Child Care Bill, 1988: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Swift

As I said the last day, I welcome in particular the positive nature of the provisions of the Child Care Bill, 1988. From now on it will be mandatory on health boards to promote the welfare of children in their areas who are not receiving adequate care and attention. This aspect of compulsory caring for children is dealt with in Part II of the Bill and it is a very broad provision. There are tremendous possibilities of wide interpretation by the health boards and their officials and, where appropriate, by the courts. I can envisage a great development of the quality and type of services to be provided. For instance, it might be possible to use the provisions of the Bill to deal with such problems as glue sniffing or under-age drinking as they affect particular areas or particular children. There is possible scope for development in the provisions of this Bill.

The Bill imposes a duty on health boards to take children into care who may require care or protection. These provisions constitute a very significant development and a giant step forward in our whole concept of the care of children. They give tangible expression to the aspiration expressed in the Constitution to cherish all the children of the nation equally. They bring the law up to date both in line with theoretical thinking and also with daily practicalities. In relation to looking after, guiding and protecting children, our thinking now is protection where it is needed but prevention and care is the goal. In this respect the provisions obliging health boards to set up at least one child care advisory committee in their area to advise the board if they are complying with the Act will be of benefit to the health boards in providing them with informed and specialised opinions from experts in the field. I would like to see specific provision that each such committee must have at least one child psychiatrist. The reason for this is that while the experts who may be attached to voluntary organisations or social workers who in their own right are attached to health boards will have their own expertise and advice to offer, if we are to keep the law up to date and be conscious of developments in relation to child care and child psychiatry, then obviously the particular expert necessary to give effect to this would be a child psychiatrist.

I should have said that I am also glad to see the abolition of the old distinction between children under 15 years and children over 15 years. I do not know of anyone who, certainly in this day and age, sees the logic of the old distinction. To abolish it and provide that everybody under 18 years of age is a child was a wise move.

In Part III of the Bill, which deals with the protection of children in emergencies, there are very necessary provisions, particularly those which enable members of the Garda to take a child out of a disastrous home environment without a warrant. Many people, from time to time, even where they know that children are being abused or, at best, neglected, are unwilling to deal with the matter or even to report it, having regard to interfering with the affairs of another family. To give power in the Bill to a member of the Garda to take a child under threat out of a home environment without warrant is a very necessary provision.

I am not happy with some of the time provisions in this Part of the Bill. For instance, I can see a lot of practical difficulties arising, particularly at weekends, with the provision whereby a child must be brought to court within 24 hours. If, as might sometimes happen, a father came home drunk on a Friday night and abused a child, the earliest court hearing would probably be Monday or Tuesday of the following week. I can see practical difficulties arising with that time limit. Likewise, in relation to the eight days or less in which a child can be kept in a place of safety; that time, in certain circumstances, may not be long enough. For instance, if a health board has to make an investigation or an inquiry or has to engage the expertise of professional people, eight days may not be enough time in which to do so. I know that the thinking behind this provision is that it would be unwise to take a child out of a home environment for longer than eight days and I can sympathise with the concern of the Minister in that respect. Perhaps an additional phrase or subsection could be added to that part of the Bill to enable the health board, if they had not completed their inquiries or if the professional advice was not readily to hand, to apply to the court for an extension beyond the eight days.

I support those who say that no court hearing should take place at any stage without having a representative or a social worker from the health board present. In that respect I am concerned about the wording of section 11 (4) (c) which states that an application for any such order may be made, heard and determined ex parte. While that paragraph may be desirable, specific provision should be made for a representative to be present and heard in court. I am also concerned with the provision whereby a child can be taken to a place of safety, bearing in mind that the definition section of the Bill includes in its definition of a place of safety a Garda station. I can envisage no circumstances in which it would be desirable to have a child in a Garda station for up to eight days. It might be desirable, in relation to that section, to specifically exclude a Garda station as being a place of safety.

