I would like to thank the many Deputies who contributed to the debate on this Bill. I am pleased at the support it has received from all sides of the House and the constructive and positive tenor of the debate. I am also glad to say that the Bill has generally been welcomed by all of the statutory and voluntary agencies concerned with childcare. A large number of issues were raised during the debate and I would like to respond to some of them while other points which came up will require more detailed consideration. I wish to assure the House that I will consider them between now and Committee Stage and indeed the Minister for Health, Deputy O'Hanlon, will be studying all the contributions which have been made.
The question of resources was raised by a number of Deputies. I accept that the implementation of the Bill will require the allocation of additional resources to the childcare area. It is important however to point out that it has never been the practice to include in a Bill details of the resources which are to be made available to implement it. Frequently, this is not realised outside the House. The allocation of resources is a matter for political and administrative decision in the context of departmental Estimates and health board decisions on expenditure priorities.
I am well aware that the success of the Bill will depend on the allocation of additional resources to fund the improvement of existing childcare and family support services, the development of new preventive strategies and the appointment of additional social workers and other staff. It will require a significant increase in spending on childcare services. It will cost a lot of money but the cost of not doing so in terms of human misery and the suffering of young children would be a great deal more. I want to assure the House that despite the hard economic times in which we live, the money for improvements in our childcare and family support services will be found. It will necessarily be a gradual process but my policy of directing a greater proportion of available resources to community services will benefit in particular childcare and family support services.
The process of increasing expenditure in the childcare area has already begun even before this Bill will be enacted. This year the Minister and the Department allocated £500,000 from the Department's share of the national lottery surplus towards the improvement of services for sexually abused children. A further sum of £4 million has been allocated from the national lottery surplus to fund a range of services and other developments for young people at risk such as the young homeless, young travellers and substance abusers. The allocation included over £1 million to assist health boards and voluntary bodies dealing with young people throughout the country who for one reason or another are not living at home. I am confident that this substantial injection of funds will enable significant progress to be made in the provision of appropriate services at local level for this vulnerable group of young people. It is the Government's intention that the childcare area will continue to benefit from the welcome injection of funds from that particular source. Indeed, I think the public should be made aware that we have received support from the national lottery for this area of policy.
As the Minister indicated in his opening speech, this Bill and, in particular, the provision in relation to taking children into care have been very carefully drafted in the light of the relevant constitutional provisions and recent judicial interpretations. Article 42.5 of the Constitution expressly provides for intervention by the State where parents fail in their duty towards their children. The Supreme Court has ruled that while there is a constitutional presumption that the welfare of the child is to be found within the family this may not always be the case and there may be exceptional cases where children would be better off if they were removed from their parents. It is for these exceptional cases that we are trying to legislate in this Bill. Part IV of the Bill envisages that care proceedings would be taken only in exceptional cases where the parents had failed to care for their children or where there were other compelling reasons why the welfare of the child was not to be found within the family. I do not, therefore, anticipate any constitutional difficulties with the provisions of the Bill and I am confident that they would, if challenged, be found to be in conformity with the Constitution.
It has been suggested that the Bill should contain a comprehensive statement of children's fundamental rights. This suggestion is based on the frequently repeated but entirely mistaken contention that children have no rights. Nothing could be further from the truth. The Bill before the House cannot be considered in isolation but must be read in conjunction with the Constitution and the various judicial pronouncements about the rights of children and parents. The Constitution guarantees rights for all the citizens of the nation, including children. Article 42.5 refers to the natural and imprescriptible rights of the child. In other words, the Constitution acknowledges that children have natural rights over and above any rights granted to them under the Constitution. In recent years the courts have begun to enumerate these rights. For example, in the case known as G.v. The Adoption Board, 1980, the Supreme Court declared, and I quote:
The child's natural rights spring primarily from the natural rights of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural right and duties in respect of the child, to exercise them in such a way as to intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such....
This judgment makes it clear, beyond doubt, that children have rights and that these rights are protected by the Constitution. I do not accept, therefore, that there is any need to try to spell out in this Bill the rights of children.
