I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to deal with the situation that has arisen following a judgment of the Supreme Court on 2 November in which the court ruled that a health board does not have the necessary statutory authority to act as a "fit person" within the meaning of the Children Act, 1908. The effect of this is that the health boards are no longer able to take into their care children who have been neglected, ill-treated or abused or who are otherwise at risk.
When the Government became aware of the Supreme Court judgment it considered whether the Child Care Bill, 1988, which is before this House, should be rushed through as a matter of urgency. In view of the many complex and sensitive issues dealt within the 1988 Bill, the Government decided that this would be the wrong approach and that it would be better to introduce a short amending Bill to deal with the key point of the Supreme Court's ruling, that is that health boards do not have statutory authority to act as fit persons within the meaning of the Children Act, 1908.
The Government believe that this approach offers the best prospect of urgently protecting the interests of a very vulnerable group of several hundred children who are in care under fit person orders.
The Supreme Court judgment and the earlier judgment of the court in the same case last July raise a number of important and complex issues which impact on the whole issue of child care proceedings. It is, of course, crucial that the right balance be struck in these proceedings between the rights of parents and the rights of children. The issues raised require detailed and meticulous consideration and the Government feel that this can best be done in the context of the Special Committee which is being set up to deal with the Committee Stage of the Child Care Bill, 1988.
I might also point out that the 1988 Bill and a large number of amendments which I circulated in advance of the Supreme Court judgment last week deal with many of the issues raised in that judgment including the whole question of access by parents to children when they are in care. There are no simple answers to some of these issues, impinging as they do on very fundamental human and constitutional rights. However, I am confident that the work of the special committee on the 1988 Bill will lead to an enlightened and balanced legislative framework.
The existing law in relation to child care is contained primarily in the Children Act, 1908. Briefly, that Act allows any person who believes that the health, safety or welfare of a child is in jeopardy to bring the matter before the District Court. If, having considered the evidence, the Justice is satisfied that it is necessary in the child's interests to do so, he may order that the child be removed from the custody of his parents or guardians and be committed to the care of a relative or other "fit person".
The expression "fit person" is defined in section 38 of the 1908 Act,
In this Part of this Act unless the context otherwise requires, the expression "fit person" in relation to the care of any child or young person includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children.
Deputies will note that this definition is not exclusive. It does not spell out who may and who may not act as a "fit person". The only thing it does is to indicate that the expression "fit person" includes certain societies and other bodies involved in the area of child welfare.
Following the establishment of the health boards in 1970, my Department obtained legal advice to the effect that health boards can act as fit persons for the purpose of taking deprived children into care. It was considered that such work formed an integral part of the community care and social work services that were beginning to be built up under the health boards. Increasingly, health boards got involved in dealing with child abuse and neglect, bringing cases before the court and offering themselves as fit persons. This practice has been endorsed by successive Governments to the extent that the health boards are now recognised, in fact if not in law, as the State's child care and child protection agencies.
From time to time, doubts were expressed by some lawyers and others about the legal authority of health boards to involve themselves in child care. However, the general view was, and is, that this is essential work which must be done in the interests of the children concerned and that the most appropriate agencies to perform it are the health boards.
The question of the legal authority of health boards eventually came up for judicial consideration in the High Court in earlier proceedings in relation to the same case that was the subject of last week's Supreme Court judgment.
In order to explain matters further, it is necessary for me to give some brief details of that case without, of course, revealing the identities of those involved. Briefly, the facts are that in November 1986 a child was placed in the care of a health board as a fit person following allegations that she had been sexually abused by her father. Some months later the parents made a habeus corpus application in the High Court challenging the validity of the detention of their child on a number of grounds, including a claim that the health board's statutory powers did not include a power to act as a fit person.
The High Court delivered its judgment on 15 July 1988 and in relation to that aspect of the application the Court held as follows:
As to whether the (named) Health Board possesses the necessary statutory powers to act as a fit person, Section 6 (1) of the Health Act, 1970 (the 1970 Act) provides that a health board shall perform the functions conferred on it under the Act, and any other functions which immediately before its establishment, were performed by a local authority (other than as a sanitary authority) in the functional area of the health board in relation to the operation of services provided under or in connection with the administration of the enactments specified in subsection (2). Among the functions which were performed by the local authority were functions in connection with the administration of Part I of the 1908 Act (concerning infant life protection) and Sections 2 and 3 of the Children (Amendment) Act, 1957. These enactments are specified in Section 6 (2) at paragraph (g). This, however, does not prevent the health board from carrying out other functions conferred on it under the 1970 Act connected with other parts of the 1908 Act which were not carried out by the local authority.
Under Section 66 (2) of the 1970 Act, a health board shall make available without charge a health examination and treatment service for pupils attending a national school.
It is under this section that the (named) Health Board claims to derive its power to take the child into care under the Section 24 Order. In my opinion, if a child has suffered sexual abuse, her health is endangered and she is in need of treatment. The provision of care is therefore within the broad description of a treatment service. If the health board is to provide an adequate service it is essential that it be involved either directly as a fit person or indirectly with the fit person nominated. There is no reason a suitable employee of the health board should not be named as a fit person but if for any reason that person ceased to be employed by the health board or become incapacitated, another application would have to be made to the District Court for another person to be appointed. There are, therefore, good reasons why the board itself should be appointed. It would not seem wise that one of the actual foster parents should be named as this would identify the whereabouts of the child in a case where secrecy is deemed essential.