I disagree with some of the comments which have been made in relation to district courts and district justices. It seems that people have been saying that district courts are courts of rough justice. That is a very unfair attitude to adopt. I am glad to see that the Bill gives expression to the general desire to have speedy access to courts and provides that the applications be made to the District Court because I see the District Court as a court of relatively cheap, certainly local, justice.

One or two comments which I was not happy with have been passed about district justices. Generally district justices have a great deal of professional expertise in the law and a great deal of practical experience. They are ideally suited to deal with questions under this Bill. In fact, they deal with questions of custody and access at the moment under differenct items of legislation, so I see nothing wrong in that.

Part IV of the Bill deals with care proceedings. There will now be a duty on health boards to apply for care orders or supervision orders. These are possibly some of the most positive and enlightened provisions in the Bill, and I welcome in particular the anticipatory nature of some of the sections whereby health boards can apply to the courts for a care order, for instance, not just if damage has been done or abuse or neglect is taking place but if the health board or their officials feel they are very likely to arise. That is to be welcomed very much.

Section 15 (2) provides that:

In the exercise of its jurisdiction under this section the court shall have regard to the rights and duties of parents, whether under the Constitution or otherwise, and the natural and imprescriptible rights of the child.

In questions of custody and access there has been a development over the years in our law and the courts have interpreted the law to say that in cases where there may be a conflict it is the rights of the child which are paramount. I feel that were this section to be interpreted over a period of time the courts would make a similar interpretation and it might be wise and might save a number of potential litigants a great deal of cost if such a statement was included at the end of that subsection.

I agree with the provisions of section 15 (7) whereby if the health board takes a child into care and the parents of a child are financially in a position to support the child or make a periodical payment to the health board the court may make an order requiring them to do so. I see no reason they should not be asked to do that if by their own conduct or neglect they have contributed directly to the health board having to take the child into custody.

Section 19 (c) allows a court to discharge a care order. I welcome in particular the provision that a care order can be discharged but, as it were, varied down to a supervision order. I can imagine that the parents have got their act in order so to speak and a court could feel that it would be unwise or unreasonable to continue to impose a care order on the family but might still be concerned to monitor the situation and make sure that if the care order were discharged they could keep an eye on the family situation. This provision whereby it can be varied down to a supervision order is a wise insertion in the Bill.

With regard to section 21 I am glad to see that any proceedings under this Bill will be heard in private and, almost as important particularly in relation to children, in as informal a manner as possible.

Part V of the Bill deals with children in the care of health boards and allows them to be taken into foster care or children's residential centres, and provides that the health boards can make other suitable arrangements. This Part of the Bill gives a very wide range of options to a health board. A health board will now be able to ask, "What have we available, what is the best thing to do in the interest of a child?" and take the appropriate steps. That is a wise provision. I welcome section 32 which allows the health board to apply to a court for directions as to how they should behave or what they should do in a given set of circumstances.

In regard to Part VI and the supervision of pre-school services, a necessary feature of the new law is that a system of supervision and inspection of pre-school services is to be introduced to cover pre-schools, play groups, créches, etc. This was recommended by many interested groups and organisations, and it is wise to provide that the Minister must consult with the Minister for Education before making orders under this Part of the Bill.

Finally, let me say it will be necessary to provide additional financial resources if the very welcome provisions in this Bill are to be applied satisfactorily and to the limit. Although it is acknowledged in this House on all sides and throughout the country that we live in very difficult times, I hope more resources, financial and otherwise, will be made available to enable the children of our society to be properly cared for, particularly children who may be under threat.

Mr. Durkan

I welcome this Bill into the House. It is somewhat similar to another Bill which was initiated in 1985 by the then Government. One thing we are all aware of at present is the general increase in the number of reported incidents of child abuse whether they be physical abuse or sexual abuse. I know a debate will always follow as to whether this arises from an increase in the number of incidents or whether it is merely an increase in the reporting of cases. Possibly it is a combination of both; there was always a certain incidence of abuses many of which were not reported in the past.