A number of Deputies criticised the fact that care proceedings are to be heard in the District Court and called for the establishment of family courts. I would like to remind the House, first of all, that the District Court has been dealing with fit person orders and other provisions of the Children Acts since the foundation of the State and, to the best of my knowledge, it has been doing so reasonably successfully. I might also make the point that the Bill introduced by the previous Administration also envisaged child care proceedings being dealt with in the District Court.
The District Court exercises jurisdiction in a range of related areas including proceedings in relation to custody of and access to children under the Guardianship of Infants Act and the protection and maintenance of spouses and children under the Family Law Acts. Taken together with the care proceedings envisaged under the Bill, the District Court will have a fairly comprehensive jurisdiction in relation to child care and family law. There are obvious advantages for all concerned in having related proceedings dealt with in the same court.
As regards, the introduction of legislation to provide for family courts, this is a matter for my colleague, the Minister for Justice, Deputy Collins. I want to make it clear that I am not against the establishment of family courts. Indeed I can see many merits and advantages in such a development. I would not be happy to delay the passage of this much needed Bill to await the establishment of family courts. If, at some stage in the future, a system of family courts were to be set in place it would be a relatively simple matter to transfer to them jurisdiction in relation to child care proceedings under this Bill.
Deputy McDowell challenged the legal competence of the District Court to deal with care proceedings arising under the Bill. He claimed that the District Court, as a court of limited jurisdiction, does not have the necessary authority to make far reaching decisions about the welfare of children. I do not accept this contention. The most significant power which the District Court is being given under this Bill is the power to make a care order. I would ask the House to look at this for a moment to see whether there is anything in it that would exceed the limited jurisdiction of the District Court.
The effect of a care order is to suspend a parents' right to custody of and day-to-day control over their child. This does not, however, mean that the parents lose their parental rights while the care order is in force. The parents remain guardians of the child and retain many of their rights, including the right to decide major issues in relation to the child's education and religious upbringing. Parents can appeal against the making of the care order and the appeal could, if necessary, go all the way to the Supreme Court. Whether they appeal or not, the parents have the right, at any time, to seek the return of the child either by applying to have the care order discharged or by taking proceedings for the return of their child under the Guardianship of Infants Acts.
All of this shows that the making of a care order is limited in its effects; it is not a final or irrevocable decision. It is completely unlike an adoption order which terminates the parental rights of the natural parents and transfers them permanently to the adopters. I am satisfied that the District Court would be acting well within its powers to make a care order and I believe that the fears expressed by Deputy McDowell on this point are not justified.
Deputy McDowell questioned the legal authority of health boards to act as fit persons under the Children Act, 1908. The Deputy claimed that because there is no specific provision in the Health Acts explicitly empowering health boards to act as fit persons, the boards have no legal authority to act as fit persons and are actingultra vires in doing so.
I would have to reject this interpretation. I am satisfied that a solid case can be made in support of health boards acting as fit persons. While it is true that there is no specific reference in the Health Acts to the fit person provisions of the Children Acts, I believe that the health boards have an implied power to act as fit persons by virtue of their general responsibility under the Health Acts to care for needy children. Furthermore, I might make the point that Article 42.5 of the Constitution places an obligation on the State to intervene and supply the place of parents where they are not fulfilling their parental duties. Successive Governments have allocated this responsibility to health boards as agents of the State. Health boards have been taking children into care under the Children Acts since their establishment and the health authorities were doing so for many years before that.
I am pleased to say that this practice has recently been endorsed by the High Court. In a judgment delivered on 15 July last, Miss Justice Carroll indicated that she was satisfied that a health board can act as a fit person. In order to put the matter beyond doubt in the future, section 14 of the Bill imposes a clear statutory duty on health boards to initiate care proceedings whenever this appears necessary. This will ensure that there can be no arguments in future about the authority of the health boards to take children into care through the courts.
