any event, some of the care provisions would hardly be appropriate to them. In fixing the legal dividing line between children and young persons there has to be — and I readily concede this — a certain degree of judgment. There is no clear boundary line — I certainly hold that view, looking back on my own childhood and adolescence — between childhood and adolescence; children vary enormously in their physical and their emotional development. In preparing this Bill, I decided after much deliberation that 15 years of age might serve as the appropriate dividing line in the context of the measures envisaged because there is no option but to put an age in if the Bill is to stand up in the courts of the land. I did not, however, overlook the fact that there may be some young persons over that age who might still require assistance and support. Health Boards already have a general obligation under the Health Act of 1953 to provide shelter and maintenance for persons requiring it. It seemed that this gives the boards sufficient power to help young persons who clearly need assistance or protection. A board, for instance, could arrange for a young person to be cared for by another family if he required that sort of support, and again, as Deputies have raised a query on this the word "he" in our legislation is referring under definition, to both sexes within the framework of the Bill.
In view of the comments which have been made on this aspect I am prepared, nevertheless, to look again at the age limits and also to consider whether there should not be more specific obligations imposed on health boards in relation to helping and protecting young persons who are at risk.
Regarding the question of prevention, I have been surprised, indeed disappointed, at the suggestions which have been made, both here in the House and outside, that the Bill pays insufficient attention to the question of prevention. It has been claimed that the Bill envisages intervention by health boards only where abuse or neglect has already taken place. Nothing could be further from the truth. In the child care area, as in the health services generally, prevention is infinitely better than any cure and in introducing the Bill, I drew particular attention to section 23 which I described as one of the most important provisions of the Bill. This requires health boards to promote — and I emphasise the word "promote"— the welfare of children in their areas by identifying children who are receiving or are at risk of receiving inadequate care and protection and by providing such advice, guidance, services and facilities as may diminish the need to receive children into care or indeed keep them in care.
This section gives health boards all the authority they need to develop and maintain preventative programmes and services. In fact, it goes further. It imposes a clear statutory duty on them to do so. In drafting the Bill no attempt has been made to try to spell out what services might be provided under this section. This was done deliberately so as to give health boards the maximum flexibility in responding to the needs of their areas and to ensure that there would be no obstacle to the development of new services to cater for needs which might emerge in the future. However, it is my intention that the section will be used to provide a comprehensive range of family support services including home helps and home makers, family therapy, child psychology, developmental work with pre-school and emotionally disturbed children, neighbourhood resource centres, day care and day fostering, specialised projects for difficult or disturbed young children.
It is my intention that the membership of child care advisory committees, which are provided for in section 57, will include representatives of voluntary organisations providing child care services, together with groups and individuals having a special interest or expertise in relation to children's issues. It has been suggested that there is a need to spell out now how the membership of the committees will be selected. I will certainly take another look at this before Committee Stage in order to ensure that the committees have a balanced membership and are in a position to comment authoritively on the delivery of child care services at local level.
Arising out of the establishment of child care advisory committees at health board level, there have been calls for the setting up of a national children's council. Among the many submissions which I have received is a document from the Labour Party's social services group. This proposes that a national child care advisory committee should be set up to complement the work of the local child care advisory committees. I would state that in principle I have no objection to having an advisory body such as the national children's council. I have, however, some doubts as to the need for it at present. As the House will be aware in recent years a number of important reports, notably the Task Force on Child Care Services and the Review Body on Adoption, have provided a thorough investigation of our child care needs and suggested many measures for meeting them.
In addition I have received many helpful representations from various bodies in the child care field and have always been readily available to meet them. I can say that, generally speaking, my Department and I are quite clear about where we would like to go in relation to the further improvement of the children's services. The dilemma is one of getting sufficient resources to bring about all the desirable changes. The establishment of a national children's council is unlikely to advance change in the immediate future and, indeed, the operational expenses of the council would be likely to absorb resources which could be put to much better use in the immediate future in the provision of day care centres or some such service.
