Child Care Bill, 1988: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to update and strengthen the law in relation to the care of children, particularly children who are being assaulted, ill-treated, seriously neglected or sexually abused or who are at risk. It replaces the Children (Care and Protection) Bill, 1985, which was at Committee Stage here when the 24th Dáil was dissolved. That Bill ran into difficulties when a Supreme Court judgment in a case known asKC and AC v. An Bord Uchtála, cast serious doubts over the constitutionality of two of its key elements; first, proposals to make it easier for children to be placed in health board care and, secondly, provisions which would have enabled the courts to grant custody rights to foster parents.

Apart from these constitutional problems, a large number of changes in the details of the Bill were sought by Deputies, health boards and other interested parties. All of these factors taken together would have involved extensive revision of the Bill requiring as many as 150 amendments.

When this Government came into office we carefully considered the position with regard to the 1985 Bill. We reached the conclusion that it would be more expeditious to allow it to lapse and to bring forward an entirely new Bill, drafted in the light of the latest judicial interpretations of the Constitution and the many representations made by child care interests. The Bill now before the House has been prepared on this basis.

The main provisions of this Bill are as follows: (i) the placing of a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection; (ii) strengthening of the powers of health boards to provide child care and family support services; (iii) improved procedure to facilitate immediate intervention by health boards and the Garda where children are in serious danger; (iv) revised provisions to enable the courts to place children who have been assaulted, ill-treated, seriously neglected or sexually abused or who are at risk, in the care of or under the supervision of health boards; (v) introduction of arrangements for the inspection and supervision of pre-school services and (vi) revised provisions in relation to the inspection and approval of residential centres for children.

The existing legislation in relation to the care of children is based largely on the Children Act of 1908. That Act was the culmination of a series of legislative measures taken during the 19th and early 20th centuries aimed at protecting children from cruelty and exploitation. It has served us well and many of its provisions are still in use today.

While the legislation may not have changed significantly, there have been sweeping changes in society in the intervening period. The political and administrative structures have changed; new values and attitudes have evolved; there is a more sensitive understanding of the psychology and needs of children. In particular, there is a greater awareness now of the rights of the child himself or herself as an individual member of society.

We live in a more enlightened society which has brought great benefits to most of our children but, regrettably, there is a darker side to the picture. There continue to be unhappy and deprived children in our community. At any time about 2,500 children are in the care of health boards. Many are in care because their parents are unable to look after them, whether due to physical or mental illness, alcoholism, marital breakdown or other family crises. Most are reunited with their families after a few weeks or months; unfortunately others remain in care for years.

There is another group of children who come into care in much more dramatic and traumatic circumstances. They are the victims of child abuse, whether it be physical, emotional or sexual. In 1986, the total number of confirmed cases of all sorts of child abuse known to the health boards was 494. This represented an increase of 62 per cent on the 1985 figure of 304. In the case of child sexual abuse, the number of confirmed cases rose from 133 in 1985 to 274 in 1986, an increase of over 100 per cent in one year alone. My Department have not yet completed the collection from health boards of statistics in respect of 1987 but, on the basis on the returns that have been made to date, all the indications are that the total number of reported and of confirmed cases in 1987, particularly of child sexual abuse, will show a substantial increase on 1986. I do not wish to be alarmist but this trend clearly illustrates the need for up-to-date and effective legislation to protect children who are at risk in the community. That is the primary objective of this Bill.

Since coming to office, I have become increasingly concerned at the rise in the number of cases of alleged child abuse being reported to health boards. In July last, my Department published a new set of child abuse guidelines. They set out, in considerable detail, recommended procedures for the reporting, recording, investigation and management of suspected cases of child abuse, including sexual abuse. These new guidelines have been welcomed by the various interest groups. They are designed to ensure a systematic and sensitive approach to caring for the victims of abuse. The problem of child abuse requires an effective and coherent multi-disciplinary response from our health and social services and this is emphasised and underlined through the guidelines.

The assessment of alleged child sexual abuse involves an investigation by a multi-disciplinary term in each health board area, with support from specialist services, including child psychiatric, paediatric and gynaecology services as appropriate. There is a real need to increase the range of services available for sexually abused children and I have already allocated special funds to enable services at Temple Street and Crumlin Children's Hospitals to be significantly expanded. There is, of course, a need also to improve services outside the Dublin area and I have therefore, allocated special funds of £450,000 from my Department's share of the national lottery surplus to the health boards outside of Dublin to enable them to improve their capacity for the assessment and investigation of alleged cases of child abuse including child sexual abuse. These improved services throughout the country will strengthen the ability of the health boards to discharge their duties under this Bill.

While the State and its agencies must have the power and resources to protect those children whose health or well-being is in jeopardy, it is equally important to protect children and families from unwarranted or excessive interference. I would see children being taken into care against the wishes of their parents only in exceptional cases where, for example, they have been ill-treated or sexually abused or where there are compelling reasons why their welfare demands that they be removed from their family. The Bill has been drafted on this basis and I wish to emphasise that it poses no threat to family life generally or to the vast majority of parents who are doing an excellent job, sometimes under difficult circumstances, to rear and care for their children.

I now wish to turn to the detailed provisions of the Bill.

Section 1 provides that the Bill is to be known as the Child Care Act and empowers me to bring the various provisions into effect by order. While it is my intention that the Bill, when enacted, should be brought into operation as quickly as possible, it may be necessary to phase in certain provisions so as to allow time, for example, for social workers and other staff to be briefed on the new legal procedures and for the setting up of inspection mechanisms for pre-school services.

Section 2 defines various terms used in the Bill of which the most important is the definition of "child". At present, the Children Act, 1908, as amended, defines a child as a person under 15 years and defines a young person as a person between 15 and 17 years. In general, children but not young persons may be the subject of proceedings for Fit Persons Orders. This means, in effect, that a person over 15 years may not be placed in health board care regardless of how desirable this might be in his interests. During the debate on the 1985 Bill a number of Deputies and other interested parties drew attention to this and sought an increase in the age up to which children may be taken into care. They pointed to a small but growing number of older children who would benefit from being in care but cannot be admitted under the present law. I accept that there may be older children who may need to be placed in care and propose to achieve it by defining "child" for the purposes of this Bill as a person under 18 years. The main effect of this will be to raise to 18 years the age up to which health boards will be responsible for children and the age up to which children may be admitted to care.

Part II, that is sections 3 to 9, contain a number of provisions aimed at promoting the welfare of children, preventing family breakdown and avoiding the need to have to take children into care on a compulsory basis.

Section 3 places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection and also gives them new and expanded powers to provide child care and family support services. This is one of the most important provisions of the Bill. It imposes a clear obligation on health boards to promote the welfare of children. It will enable them to provide child care and family support services so as to assist parents in caring for their children and to prevent children having to be placed in care. I am confident that the imaginative use of this power by health boards and their professional staffs will result in the development and expansion of community based services and facilities for children and families. These may include more intensive social work support for families at risk, new counselling and advice services, pre-school services, home help and home maker services, child guidance, day fostering, family resource centres and special projects for the young homeless and other "at risk" groups.

In implementing this provision, health boards will be required to have regard to the principle that is generally in the best interests of a child to be brought up in his own family. Thus the emphasis is on providing support and assistance so that children can remain at home; only in exceptional cases are children to be taken into care.

Section 4 extends the powers which health boards have under the Health Act, 1953, to receive children into care on a voluntary basis. At present, about 80 per cent of the children in care are there on this basis rather than under court orders. While there has been a slight increase in recent years in the proportion of children entering care through the courts, I expect that the bulk of admissions will continue to be on a voluntary basis. The new section will enable health boards to receive into care, without reference to the courts, orphans and abandoned children and, with the consent of the parents, children whose parents are unable to care for them due, for example, to serious illness, sudden bereavement, marital breakdown or other family crisis.

Voluntary bodies and religious communities have played an important part in the development of our child care services particularly in the provision of residential facilities. I wish to acknowledge the excellent work which they have done over the years and continue to do today for the most disadvantaged children in the nation. There are a number of sections in the Bill which recognise their expertise and commitment and seek to ensure that it continues in the future. It is proposed in section 5 to establish one or more child care advisory committees in each health board area to advise the board in the performance of its functions under the Bill. The committees will be composed of persons with a special interest or expertise in child care and will include representatives of voluntary bodies providing child care services. I see this as a very useful provision which will ensure that the voluntary sector has a say in the planning and development of our child care services. I hope that it will also lead to greater co-operation and co-ordination in the delivery of services.

Section 7 enables health boards to make arrangements with voluntary bodies to provide child care and family support services on their behalf. Section 8 empowers health boards to grant-aid voluntary bodies providing child care and family support services. Section 9 enables the Minister and health board to sponsor or carry out research in the area of child care.

Part III (sections 10-13) deals with the protection of children in emergencies. It replaces the "place of safety" provisions of the Children Act, 1908. Since the Garda are often the first to come across cases of child abuse and neglect, section 10 provides that in an emergency a Garda would be empowered, without warrant, to remove to a hospital, a children's home or other safe place a child who had been assaulted, ill-treated, neglected or sexually abused, where there is an immediate and serious risk to his health and well being. The child could be kept there for a maximum of 24 hours pending the making of an application for an emergency care order. Section 11 empowers a district justice to make an order to be known as an emergency care order which would authorise the removal of a child from his home and his placement in the care of a health board for up to eight days where there was an immediate and serious risk to his safety. An important new element is the time limit of eight days; under the present place of safety order no specific period is defined. This new element has been inserted to help to ensure that parents are not unnecessarily or unfairly deprived of custody of their children for indefinite periods and to give them an early opportunity to state their side of the case to the court. The relatively short time span may create some initial difficulties for health boards who will have to be ready to proceed with an application for a care order or a supervision order within eight days. However, I believe that with experience any such difficulties can be quickly overcome.