Deputies asked how the care proceedings envisaged in the Bill will relate to the wardship jurisdiction of the High Court. Care proceedings under the Bill will in no way affect the power of the High Court to take children into wardship. Wardship forms part of the inherent jurisdiction of the High Court. The most common situation in which it is used is to obtain independent protection for a minor's property. However, a minor may be taken into wardship where no property matter is involved although I understand that this power is seldom used.
The care proceedings will exist side-by-side with wardship as the fit person provisions of the Children Acts have coexisted with wardship for many years. I would expect that the vast majority of children who require care and protection will be dealt with under the care proceedings but the option of wardship will continue to exist.
There are other areas of the law where a number of alternative legal remedies are available and I do not think that the existence of wardship will create any difficulties for what is proposed in the Bill orvice versa.
The dramatic increase in the number of reported cases of child sexual abuse was referred to by a number of Deputies. In my opening speech, I give some indication of the steps that are being taken within the health and social services to improve services and facilities for sexually abused children. I might mention that the Law Reform Commission are at present undertaking a study of the law in this area. The Commission have received submissions from a number of organisations and individuals dealing with the problem and members of the Commission have also had discussions with agencies involved in this area and with parents of abused children.
I understand that the Commission intend to publish a discussion document on the changes in the law which may be needed in this area. Among the issues which it is hoped to address will be the definition and classification of sexual offences in relation to children, evidential and procedural matters relevant to the child's testimony, procedures for the reporting and investigation of alleged abuse and the civil procedures relevant to the protection of children.
Many of these issues, of course, fall within the area of responsibility of my colleague, the Minister for Justice. Nevertheless, I am looking forward to the publication of the Commission's discussion document and I will carefully consider any recommendations which relate to areas for which I have responsibility.
Some Deputies suggested that where a child is abused at home, the response should be to remove the offender rather than the child. While at first sight this seems a reasonable proposal, I can foresee major difficulties with it.
In the first place, it is vital to remember that the people we are talking about in many cases are alleged offenders. No matter how much society may abhor the abuse of innocent young children, under our system of justice alleged offenders are innocent until proven guilty. Persons against whom serious allegations of abuse are made are entitled to a fair hearing and the question of removing them from their family home could only be considered where there is firm evidence.
What Deputies seemed to be suggesting was that it should be possible for a third party, namely a health board, to seek a court order barring a parent who abused a child living in the family home. This is completely at variance with the original concept of a barring order. Barring orders were created by the Family Law Act, 1976 to enable one spouse to have the other spouse removed from the family home, despite their mutual duty to cohabit.
Allowing a third party to separate a married couple, particularly if it is against the wishes of one or both of them, would be a very serious step to take. I am not sure that such a proposal would find general public support or that it could be framed in such a way as to avoid falling foul of the constitutional guarantee to safeguard the institution of marriage.
There would also be practical difficulties. It must be borne in mind that it is already possible for a spouse to obtain a barring order where the safety and welfare of any child of the family is at risk due to the conduct of the other spouse. What is being suggested, therefore, is that a health board should be able to seek a barring order in circumstances in which a spouse can seek a barring order but either has not done so or is unwilling to do so.
One must have serious doubts about the effectiveness of an order obtained by a health board in such circumstances. The success of a barring order depends to a large extent on the willingness of one spouse to bar the other spouse from the home and to report breaches of the order to the gardaí. One wonders if spouses who are reluctant to seek a barring order in their own right would be willing to report breaches of an order obtained by the health board. If the spouse is not willing to ensure that the barring order is observed, it would be almost impossible for the health board to do so.
Given the difficulties which I have outlined, I feel that this proposal requires much closer scrutiny before it could be enshrined in legislation. I understand that it is one of the ideas being considered by the Law Reform Commission in the context of its examination of the law in relation to child sexual abuse. It will be interesting to see what views the Commission will have to offer on this issue.
A number of speakers called for the establishment of a national children's council. None of them managed, in my view, to put forward a convincing case for such a body. Given the continuing constraints on the public finances, any proposal to establish a new organisation to be funded by the Exchequer has to be very carefully considered. In particular, the Government would have to be satisfied that there is a pressing need for the proposed body and that the work envisaged for it could not be undertaken by any existing State agency. I do not believe that such is the case in relation to the proposed national children's council.
