Children Bill, 1989: Second Stage.

Minister for Health (Dr. O'Hanlon)

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.

Mr. Yates

First, as a general position, I should like to say my party are anxious to facilitate the early enactment of this emergency legislation as we too are anxious to remove any possible anxiety or stress for those 900 or so children who are in care. The validity of their care order is now being questioned. We have bent over backwards, along with the other Opposition parties, to accommodate the Government in this regard. Notwithstanding that, if the Minister had been here for the entire Committee Stage debate on the Child Care Bill he would be aware that there were references to some of the legal problems which existed at that time. I specifically made reference to this reserved judgment of last Thursday. My information, from as far back as last August, was that the judgment which was handed down was entirely predictable. My understanding in relation to the specific issue of "fit persons" was that heretofore the health boards had settled out of court and not contested this issue but this time it had gone the whole of the road and it was inevitable that it would be found to be invalid. That is all behind us now and I do not wish to have any recriminations on it.

Another aspect to the politics of this matter is that since this judgment it has been agreed that the Child Care Committee would go to an all-party select committee of this House. This is something which my party have been seeking and we will participate constructively in that committee to ensure that we have the most comprehensive child care legislation possible to update the 1908 Act as soon as possible. Having said that I would like to welcome the contents of this Bill. When these issues came up I never pretended to be anything other than a layman but I should say that in my short experience and knowledge of this matter the whole area is a legal minefield.

When the debate adjourned on the Child Care Bill I was outlining in some detail the two Supreme Court decisions — March 1985 and 22 June 1987 — which basically stated that the inalienable and imprescriptible rights of parents under Article 42.1 of the Constitution were such that those rights seemed to be greater than the rights of the child and the welfare of the child being of paramount concern. In all of these cases there is a delicate balance between the rights of the parents and the rights of the children. I have no doubt — and what happened last week confirms for me — that if and when the current major Child Care Bill is passed through both Houses of the Oireachtas there will be constitutional questions about it. It would be absolutely prudent of the Government, under Article 6 to refer that major legislation to the President to test its constitutionality, or we will be back in with bits and parts being questioned and undermined. I understand that that process takes only 60 days. It would be better to acknowledge that situation and realise that the earliest we will have that Child Care Bill enacted will be next Easter or May. In that situation we must look at this emergency Bill in a new light. We must acknowledge that the major legislation will not come forward for at least six months and that shows how much more important is this legislation in shoring up all potential loopholes in the temporary situation. It will be some months before the major legislation is enacted. In that regard Deputy Shatter and I have tabled half a dozen amendments which have been carefully thought out to cover what we consider to be the gaps in the position at present. I wish to assure the House that this was done in the most constructive spirit. In view of what happened last week and also in the light of previous cases which suggest that the rights of parents are so great, I reiterate my call that, when our deliberations are completed, the constitutionality of the larger Bill should be tested.

Two or three factors have motivated us in tabling amendments to this Bill. We do not inherently disagree with anything the Minister is putting forward, save in regard to section 6. We are anxious that as many aspects as possible of the Supreme Court judgment be implemented at this opportunity. The first point relates to the access to children by natural parents or those in loco parentis. They must be entitled to know where their children are and to visit them in care. This Bill makes no reference to access. It simply does not deal with the issue. Could another case come before the Supreme Court within weeks or months undermining a previous court order and seeking to make it invalid on the basis that it did not deal with the question of access? We have set out an amendment to deal with this matter by the insertion of a new section. Section 17 of the major Bill deals with access and amendment No. 65 on the list of amendments published by the Minister last week relates to it. We have used the Minister's wording, believing that it will meet the gap identified by the Supreme Court. Given that the amendment emanates from the Minister's Department, I would urge him to consider accepting it or tabling it himself on Report Stage.