Part IV, sections 14 to 24, deals with care proceedings and is one of the most important parts of the Bill. It sets out the circumstances in which the courts may place children who have been assaulted, ill-treated, seriously neglected or sexually abused or who are at risk, in the care of or under the supervision of health boards.

The House will recall that it was the corresponding part of the 1985 Bill that ran into serious constitutional difficulties. In preparing this Bill, I have paid careful attention to the relevant provisions of the Constitution and to recent pronouncements of the Supreme Court. I have also obtained the advice of the Attorney General to ensure in so far as it is possible to do so that the provisions in relation to taking children into care are constitutionally sound. What is now proposed is firmly based on Article 42.5 of the Constitution which I would like to quote in full. It states:

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.

It is clear from this that the Constitution not only permits the State to intervene where children are not being cared for properly but indeed obliges the State to do so. I am confident, therefore, that the following provisions, which are central to the Bill would, if challenged, be found to be in conformity with the Constitution.

Section 14 imposes a statutory duty on a health board to apply for a care order or a supervision order, as appropriate, whenever it appears that a child requires care or protection that he is unlikely to receive unless such an order is made. At present, health boards are not under any obligation to initiate court proceedings to take children into care and some doubts have been expressed about their legal authority to do so. This section will eliminate any such doubts by imposing a firm statutory duty on health boards to initiate care proceedings where this is necessary.

Section 15 provides for the making of a care order. It replaces the Fit Person Order provided for in the 1908 Act. A care order would, in effect, suspend the parents' right to custody of the child and place him in the custody of the health board. A care order would remain in force until the child attained the age of 18 years unless it was discharged by the court because of changed circumstances.

In order to obtain a care order, it would be necessary for a health board to satisfy the court that the child has been or is being assaulted, ill-treated, seriously neglected or sexually abused, or the child's health, development or well-being has been or is being avoidably impaired or seriously neglected, or there are reasonable grounds for believing that his health, development or well-being is likely to be avoidably impaired or seriously neglected. In addition, the court would have to be satisfied that the child required care or protection which he was unlikely to receive unless he was placed in the care of the health board.

These grounds differ fundamentally from what is contained in the present legislation in so far as the focus here is on the needs of the child rather than the wrongdoing or shortcomings of his parents. I believe that this is the more appropriate approach and it will ensure that the needs of the child are given full and careful consideration. However, in order that the rights of all concerned are taken into account, the court in reaching its decision will also be required to have regard to the rights and duties of parents, whether under the Constitution or otherwise.

Section 16 enables the court to make a supervision order. This would authorise a health board to visit a child in his home to ensure that he was being cared for properly. The concept of supervising a child at home under a court order is new to our law.

At present, where the welfare of a child is giving cause for concern, a health board faces the stark choice of either seeking a Fit Person Order to take him into care or leaving him at home and depending on the goodwill of the parents regarding access to him. One possible result is that health boards may be tempted to take children into care in cases where the separation of the child from his family is out of proportion to the risk of which he is exposed.

A supervision order would require the health board to have the child visited regularly to ensure that he was being properly cared for and to give his parents any necessary advice and assistance. This regular monitoring of the child would assist the board in identifying any serious deterioration in his welfare. It would then be open to the board to ask the court to give directions to the parents as to the care of a child, or, if necessary, to apply for a care order. The court could direct the parents to bring the child to a day care centre, child guidance clinic, hospital etc. A supervision order would apply for 12 months and would be renewable.

Some parents whose children are taken into care wish to continue to have access to them, either on a regular or an occasional basis. In most cases, arrangements for visits and access can be made through the relevant health board social worker but disputes can arise as to the frequency of access and the arrangements for visits. Section 17 is designed to eliminate such disputes by enabling parents, grandparents and other persons with an interest in the child to apply to the court for its directions as to access.

Sections 21, 22 and 23 contain a number of provisions aimed at reducing, as far as possible, the stress and anxiety associated with court proceedings. Section 21 provides that care proceedings will be heard in private and will be as informal as possible. Section 22 provides that the child involved need not be brought before the court for all or any part of the hearing unless the court so directs. Section 23 prohibits the publication or broadcast of any matter that would serve to identify a child who is the subject of care proceedings.

Part V, sections 25 to 34, sets out the arrangements which may be made by health boards in looking after children in their care. A health board may place a child in foster care, in a children's residential centre, in a special school recognised by the Minister for Education or to make such other arrangements as may be approved by the Minister. Section 27 will enable me to make regulations governing the placement of children in foster care and section 28 confers a similar power in relation to residential care. Section 31 enables a health board to provide "after-care" e.g. support and assistance for persons who were formerly in care.

At present, there is no statutory supervision of pre-schools, playgroups, crèches, nurseries and other pre-school services for children. There have been various calls in recent years for the introduction of legislative controls on these services, notably from the Task Force on Child Care Services and the Working Party on Child Care Facilities for Working Parents, to ensure that children attending them receive proper care and are protected from possible abuse.

Part VI provides for the introduction of a system of inspection of services for pre-school children, e.g., day nurseries, crèches, playgroups and pre-schools. The provisions here are intended to cover a wide variety of different types of pre-school services. Some operate on strict commercial lines while others are run on a community or self-help basis. Some simply mind the children while their parents are away; others provide educational programmes designed to stimulate the child's physical and intellectual development. Some services provide full day care while others operate for only part of the day. My Department estimate that there are some 1,400-1,500 different services catering for up to 20,000 pre-school children.

Section 36 will enable me, in consultation with the Minister for Education, to make regulations for securing the safety and promoting the development of children attending pre-school services. Persons carrying on pre-school services will be required to notify the local health board and there will be statutory duty on them to take all reasonable measures to safeguard the children concerned. Health boards will be required to arrange for the inspection of pre-school services. As many of the services have an educational dimension this aspect will, where appropriate, be taken into account in the inspection process in consultation with the Department of Education. Section 42 empowers health boards to provide pre-school services and to make available information on pre-school services.

Part VII of the Bill (sections 44-50) updates the arrangements for the supervision of residential centres for children. These include cover for 24 residential homes (former industrial schools) for which I have responsibility and 17 homes approved under the Health Act, 1953. The 41 homes together provide accommodation for about 1,000 children. At present, the residential homes are subject to certain limited controls under the Children Act, 1908, while the 17 approved homes are not subject to specific statutory regulations. The Bill will enable me to prescribe requirements as to the standard of accommodation and facilities, staff numbers and qualifications etc., in all the centres. In addition, the centres will be subject to inspection by officers of health boards and by officers of my Department.

I would like to draw special attention to section 49. This provides for the introduction of a superannuation scheme for the staff of most of our children's residential centres. This is something that has long been sought by the managements and staffs of the centres and their representative associations. It is proposed that the staff of the centres concerned will be deemed to be employed by their local health board for the purposes of the local government superannuation scheme. This is an administrative device to avoid each of the 40 or so children's residential centres having to establish and maintain superannuation records. Instead the records will be maintained by the local health boards who are more familiar with all aspects of the superannuation code. I would like to emphasise that this provision will have no effect on the employer-employee relationship between the staffs and managements of the centres concerned.

Part VIII (sections 51-56) contains various technical provisions in relation to the administration of the Bill.

Section 52 will enable me to supervise health boards in the performance of their functions under the Bill. Section 55 reserves to chief executive officers of health boards certain functions under the Bill, chiefly those which affect individual children. I would expect that most of these functions would be delegated by chief executive officers to other officers of health boards.

Part IX (sections 57 to 62) contains miscellaneous and supplementary provisions.

Section 57 provides for the abolition of the death sentence in respect of crimes committed by persons under 18 years of age. This is to give effect to Article 6.5 of the United Nations Covenant on Civil and Political Rights which provides that sentence of death shall not be imposed for crimes committed by persons under 18 years of age. This is one of two measures required to enable the State to ratify the UN Covenant; the other is the prohibition of incitement to national, religious or racial hatred.

There is widespread public concern about solvent abuse, or "glue-sniffing" as it is popularly known. Already this year, there have been reports of six deaths of young people arising from various forms of solvent abuse. One of the most disturbing aspects of this phenomenon is reports that some traders, a very small minority of them, have been selling solvents to youngsters with reckless disregard for the dangers involved. Section 58 proposes to make it an offence to sell solvent-based products to children where it is known or suspected that they will be abused. Provision is made for fines of up to £1,000 or 12 months imprisonment. I accept that this may not be a complete answer to this problem. However, I do not think that it would be realistic to attempt to enforce more stringent legal controls. The variety of household products which may be abused, for example hair lacquer, cigarette lighter fuel, aerosols, nail varnish remover and petrol, renders legal control difficult. These products are readily available in most homes, so prohibiting their sale to children would not reduce their availability for sniffing. Furthermore, there are quite legitimate uses for these products by children; a ban on sale of glues, for example would hinder children involved in such innocent pastimes as model building. I would like to assure the House that the provisions of this section will be complemented by greater efforts to educate children and the wider public as to the dangers involved in solvent abuse. I have asked the Health Promotion Unit of my Department to take urgent action towards this end.