Obviously now with modern communications and better services generally there is a greater likelihood of their being brought to the attention of schools, medical practitioners, public health nurses and the various other services.

One thing fundamental to the operation of the Bill when and if it becomes an Act is the practical measures that are to be taken to ensure its effectiveness. Unless they are there, legislation simply does not work. For instance, detection is a very important part of child care as is the need to protect children as set out in this Bill. One area is the schools. I do not accept for one moment that the teachers should spend their time assessing children to see whether they are being abused in one way or another, but there is one very simple method that has been well established but unfortunately is coming under some pressure in recent times. That is the school medical examination.

We had a very good system of school medical examinations whereby it was possible for medical practitioners and nursing staff to have access on a regular basis to virtually every child in a school. Unfortunately, that is the case no longer. In countless incidences school medical examinations do not take place within a given year, and there have been incidences of children going through the primary school system scarcely having had a school medical examination at all. If we are to be really serious about the operation of a Bill of this nature and particularly the intricacies of the law which could affect its operation in one sense and could affect the protection of the officials carrying out the law in the other sense, it is important that there be regular monitoring through the schools by way of school medical examinations.

I agree that it is essential that parents' rights are recognised, and care must be taken that spurious allegations are not made. Notwithstanding all that, the children of the people who need protection are vulnerable, so it is essential to set in train sufficient mechanisms to ensure children's rights, and this is what this Bill proposes to do. The children's rights should be protected and their health and wellbeing safeguarded. All necessary machinery should be in place to ensure that that can be done without a series of litigations whereby the law would be brought into disrepute.

As a member of a health board, I doubt if the resources are available to the health boards to carry out the functions set out under the Bill. Other Members of this House are members of health boards and must have knowledge of the type of cases envisaged under the terms of the Bill, the type of case to which public representatives sometimes have to respond urgently at weekends. The general public, relatives or parents may need to talk to someone and invariably they end up with a public representative. It is unfortunate that that should be the case. Within the system there should be various services. Provision was made for their inclusion within the system but they do not seem to be available as heretofore, and obviously this is because there are a number of financial restrictions which are now impingeing to such an extent as to impair the effectiveness of quite an amount of our legislation. This is sad, and it would be particularly sad if it were to become obvious in relation to the Bill we have before us tonight.

I, and many other Members of this House, have come across cases where a neighbour, a relative or a member of the family has brought to our attention circumstances which they feel are undesirable. In the ideal situation there would follow a period of close monitoring with an official of the health board visiting the child or the household by some innocuous means in order to assess the situation at first hand in the early stages. I would not like to see a situation whereby days, weeks or months would go by before somebody would have an opportunity to assess a particular case. Nor am I suggesting that a deep psychological assessment be carried out instantly in each case. I do not expect that. When a case comes to light — and I accept that one has to be very careful lest spurious allegations are made — it is imperative that, should an emergency arise, some kind of contact be made with the family and an interim decision arrived at to ensure that the rights of the child are protected. There have been a number of instances in the past where difficulties arose and allegations were made afterwards. Everybody seems to be wise after an event in regard to what should have been done. Under the previous Acts there was not sufficient power at the disposal of the health board or the Garda to take the kind of action that can be taken today.

There has been an increased incidence of reports of such cases. There are a number of areas which could result in children being under threat. Financial deprivation is one, bringing pressure to bear on a family which may result in the children being neglected. Marital breakdown could result from financial deprivation, leading to serious abuse of a child or children. In a case where parents are taken from them, a number of junior members of a large family could be left to fend for themselves in vulnerable circumstances. There again it is necessary to rely on the health board. If we are to depend on the health board in these circumstances we need the resources to supply the services of a home-maker, not just somebody who will sit in a local health centre once a week or every second or third day to interview people who come along. We need somebody who will have sufficient resources and time to visit that family in their home on a daily basis if necessary to ensure that an accurate assessment can be carried out and the situation kept under review until such time as the official concerned is satisfied that there is no threat to either the children or the family unit that is left at that stage.