I have with me a copy of the Supreme Court judgment. Mr. Justice Finlay states that it is absolutely necessary for the health board to furnish the parent in respect of whose child the care order is being sought with any documentary or any assessment evidence regarding the child on a pre-trial basis. This would include video recordings of the assessment and written submissions by social workers — basically all the ammunition and evidence that accuses the parent. The Supreme Court in their unanimous decision could not be clearer in this regard. They have laid down that the parents have the right under all Acts to that information. Where we have not legally provided for those rights or where they were not adhered to, a court order might be put aside or declared invalid. The court could well decide that in a particular case the procedure was not fully adhered to, the parents were not given the necessary information and were not in a position to rebut it. It would be a tragedy if a child were subject to the potential risk of further abuse simply because we failed to enact comprehensive legislation. I have again chosen the Minister's wording to help bring forward that new section.

Our proposed amendment states that where proceedings are instituted pursuant to Part II or Part IV of the Children Act, 1908, in relation to the care of the child or young person by a health board, all reports and assessments carried out by or on behalf of the health board and the conclusions derived therefrom relating to the child or young person shall be furnished to the child's parent and/or their legal representatives, together with any video recording compiled of any such assessment. It is not a lot to ask that the Minister should accept that amendment or table it himself on Report Stage.

The amendment dealing with video recordings states that it shall be the duty of the court asked to determine an application brought pursuant to sections 24, 58 or 59 of the Children Act, 1908, except an application made pursuant to section 24 of the said Act to replace a safety order, to view all video recordings made as referred to in subsection (1). All reports of assessments and video recordings should be made available.

Also emerging from the judgment is the clear right of parents to have a separate independent assessment of their child. The whole lesson of this case is that the child was returned to the parent. The evidence produced by the health board was wrong. Perhaps they were over-zealous. I fully appreciate that there is a delicate balance. The court have said that one of the key factors in the future in getting that balance right is that parents should have the right to have an independent separate assessment. A second opinion is not a bad thing. Our amendment states that where a child is in the care of a health board pending the determination of proceedings instituted by the health board or any person acting on behalf of the health board pursuant to sections 24, 58 or 59 of the Children Act, 1908, the health board shall make available such child at the request of the parents or any other person in loco parentis where a request is made to have a separate independent assessment carried out on such a child prior to the determination of such proceedings. These three provisions would strengthen the hand of health boards and raise fewer questions about the validity of current, retrospective and future care orders. I ask the Minister to look seriously at this matter. I do not believe it takes major chunks out of the other Bill; it is tidying up very important work here.

We are proposing that supervision orders be included in this Bill. There is no doubt that the Supreme Court was saying literally, implicitly and explicitly that the weight of evidence that health boards have to obtain in order to procure a child care order is more rigorous than heretofore. More procedures will have to be followed and courts will have to be more diligent in ensuring the health board have a very conclusive case. How are the health board to obtain such evidence prior to getting such a court order? They may be sure in their own minds, as is ofter the case in criminal cases when the Garda are sure who committed the crime, but they cannot get the proof. One of the vital aspects of ensuring the health boards can operate effectively with care orders is to allow them — where they cannot get a care order from the court — to try to obtain a supervision order in advance. When they get a supervision order they should be able to have regular access in such a way as to put together sufficient documentary evidence to be able to go to the courts to obtain a comprehensive care order. I believe that in present circumstances it will be very difficult for health board social workers to put together a dossier containing sufficient evidence against parents to get a court order. We should recognise the new situation and assist them. The terms of the supervision order are as laid down in the ministerial amendment to the original Bill and, therefore, the wording should not be a matter of disagreement between us. I ask that the question of supervision orders should now be dealt with so that the situation in relation to pre-care orders can be recognised and procedures set in place to allow the court — often in acrimonious and difficult situations in which the parents are not interested in social workers and where there is very bad feeling between health board personnel and the parents and mutual suspicion — on the basis of the evidence of the supervision, to decide whether to proceed with a care order. As there is a likelihood of further delay on this Bill and its constitutionality may be called into question, that must be pursued.

Section 6 of the Bill basically seeks to set out the circumstances of what should happen to the child when events like those of last Thursday take place, in other words, where court and care orders are made invalid. The advice given to me is that section 6 is seriously defective and I do not say that lightly. I am also advised that there is at least a constitutional question about its retrospective and other aspects but, when this legislation is enacted, it will be the first target of lawyers challenging it. We have put forward a new section 6 which would deal with some of the defects. Section 6 (b) says that the court may make an order remitting the matter to a justice of the District Court. Are the High Court to determine the validity of the care order and are the District Court to clarify the welfare of the child? In other words, will there be two court cases? It would be very costly, wrong and ambiguous to have two court cases. Therefore, we propose the deletion of section 6 (b).