As I indicated earlier, the primary purpose of this Bill is to protect children who are being or who are at risk of being assaulted, ill-treated, neglected or sexually abused. It poses no threat to the generality of families and is firmly based on the principle that the best place for a child to grow up is with his own family or, where this is not possible, with a suitable substitute family. There is an urgent need to update the law in this area and I believe that this Bill represents a significant improvement on the present situation.

I commend the Bill to the House.

While we in Fine Gael welcome the publication of the Child Care Bill, we are firmly of the view that it is seriously defective in a number of ways. As I said on an earlier occasion, what has been awaited and expected was a major charter of children's rights which would steer the laws and services in relation to children into the next century and guide them on the right path. What we have got falls far short of this. Indeed, the Minister himself said it is essentially a document aimed at tackling the area of child abuse and important steps forward to be made in this. While it contains some important and welcome reforms, the Bill is more remarkable for what is not in it than for what is included in it. It is unfortunate that the Minister — I made similar comments when his predecessor presented his Bill — reacted to the constitutional problems by reducing and minimalising the legislation and leaves us in a situation that no sooner will the ink be dry on this Bill than we will have to draft another Children Bill to move on with what is next required.

The major failing in this legislation is the ducking of the constitutional issues. It has long been recognised that, while the rights of families are, quite rightly, strongly protected in our laws and Constitution, the rights and needs of our children are far less defined. It was anticipated that the Children Bill would seek to address this imbalance. The Bill is almost totally silent in relation to children's fundamental rights. There is no statement of principle. There is by contrast in Part II of the Bill again a clear definition of the rights of families, which nobody argues with but which are already identified and protected in many of our laws and clearly in our Constitution. As a result of the failure to face up to the constitutional challenge we have had a watering down even of proposals in the previous Bill.

What was the reaction to problems in relation to foster care? It was to drop them completely. An objective seen as desirable by the Department and the Health officials at the time of protecting and establishing foster care on a more sound constitutional and legal footing has simply been dropped as a result rather than face the substantive constitutional issue.

In the Preamble to this Bill the Minister should include a statement of children's rights. I hope he will give some thought to this, and certainly we will be moving it by way of amendment. The Minister referred to Articles of the Constitution which referred to the imprescriptible rights of children. I refer to Article 40 which recognises the fundamental rights of citizens. It provides:

1. All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

There is no doubt that children are different from any other citizens. Children, by virtue of their youth, dependence and vulnerability are unique among citizens and are in need of special protection. They form a very large part of the population of this and most other countries. Our Constitution specifically allows us to have due regard to their position. The Minister identified other parts of the Constitution which stated that we must have due regard to the imprescriptible rights of the child.

We have not taken many steps on the way towards introducing substantial legislation in regard to children. We should have a substantial statement of principle to form the core, philosophy and spirit of the Bill. Such a statement was missing in the original draft of the Status of Children Bill but we succeeded in having it inserted at a later stage. The final word in relation to children's legislation for our generation will never be uttered until we face this constitutional issue, not duck it. We will have to stand up for children.

Can any person, bureaucrat or lawyer, seriously argue against a statement of the fundamental right of children to live a life free of abuse and in an environment which fosters their growth? If there was a need to have a referendum I am sure the Irish people would say "yes" on every occasion an issue relating to children was put before them. In the past they responded positively when such issues were put to them. I am confident that if these issues were put to them, rather than approaching legislation in a minimalist and conservative way, they would adopt them.

I wonder how long we can avoid this issue. Even in recent weeks a member of the Judiciary questioned the constitutional basis of existing actions by health boards in taking children into care. I do not think we can avoid these issues much longer. It is not desirable that we should do so because it has led to us having the most conservative child care legislation that could have emerged from the 80 years of expectation and the last ten to 15 years of serious and deep consideration. We have had a multitude of reports but most of the proposals in them were ignored in the preparation of the Bill.

I may not have made such liberal comments when I was on the Government side but I did express my views to the previous Minister. The Bill makes welcome improvements in the law in relation to children at risk of abuse and clearly defines sexual abuse as an offence against children. However, even in that section the approach is fundamentally flawed in that it emphasises as the standard response the removal of the child, rather than the offender from the home. Many countries have adopted the Toronto Protocal which is based on the premise that it is the offender who has to be removed rather than the child as a matter of principle but any reference to this type of approach is absent in the Minister's speech. In discussions in the Department the principle was not introduced or identified. It is important that it should be brought to the fore and that children who have been offended against should not be further victimised by being seen as the target to be removed, as being seen as the offender rather than the victim. The legislation should be based on the Toronto Protocol and accompanied by a set of procedures which would ensure that in our laws and in the practice observed by our sexual assault units and our social services it becomes the fundamental principle when dealing with cases of child abuse.

We have been so busy trying to ensure that we do not run foul of the constitutional position of the family that we have not taken the necessary leap forward in regard to the treatment of children who are abused, sexually or otherwise. Part II which gives health boards responsibility for the promotion of the welfare of children has tremendous potential, greater than I realised when I first read the Bill. That potential will only be recognised if health boards are given resources and a structure under which they can develop their services, neither of which are in evidence in the Bill. The structures proposed in the Bill are totally inadequate and will not allow health boards to take on the extra responsibilities envisaged in it.

The question of information on prevention and education regarding abuse should be central to all our activities in the future. The European Parliament draft report on child abuse, issued in July 1985, emphasised the importance of prevention and early detection for the health of the child and for the long-term prognosis for the child. In the USA that takes place as early as in maternity hospitals where certain factors, even at that early stage, predict the likelihood of a child being open to abuse. Various child care bodies say that the number coming forward to the volunteer information on child abuse in a family can be increased by greater publicity by the mass media. There has been evidence of this in the past year here and in Britain with the mass media giving greater attention to this issue. Television, in particular, can be used to break down the fears and reluctance of the people concerned and encourage them to seek help.

It is important to look at an area where we do not have any services, apart from individual counselling. I am referring to the need for services for abusers. In 50 per cent of cases the abuser is an intimate relative or acquaintance of a child — in most cases the abuser is a relative. While for the purposes of this legislation we have to define the action of abusing a child as a criminal act and one which must be prosecuted, we must also be concerned about their predicament. Many of them act involuntarily and may be following experiences of their own as a child. They are in need of help. I hope the Minister will be able to outline proposals for the development of services for abusers. I should like to ask him to say if he has requested any of the bodies involved in the provision of services for children to look at that matter. It has been established that a small number of abusers interfere with many children. I have heard it said that one individual may be responsible for abusing 70 to 90 children. It is important that we should deal with this matter urgently.

If we take the issue of child abuse more seriously we will have more prosecutions but within a short time the offenders will be back on the streets again in the grip of whatever personal experiences or inclinations that drove them to commit the first offence. They are likely to commit a similar offence. Many of the adults who abuse children have been the victim of abuse and are in need of help. Ultimately, for the person who has been abused, that realisation must help them to come to terms with what has happened to them and to seek an explanation for the violation of their rights as individuals. That is a very important side of the development of our services.

The Minister did not refer to any of these areas. We must make use of the mass media. There should be public education programmes in our schools from the earliest stages. We should educate young children to recognise a violation of their rights. This is the most important element in the programme dealing with the abuse of children.

Through the use of the mass media to reach people who are anxious and willing to come forward, the experience in other countries has been that 70 per cent would voluntarily report cases of abuse following a public information programme because they saw themselves involved in a cycle over which they had no control and they felt great remorse.

The ISPCC and other Irish bodies have identified the need for a mandatory reporting of cases of child abuse among health professionals. I regret that this has not been included in the Bill. I share their view that it is imperative that doctors, nurses and social workers would be obliged by the law to report all evidence of child abuse. In some cases, this involves a conflict of existing ethical practices in relation to confidence and disclosure. However, it is vital that in the provision of this legislation we give due weight to the view that the use of a child by an adult for sexual purposes is an abusive and criminal act and the person involved should be prosecuted. Such reporting should be done in the context of an agreed protocol to which all personnel involved with children would adhere. The abuse of children is an area where many taboos exist. People are often wary of reporting their suspicions. We should require the professionals in the field to follow certain procedures. Mandatory reporting should be included in the Bill and I hope the Minister will give this suggestion due consideration when he is putting down amendments on Committee Stage or, perhaps in his reply to Second Stage, he might explain why, given that this matter has been identified by the ISPCC, this is not a feature of the Bill.

The extension of the provision of services, the increased powers being given to health boards to act in cases of abuse, to take children into care, to provide care services, to inspect the pre-school facilities and to inspect and provide centres, will depend on a number of things. The first is resources but while that is very important, I do not believe it would be in order for us to cover it today. What we must do is ensure that, as far as possible, this legislation will address the current problems with child care and how the services are structured within the health services. I will repeat a phrase that has been used — I used it earlier and I know the House has heard it many times — that the community services are the Cinderella of the health services and the child care services are the poor relation. This is the view held by those working in the field and an objective look at the total figures for this area will bear this out. In this legislation we are adding the responsibility for providing a greatly increased level of service and Part II has immense potential if resources, financial and personnel, are provided.

