This Bill is not a new Bill in so far as the previous Government presented the Children (Care and Protection) Bill in 1985. There was an extensive Second Stage debate on that Bill and the House is again debating this subject. Since then I have been appointed Fine Gael spokesman on health and I will be dealing with this Bill on all Stages, along with my colleague, Deputy Alan Shatter, who as a family lawyer is renowned for his expertise in this area. Before I deal with the meat of the Bill I would like to compliment Deputy Mary Coughlan for her first-hand knowledge of this matter. She is right in criticising the lack of resources at health board level and the lack of planning by this Government in dealing with the child care problems that exist.
Fine Gael welcome this Child Care Bill in principle. However, we will be seeking on Committee Stage to remedy a number of serious deficiencies and inadequacies in the Bill by way of amendments. Specifically throughout this debate we will be seeking to ensure that the following four objectives are adhered to: first, that this Bill sets out a clear set of rights for children, with their welfare as the paramount concern; secondly, an updating of the law to allow the child care authorities to intervene effectively by way of proper back-up support to families in need, adequate supervision for children at risk or the provision of sufficient alternative care, be it foster care or residential care; thirdly, we will be seeking from the Government a commitment of resources to ensure a uniform, standard, minimum level of child care services across the country and, fourthly, as it is 80 years since the last child care legislation was introduced we will be proposing the establishment of an independent national children's council to monitor the legal framework and State services for children on a national basis. In order that this House will be asked to intervene more than once every 80 years, we will be putting forward an amendment, which I will deal with later in some detail, to establish a national children's council which will have an independent monitoring and review role in relation to child care services.
Within these overall objectives we seek a number of specific changes which will set out a more comprehensive legal framework to meet the growing needs of our children. Fine Gael fundamentally believe we have an obligation to speak up for those children whose voices cannot be heard. We believe fundamentally that investment in children is a sound investment in the future.
In terms of protecting the rights of children I am concerned first about the constitutional and legal position where there is a conflict between the rights of welfare of children and parental rights to custody. Articles 41 and 42 of the Constitution confer on parents "inalienable and imprescriptible rights" and similar rights with regard to the education of their children. Article 42 also confers similar rights on children. However, these latter rights seem less important and less qualified for constitutional protection than the rights of parents in the context of a married couple. I am referring specifically to the Supreme Court decision in March 1985 in the case of MC and MC and KC and ACv An Bord Uchtála. The unanimous five judge verdict stated: “The State cannot supplant the role of parents in providing for the infant the rights to be educated conferred on it by Article 42.....”. Effectively this Supreme Court judgment showed that the court could not constitutionally decide the issue of a custody contest solely on the basis of what course of action is in the best interests of the child's welfare. If one interprets this judgment it seems that it is not constitutionally permissible, especially for legitimate children — that is children within wedlock — to regard the childrens' welfare as the paramount consideration, which in our view is the reasonable objective.
In a further case of the Supreme Court on 22 June 1977, J.v D., it seems the rights of children are subservient to the inalienable and imprescriptible and paramount rights of the parents. I understand there have been at least two cases of potential constitutional proceedings against the existing 1908 Children Act and that those cases were not heard for fear among the child care authorities of the Act being found to be unconstitutional or constitutionally infirm, with the cases subsequently being settled by agreement. Therefore, we have this cloud of a constitutional question arising over this Bill, the 1908 Act and the Guardianship of Infants Act, 1964. This must be resolved.
As a first step in clarifying and establishing unambiguous rights for children as to their welfare being the most important issue in any conflict, we should insert — as Fine Gael will seek in the course of this debate to insert — into the Bill a premable declaring the rights of children. I would propose that we insert a section which would set out these rights using the international criteria set out in the UN Charter for Children in 1979. Unfortunately, in no law nor in any part of the Constitution is there any such declaration of children's rights to date.
Not being a lawyer myself, I cannot state with certainty the constitutionality of this Bill. However, to clear up any doubts, I would favour this Bill being referred by the President under Article 26 of the Constitution to test its constitutionality. It is vital that this legal issue be clarified in view of the ineffectiveness and questions as to the effectiveness as regards section 3 of the Guardianship of Infants Act, 1964 in the light of the Supreme Court cases I have referred to. Personally I would not be opposed to a constitutional referendum and amendment which stated expressly that all children have equal rights under the Constitution and that in the context of the rights of children where a conflict arises with parental rights the paramount and first interest should be the welfare of the child.