As I say I am not against establishing a council and I am prepared to consider the various views which have been put forward in support of the idea. I might add that I already have power under existing health legislation to appoint consultative bodies. I have used this power, for instance, in regard to the appointment of the National Council for the Aged.
There has been some criticism of the fact that most of the court proceedings provided for in the Bill will be heard in the District Court. Deputies have suggested that cases in relation to the care and custody of children would be more appropriate to family courts.
There have been growing demands in recent years for the establishment of a system of family courts to deal with all aspects of family law. It has been suggested that judges dealing with family law should have special training, that the courts should be able to provide counselling and conciliation services and that court procedures should be more informal.
For my own part, I have to say that I see considerable merit in the idea of courts dealing exclusively with family matters. However, the question of family courts raises constitutional, social and economic issues which go far beyond the scope of this Bill.
The Law Reform Commission in its First Programme of Law Reform, set itself the task of considering "the question of the best type of judicial or court structure or structures appropriate to deal with the different matters which fall under the general heading of family law." The commission have not yet undertaken such an examination. While I accept that this is an important issue, I would not have been happy to delay this Bill until a system of family courts had been set in place. There is nothing to prevent the jurisdiction vested in the District Court in relation to the care, protection and custody of children being transferred to a family court system, if and when this is established.
Deputies have queried the absence from the Bill of any references to under-age drinking or smoking by children. I would like to deal with these points now. The phenomenon of under-age drinking and all that goes with it — crime and vandalism, teenage pregnancies, impaired performance at school or at work — are matters of deep concern to all of us. In preparing the Bill I considered the possibility of including provisions to tackle under-age drinking and to tighten up controls on the sale of intoxicating drink to young people. However, following consultations which I had with the Minister for Justice it was decided that it would be more appropriate to deal with these matters in the context of a review of the licensing laws generally. The House will be aware that the Joint Committee on Legislation are considering this whole area at present and the need for changes in the law in relation to under-age drinking will be reviewed in the light of the committee's report.
The Children Act, 1908, imposes certain restrictions on the sale of cigarettes to children. Except in certain limited circumstances, it is an offence to sell cigarettes to children under 16 years. There is evidence that these provisions are not being complied with and, in any event, the penalties have not kept pace with changing money values.
It is my intention to update and extend the controls on the sale of cigarettes to children in a Bill which I expect to circulate within the next few weeks. The Bill will also provide for stricter controls on cigarette advertising and sponsorship and for the designation of non-smoking areas.
Before I conclude, I would like to say a few words about an aspect of child abuse which has attracted a large amount of publicity in recent times. I refer to sexual abuse of children.
Sexual abuse of children is, and always has been, a very serious criminal offence. The criminal law provides that any person, be he a parent, relative or stranger, who has unlawful carnal knowledge of a girl under the age of 15 years may be liable on conviction to penal servitude for life. In the case of an indecent assault upon a female of any age, the penalty is imprisonment for up to ten years.
Despite these severe penalties, it has to be said that the criminal justice system tends to move slowly. It takes time for the Garda to investigate complaints or allegations, to take statements, assemble the evidence and, in appropriate cases, seek a direction from the Director of Public Prosecutions before a case can go before the courts. In suspected cases of child sexual abuse it is vitally important that the child be protected from the first moment that suspicions are aroused.
For the first time in Irish child care legislation sexual abuse is expressly mentioned in this Bill as a ground on which a health board may obtain a place of safety order. Such an order authorises a health board or, if necessary, the Garda to remove the child to a place of safety — for example, a hospital, children's home or foster home. If the child is already in hospital, the order authorises the board to keep her there. In either case the child may be kept for up to 14 days pending the bringing of proceedings by the health board to have her placed in care.