The report of the task force on child care recommended the establishment of a seperate programme in the health board areas for child care. This has been ignored completely by the Minister and is tagging extra responsibility on to an already groaning and creaking system which is finding it impossible to deliver many services. Most of the time of the chief executive and the management is tied up dealing with the major hospitals. There is nothing in this Bill which would improve the structure of the administration to ensure that the existing or potential services are developed or would ensure that the new powers in the Bill can be fully realised and implemented.

The Minister will not have had time to read in detail the proposals published by our party spokesman yesterday. In those proposals there is a structure which we in Fine Gael believe would give due consideration, weight and attention to the child care area and other very important areas of community care. The radical restructuring by Fine Gael would envisage trimming down the bureaucracy involved in the administration of the health services and the improved management of those services. Within the improved management structure is recognised the fact that local regional responsibility would be limited to providing community care and supervising the special hospitals in their area. It is envisaged that there would be five project managers, one of them dealing with child care and within that context, there would be an adequate structure to ensure that child care moves from its current position. The need for such a move is evident from the Minister's speech in which he gave us the chilling statistics of the increasing incidence of abuse over the last number of years and these figures continue to rise.

The importance of child care and the structures for delivering child care services will be high on any health agenda in the foreseeable future. The Minister has not done anything in this Bill to improve the administration and to establish an improved delivery mechanism, or to lead us to believe that the potential of the Bill in the area of the promotion of the welfare of children could be realised. I ask the Minister to look again at this area.

One of the other structural units recommended by the task force was a national children's council. I cannot understand this Minister's, the Department's or the previous Minister's reluctance to have such a council. I cannot see how anybody can argue against its existence. I would be very interested to hear the Minister's arguments. The fact is we have waited 80 years for a major update of a Bill, a Bill which has stood the test of time reasonably well. Even with the passing of this Bill, the Adoption Bill and similar legislation, many sections of the 1908 Act still remain in law and the section dealing with juvenile justice still remains to be examined by this House, not to mention the huge gaps in the area of child care.

I strongly believe it is vital that we should have an independent monitoring body representative of the voluntary bodies which more and more are filling the gap in the services provided in these specialised areas. I believe we should have such a body and if the Minister is firmly fixed against it, I will be putting down amendments to this effect on Committee Stage. I do not believe it would be a matter of great expenditure. It could be handled in the same way as the National Social Service Board handle the National Council for the Aged. It could be supervised and staffed by them. It would help to ensure the children's legislation is not allowed to slip into a backwater and that constant changes in approach are given due attention and implemented in our procedures and services. It would be a great help to the Department, the Minister and everybody with the interests of children at heart. I do not understand the reluctance to have it and I should be interested to hear the Minister's response.

Part VI of the Bill deals with pre-school services. We welcome the first steps towards supervising this area, which have developed to date without controls. My colleague, Deputy Barnes, has a particular interest in this matter and will comment upon it in detail. The Bill falls far short of implementing the minimum legal standards recommended for pre-school services. For example, it is envisaged that schools may register before they are inspected, which is surely an extraordinary notion.

I regret that family day care has been ignored completely in the Bill. By this I mean the provision of care for children in the home of another mother with children. We are light years behind our European partners in the support of women at work. In the Federal Republic of Germany the role of family day care is fully recognised and supported. A monthly fee is paid by the Department, but we should not hold our breath in expectation of the same thing happening here. It is important to include that category of child care personnel. This system of having children cared for is one of the most popular among working parents. It is not excluded by the Bill and I should like some reference to it as one of the preferred ways to have children looked after in an environment closest to the child's own family home. Child care is essential, not just for women working but as a major support to a mother who may be under pressure and may be likely to abuse her child.

Another major disappointment is the failure to take on board the task force recommendation that the school attendance service should be transferred to the Department of Health. Those of us who serve on local authorities and have seen the non-activity of school attendance committees realise that the nature of the service has changed completely. Originally it was a regulatory service backed up by the Garda Síochána. The personnel of these committees are being under-utilised but they could form a valuable resource within the Department of Health, especially in view of the fact that non-attendance at school is no longer seen as something for which a person should be penalised or sent to an institution. Very often it is the first warning sign that a child is in difficulty of some sort, a matter which should be the concern of the Department of Health. It is a signal of stress and of the emergence of problems to which it would be more appropriate for the Department of Health to respond. The Minister might refer to this point and explain why this provision has not been included. I hope he will take a fresh look at this matter.

We warmly welcome the improved provisions for the handling of cases of abuse and the power given to the Garda Síochána to take a child to a place of safety without a warrant. We also welcome the improvement of the other procedures in relation to emergency care orders.

The Minister is to be commended on broadening the definition of "child". He must have taken a great interest in this point in order to have brought about its inclusion. It closes off a major gap which was identified in the debate on the previous Bill but also by the activity of voluntary bodies who have taken an interest in the plight of the teenage homeless. The recent Focus Point and Streetwise reports identified the fact that children were falling into a statutory abyss in that they were no longer the responsibility of the Department of Health because they were no longer defined as children, but were not eligible for help by the Department of Social Welfare or for housing by the Department of the Environment. If they became detached from their family they were likely to stay that way, depending on the assistance of voluntary bodies. I warmly commend the Minister on accepting responsibility for this group and ensuring that the Department of Health have responsibility for their welfare, care and shelter.

While there are welcome reforms in this Bill, which we will be anxious to see implemented, a major opportunity has been missed in the light of the expectations and hopes for a definitive modernisation of the law in relation to child care on which to base our social services and our total approach to children into the next century. That is missing fron this legislation. We have a few piecemeal reforms and we will have to start working, not just on the huge area of juvenile justice which has been totally left aside but upon many of the areas related to this Bill as soon as the ink is dry. I regret that this is so.

I hope we can make some progress on this Bill, although its approach is basically so conservative that it is hard to see how one could incorporate a more total approach to the problems of children without completely redrafting. I hope the Minister will use the summer to reflect on the Bill and to consider the points made on Second Stage, as well as meeting with bodies who deal with children. The Minister may then initiate substantial amendments on Committee Stage. He should consider whether it is timely and appropriate to face up to the constitutional issues by including a major statement of principle in this Bill.

If necessary, let us face that constitutional issue. The European elections will be held next June and we could, if necessary, have a referendum at that time. Let us move ahead in this area, with the support of the Irish people, by framing legislation that will not give pre-eminent rights to children or in any way threaten family rights but that will get the balance a little more even where it is totally unbalanced at the moment in favour of the family. I hope the Minister will bear these points in mind when he is reflecting during the summer following the conclusion of Second Stage.

This Bill is long overdue in a number of respects. First, it is now 80 years since any Parliament responsible for supervising this particular matter in Ireland has addressed this point in a comprehensive and categorical way with a view to providing a system of legislation for the proper protection of children. The Children Act of 1908, with which I have some passing acquaintance in my law practice and which many other Deputies in this House have also seen from other aspects was for its time, undoubtedly a progressive measure, but in retrospect and certainly in the light of present circumstances, it is a measure which by no means does justice to children or holds fairly and impartially the scales between children and society and children and their parents and the families to which they belong in terms of doing them justice and vindicating their constitutional rights.

This measure put forward by the Minister is a reasonably fair compromise between a number of conflicting interests. On that, I do not have any major misgivings as to the balance being struck by the Minister within the confines of the Constitution. Like Deputy Flaherty, I agree that there is the over-riding constraint on all legislators in this country at the moment in that the Constitution gives to the family very wide-sweeping fundamental and antecedent powers and rights with which any legislator can only interfere with at his peril. That is unfortunate. It reflects outdated social thinking, it reflects an unnecessary pre-occupation with family rightsvis-à-vis a child's rights in cases where they come into conflict and it is something which is part of the luggage of history rather than something which really reflects social values and social thinking at this stage of the 20th century.

Be that as it may, we also have to take into account that in vindicating children's rights there must be a bias in favour of vindication of those rights within the family. I do not think anybody in this House, no matter how they may view the present Constitution, would take a view that there should be anything but a presumption in favour of parental discharge of the function of looking after children's welfare. It is wrong to think that the present Constitution is a conscious enemy of children's rights. It is right to think that it was over-zealous and had an imbalance in its approach to the issue. It is wrong to think that we should be indifferent to parents' input into the upbringing of their children or treated as just one more factor in a judge's determination of what is or is not the best interest of a child at any given stage. In the Guardianship of Infant's Act code the interests of a child are given the most important weight in determining how a decision should go whereas the Constitution, on the other hand, gives the family much more weight in determining how a child's future could be affected by any particular court decision.

My feeling is that we should as a society strike the balance with a bias towards parents as being the proper people to look after their children and to make decisions in the absence of any particular reason as to why there should be a substantial interference with their rights but that we should not erect parental rights into a cathedral of principle erected over the child's interests. The child is fundamentally someone who is a citizen of this State and, by virtue of its minor status, is entitled to more and not less willingness and capacity on the part of the State to vindicate its rights.

It is a huge mistake, and it is something which sometimes cries out for rectification, to think that in some sense because a child is a minor and does not have full legal capacity its interests fall to be subordinate to those of others. I believe on the contrary that a child, as a minor, as someone who is not of full legal capacity, has the right to have its interests specially protected, that children should be given special protection by the Constitution and not simply by the laws of this State, that children are entitled, because they are incapable of defending and asserting their own rights, except through friends or parents or agencies established for that purpose, to special protection rather than the reverse and their minor status, their inchoate status as citizens should not be seen as a weakness or an affliction or as something which exposes them to legal consequences against which they have no remedy. I believe that in that respect this Bill goes a long way towards re-striking the balance, and in a proper direction.