In referring to the Guardianship of Infants Act, 1964 I would also favour, in cases where there are disputes of custody between parents, the judge should be given power not only to award the child to one parent or another but should be allowed to put the child into care under the care proceedings of this Bill. I also believe additional powers are required to be given to the court in such a case under the Act in monitoring the child's care and powers to make some parents co-operate where necessary.
A serious aspect of concern I have in relation to the operations of this legislation relates to the role of the District Courts. The last speaker, Deputy Coughlan, referred very articulately to this. It is obvious that the District Courts is not suitable and is inadequate in a number of respects to deal with this legislation. These cases are by their nature very sensitive and complex. District Court justices to be eligible have a background of a minimum requirement of ten year's practice as a solicitor. With due respect to them, I feel they lack the relevant qualifications and specialist training for child hearings. It is vital, perhaps on a pilot basis initially that a family or children's court hear the cases intended under this legislation. Such a court should also include the right where necessary for the child's own legal representation to be attached to the court. Other countries have clearly established what is called a children's advocate whereby in difficult cases the child, as well as the parents and the health board, can be separately and individually represented. Hearings in such a family or children's court should be as informal as possible with the court having certain powers in determining certain cases. By this I mean access to the maximum amount of information such as medical examinations, psychologists' reports and so on, and that the power would be given to the justice to commission such information. Child welfare services could and should be linked to these courts. For example, I note that in Australia in 1975 there was passed a family law Act establishing such different courts there.
The nature of the District Courts is that you have a wide variety of different types of criminal cases and long waiting lists and the whole environment is very intimidating and unsuited to the hearing of these types of delicate cases.
I should like the Minister for Health or his Minister of State to clarify or resolve or state a commitment to rectify a number of points between now and Committee Stage in order to deal with this Bill expeditiously and satisfactorily. Perhaps some of them are already dealt with in the 64 sections of this Bill and, if so, Fine Gael will only be too happy to support them. These points include: first, a level of immunity should be given to general practitioners, public health nurses and other relevant health service personnel and bona fide members of the community who report to the child care authorities cases of feared abuse of children. I am talking about a third party here referring to the health board or the child care authority their possible concern about abuse or neglect in a family situation. As I understand it, in the present law there is a scope for civil suits of defamation against well meaning third parties in bringing concerns to the relevant authorities. Obviously, this immunity would have to be balanced to ensure that the reports were of bona fide concern and not of a malicious intent. This, I think, is one of the weaknesses of the Bill. Such limited immunity should be conferred on such people so that we have a community response to child care problems.
Secondly, it should be mandatory that all cases of suspected neglect or abuse of children be reported and recorded by the child care authorities. I understand there is no such provision in the present legislation. This legislation gives the health boards the powers of operating our child care services. I am not opposed to this in terms of the present health structures under the 1970 Act as they are the obvious channel of authority. However, in certain instances where there may be gaps in the boards' personnel or resources to meet child care needs, this legislation should allow, subject to ministerial approval, a voluntary agency to provide child care services on a contract basis. This would not only fill gaps where they arise but would give perhaps better value for money. In this regard I am concerned with the narrow focus of sections 3, 4 and 14 of the Bill. Such a contract of service to a voluntary organisation concept could be a valuable blueprint for child care services nationally. It could also be part of an overall uniform national code of practice for each health board to follow in providing services.
The powers in the Bill conferred on gardaí in taking children to places of safety should be extended so that those powers would also be available in a substitutional way to health board personnel. I do not think it appropriate in relation to orders for places of safety and so on that gardaí exclusively should be dealing with this matter. I envisage in terms of substitution that social workers and other staff where appropriate would substitute for gardaí. I also believe the present role and structure of school attendance officers should be altered to include them in local community care teams dealing with children. They should be renamed school welfare officers and brought under the direct responsibility of the health services.
This legislation seems to respond to children at risk by way of powers to remove children, where necessary, from the family environment. In a number of cases it may be more appropriate to legislate in such a way as to remove the offending adult from the family environment rather than the child. This could be done by extending barring orders as one method. I would favour a clear provision in this Bill and powers in this legislation to facilitate such a response by the authorities where they consider it appropriate. It is not clear from this legislation what the precise protocol of the intervention process will be. This needs to be clarified either in the relevant section of the Bill or by subsequent ministerial regulation. In this regard the rights of parents also need to be clarified so that they have access to any reports prepared against them. They have a right to know what they are accused of and this is not stated in the Bill. Similarly, the question of parental consent or lack of it is not clarified satisfactorily.