This does not apply just to cases where the parents have died or there is marital breakdown. It could apply where there is any strange development in the family unit that is detrimental to the interests of the children. It would then be invaluable to have available to that family the kind of service I am talking about, not just intermittently, whereby somebody has to make an assessment on the basis of one visit, but continuous, constant and careful observation.

I mentioned earlier that one of the possible causes of problems is financial deprivation. It can lead to situations that are undesirable in a family unit. Another cause is poor housing conditions. Overcrowded or unfit housing conditions lend themselves to a situation that could lead to family disputes and physical and sexual abuse of children. I am not suggesting for one moment that this always happens, but bad housing is undesirable and we should try to remedy things at that level rather than carry out fire brigade actions afterwards. We all know families that are overcrowded to the extent that alcoholism or drug abuse or various other signs of pressure in the family occur. They occur directly as a result of inadequate accommodation. I am sure all public representatives have had to deal with such cases and from their detached observation I am sure they came to the conclusion that the home life was unsatisfactory for many reasons, including overcrowding. I accept that that does not come within the ambit of the Bill but it has an effect on its provisions. Action must be taken in that area.

It is important to emphasise the need to provide adequate funds to enable health boards implement the provisions of the Bill. The staff of health boards are more than willing to carry out the functions for which they have been trained provided they can do that in a reasonable fashion. It is wrong to strain the resources of the boards to such an extent that a sketchy service will be provided. It would be better not to provide a service than to provide a half-hearted service. Adequate finance and staff must be provided. The worst thing that could happen would be that the staff of the health boards would be able to detect only a number of incidents or to carry out a superficial examination due to a lack of resources. That would be most undesirable. We must have regard to that important element in the implementation of the provisions of the Bill.

A home-maker type of service is required to deal with people who suffer bereavements. I am thinking of a person who will call at regular intervals to talk to all age groups of a family and gain their confidence. That person, on the basis of those conversations, should be able to come to a conclusion as to whether any child of that family is under threat. Such an official would be in a position to take the necessary remedial action.

I welcome the provision in section 21 to hold care proceedings in private. That is important from the point of view of parents who may have temporarily neglected their responsibilities but also from the point of view of the children who may be called upon to give evidence. It is also important from the point of view of staff of health boards or gardaí who may be called upon to give evidence. The purpose of the Bill is not to titillate the public mind but to provide for an obvious need. The greater good will be served by holding the hearings in private.

I should like to refer to the provision under which health board officials or gardaí can take action with a view to placing a child in care, whether it is institutional care or foster care. I do not see anything wrong with that provision but it might be difficult to ensure that a child placed in foster care is secure from the natural parent. That parent, through modern means of communication might be able to learn of the location of the child. That would be unfortunate because it would put unnecessary pressure and strain on the foster parent and put the child under threat. I accept that there are provisions in the Bill to deal with such incidents but we have all read of the so-called tug-of-love cases and something similar could develop in regard to these provisions. A natural parent may seek to get a child back to the family home, a natural reaction, but in such cases it should not be tolerated. The whole purpose of putting a child into care would be defeated if that care was interrupted by a parent, even for good reasons, taking the child away.

We should take into consideration the burden which will fall on health boards as a result of having to implement the provisions of the Bill. Social workers and public health nurses who move through the community on a daily basis will be expected to report on incidents of child abuse. That is in order but to carry out what is envisaged in the Bill it will be necessary to augment the number of social workers or public health nurses by a further 20 per cent. It will not be possible for the existing staff to give an effective service. There must be a dramatic increase in the number of personnel if we are to implement the spirit of the Bill.

I should like to refer to the type of pressures that are on families and children. I note that section 58 states that it is an offence to sell solvents to children for glue sniffing. There has been a huge growth in that activity. I presume that there were abuses in the past but we did not hear about them. In my view those who attempt to sell solvents to children knowing that they will be used for a purpose which would seriously endanger their health should be given a jail sentence. Fines would be too lenient for them. In socially and economically deprived areas there has been a rash of solvent sniffing. That has been put down to various reasons but somebody somewhere must be aware of those who supply children with the glue. Once children have sampled glue sniffing it is difficult to curtail the habit unless there is strict parental control. The health of the child will suffer as a result. Once a child is subjected to or has access to such solvents in an area there will be the obvious threat of peer pressure and the use of similar solvents by their playmates or friends. All in all that particular section is to be welcomed. I hope it will be effective.