There is a second defect in section 6, leaving aside the constitutional question. It also says that if the court is of the opinion that such delivery or return would not be in the best interests of the child and in any such case the court, of its own motion or on the application of any interested person, may make an order .... How will the honourable justice decide what is in the best interests of the child? On what basis will this be decided? There is no criteria set out for the justice to make the decision and, therefore, we have tried to put forward procedures to give clarification so that the court can properly interpret what that means.

To summarise, there is at least a constitutional question mark over section 6. Remitting cases to the District Court will involve two cases, one to deal with the welfare of the child in the District Court and one to deal with the validity of the order in the High Court. The basis on which both courts are to determine the best interests of the child has not been satisfactorily defined. We are trying to ensure that while this may be rushed and urgently required legislation — and we are trying to facilitate the Government and the House in every way possible — we do not want to produce shoddy, rushed and defective legislation. I fear that unless we make the changes that conform to the Supreme Court's judgment requirements dealing with access, reports, assessments, video recordings and the right to an independent assessment, the legislation will not be effective. We should also make provision for supervision orders to allow health board workers to get on with their jobs so that it is possible to come up with enough evidence to win a case. Our amendments are reasonable and I hope the Minister and the House will agree to them in the circumstances of this Bill.

Mr. Howlin

This debate is rather peculiar in that it is almost tangential on very important legislation in respect of which we have advanced to Committee Stage. The fact that the debate is necessary is an indictment of the House for failing to enact the main body of legislation which has been in genesis and developing over a great number of years.

The decision of the Supreme Court delivered on 2 November had been signalled for a long time. Indeed many speakers on the Second Stage debate of the original Child Care Bill said that such a decision was likely to be arrived at and that judges of the High Court and the Supreme Court had indicated that it was probable that health boards would not be seen to be fit persons within the meaning of the 1908 Act. For all those reasons, it is a cause of regret and an underlining of our own shortcomings in this House, that legislation such as the Bill we are now debating should have to be rushed through the House in a matter of hours. In fact, most Members of the House had their first sight of the Bill yesterday. There is agreement across the House that it should be enacted as quickly as possible for one reason, the precarious position of several hundred children whose legal status is — to put it mildly — questionable and who need to be sheltered by the speedy enactment of legislation by this House.

When the initial discussion took place following our Private Notice Questions last Thursday, the Government Chief Whip indicated that this legislation which sought merely to clarify and validate the position of health boards as fit persons pending the enactment of full child care legislation was to be a three paragraph Bill. The Bill is marginally more substantial than that and I understand the technical difficulties that the offices of the Minister and the Attorney General must have faced in trying to put into place a legal framework which is only of temporary duration. However, we do not know if it will remain temporary for long because we do not know how long it will take for the main legislation to move in its cumbersome way through these Houses and ultimately what challenges it may face outside them.

My view is that it is important that we address the single issue of the Supreme Court decision. Obviously, it is the intention of the House to do that in a way that is not subsequently challenged. On the whole I accept and support the Minister's view that all the major questions in relation to care orders and the welfare of children would be more properly dealt with in a structured, less rushed way by the new Joint Oireachtas Committee ordered to be established by this House this afternoon. Many of us sought the establishment of that committee over many years. There are fundamental questions for that committee to address. The Minister touched on at least one of those issues himself in the course of his introductory remarks today when he said:

It is, of course, crucial that the right balance be struck in these proceedings between the rights of parents and the rights of children.

We were beginning to address that very issue on the Committee Stage of the other Bill. Despite what Deputy Yates said in relation to the ultimate objective of referring the main Bill to the President for possible referral to the Supreme Court in order to test its constitutionality, I strongly believe that ultimately we may have to address the issue in a more straightforward and direct way, that is, to define in progressive ways — in a way that most progressive countries have done already — a clear Bill of Rights for Children, to set the child, its fundamental rights and wellbeing as paramount and fundamental and, if necessary, consult the people by way of referendum to enshrine those rights in an inalienable fashion in our Constitution.