The Bill also provides that, in cases of emergency, a member of the Garda may without warrant remove a child to a place of safety if she has been, or is at risk of being abused whether physically or sexually. In such cases the child will be handed over to the health board so that it can consider the need to initiate care proceedings.
The aim of all this is to remove the child from the source of danger as quickly as possible, both in order to protect the child from further abuse and to ensure that she receives medical treatment, help and support.
When the health board satisfy the court that the child has been sexually abused, the court may make a care order in respect of her. This order places the child under the care of the health board and the child may remain in that care until she is 18 years or until the home situation has improved to such an extent that she can be safely reunited with her family.
The proposals in the Bill will go a long way towards strengthening the hands of the Garda and the health boards in relation to the sexual abuse of children. However, much more needs to be done. The immediate need is for reliable information on the incidence of child sexual abuse.
Some time ago, I approved a grant of £25,000 to enable a group established by the Irish Council for Civil Liberties to survey the extent of child sexual abuse in Ireland. They are currently completing their deliberations and hope to report in the coming months.
More recently, at my request, some of my officials have been examining the work of agencies which are involved in the area of child counselling and sexual abuse. My advisers will report to me on how the work of the agencies can be co-ordinated to ensure that the available resources are used with maximum effectiveness.
In January 1985, I made available additional staff and resources to launch the sexual assault treatment unit at the Rotunda Hospital. This unit undertakes forensic examination of victims, including children, and provides essential medical treatment. The existence of this facility has already encouraged more and more victims of sexual abuse to come forward for help. This is also helping to establish the extent of the problem within our society.
I have provided financial assistance for the establishment of the incest crisis service which supports victims and their families by providing a counselling and treatment service. Additional funding was also given to the Rape Crisis Centre last year to enable them to extend their counselling services.
Unfortunately, there are no short term solutions to the problem of child sexual abuse. Abuse of this sort tends to be deeply hidden behind a heavy cloak of family secrecy. In the past the victims, and others who became aware of the problem or suspected that it was taking place, frequently looked the other way or did not know what to do. More enlightened attitudes have resulted in a greater willingness to acknowledge the existence of the problem and to tackle it at its roots. In the long term, greater public awareness and understanding offers the best hope for the eradication of this evil in our midst.
In conclusion, I should like to repeat that I shall be looking again, before Committee Stage, to further representations on the Bill. I shall also be considering technical changes in the present draft arising out of the many suggestions made to me by practitioners in the field, including legal personnel.
I should like to assure Deputies that while the health boards, and their staff, will have their responsibilities and legal powers extended under the Bill there is nothing in the legislation which will diminish the role of the voluntary bodies and the various religious organisations who do such outstanding work in the child care area. We are very much dependent on them in the Department of Health and we will continue to be. On many occasions I have commended the contribution of the religious communities in the area of residential care. I am happy that they have been in the forefront of innovation. I will be happy to have them looking after our deprived children as long as they are in a position to do so and also to have the other voluntary organisations who do excellent work involved.
The Government are committed to devoting an increasing share of available resources to the child care services in the years ahead. It may surprise many Deputies to learn that last year I set aside £14 million for expenditure in the child care services under the aegis of the Department of Health. That represented an increase of £1 million on the 1984 outturn for such services. I also allocated a sum in excess of £400,000 for entirely new developments in the child care area and that has enabled health boards to support more day care services for children, to improve cash payments for foster parents and to develop after-care services to assist young children who have been in care or to make an easier transition back to an independent life.
I should like to thank Deputies for their contributions to the Second Stage debate. I would welcome further observations from Members in writing and I look forward to the Government considering amendments to the Bill. I should like to thank Deputy O'Hanlon, the Opposition spokesperson, for his exceptional co-operation in ensuring a speedy passage of the Second Stage debate.
Question put and agreed to.
When is it proposed to take Committee Stage?
Next Tuesday, subject to agreement between the Whips.
Committee Stage ordered for Tuesday, 28 January 1986.