En passant I do say that the text of the Constitution circulated by the Progressive Democrats is correct in one respect; it sought to establish and to recognise the special rights of children as rights to be vindicated rather than seeking to erect family rights into a huge structure which can sometimes grind down and obliterate the superior rights of a child. We have seen cases here where children's rights have come in conflict with parental rights, adoption cases where courts have decided, for instance, that children placed in the care of others with a view to their adoption, not-withstanding their interest in that adoption proceeding should, because of the subsequent marriage of their natural parents, be returned to those natural parents irrespective of the interests of those children. Those decisions are ones which raise an eyebrow legally as to what balance we are trying to strike between parental rights and social rights and children's rights. I believe we should aim in the long run as a Legislature, as Deputy Flaherty suggested, towards redressing the balance constitutionally, because the Constitution is the fundamental law of the land, towards the vindication of children's rights and towards giving children a better deal in our laws.

Be that as it may, we now deal with a piece of statutory legislation which is designed to deal with very pressing problems. It is dealing with the problem of the abused, neglected or abandoned child and it is putting on the Statute Book, for the first time in 80 years, a comprehensive code giving somebody some obligations and some duties in respect of such children, as opposed to leaving it effectively to the fruits of chance as to whether such children would have some benevolent interloper who would come to court or seek to vindicate their rights. Now at last there is somebody whose duty it is to look after those children's rights and that is as it should be.

This Bill has a degree of urgency about it because I know from my other capacity that some judges of the High Court have already ruled that it is more probable than not that health boards at the moment have no right, good, bad or indifferent, to invoke the powers of the District Court to have a Fit Persons Order made in respect of a child or to have children detained against the wishes of their parents. Judges of the High Court have ruled, quietly and privately — there has been no publicity because these cases are heldin camera— that those powers are not now available to the health boards, that there is nothing in their statutes which gives them those rights and that they have as much function in relation to the welfare of children as have Bord na Móna and CIE; they are just statutory bodies which have no function whatever in relation to the welfare of children where those children's interests come into conflict with their parents' constitutional rights.

The Minister should be aware — and the Minister of State should tell him — that one judge of the High Court has said,in camera, that this kind of Bill is an urgent necessity, that there are demands now for the introduction of such a Bill, so as to prevent what could be successfully challenged as interference by a statutory agency, that is the health board, in family rights. I repeat that there is nothing now, in either the Children Act of 1908, or any of the Acts constituting the health boards or amplifying or extending their powers, which gives them either a right or a duty to interfere against the wishes of parents in relation to the custody, well-being or welfare of their children. That is a very big lacuna in our law and something which requires immediate attention from this House.

Deputy Flaherty has said, and I agree with her, that this is important legislation which is unlikely to come before this House in its final Stages before the summer recess. However, there must be a sense of urgency about it because there will be some parents, if they are anyway properly legally advised, who will go to the High Court and have some district justice's order quashed under the 1908 Act, saying that there are no rights whatsoever in respect of them and their child and defying the court to show them the statute, Act or regulation which gives such a right. This House is not simply doing something worthwhile, but something which is urgently necessary. It should apply itself to this Bill, keeping that in mind.

We must think reflectively on legislation of this kind. We have to decide whether we are, by this Bill, setting in place the proper mechanism for vindicating children's rights. If High Court judges are telling us that something must be done, it must be done. If every agency report on the issue suggests that something must be done, we must go further than just saying that something must be done. We must decide whether we are doing the proper thing by children and not doing something for the sake of being seen to do so, after so many decades of neglect. It is in that respect that I query a number of features of this Bill. It is easy to say that you will give functions and duties to health boards, but if you do not fund them in respect of those functions you make a mockery of the vindication of children's rights.

I know from experience — I shall not amplify that — and I ask the Members of this House to take it as true, that there are many cases where health boards find themselves trying to vindicate the rights of children by having no resources whatever to deal with the issues. They find themselves with no child psychiatic service and no family welfare people available to them. They find themselves with people who are working against a huge and overwhelming tide and being swept backwards by it. There are very many cases where health boards have found themselves going to judges of the courts of this land and saying that, whatever the rights or wrongs at issue, they simply do not have the time or the staff to investigate them or come to a conclusion one way or other, or to provide adequate services to support a family which is in crisis and whose children are suffering as a result. That is not fiction, but fact.

I have seen with my own eyes responsible people, executive and chief executive officers of the largest health board in the country, telling the judge in the High Court that they could not supply the services adequate to the needs of the family involved. Those chief executive officers are labouring under the difficulty that they have not even a clear statutory basis to do what they are doing already. They say that they cannot provide the social worker to supervise a child while it remains in its parents' care, they cannot guarantee this child who is at risk and may or may not be abused, any adequate level of supervision to safeguard its interests. If that is the case now, where health boards have this incohate statutory role — no role at all — if you place on them an obligation to vindicate the rights of little children, a yea or nay over who makes an application to a court, but do not provide them with any, or any adequate staffing or funding to decide what the child's interests are, or to vindicate those interests once they are identified, then you make a mockery of the purpose of this Bill.

I am not asking for unlimited funding for health boards. I know that in this day and age funds are limited. However, when you are proposing to extend the powers of health boards, to amplify them, to give them clear duties as to what they must and must not do — as this Bill actually does — you cannot do that without giving them a budget with which to do it. You cannot give somebody a duty without first giving him the where-withal with which to carry out the powers given with that duty. It is simply hypocrisy to give a health board a new duty to look after children and leave it to the health board as to where they get the necessary resources. That is a very grave error for us to make. That is a major problem with this Bill which is not in any way overcome by the Bill itself or any of its provisions.

As Deputy Flaherty has said, Part II of the Bill gives health boards dramatic new functions, wide-ranging powers, including all sorts of advisory committees and statutory duties to look after the welfare of children who are deprived and are at risk in the functional areas of the health boards. That is all very well, but how are they to do it? What officers are to carry out these functions. I know that in some health board areas there are already in existence, without any statutory framework, groups designed for this purpose. I know as an equal fact that they have not adequate resources to do what they are doing now and that it is just an idle pretence to think that by extending or amplifying their powers, or enshrining them in statutory form, we will vindicate the rights of those children unless we give to the health boards resources along with the powers.

There is another point which I wish to make. It is considered, for some reason that I am not quite clear about, but I have my own grave and dark suspicions, that the functions of vindicating children's rights should be given to the District Court and made the stuff of district justice's jurisdiction.

Hear, hear.

I have thought long and hard about this and have viewed on many occasions what has and has not gone on in the District Court, and what are or are not the training and experience qualifications of district justices. They are in criminal cases confined to exercising summary jurisdiction in limited matter. The District Court is one of summary jurisdiction fundamentally, which means that decisions are made quickly, promptly and in a hurry and made with a view to getting on with the next business. That is summary justice and anybody who disagrees with that is deluding himself or herself. To give to a court dealing with offences such as no lights on bicycles or the exact remit of the permits of street traders or the smallest matters such as parking fines — those are some of their more elevated functions — the power of deciding yes or no over matters of huge consequence to a child is indefensible.

The District Courts in this country are simply not equipped to deal with the case-load that they have at the moment. It is again a self-deceiving pretence to suggest that they are in any position to give adequate attention or the hours that are necessary to deciding whether there is or is not substance to a claim that a child is being sexually abused. That is a fact. I have been involved in cases which have gone on for weeks on end as to whether those things happened and the District Court cannot give an hour or two of its time to the same issues.

Which Deputy will say that he or she knows of a District Court which has time to spend two days deciding the fate of a child? What District Court is organised to allocate two or three days to the decision as to what the future of a child demands? What District Court is organised to receive child psychiatric evidence? What District Court is organised to lay aside the TV licences and to allocate its judicial brains to deciding what a child needs most of all? We all know well in our hearts that no District Court is organised to do that. It is in many respects, despite the best efforts of its members, the district justices, an intellectual and legal slum into which we push more and more work, irrespective of the fact that we know we are not giving it the facilities to deal with it. For instance, if it cannot deal with a complex case of larceny, where someone will go to jail for two years — and it cannot deal with that case because larceny is not a minor offence on the criminal side — why should it decide where a child is to spend from two to 16 years of age? If it can only deal with minor cases in criminal law, how can it decide major matters in relation to a child's upbringing and welfare?

Much more importantly, I wish to remind the Minister and the Minister of State that the only function of the District Court is that it is a court of local and limited jurisdiction under the Constitution. It has no right to make far-reaching decisions about the welfare of a child. Upper class children, and those who have the services of lawyers who will act for nothing, get a High Court judge to exercise wardship jurisdiction over them. When a High Court judge does that he takes the child into the care of the court and makes up his or her mind as to what the best interests of that child may require. He does so from a totally impassive point of view, that the child is the court's responsibility and that if a health board is looking for custody as opposed to the parents, the court will decide in the best interest of the child where that child should be sent or what will become of it. That happens in the High Court on one front but we are making a jurisdiction for the District Court — the poorest of courts in terms of resources, the most overstretched in terms of its time, availability and commitment, the most undertrained and underqualified of our courts, with the greatest of respect to its members — to make the most dramatic and far-reaching decisions, especially for the poorest of children. That is an indictment of us because we think we can give to a minor court of summary jurisdiction far-reaching decisions about children whose interests require to be protected. The District Court is utterly inadequate to deal with the gravity and complexity of the cases it will be dealing with under the Bill.