Dr. FitzGerald

Hear, hear.

Mr. Howlin

If that is thought to be necessary the Government should have the courage to do so, the courage to decide to take on whatever vested interests have been responsible for the tortuously slow progress thus far of amendment of the 1908 Act. Should the Minister show such courage I can assure him he will have the wholehearted support of the Labour Party in bringing that amending legislation through these Houses and, ultimately, the support of the Labour Party in any referendum necessary as a consequence.

For those reasons it is not proper that we address many of the fundamental questions of child care within the context of the narrow debate here this evening. There remains a mere hour to Second Stage. This Bill is to be passed by this House by 10.30 p.m. this evening. Clearly there is insufficient time to do anything more than safeguard the precarious position of the children of our country — the up to 900 already in care and those who may become vulnerable tomorrow, who will lack the proper protection that should be afforded them by any civilised State.

I note the Minister's assertion that it is the role of the health boards to be the State's child care and protection agencies. If that is to be the case they need not only a solid legal framework within which to exercise their obligation and duty to protect children and promote their welfare; more than that — and I will say this at every available opportunity — they need to have the staffing and resources provided to enable them do so. As I have said, talk is cheap. We often legislate and put into being frameworks that we afterwards allow to become strangled for lack of resources.

I welcome the establishment today of the All Party Committee. We have had sufficient time to read a great many proposals and submissions from all those involved in the child care area, to formulate and enact legislation that is meaningful, if only we have the courage to do so.

In responding to Second Stage I would ask the Minister to address some of the reservations voiced by speakers within and without this House. Because we are dealing with children — very vulnerable children at that — we seek unqualified assurance that the legislation will not be defective, that the question of the validity of enacting something retrospectively has been clearly thought through by the Minister and the Attorney General, that it cannot be subjected to further court action which would put children further in jeopardy or place at risk the status of those under the protection of health boards. I will accept the Minister's assurance unreservedly should such be forthcoming in this regard.

I note that the provisions of section 7 exclude cases already heard by the courts. I am sure that is proper. We on the Labour benches will listen with interest to the Minister's response to Second Stage and to the arguments advanced, section by section, on Committee Stage.

The purpose of this Bill should not be seen in any way to be a replacement of the main debate that is now being properly channelled into the select committee on the Child Care Bill. Rather I hope this Bill will be viewed simply as an emergency measure that will be supported by all Members of this House, to put at ease the minds of all those child care workers and the families of children who are at risk, so that they may be given the security of knowing that the orders that put them in a place of safety — whether in fosterage or in acceptable accommodation — are proper and correct. I can assure the Minister of the support and encouragement of the Labour Party if that is his objective.

Mr. McCartan

On behalf of The Workers Party I should like to make our position clear in regard to the provisions of this Bill. We will not be opposing the Bill on Second Stage, though there are some important and fundamental questions that must be teased out on Committee Stage. I might suggest that this House be prepared to sit as late as possible this evening to dispose of all discussion on amendments from wherever they may emanate and whatever may be their objective. It is much too important a Bill for us to simply set a guillotine, as was suggested this morning, so that amendments in the name of the Minister only be put at a certain hour. I know the Whips will discuss this matter later.

Like so many other Bills with which we have dealt in previous sessions this Bill represents a spectacle of Government being en retard. Indeed it is another example of delay and prevarication in the whole area of children's rights, constituting merely one more chapter in a saga that will not end with the passage of this Bill this evening.

I might correct a view expressed in some media that the Government won a right to defer implementation of the major Bill with which we dealt last week — now being referred to the special committee — not to implement its provisions for another 12 months. In fact the Government won the right in regard to that Bill — if they so choose by way of ministerial decision — never to implement the provisions of the Child Care Bill we had begun to debate. That was the effect of the defeat of The Workers Party amendment which had sought to ensure that its provisions would be fully implemented within the next 12 months. Government stood firm and, with the support of the Progressive Democrats, succeeded in giving the Minister power, if he so decides, never to implement any or all of those provisions. That is something which worries me enormously. In 1978 the then Fianna Fáil Government announced that, in the Year of the Child then being celebrated, there would be introduced a comprehensive package of laws dealing with the rights of children right across the board.