I conclude by saying that I sincerely hope the Bill is as effective as we would like. It can only be effective if certain extra resources are made available to the people who have to operate and implement it on the ground. If that is not so, we will have wasted our time. If, on the other hand, those resources are made available and staff are redeployed to those areas, we can have very effective legislation and that is to be applauded. I hope this will be something we can look back on in years hence and say that a good day's work was done.

Mr. McGahon

The changing face of Irish society, the changing values in Irish society or, indeed, the absence of them, has unveiled many problem areas which have given rise to concern, probably to every TD and every person in public life in this country and none more so than in the area of child care. Child care has been traditionally the cinderella area of social services provided by health boards. It is an area which has never had the priority it should have had. This was because of the hidden aspect of child abuse, child neglect and, in many cases, sexual abuse, something which was hidden until recently when the spotlight was put on it and certain taboos were lifted in Irish society.

There is a great need for Government officials and health boards to elevate child care to the priority it deserves in the world of today. The pressures many young people are now subjected to, allied to the weakening fabric of society and the widespread breakdown of marriage, add to the difficulties of many adolescent youths. It is in this area that health boards will have to provide more money. The youth of today are particularly vulnerable to the breakdown of marriage. Every effort will have to be made to protect them from the trauma of broken marriage and the various pressures to which they are subjected by society.

An alarming statistic issued recently is that eight out of ten young people in this country start to drink while still under age. Statistics have revealed that young people start to drink at the age of 12½. That is an alarming and sad statistic and shows that the breweries and the drink purveyors are winning in their battle for the lucrative teenage market. It illustrates the power of the repetitious and seductive advertising that is beamed into every house in Ireland and which has had an immense influence on the youth of today. Many of the teenage problem children who are out of control also have a drink problem which is certainly a very worrying statistic.

As a means of counteracting this problem perhaps a new role should be found for a section of the Irish community who have rendered tremendous service to Irish society over the years. I refer to the religious, to the priests, nuns and brothers who have provided generations of Irish people with education. Unfortunately, they are now being downgraded and in some areas of the country are disappearing from the teaching profession. Perhaps a new role could be found for them. There is a great need for hostels and institutional care to be provided for children of broken families. Each village and town in this country has marriage breakdowns and has children in need and in trouble. In every village and town there are those extra problem families that everybody in the area knows are at risk. Because of the scarcity of money resources health boards, while they might be aware of the problem, are unable to get in and tackle it. To take a child from a problem family and put him or her into an institution is to isolate the child. To provide institutions or homes where entire families could be given shelter and care, thereby preserving the family unit, would be more beneficial than taking into care one child, and probably another at a later stage.

Some of the vacant schools which belong to the religious orders, and some of the orphanages which are now empty as a result of the removal of the taboo and stigma that attached to the unmarried mother and of the payment to her of a lucrative amount of money could be utilised and converted to cater for families experiencing the type of difficulties we are talking of. In my area the nuns have moved out and in some cases are living in problem areas and are providing a pastoral presence, thereby continuing their contribution to Irish society. This area of care seems an ideal one for the religious to continue to make that contribution. They could be paid on foot of contract or perhaps by way of subvention from the health boards.

While realising that resources are scarce at present, the provision of institutions and hostels is an absolute necessity. Equally, I am aware that capital costs and meeting the wage bills of staff would constitute serious problems. However, where the nuns and schools are there already it is my opinion that such facilities could be provided for a very realistic figure. I would ask the Minister to examine the possibility of involving the religious orders in that area.