For the above reasons I am satisfied that the District Justice had power to make the Order which he did make committing the child to the care of the (named) Health Board as a fit person until she is sixteen unless the Order is sooner revoked or varied.
The essential point here is that as recently as 16 months ago the activities of health boards in acting as fit persons was specifically upheld by the High Court.
The parents appealed the case to the Supreme Court. In a preliminary judgment on 27 July last, the court ruled that the fit person order was unsafe because procedures in the original trial in the District Court had not been in accordance with the necessary requirements of natural justice. The child returned to her parents shortly afterwards.
The court said that it would give its decision at a later date on other issues raised on behalf of the parents. This was the judgment delivered last Thursday. While the court found in favour of the health board on four of the five grounds, it found against the health board in the final point when it decided that health boards do not have the necessary legal authority to act as fit persons. In doing so, the Supreme Court reversed the decision given by the High Court just 16 months previously.
I now wish to briefly explain the provisions of the Bill before the House. Section I provides for two matters. Firstly, that the expression "fit person" in the Children Act, 1908, includes and shall be deemed always to have included a reference to a health board; secondly, that the functions of a health board include and shall be deemed always to have included the power to act as a "fit person" within the meaning of the 1908 Act.
Section 2 provides that every fit person order made before the passing of this Act shall be read and have effect as if this Act were in force when the order was made. This means that the order is to be read as if at the time it was made the definition "fit person" included a reference to the health board, the health board concerned had at the time the necessary legal authority to act as a "fit person" and the health board the power to make suitable arrangements for the care of the child.
Section 3 also contains two elements. Firstly, it provide that where on the passing of this Bill a child or young person is in the actual possession or control of any person — e.g. a social worker, a foster parent or the manager of children's home — and he is in that persons care as a result of a fit person order committing him to a health board, he shall be deemed to be lawfully in the possession or control of that person, i.e. the social worker, the foster parent or the manager of the children's home, as the case may be. Secondly, it provides that any person, which would include a health board, may apply to the court for a new fit person order or may apply for the renewal, variation or revocation of an existing fit person order. For technical reasons I intend to bring forward an amendment to this section on Committee Stage.
Section 4 provides that where a child or young person has been placed in the care of a health board under a fit person order the health board shall provide such care in one of a number of ways. It may place the child in foster care or in residential care of where the child may be eligible for adoption it may place him with a suitable person or persons with a view to his adoption. Subsection (3) gives statutory backing to the practice of health boards in allowing children in care to go home for weekends or for holidays so as to maintain links with their families in the hope that they may be able to go home permanently. The main purpose of subsection (4) is to apply the Boarding Out of Children Regulations, 1983, to children placed in foster care under this Bill.
Section 5 assigns responsibility for the functions of a health board under this Bill to the staff of the health board rather than to the members of the board. It is, of course, not intended that the functions will be performed by the CEO personally. The CEO will be able to avail of his powers under the Health Act, 1970, to delegate these functions to other officers of the board. I might just mention at this point that there is an error in the first of line of section 5. The reference to "Section 1 and Section 2" should be to "Section 1 and Section 4". This will be amended at Committee Stage.
Section 6 sets out the options available to a court where it finds or declares that a fit person order is invalid, whether by reason of the recent Supreme Court judgment or for any other reason. Firstly, it provides that in such a case the court may refuse to order the delivery or return of the child or young person to its parents or any other person if the court is of opinion that this would not be in the best interests of the child.
Instead the court may do any of the following: (a) make a fit person order in the respect of the child or young person as if he had been brought before the court in accordance with the relevant provisions of the 1908 Act; (b) make an order referring the matter to the justice of the relevant District Court and in such case the justice may deal with the matter as if an application for a fit person order had been made to him in accordance with the relevant provisions of the 1908 Act; (c) where a person having custody, charge or care of a child or young person has been convicted of committing certain offences or has been committed for trial for such an offence or has been bound over to keep the peace towards the child or young person, the court may make a fit person order under section 21 of the 1908 Act or refer the matter to the Court by which the persons was so convicted, committed or bound over so that it can consider the need to make an order under section 21; (d) where an order under paragraph (a) or (c) has been made by the Court it may be deemed to have been made by the District Court. This is a technical device so that any subsequent proceedings can be dealt with in the District Court rather than in a higher court; (e) where a higher court makes an order under paragraph (b) or (c) returning the case to a District Court, the higher court may make a temporary fit person order pending the determination of the matter by the District Court.
Section 7 provides that nothing in this Bill shall affect any order of a court made before the passing of the Act in which a fit person order was found or declared to be invalid.
Section 8 provides that the Bill is to be known as the Children Act, 1989, and that the Children Acts, 1908 to 1957, and this Act, shall be read together as if they formed one Act. This means that the various definitions contained in the Children Acts, 1908 to 1957 automatically apply to this Act. The most important are those of "child" and "young person" which are defined as follows: "child" means a person under the age of 15 years and "young person" means a person who is 15 years of age or upwards and under the age of 17 years.
I would like to assure the House that this Bill has been very carefully drafted in the Attorney General's office to take account of the Supreme Court judgment and other recent judicial pronouncements. I am satisfied that it deals with the immediate difficulty that has arisen. I believe the other issues would be more appropriately dealt with in the context of the debate on the Child Care Bill, 1988. I would appeal to all sides of the House to support this Bill so that we can regularise the position of the large number of children who are in care. I am appealing, therefore, for the co-operation of all Deputies in processing this Bill as quickly as possible.