Under the 1908 Act, the decisions of the District Court are suspect, unfortunately by virtue of the circumstances in which it has to hear cases, by virtue of the fact that parents are not given full legal aid and lawyers to fight their side of the case in court and to vindicate the rights of their clients' children. I have seen this with my own eyes and I know it is wrong to attempt to give the District Court a huge new jurisdiction over the welfare of children because it simply will not exercise that jurisdiction. It will fail in its duty to the children because it does not have the resources, expertise, time or inclination to do what is necessary in the interests of those children. Above all — unlike the High Court — it is a court of limited jurisdiction.

I should like the Minister of State to tell me how a court of limited jurisdiction can decide, effectively, on a child's whole future on the basis of a half an hour in some unheated, half ruined building, erected in the 19th century and which is totally unsuited to its purpose. Indeed, people would be lucky to have their case heard in such a building, it could be heard in the back room of a lounge bar or a rugby club in Sutton. We must face up to that because we are giving the court jurisdiction but nothing to carry out it jurisdictional functions.

This aspect of the Bill is scandalous and I do not say that lightly. However, we must have reasonably workable law. It cannot be over-formal and you cannot increase lawyers' costs which would make it a field day for family lawyers. As a group they are just like other lawyers; they will complicate many simple issues and fight others which perhaps should not be fought. The simple fact is that the District Court is the worst court to decide these issues. If we do not learn from that in relation to family law, perhaps we will learn from it in relation to other bits of law. Today is a prime example of a case where we allow a court to make a decision in relation to international relations, which is of far-reaching and fundamental importance, but we do not allow that court to decide whether a person charged with murder should be admitted to bail. We do not have a clear view of the seriousness and gravity of the powers we are giving to people in relation to children.

We have never arrived at a view as to what the District Court should do yet, we are giving it more powers in this Bill and we will regret it in the long run. Where a care order is made under this Bill in relation to a child, it is open to the court — unfortunately the District Court — to rescind that order but while the child is in care the health board are given very far-reaching powers to define the nature of that care. It is up to the health boards to decide whether a child in respect of whom a care order has been made should be brought from, say, foster care into institutional care. That is a decision the health board make under the direction of the Minister. Is that a fair balance to hold for a child, that a bureaucrat, even one with the best of intentions towards such people, should decide whether a child goes from foster care to institutional care?

Once a child goes into the care of the court system, it should require at least an independent person who is not looking at the pounds, shillings and pence of every decision, to decide where that child should be looked after and what should happen in relation to it. Are we creating a cast of latter day Mr. Bumbles of Oliver Twist fame — the chief executive officers of the health boards — to make decisions in relation to children and, when a care order is made in respect of them, moving them from one kind of case to another in the light of financial pressures on them? I very much doubt that we are making the right decision in that regard.

If you are creating a court system and a system of law to vindicate those children's rights, we should go the whole hog and establish a family court of competent, well trained people and require that any decision as to whether a child moves from foster care to institutional care — when a care order has been made — is made by a group of people whose interests are not financial but dictated by the rights and interests of the child in question.

Wherever we establish power in relation to a child we should also establish responsibility. Where in this Bill is responsibility placed in respect of decisions made affecting the rights of little children? If you intend setting up a statutory power to take a child into care and giving certain people the right to make an application to a court to secure an order that the child is taken into care and to put the child here or there as they see fit, you must also create some responsibility to the public on the part of the people who make those decisions. Who are the people responsible? The chief executive officers of the health boards. What function do they have in this kind of matter? What training do they have in deciding whether a child should be put into the care of voluntary institution, in foster care or in an institution which the health board have established? What right is there to review their decisions? What accountability do they owe to the child to make the correct decision? Absolutely none.

You can have all the advisory committees you like but, in the last analysis, they are statutorily not responsible because they do not make the decisions. You give the decision to a chief executive officer of a health board to make final decision of a huge kind in terms of a child's long term interest. There is no accountability, no one to whom the chief executive officer must go and say: "I believe this is the correct decision; I am taking that decision in the interests of the child and I am asking that my decision be validated". I revert to the proposition that if one is creating a jurisdiction to make the care order, one owes it to the child to create a jurisdiction to supervise that care order, to ensure that in the long run that child's interests continue to be vindicated. Whatever status the judge may have when he takes his decision, under the provisions of this Bill, he effectively washes his hands of it. He gives to that health board the right to make all decisions once a care order is made in relation to the child. He does not exercise an ongoing jurisdiction. Who does? — a chief executive officer. It is like saying the Secretary of a Department of State will decide what happens to a child. He will have as much direct connection with a child in his care as has the Secretary of the Department of Agriculture and Food to any individual farmer. He will have no duty or responsibility to the child. As long as he does not commit some legal error nothing he does will be capable of being reviewed or challenged. In my view that is simply not adequate as a statutory mechanism to defend children's rights.

For instance, it does not happen in relation to criminal lunatics when they go to Dundrum. The High Court took back from the Minister for Justice the right of deciding when and if they should be allowed out of Dundrum and what should happen to them while they are there. But, in relation to a child, once a care order is made, the child is gone out of the supervision of the people who took the decision about its welfare into the responsibility of a chief executive officer. That is fundamentally wrong. It is something which warrants review. It is something which does not do the kind of justice that is within our power to do to vindicate the child's rights.

Having said all of those things about this Bill, there are many of its provisions which are good, many provisions crying out for enactment, for example, the power to supervise pre-school services, the powers in relation to children's residential services, the powers in relation to taking some kind of proceeding to protect children. I agree with many of the provisions of this Bill but I still believe that, in the last analysis, it is wanting as drafted. It is half-baked in some respects. It requires to be debated section by section, with no guillotines of any kind, to get the correct law enacted for children. Although it is urgent we have to do the right thing by those children. There is no need to tell us that this must be done by some date in October, by midnight some night, that we must have all of the correct answers thought out during a 12-hour session, that the Minister's amendments only will go through unless we can be brief and contain ourselves. That is not the right way to bring about a comprehensive legislative change after 80 years of inactivity.

I hope the comments I am making will not be interpreted by the Minister or his advisers as being too sharply negative. I believe they are based on at least one person's experience, that is my own, of some of the issues involved.

In particular I would ask the Minister to take into account the wardship jurisdiction of High Court judges. As of now they are entitled to make an order taking a child into their care. How does that mesh in with the statutory provision here? Does it supersede it? If a parent applies to the High Court saying; "My child is at risk from her father. I want you to take over the control of this child and to take decisions in relation to its interests", how does the health board's statutory power to intervene in the District Court come into the balance there? Does it supersede it? Is it inferior to it because the District Court is an inferior court? Is it a right that goes into abeyance once the High Court exercises its wardship functions? I have seen cases in which parents have gone to the High Court to save their children from the decisions of bureaucrats in a health board.

The last thing I want to say is this: in England recently there were cases in which children suspected of being sexually abused by adults were taken into local authority care. In Ireland — under existing practice without legal foundation and under legal practice if this Bill becomes law — it will be for a health board to take decisions of that kind. They will have to apply to a District Court in order to get any authority for their actions; they have not the right, as their counterparts had in England. Under the provisions of this Bill only a garda is given a right to take a child who, in emergency circumstances needs some kind of intervention without the intervention of the courts. That is good. I would ask the Minister this: in those English cases the most worrisome feature from a lot of people's point of view was that well-intentioned people were given very extensive powers — I believe they were well intentioned; I do not believe there were evil people on any side in that dispute — in relation to children with no safeguards to correct those powers where they went wrong. I implore the Minister to take into account that, when he establishes machinery for resolving the differences between those rights, deciding how those rights should be mediated — the conflicting rights of the child and parents, the conflicting suspicions, be they of local authorities in England or health boards here as to whether a child's welfare is being properly looked after, there must be adequate safeguards built-in. When one establishes machinery to adjudicate on those issues — and they are issues which have to be adjudicated on no matter how informal the provisions of the Bill may render the adjudicatory process — one must build into them adequate safeguards for the child whose interests are paramount. One must build into them adequate safeguards for parents against whom it has always been said that it is easy to make an accusation but much more difficult to disprove a negative. In all those circumstances one must put in place legislation that ensures fairly and squarely not merely that the first order made in respect of the child is the proper one but that the child's interests thereafter are properly looked after.

The major defect of this Bill is that while it does take the first serious step — it does say that a care order cannot be made at the instance of a bureaucrat, an interested social worker, a prejudiced parent or whoever — once that order is made it is like the legislative guillotine, it comes down and that is it. Thereafter that child has gone into a different world, one in which fundamental decisions concerning its welfare are taken by a bureaucratic, non-adjudicatory mechanism, one in which the chief executive officer of a health board, his advisory committee and the child welfare officers employed by the health board effectively have the upper hand in deciding that child's interests. That is wrong. We should strike a balance which gives the child the right to be separately represented in these proceedings. Sometimes there are cases in which the health board think they are representing the child's interests against those of the parent but they are not; they are trampling down the child's interests. The Minister should do something far more radical in this respect. Whatever court — I hope it will not be the District Court — is given jurisdiction to make an order it should be given a duty to ensure that that order not only was made but continues to be operated in the interests of the child. That is the fundamental weakness of this Bill.