I might comment briefly on several aspects of the provisions of this Bill. For example, I welcome the revised definition of a child where the age has been raised from 16 to 18 years unless married. I should say that there is also a need for licensing pre-school groups and crèches. I contend that a licence should be required to open a crèche which should be subject to regular inspection by social workers or health board officials. As the law stands, anybody can open a pre-school group or crèche. Indeed a person who themselves had been guilty of sexual offences against children can open their doors, inviting children to join their crèches. This should not be allowed to happen. There should be some licensing arrangement devised by the Department or the relevant health board. I appeal to the Minister to re-examine the undesirable position obtaining thereto.

Part III of the Bill refers to the protection of children and provides emergency powers to the Garda to act when they have reasonable grounds for believing that a child has been neglected, abused or assaulted. I welcome that provision. However, I contend that in such circumstances the person who should be removed from such a home is not the child against whom the sexual crime is committed but rather the offender. It is not advisable to take a frightened child from its natural habitat, leaving the offender free to commit a similar crime against a second or even third child. Therefore, the person who should be removed is the offender who should not be allowed back into that household for many years. Unfortunately, statistics show that many people who commit sexual offences against their children had been themselves the subject of sexual attacks in their youth. While that may be astonishing, nonetheless it is a true statistic and illustrates the need for treatment by specialists in that area, people who are specialists in sexual disorders. Such statistics illustrate the need for treatment for such people to be provided on a long-term basis.

It is a very distasteful subject that has reared its head in recent years on account of the courage of many people, including Gay Byrne, who highlighted the problem on his programme, subjecting it to public scrutiny. Of course incest has been carried on in this country, like others, for centuries but it is an appalling problem which must be curbed and, if possible, eliminated. I appeal to the Minister to ensure that health boards do everything possible to uncover this particularly dastardly crime against children.

The other aspect to which I refer is the need for specialised training of Garda who may be involved in this area. For example, if a garda is involved in the removal of a child or offender from a home he will need to be trained for that work and equally to liaise closely with health boards and social workers. He will need to be particularly discreet in his handling of such cases. Indeed a special course should be initiated for Garda personnel. Any members of the force engaged in such work should be sympathetic persons and, if necessary, sent abroad for training in that delicate area.

I refer also to the need for more social workers. For example, in my county, with a population of between 80,000 and 90,000 there are no more than five or six social workers. In that county, encompassing two large urban areas, Dundalk and Drogheda, with populations approaching 30,000, it is physically impossible for five or six social workers to attend to the many problems arising. I applaud the many people engaged in social work, social workers and public health nurses. However, bearing in mind their numbers, there is no way they can get to the core of the many problems they encounter. I contend that the health boards, particularly the North Eastern Health Board — that has lived within its allocation for the past ten years, indeed the only health board to do so — should open their coffers now and spend more money on the provision of social workers.

I mentioned earlier the need for the provision of institutions and hostels for young people. I can think of two particularly suitable venues in my county for such purpose. One is St. Michael's College in Omeath which closed its doors some years ago and has been lying vacant ever since and St. Mary's hospital in Drogheda which was closed, not by the North Eastern Health Board but by the Department of Health, which possibly will be sold to provide money for the ultra-modern hospital to be opened in Cavan. That hospital in Drogheda should be kept open, it should not be sold to a developer but rather used for the care of problem families and children.

I congratulate the Minister on having introduced this much needed Bill. I hope he will upgrade its provisions without waiting too long. Indeed, I contend its provisions would warrant annual revision.

Mr. Bell

I shall be brief because I know the Minister will have a lengthy reply. As chairman of the all-party committee on the 1985 Bill naturally I welcome this one on behalf of the Labour Party and my party will be giving it full support in the hope that it will receive a speedy, efficient passage through the House, so that at long last we shall have a Bill to replace the 1908 one on the Statute Book.

I am sure the Minister would agree with me paying tribute to my colleague, the former Minister for Health, Deputy Barry Desmond, on the work he put into the drafting of the 1985 Bill during his period in office. If one examines the Bill one will realise that its provisions are largely based on the 1985 Bill taking into account the amendments tabled by the all-party committee in the early stages of the discussions on Committee Stage of that Bill.