The single objective of the then Government was that we would have a charter of rights, written into our laws and Constitution, dealing with all aspects of children's needs and rights. This did not happen. What happened was that the committee were established and we were given a comprehensive report in 1980 from the Task Force on Child Care Services, a report which lay unaddressed until the introduction in 1985 of a Bill by the Coalition Government of the day. It has to be said that Bill was not actively pursued by the Government and was eventually allowed to die a death.

The next stage of the saga was in 1988 when Fianna Fáil introduced their Bill, which has only managed to get as far as the second section on Committee Stage, one and a half years later. In the midst of all that the Supreme Court were given the opportunity to address the fundamental issues with regard to the legislation. The legislation we are talking about is the statute of the British Parliament, which was passed in 1908 and which borrows the language of schools of correction and refers to unruly children, chastisement and all the ideas typical of that era. It is legislation of another era and has no function or relevance to the social conditions of the modern Ireland we are desperately trying to achieve. It is an incredible indictment of all of us that parents, children, authorities and lawyers have to work a scheme of legislation so outmoded as the 1908 Children Act.

The other aspect which gravely concerns me in regard to the tardiness and heavy-handed attitude of the Government in dealing with this whole area was the establishment today of a special committee to deal with the greater Bill. The Workers' Party sought the establishment of such a committee in July so that we could at least use the months of the summer recess to work on the Bill. This proposal was not agreed to, three months were lost and now we are putting the Bill into a special committee. We hope that progress will be made; but who knows whether tomorrow, the next day or whenever there will be another judicial interpretation of the provisions of the 1908 Act which will arrest, divert and cause confusion in the workings of this House.

Only last night the High Court handed down a further judicial interpretation of the practices which have grown up primarily as a result of the lack of attention given by this House over the decades to the areas of child custody and care. That judgment of the Supreme Court, which forced us to address not only one aspect of the child care laws as covered in this Bill but many aspects of the law, is a remarkable judgment, or perhaps I should say a remarkable pair of judgments. In July of this year the Supreme Court told all who wanted to know that they were unhappy with the law under the 1908 Act. They made it clear that they would have had very definite views to express had the issue of the constitutionality of the 1908 Act been before them. By agreement of the parties the Attorney General was not drawn into the process and the greater issue of the constitutionality of the 1908 Act was not addressed. This House should at least consign the 1908 Act to where it belongs, 1908, before the Supreme Court does it for us. Let us move on with some speed to replace it so that we will not be the laughing stock of the legislative and judicial world in being told by our courts that the Act we have being borrowing on since 1908 was never properly introduced into domestic law.

In any event the judgment in July of this year told us that all things were not as they should be in our law and the courts were disposed to grant an order of habeas corpus to the parents seeking the return of their child. That in itself is a disturbing fact and illustrates well how neglectful we in this House have been of individual rights in this area. The child was upwards of two years in the custody of an authority who was found by the Supreme Court to have no right at all to have the child. It is a remarkable state of affairs that by our inaction, neglect and inertia, for whatever reasons, we can allow situations like this to develop.

I believe the Supreme Court in their judgment delivered the other day were screaming to this House because they did not deal just with the issue of whether or not someone was a fit person. If anyone feels smug about this whole affair he should read the book written by Deputy Shatter, in another capacity, which is available on the shelves on the Library of this House and elsewhere for anyone who wants to read it. Deputy Shatter says in his book — I have no doubt he will quote from his book but, if not, I will refer to it so that he may feel inclined to quote it — that there is no explicit statement in any legislation which suggests that health boards are fit persons for the purposes of our laws. It is there for anyone to read it.

Dr. O'Hanlon

Quote the rest of the paragraph.

Mr. McCartan

It is there for anyone who wants to read it and for anyone to act on.

Minister of State at the Department of Health (Mr. N. Treacy)

The Deputy should not be selective.