Having said all of that I am hoping that child welfare agencies, bodies, people in the community at large, will study the provisions of this Bill and think long and hard about their implications. They are far from perfect now and require considerable reformation and legislative attention to render the Bill overall a proper piece of child legislation.

I congratulate the Minister on having done something after 80 years when so much is required to be done.

I congratulate the Minister for introducing this legislation for debate in the House and I take on board the remarks of the previous two speakers. It has become clear in the one and a half hours during which we have been debating this issue that 80 years of neglect cannot be easily resolved in one fell swoop.

We in the House approach things from different perspectives. We all welcome the fact that the debate is taking place. The first message that has come across is that the debate must be long and meticulous and all the aspects of the child care must be taken into account, not only legal aspects but aspects relating to the caring agencies and the families of children who also have an opinion to express. This legislation is the culmination of 20 years of debate about reforming legislation relating to services for children. The debate was initiated by the Tuairim Committee report of 1966 and developed by the Kennedy report of 1970, established by the Minister for Education, the Task Force on Child Care Services Report of 1981 established by the Minister for Health and the contribution of a myriad of voluntary organisations in the intervening years.

There have been two previous dry runs at this legislation, the first published by the Minister's predecessor, Deputy Barry Desmond, the Child Care and Protection Bill, 1987, which progressed to Committee Stage, and a modified Bill published by the Labour Party last year, the Children Care and Protection Bill, 1987. There have been many comments on all these pieces of legislation. Although we need to take a measured response and a very slow and analytical approach to enacting legislation in this very sensitive and important area, we must hear some alarm bells ringing when listening to the comments of a practising lawyer who has indicated that at least some members of the High Court are currently dissatisfied that there is any legal basis now for health boards to intervene in cases of need. That should spur us on to look with great care at this legislation. While we need to be careful, we need to be expeditious in moving forward.

In looking at the main purposes of the Bill we see in the explanatory memorandum that the main provisions of the Bill are:

(i) the placing of a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection;

(ii) strengthening of the powers of health boards to provide child care and family support services;

(iii) improved procedures to faciliate immediate intervention by health boards and the Gardaí where children are in serious danger;

(iv) revised provisions to enable the courts to place children who have been assaulted, ill treated, seriously neglected or sexually abused or who are at risk in the care of or under the supervision of health boards;

(v) introduction of arrangements for the inspection and supervision of pre-school services;

(vi) revised provisions in relation to the inspection and approval of residential centres for children.

While all these things are welcome and are valuable, the first striking problem that arises relates to resources. Where are the financial resources and the personnel resources to be provided? They are not provided now. I listened with some muted cynicism to a previous contribution which underlined the same difficulties as I have now, in terms of the lack of resources to health boards at a time when we are savaging moneys available to health boards, and when only yesterday senior consultants in one of our national hospitals had to resort to the media to underline the crisis that exists in our health services. This is reflected in every aspect of health services.

Deputy Flaherty referred to the community care services as the Cinderella of the health services because they traditionally got less resources than the acute general hospitals. We are now going to devolve onto the health boards a myriad of new responsibilities without giving them any extra resources. In fact, as promised by the present Administration, we will further deprive the health boards of resources. Deputies in contact with the health boards know only too well that it is impossible for health boards to meet their present statutory duties. We all know of cases where children are at risk. In one case I contacted the chief medical officer in my own county to find out what could be done for one vulnerable child who was walking the streets of a town in the south east and I was told there was no place for that child to be placed, that there was no suitable accommodation to be found. Where is the accommodation? Where are the resources and personnel to be found after the enactment of this important legislation? The already inadequate resources are to be further reduced.

With cynicism I listened to the representative of the Progressive Democrats who take credit for creating the climate, in the mould breaking tradition they have set for themselves, for financial rectitude. They take credit from the fact that this new so-called realism means that we have to cut health expenditure and expenditure on the caring services. They cannot have it both ways. They cannot come into this House and argue in favour of expenditure when it suits them and go outside and hold themselves up as the doyen of financial rectitude and cutbacks and say that is the correct approach. So much of the cant that passes for politics in this country now is emanating from that source. People who support the principle of cutting public expenditure are in favour of expenditure when it suits. That sort of hypocrisy must be nailed instantly. I hope the Minister, when replying to the Second Stage debate will give us some hope that resources required to meet the requirements of the new duties imposed on the health boards by this legislation will be provided by him and his Department. What passes for an adequate community care service is a very thin sticking plaster on a very sore wound.

In the Bill one of the first things the Minister does, and it is something I heartly welcome, is that he clarifies and raises the age of a child. Deputy Flaherty commented on the recent Focus Point and Streetwise survey done on homelessness. One of the shocking aspects of that report was that whereas many of us felt that homelessness was a problem merely for the very large contributions and that it did not reach into the provincial towns, that view was scotched by this report which highlighted in a stark and real way the fact that homelessness exists all over the country, and that there are children between the ages of 15 and 18 caught in a limbo where there is no legal responsibility for them. I heartily welcome the age increase incorporated into the legislation before us tonight.

Section 3 gives responsibility to health boards to promote the welfare of children. This is a very positive duty imposed on them. It will force health boards to clarify their own thinking on what services they should provide for children and the real needs of children at a very difficult time. It is amazing to think that the prime legislation that we use today to reflect our views on the needs and rights of children is 80 years old at a time when almost all the modern inventions that we regard as normal would have been unimaginable. The pressures and the society that exists now are so vastly different from that bygone age that it is not surprising that we have so many anomalies that need to be corrected by this legislation.

The emphasis on providing support and assistance so that children can remain in the home is a very important and significant issue. Some pilot schemes have been undertaken in various parts of the country and I have more than a passing familiarity with one such scheme, which is the Wexford family centre. The aim of the Wexford family centre — and the town of Wexford was very lucky to have such a centre — was to look in a holistic way at the needs of vulnerable families, to reach out to those families, to provide the support needed to allow children to remain and to thrive in the family set-up, to involve from the toddler to the parents themselves in support and encouragement. These are expensive types of out-reach projects. Family support services exist throughout the United Kingdom but they are rather exceptional here. I hope the UK models and the examples that have been piloted in this country could be built upon. As a former primary schoolteacher I know the value of this support but we are getting back once again to the essential and the kernel problem of funding. It was my view that this type of service which was quite exceptional was almost — and I do not want to sound disparaging of health boards — an embarrassment to a health board which simply could not match it anywhere else. They were afraid that it simply highlighted the inadequacies in other regions, in other districts and in other towns. They were afraid that if this particular project was successful that the demands would overwhelm them. If children can be maintained in the home, if support can be provided to enable them to develop in safety, to enable them to mature and to be educated and if you can socialise the parents — which is often a basic but an essential prerequisite to establishing a proper home background — and educate them on hygiene, food management and so on, that is not only a very desirable achievement not only from the social perspective but also economically. I do not know how a cost analysis of the benefits can be done but I believe that money spent on prevention, support and care at the foundation level saves money in remedial education, in justice expenditure and in policing at a later stage in life. I am totally committed and supportive of the notion of family support services. I hope that the Minister would not only have a nodding acquaintance with them and say: "Yes, they are a good entity, it is a good idea", but say that this is a policy decision of his Government and of his administration and that he will put money into supporting out-reach projects that give comfort and succour to a family that is vulnerable and in need.

Under section 4 health boards have a right to receive into care, without reference to the courts, certain categories of children. In subsection (2) of that section I note that the issue of the constitutionality of all our dealings with children comes into focus in the first instance. Subsection (2) states:

Nothing in this section shall authorise a health board to take a child into its care against the wishes of its parents or of any person acting inloco parentis or to maintain him in its care under this section if its parents or any such person wish or wishes to resume care of him.

Deputy Flaherty made a cogent case that throughout the Bill the view taken has been the minimalist one, that we pull back our horns if there is a threat of a High Court decision in relation to the constitutionality of any of our actions. I believe it is time we made the definitions first, that we decided what was the desirable objective, in the first instance, and then set about whatever mechanism is required to enact that desirable objective. If a constitutional challenge has to be backed away from and if we are backing away from something which we feel is right, that is a fundamental mistake. If we need to have a referendum on an issue let us face that too. Our first duty must be to get the rights of the child vindicated and to make sure that in any case that what is best for the development of the child is enacted into legislation by us.

Section 5 provides for the establishment of child care advisory committees. I have no difficulty in supporting the notion of a child care advisory committee at local level, but it is a point of regret that the national children's council which was requested by all the caring agencies and all those involved with children has not materialised in this legislation. I do not see any justification for not having it, even if it had a fixed term of reference for a short period to focus on the whole area of the needs of children in modern society and the sort of provision that is needed for children both legislatively and probably more important, practically on the ground in each health board region. I would ask the Minister to think again on that issue and perhaps he would see fit to introduce an amendment on Committee Stage to establish a national children's council, even if that were to be on a fixed term basis.

Parts III and IV contain the core issues, enabling a garda in the first instance, to remove without warrant to a place of safety a child who had been assaulted, ill-treated, neglected or sexually abused and who is in immediate danger. That is a very important new power. I listened with interest to the lawyers' perspective, and the general view that wherever possible recourse should be made to the courts to allow them to make a balanced decision is a crucial mechanism to have enacted. Where a child is imminently and immediately in danger it is important that somebody would have the legal right and the legal wherewithal to remove that child from danger. The limit of eight days will put pressure on health boards and I am interested in talking this out because no bureaucratic institution moves with alarming speed. I am fearful that eight days is a very short time for a health board to prepare a case for the District Court. Perhaps we can think about this again. Obviously, we are striking a balance between the rights of parents to regain possession of a child and the risk that, simply because of the slowness of bureaucracy, a child might be handed back into a place of danger because the health board would not be able to get their act together with enough speed.