The main role envisaged by those who advocate such a council is providing advice to the Minister and health boards on childcare policy. This must be viewed in the light of the fact that the childcare area has been the subject of numerous reports, studies and investigations in recent years. I think it is fair to say that there is now a broad consensus among the different shades of political opinion and the various interest groups as to what needs to be done. The real difficulty is getting sufficient resources to bring about all the changes and improvements that are necessary. I do not believe that the establishment of a national children's council would help to resolve this difficulty. On the contrary, the operational expenses of a council which could be up to £100,000 per year would only divert resources from the frontline services out in the community.
Having said that I want to make it clear that I am not opposed in principle to the establishment of some form of consultative and advisory body in the childcare area. If the financial situation were to improve and the need for it were to be more clearly established, I could avail of power which I have under the Health Acts to appoint consultative bodies to establish a national advisory body on childcare. This is the legal basis for the National Council for the Aged. However, for the reasons I have mentioned, I would not be disposed at this stage to making special provision for a national children's council in this Bill.
The absence from the Bill of provisions to afford greater security to foster placements was raised by a number of Deputies. The House will recall that the Children (Care and Protection) Bill, 1985 contained proposals which would have enabled foster parents or other persons who were bringing up a child apart from his parents to obtain an order granting them legal custody of the child. The reaction of health boards and childcare interests generally to those proposals was generally unfavourable. For example, the Irish Foster Care Association, which represents foster parents, said that the proposals did not provide any real security or sense of permanence for foster placements. Social workers expressed concern that parents having difficulty in caring for their children might be deterred from placing them in foster care because of a fear that the foster parents would obtain legal custody of their children. Apart from the negative public reaction to the proposals, there were also some doubts about their constitutionality. In the light of all this, the then Minister, Deputy Barry Desmond, on behalf of the previous Government informed the special committee which was dealing with the 1985 Bill that he did not intend to proceed with the custody proposals.
In preparing this Bill, it was decided not to resurrect the custody proposals for the reasons which I have just outlined and also because children in long-term foster care may, in certain circumstances, now be eligible for adoption under the Adoption Act, 1988.
It was claimed that Part VI of the Bill, which deals with the inspection and supervision of services for pre-school children, does not go far enough. I have to say that I do not accept this view. While children must be properly cared for and protected, I am anxious to avoid creating an elaborate supervisory system which could interfere with family arrangements and ordinary neighbourly help. It has been estimated that over 60 per cent of pre-school children of working mothers are being looked after by grandparents and other relatives or by non-relatives who reside in the family home. I believe that arrangements of this kind, for example, should not be subject to State intervention.
There are two main types of services which will be subject to statutory control under the Bill; first, nurseries, créches and other pre-school services which operate on commercial lines and, secondly, community playgroups and other services which operate on a non-commercial basis.
All of these services will be required to comply with regulations which I will make following consultations with the Minister for Education. Health boards will be required to have the services inspected from time to time and will be able to call on the assistance of inspectors from the Department of Education in the case of services which have an educational dimension. In the event of serious or persistent failure to adhere to the regulations, the court will be able to impose fines and, more significantly, order that the service be closed, either temporarily while improvements are being effected, or for longer periods. These provisions are adequate to deal with abuses that may arise in the area of pre-school services. I do not think that it is necessary to introduce a registration process, with all the expense and bureaucracy that it would involve. Indeed, these matters will be discussed in greater detail on Committee Stage.
A number of Deputies expressed concern about the apparent growth in the incidence of solvent abuse, as indicated by reports in the media of the deaths of eight young people resulting from solvent abuse during this year.