Mr. Yates

We will be listening to the authority shortly.

Mr. N. Treacy

We will listen with interest to the authority.

Mr. McCartan

As I said, the Supreme Court in their forceful judgment gave us, as a House, some remarkable judicial directives to ensure that when we get on with our deliberations we will not ignore issues which must be addressed and have not been dealt with in the major legislation we dealt with last week, not covered in this emergency legislation and which must be addressed by the Minister and all of us in this House in the not too distant future.

The first directive was a recognition for the first time that often in these situations there is an innocent parent and that he or she must be considered by the courts and the Legislature as having a right to retain a child or that a child should be left in the family home and the suspected or offending parent removed. This issue has not been addressed or admitted to in any of the Bills which have come before the House and we should deal with it very carefully. The court also suggests, in putting the matter right, that health boards, as of right, should be involved and consulted by the courts in regard to all applications wherever they come from. This provision does not exist in law at present and should be legislated for.

It also insists that the person to whom the child is committed be named, made known and that access should be given to parents, offending or otherwise, suspected or otherwise, during the period. The court recognises that, even though a child may be taken out of one family and put into the care of another, the primary rights of parents exist and may well be restored at a subsequent date by a court order or otherwise and that one should be working for those eventualities. With regard to the administration of the cases once before the courts, the July judgment of the Supreme Court makes extremely interesting reading in regard to establishing and recognising the rights of parties, before the proceedings, of access to information, reports, videos, if they exist, and the use — the Minister must address this issue — of the anatomical doll device as an aid to doctors or witnesses, professional or otherwise, pursuing cases of this kind. In this context it has to be said and made clear that when we were talking about children in care, and how they get there, we must recognise that the vast majority of them are there by the consent of their parents. All of them, by a long shot, are not sent there because of abuse, physical or sexual. It is estimated that of the 2,500 children in care more than two-thirds of them are there by the consent of their parents who for their very good reasons, and perhaps out of love and care and in the best interests of their children, have to admit failure on a temporary or, unfortunately, permanent basis. We must when legislating in this context recognise that and allow for the widest possible regime to exist so as to facilitate everybody.

The vast majority of the parents are single or people who have problems that they cannot cope with such as unemployment, poverty or social difficulties relating to drink, drugs and so on. They cannot be condemned to the shoddy treatment that we as legislators, and successive Governments, have committed them to. While we might legislate in the narrow sense, as we are doing today, for the welfare of children, unless we address the broader issues of poverty and unemployment in our community then all our legislation and actions in the House will be set to nought.

In the recent joint report issued by the ESRI and the Combat Poverty Agency we were made aware of the well known fact, one that is often forgotten in the context of such debates, that we give a little more than £80 per week to two adults and two children to survive on even if it is not possible for those adults to find employment. The infant mortality rate among unskilled workers is three times that found among the middle and professional classes. Children represent a greater proportion of poverty today then they did 15 years ago. Whatever we might be doing about updating and upgrading the law, we are going backwards in terms of providing a decent living and conditions for our children. It should be remembered that six out of every ten households here live in poverty. I do not see how any of us can be proud of what is happening. While the Bill forces us to give attention to an area of the law that has been greatly neglected we must at the same time avail of the opportunity of referring to the rampant poverty and the massive neglect of our children, those whom in the great proclamation we promised to cherish equally.

I recognise the urgency of the Bill and what it is attempting to do. I join with those Members who suggested that it should not be seen as a block or a deterrent to our debate on the major legislation that was before the House last week. I hope we will consign this Bill to its proper place, beside the 1908 Act, as soon as we pass the greater legislation. I must express a reservation about section 6. That section could well give an imprimatur or invitation to shoddy practice at the primary court stage. If mistakes are made the proper thing to do is to allow the courts to give the ultimate sanction of habeas corpus, or whatever, and compel the parties to revert to the procedures of the District or primary courts and make proper application in that way. We have to remember that the higher courts are places that cannot be visited by many people because of the cost element. I am worried that that section will not work to the benefit of all. I should like the Minister to consider my point on Committee Stage and, perhaps advance more reasons why he thinks it is a better formula than what I have suggested.