One category which so far as I know has not been referred to is itinerant children whom we all tend to forget. There are thousands upon thousands of children of all ages living in squalor along the side of the road. Not alone are they being abused in the normal sense but they are also being abused by the people of this country in that they are not given the rights to which they are entitled under the Constitution. We can enact all the laws we want but if we do not provide the resources so as to cater for these children we will only have wasted the time and effort of the national Parliament. Many local authorities have made strenuous efforts to assist itinerant families in every way possible. They have provided housing and halting sites but there are others who have done nothing at all with the result that these families have been kicked from Billy to Jack and run out of one locality only to be faced with the same problem in another local authority area. This is a problem which should be concentrated on under this Bill.

I sometimes say that it is a child's world. Children are always supposed to be happy and insulated against the harsh realities of life. This may be true for some children but not for all. There are many unhappy and deprived children. Some are the victims of broken homes, of parents who could not care less, of sexual or other abuse while others have their young lives disturbed by misfortune for which no one can be blamed. This year close on 4,000 children will pass through the care of health boards because they need the security and protection which otherwise would not be available to them. Also not taken into account is the work being done by voluntary bodies. Some may remain in care for years while others may find it possible to return to their families after only a few weeks or few months. There are thousands of other children who while not taken into care will require the support of the social services, health boards and voluntary bodies. In this connection let me say that the victims of cutbacks in any sector are the voluntary bodies. If we are to cut back on full-time care in hospitals we will end up having to fall back and be dependent on voluntary bodies.

In many areas children are mainly cared for by voluntary bodies. The responsibility for providing for such children rests with the Minister for Health acting through the various statutory and voluntary health agencies. Obviously it is essential that there should be suitable legal provisions in place to empower various agencies to intervene on behalf of children where it is necessary to do so. Furthermore, since the family unit is sacrosanct in our society it is necessary that the law should be such as to safeguard the family from unwarranted interference. There must be limitations on the State or any of its agencies interfering in the lives of children unless there are compelling reasons for doing so in the interests of their welfare.

Public concern for children has its roots largely in the various humanitarian movements in the latter half of the 19th century and in the legislation of that period. The initial Acts were mainly concerned with removing young children from the harmful influences of workhouses and jails and providing industrial schools and reformatories for them. They also introduced boarding-out arrangements for very young children and strengthened the laws for the protection of children against exploitation and abuse. In 1908 most of these laws were amalgamated into one Act of Parliament and considerably expanded. The then new comprehensive Act was an important milestone in social legislation and it has withstood the test of time.

While there have been some changes in the law in the intervening period many of the provisions of the 1908 Act are still in force. However, it is becoming increasingly clear that there is a need for new legislation and we in the Labour Party, as I said at the outset, welcome this Bill. The political and administrative structures have changed and new values and attitudes have evolved. There is now a more sensitive understanding of the psychology and needs of children. Furthermore, there is an acceptance that children have rights of their own and their individuality should be recognised. Some of the cruel prejudices of the past have been eliminated, notably those in respect of single parents or, as we now call them, unmarried mothers and the children born out of wedlock. We now have legal adoption and many of the children previously unwanted and forced to grow up in institutions are now being integrated into families who cherish them. However, while we live in a more tolerant society which has brought benefits to some children, regrettably there is another side to the social scene. There are many broken families with the children being the main victims. There are many new hazards such as drug abuse and glue sniffing and the decline in moral values.

In conclusion, I must say sadly that the erosion of the broadly based family has removed an important family prop in times of trouble. As I said, the Labour Party welcome this Bill and, as one who chaired the all-party committee, I will be giving it every support, as will my colleagues, during the remaining Stages.

Minister of State at the Department of Health (Mr. Leyden)

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 acting ultra 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 or vice 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.

Question put and agreed to.

Dáil Éireann debate -
Tuesday, 22 Nov 1988