I share the Deputies concern about this and accept that the provision in the Bill imposing restrictions on the sale or supply of solvents is not, of itself, a complete answer to this problem. Unfortunately, however, the problem does not lend itself to easy answers. The number of ordinary domestic products which contain solvents and which may be abused is enormous. They include all forms of aerosols and adhesives, paint stripper, cleaning fluids and butane gas. A ban on the sale of all of these products to children would be both unrealistic and ineffective since there are few homes where at least some of them are not readily available.
The best and most effective answer in the long term is to create greater awareness of the dangers of solvent abuse among children, among parents and those who work with children and among traders. There is now a clear need for a special effort to heighten public awareness of the dangers of solvent abuse. The Health Promotion Unit of my Department is at an advanced stage in preparing an information programme aimed at combating solvent abuse. Even this is not without difficulty as any campaign in this area runs the risk of exciting children's interest and prompting experimentation that might not otherwise take place. However, I am confident that the carefully planned programme which is being developed will avoid this danger and that it will in time reduce the incidence of solvent abuse.
Deputy De Rossa asked for an explanation as to why private foster care is not dealt with in the Bill. Controls on private foster care or what used to be called children at nurse are a relic of the last century. The original legislation was introduced in 1872 in an effort to prevent the destruction of the lives of infants put out to nurse by their parents. This was at a time when it is estimated that 80 per cent of so called "illegitimate" children put out to nurse in London died at the hands of their nurses. These controls were strengthened in the Children Act, 1908, and these provisions, subject to certain amendments, remain on the Statute Book to this day. Briefly, they require persons undertaking the nursing or maintenance of children whose parents are not married to notify the local health board. In certain circumstances, persons undertaking the nursing or maintenance of children whose parents are married are also required to notify. Health boards have power to supervise these children and to remove them if they are not being looked after properly.
Private foster care has little place or relevance in the modern childcare system. The introduction of legal adoption, the development of day care services, improvements in family support services and the introduction of social welfare payments for unmarried mothers have all contributed to the virtual elimination of this form of care. Furthermore, following the enactment of the Status of Children Act, 1987, it is no longer permissible to distinguish between children on the basis of the marital status of their parents.
In all the circumstances, I have decided not to re-enact the provisions in relation to private foster care in this Bill. Children who, for one reason or another, are living apart from their parents will be safeguarded through other provisions of the Bill: for example, section 3 which imposes a statutory obligation on health boards to identify children who are not receiving adequate care and protection and sections 10 and 11 which give new and expanded powers to the Garda and health boards to intervene in cases of child abuse and neglect. I am satisfied, therefore, that there is no longer any need for specific provisions dealing with children in private foster care.
In conclusion I would like to once again thank the many Deputies who contributed to the debate on the Bill. I will carefully consider the various points which have been made both here in the House and in the many submissions which I have received from the various organisations concerned with childcare.
I would like to reiterate something which I said when I opened this debate, that is, that the whole thrust of our childcare policies and services is to support families and to ensure, as far as possible, that children can grow up in their own families. Where this is not possible, our aim is to provide children with an alternative family, whether in a foster family, with adopters or in a family group home. I would like to emphasise, however, that I would see children being taken into care against the wishes of their parents only in exceptional cases.
Some Deputies have commented on the fact that a large portion of the text of the Bill deals with taking children into care and have contrasted this with the smaller portion which deals with the provision of family support services. I would like to explain that the lengthy provisions in relation to taking children into care are essential in order to spell out in precise terms the powers of the courts and the health boards and to ensure that the constitutional and other rights of children and their parents are protected. However, in practice the emphasis will not be on taking children into care but on developing our childcare and family support services so as to help parents in difficulty to care for their children.
This is an historic Bill. We must bear in mind that since the Act of 1908, this is the most important Bill to come before this House. Again, I would like to express my appreciation and that of my colleague, Deputy O'Hanlon, to all who contributed to the debate on Second Stage. I thank the Deputies who have contributed and the former Minister for Health, Deputy Desmond, who was involved in the Department of Health. I wish to place on record my appreciation of the officials from my Department who have spent so much time working on this legislation. I am sure they will be delighted, as I and the Minister are, that it has now come to the conclusion of Second Stage.