In relation to care proceedings, section 14 of the Bill imposes a statutory duty on a health board to apply for a care order or a supervision order whenever it appears to the board that the conditions required for the making of an order exist in respect of a child. Section 15 provides for the gounds where a care order can be applied. The differences between these grounds and those in the previous two Bills I have mentioned, the Children (Care and Protection) Bills, 1985 and 1987, are worth looking at. In the Minister's Bill the grounds are: (a) the child has been or is being assaulted, ill treated, seriously neglected or sexually abused (b) the child's health, development or well-being has been or is being avoidable impaired or seriously neglected (c) there are reasonable grounds for believing his health, development or well-being is likely to be avoidably impaired or seriously neglected.

Let me by way of contrast read into the record the grounds in the Bill published by the Labour Party last year which were far broader in scope. Under section 45 (2) of the Children (Care and Protection) Bill, 1987 a child may be the subject of care proceedings if any of the following conditions is satisfied with respect to him: (a) he has been or is being ill-treated, neglected or assaulted (b) he is or has been under the care of a parent or guardian who does not exercise proper guardianship or who has otherwise received or is receiving inadequate care such as to cause or be likely to cause him physical or mental suffering or injury to his health or to impair substantially his proper development (c) his parent or guardian is not capable of exercising proper guardianship (d) he has been or is being sexually abused (e) any of the offences mentioned in the Second Schedule has been committed in respect of him. A set of offences which I will not read out are set down in the Second Schedule to that Bill. I continue: (f) he is a member of the same household as a person who has been convicted of an offence mentioned in the Second Schedule (g) the court or another court has found that any of the above conditions is or was satisfied in the case of another child who is or was a member of the household to which he belongs.

The valid point made about more progressive thinking in relation to where a child is vulnerable, abused or in danger of being abused is that you do not remove the child but you remove the offender, the abuser. We might think again about that, although I have no difficulty at all in accepting that perhaps the definitions as boiled down or synthesised in the Bill before us may well cover all the eventualities. I hope the Minister will in his Second Stage wind-up assure us that all the eventualities envisaged in the earlier Bills will be covered by his more succinct provision in this Bill.

Section 16 of the Bill goes on to the provision of supervision orders, a very important innovative arrangement where a child can be allowed to stay in his own home setting. I think we have a consensus view from everybody that the ideal is for a family supportive background, a family unit to be maintained where that is possible and practicable. Under the terms of the supervision order obviously you maintain the child in his home environment and you allow for the regular monitoring of that child. Again, we cannot escape the difficulties. We have seen horrific cases in the UK in the past year where children were technically being supervised by the local area health authority and horrendous damage was done to them and in some cases the child was murdered.

If you are going to devolve this sort of authority on to a local health board you must provide the wherewithal to carry out adequate supervision. You must provide the money and the trained personnel. If you allow a child who is vulnerable to stay in the home background and you do not provide the resources for the adequate monitoring of that child, you are doing a tremendous disservice to the interests of that child who is vulnerable and dependent on us to vindicate his rights and maintain his integrity. We need an assurance if any of these provisions are to work that adequate resources, funding and trained personnel will be provided in order for these provisions to be carried out properly.

Section 17 of the Bill deals with the jurisdiction of the District Court. We have had a rather disparaging analysis of the role, function and competence of the District Court by a previous speaker and I do not intend to add to that. I do not have that Deputy's disparaging view of either the District Court or the bureaucratic nature of health boards. Although the central authority of health boards is vested in the CEOs, the boards are staffed generally by a great number of caring, competent professional people whose advice and experience I would place far more faith in than the legal experience and competence of some lawyers to determine the correct decisions in relation to children. I would prefer decisions in relation to the rights and future of children to be made by competent child care specialists rather than by lawyers or judges whose knowledge of the needs of children and whose competence and professional training in that area would be lacking.

However, I want to focus on the need for family courts, for children's courts, a request made by many of the reviews I have cited. Perhaps the Minister will indicate to us that they will be the subject of separate legislation. He did not mention it in his speech. Perhaps he intends to introduce another Bill to allow for family courts or perhaps his colleague, the Minister for Justice, will promote that legislation. I, and I think anybody who has been involved at any level with the rights and needs of children, accept that the informality, the professional competence and the expertise of specialist family courts are required if we are to do justice to the rights and needs of children. I do not know why we have not addressed that but I presume the only justification for not doing so is lack of money.

I should like to ask the Minister to give us some indication that family courts will be established. A recommendation to establish such courts was contained in the Kennedy report published in 1970 and in the report of the Task Force in 1981. It is 18 years since the Kennedy report was published but we have not acted on its recommendations. Too often we allow reports to build up and gather dust on shelves. I could give a long list of such reports but if we are serious about how we treat the issue of the rights of children, if we are serious about providing for the best intentions of children we must establish a framework in which correct and just decisions are made. I do not share the disparaging view of the District Court expressed by another Member, although it is not the ideal place for important decisions on the future of children to be made.

I welcome the informality that is to be introduced under the Bill but it is not nearly enough. It is not enough to have informality, it is not enough not to compel the child to be present and it is not enough to hold care proceedings in private. What is important is that the judge making the decision should have a specialist knowledge of and training in the complex area of the rights and needs of children and the demands of children in the times we live. I hope, and pray, that the Minister will give consideration to that matter and will be able to tell us that he will use another piece of legislation if not this Bill to establish those much vaunted and often talked about but yet to materialise courts.

Part V deals with the arrangements which may be made by health boards in looking after children in their care. However, we will have to wait for the Minister to introduce his regulations under the Bill. Always in such cases one is inclined to say that it would be nice to have the regulations published in tandem with the Bill so that the House can debate them directly rather than having enabling legislation allowing the Minister to make provision subsequent to the enactment of the Bill.

Part VI contains a very important new development. For the first time some regulations will be brought into the area of pre-school services. I have always believed that the State should provide a proper pre-school service. In the last ten to 15 years there has been a mushroom growth of playschools and pre-schools of variable character. Some are excellent, some are operated and managed by competent and conscientious individuals who have a background in education or child care and provide excellent facilities. Others are run in garages or in accommodation that factory workers would not be allowed work in because it would be illegal under the factories Acts. For the first time we are putting down a framework for legislative action in relation to maintaining standards for little children who attend pre-school classes, who are expected to spend hours each day often in conditions which are not acceptable. We have to tackle the huge variety of standards. The quality of some of the personnel who operate pre-schools should be given some legislative attention. This may be the prerogative of the Minister for Education rather than the Minister for Health but there is no doubt that some minimum standards should be applied to those who offer pre-school educational facilities to those who are under the compulsory school attendance age.

In many progressive societies the State has a comprehensive view of the educational needs of children. It is clear that the formative years of a child, from two-and-a-half to three, can be crucial in the future development of that child. I have had experience of some children attending school for the first time at between six and seven years who have not had pre-school experience being far behind those who start school at five after one year or two years in pre-school. They are well in advance of the late starter. We are compounding an inequality because invariably it is the children of the parents who can afford to pay who have the best standard of pre-school education available to them. There is a compelling and urgent logic in this State making provision for the total education needs of all our children. If we give a leg-up to a section of the community who can afford it we are further compounding inequalities. Children starting school at six or six-and-a-half years are often socially retarded and linguistically backward because they have not had the experience of developed speech. We need to address the whole area of pre-school.

I welcome the provision in Part VI as a first step in providing the very minimum, adequate structures, ventilation and so on, but we have a long way to go before we can clap ourselves on the back and say that all the needs of our children are adequately catered for. Part VII updates the arrangements for the inspection and supervision of residential centres for children. The crucial question is, who is going to do this work? Will the Minister provide the staff or will he give the health boards the money to enable them carry out this work? If he does not do so, that provision will not be implemented and we will be making a mockery of the Bill. We are devolving roles to health boards right, left and centre thinking that we are doing a marvellous job but we are not providing the money or personnel to carry out the duties placed upon those boards.

I am sure most Members looked askance at section 57 which provides for the abolition of the death penalty in respect of crimes committed by persons under 18 years. I do not think the House will have any difficulty in removing the death penalty for such cases from the Statute Book. Indeed, we should have gone further and abolished the death penalty altogether in this State.

The Bill addresses a serious subject, one that has caused most of us a lot of concern in recent years. I am referring to the increasing abuse of solvents by children. I recognise that the Minister has a difficulty in regard to this because while we have to allow children to build model aeroplanes and the like we must face up to the fact that the substances used to glue the parts of such models together can be abused. We have the other level of the pendulum. In the streets of our capital city, and indeed in the streets of other towns, there is blatant abuse of solvents by young children who appear on the streets with bags of glue and are in a totally intoxicated state. There must be some responsibility on premises and individuals who sell substances like that to children. Obviously retailers have some discretion. They know in many instances that somebody coming in for four cans of a certain glue is not going to make model aeroplanes. There is a need and an urgent necessity to have penalties imposed upon those whose only concern is commercial gain and who want to simply ignore the fact that they are causing untold hardship and damage to the lives of young children.

Debate adjourned.