In relation to supervision orders it is not defined how often a social worker should visit a family — once a week, once a day or once a month. A 12 month period for a supervision order seems to me to be somewhat too short. Moreover, in relation to the extension of supervision orders, we need to lay down clear criteria to avoid some of the problems that have arisen in relation to the extension of barring orders. There is no doubt that different district justices take different interpretations in relation to the renewal of such orders. One can have a situation whereby if an adult is absent from the family environment one judge could decide that because the problem was not happening over the last year, sexual abuse to a child or whatever it might be, there was no need to renew the order by virtue of the fact that the reason for creating it no longer existed. In those terms the justice would be quite right in interpreting it thus and not renewing the order. However, another justice might take the view that there was the potential for the abuse to recur if the order was not renewed. The circumstances whereby an extension of either a care order or a supervisory order would be carried out are not clear. Moreover, it has to be stated that it is not clear what would happen in the interim after a care order or a supervision order had expired and while further proceedings were pending. It is not clear whether one would have a temporary limbo and that needs to be clarified. I strongly believe that until the justice decides otherwise that order should continue.
In relation to the legal ages as defined in this Bill I favour the definition of a child to mean a person up to the age of 18 years. In the last Government's care and protection Bill in regard to children the age limit was 15 years. That was, in my view defective especially in families where there are five or six children and, because of the age definition, some would be in care and some out of it. This lack of restriction is a positive step.
However, I will be seeking, on Committee Stage, to change the age of criminal responsibility from the present age of seven years to 14 years. It is disgraceful in the eighties that we would consider that children under 14 were over the age of criminal responsibility. It is not fair; it is not conducive to their future development. I do not feel that tying them into the criminal process and the whole processs of punishment and retribution is right, and I will be seeking to have that doubled to 14 years of age. I believe the views that set that up in the first place are now outdated.
The question of financial resources for child care services will determine the enforcement and success of this legislation. To date, child welfare services have been tacked on to the end of an overburdened health board structure in anad hoc way. The nature of child care needs does not conform to a 40 hour week but rather a seven day, 168 hour week. Resources mean staff numbers, including social workers and specialists such as psychologists, and an inspectorate to deal with standards. It means care facilities, including short and long-term residential homes, and sufficient numbers of foster parents. Resources also mean community care centres from which child care teams can be based and that can act as a central focal point for the referral of children. These three requirements of adequate staff, adequate care facilities of a residential nature and referral centres must be put in place by the Government if this legislation is to work.
I have been asked to table amendments to specify levels of resources to deal with this problem. I do not believe that this is the correct approach, but I can say that I, and Fine Gael are committed to child welfare and its proper funding and we will be asking the Minister, before this legislation is enacted, to specify exactly what allocation will be made within the community care budget and the primary care budget to provide for the special needs of children.
Legislation is one thing, enforcing it is another and we have an age old tradition here of aspirational legislation but a total lack of follow-up and enforcement. In this House I will be ensuring accountability of this Minister, his Department and the health boards to ensure that this reform becomes a reality.
This Bill sets out the provision of child care advisory committees attached to regional health boards. We support this. However, for them to be successful they have to be representative of the relevant experts and voluntary organisations dealing with children and the consumers of the service. Section 5, dealing with these committees, is clearly inadequate. On Committee Stage we will be seeking to ensure that these committees effectively monitor the work of the health boards by being given powers in the following areas: access to information; recourse to a panel of experts; power to make recommendations for the improvement of services; be a consultative body to voluntary organisations; produce accountable annual reports, be empowered to hear submissions from children and carry out visitations of centres; be allowed to promote the development of child care services in the region; draw attention to cases as they see fit, and also to specify any review of the needs of children in their area. So we see a very clear role for these advisory committees. We believe that that is not set out in section 5. If the Minister seeks to set it out by way of ministerial regulation we would want to know, before we approve that section, exactly what those regulations will be.
The further role of these regional advisory committees should be to co-ordinate with a national children's council which would be independent by way of its research and planning role from the Department of Health. I am confident that Fine Gael will be able to obtain the support of all Deputies in relation to the establishment of a national children's council. There was a clear consensus amongst every group working in child care that there is a need for such an independent review of services and structures. I would ask the Minister to take this on board in a constructive fashion. Such a council would ensure full accountability for the child care services across the country. This was recommended as far back as the Kennedy report on child care services in 1970. It was again recommended in section 533 of the task force report on child care services in 1981. Such a council is vital to obtaining and continuing high standards of child care.
Paramount in the operation of this legislation must be proper consideration for the wishes of the children in question. There are a number of sections in this Bill where we feel this is understated or not alluded to at all. We will be seeking to insert the words: "giving due regard to the wishes of the child" into a number of sections. I am aware that this issue is not clearcut. For example, would a daughter aged six or eight years of age, express her correct wish as regards remaining in a family home if she was being sexually abused by a male adult. I appreciate there are sensitive concerns in this regard. However, the spirit of this legislation and its abiding principle must not be to foist on children the views of adults to the exclusion of their own wishes.
In terms of alternative care for children, I am extremely supportive of the maximum level of foster care. I want to place on record my admiration for the work and role of foster parents. Their rights are not clearly defined in the Bill. Should their rights to adoption increase after a given period of fostering? If so, how long should that period be? Should they be given a clear right, including the right to free legal aid where appropriate, to be fully represented at any court hearings affecting the children? A clear appeal process for both natural and foster parents should be set out in the Bill. In order to promote more foster resource groups within health boards we need to look again at the rate of remuneration, currently of the order of £35 per week. We need a further inclusion at health board level of respite fostering services for short stay cases.
I understand that one of the major differences between the Bill and the legislation introduced by the previous Government in 1985 is the absence of Part V which dealt with the rights of foster parents. I agree that there were major problems with that provision in terms of its interaction with other legislation and the difficulty of defining the rights of foster parents but the Bill makes no attempt to deal with those issues. Effectively, the issue has been fudged. We will be seeking some definition of the rights of foster parents.
I support the call for minimum standards for residential care facilities, pre-school facilities, and other child facilities. For some time the basic standard of buildings has left a lot to be desired and it is right that there should be minimum standards with proper supervision by an adequate inspectorate. In relation to pre-school facilities, I should like to state that we shall be tabling an amendment to reduce the age from six years to four years in relation to the definition of child care facilities.
Another legal area that I would like to have clarified relates to the definition of a parent. Section 2 states:
... "parents" includes a surviving parent and, in the case of a child in respect of whom there is in force an adoption order made under the Adoption Acts, 1952 to 1976, means the adopter or adopters or the surviving adopter under that adoption order.
What is the legal position of the natural father of a child born outside marriage? By that I mean a child of an unmarried mother or the child of a second marriage based on a church annulment or a foreign divorce. In the latter case the father of a second household is as real a parent as any other definition of parent we might like to attribute. The Minister should consider redefining "parent" from its present definition to include a biological link, where applicable. I would appreciate the Attorney General's view on this matter. Moreover, where children are in care, should we not consider adding in the power of a maintenance order that such fathers should, where possible, contribute to the cost of the welfare of those children.
It is a great pity that legislation dealing with children has been so shabbily treated to date. It seems incredible that we should be operating on a 1908 Act that was passed, not here, but in Westminster. That Act was changed in the twenties. We should have one comprehensive piece of legislation incorporating not only the contents of the Bill but past and future topics such as the status of children, adoption laws and juvenile justice legislation. This piecemeal approach by different Departments has led to a great deal of legal confusion. To avoid a repetition of this we need to co-ordinate the efforts and work of different Departments, of Education, Health and Justice. That can either be done through the proposed national council or through some interdepartmental structure. The Minister should give a commitment that the wrongs of the past will not be repeated due to a lack of co-ordination.
I look forward to the early scrutiny of the provisions on Committee Stage. Fine Gael will not be opposing the passage of Second Stage of the Bill and I hope the Minister will adopt an open and constructive position in response to our constructive proposals. Ultimately, it is imperative that we take this opportunity, the first one in 80 years and the last time for many years, to update this vital area of our legislation. I should like to assure the Minister of State that we will be approaching the Bill in a constructive way. We intend tabling more than 20 amendments for Committee Stage but we will be flexible in our approach to them. There are gaps in the Bill and it is important that we deal with Committee Stage at an early date. Adequate time should be allowed to Members to scrutinise the provisions effectively. This is one of the most important welfare areas of State services which has been added to the health services.