Mr. D. Ahern

With the permission of the House, I should like to give eight minutes of my time to Deputy Wyse. Like other Members I should like to express my thanks and congratulations to the Government on their decision to establish a select committee to deal with the Child Care Bill. That is the best way to deal with that Bill. I have no doubt that it will get a speedy passage through that select committee. As other Members have stated, there are soundings coming from the Supreme Court and the High Court to the effect that this area should be taken care of in new legislation. It is my experience in these cases that the interests of the child are paramount and that the interests of the parents are secondary. We should bear that in mind during our debate on this stop-gap Bill, which is being introduced to close a loophole. Opposition Members may feel that there is a need to introduce amendments along the lines of those proposed by the Child Care Bill, but I do not think we should delay the passage of the Bill with them. I was heartened to hear the attitude of Deputy Howlin, who said that these matters are too important to be decided in this emergency debate. I accept his opinion that we will have more time in the select committee to deal with issues such as access of parents.

We should ensure that the Bill is given a quick passage in the House so that the many cases that have been put in limbo as a result of the recent Supreme Court decision can be dealt with. There have been many comments about the alleged delay in bringing the Bill forward. In the case in question judgment was handed down by Mr. Justice Finlay in July and it dealt with the procedures that took place in the District Court. That judgment found that those procedures were not valid. The Supreme Court announced then that they would give a more detailed judgment on the issues at a later stage but felt obliged, in the interests of the child, to issue an interim judgment. At no stage in the judgment issued in July did the court infer that a health board was not a fit person. That is one of the reasons why nothing was done at that stage. Members will be aware that such issues were to be taken care of in the Child Care Bill. As Deputy McCartan said, we should assign the Children Act, 1908, to the dustbin. If one looks at the Bill one will see that the intention is to repeal almost all sections of the 1908 Act. There has been a lot of ill-informed comment about the delay in bringing that Bill forward.

There is no doubt that Mr. Justice Finlay in July did not deal with the question of whether a health board was a fit person. In a previous judgment of the High Court by Miss Justice Mella Carroll, in the State D and D v. the Midland Health Board, the judge found that the health board was a fit person to deal with the instance. Because of that I have no doubt that the Department of Health and many other people were of the opinion at that stage that the health boards were entitled to act even though they were not specifically mentioned in the section of the Act. You have often heard the maxim that doctors differ and patients die. There is no doubt that in a very short time two leading members of our Judiciary have differed on this question of whether a health board would be a fit person to take into care. Deputy McCartan referred to Deputy Shatter's book — let me say an excellent book as he is in the Chamber. In that book he adverted to this matter and it has been called into question on a number of occasions, as I know from my own experience. The part of the book Deputy McCartan referred to stated that section 5 (1) of the Health Act, 1970, however, provides that the health board is a body corporate and undoubtedly part of the health board's function is to provide for the reception and protection of poor children. Therefore, it appears the health board may properly come within the concept of a fit person as defined in the Act. Even at that stage the feeling was that the health board could be a fit person to take children into care. To me there has been much ill-informed comment in the Press and publicly saying this Legislature is lethargic in dealing with that aspect.

I find a number of aspects in the judgment that was handed down on 2 November difficult and I feel the long term effect of the judgment could have a detrimental effect on the attitude of people who might want to foster children. While Deputy Yates wants to put in an amendment here tonight, I feel these are all aspects we should tease out in greater detail on Committee Stage. If potential foster parents were made aware that their names were to be made public, that perhaps the natural parents would have the right to follow and get access or whatever, although this happens quite often with consent, but there may be cases where the foster parents might shy away. In my area the health board are having difficulty in getting foster parents. This may be one reason why foster parents are unwilling to come forward to take care of children and this difficulty may crop up down the line. We should be very wary of rushing this matter here tonight.

Another aspect in the judgment was the reference to the innocent parent. Again we should be wary here. The interest of the child is paramount. While a parent may be innocent in not having perpetrated whatever the abuse was, the child should go to somebody who will look after it and has the capability of looking after it. An innocent party may not have the capability. The judge stated in his judgment that there may be a reason to prevent the innocent parent from taking the child and that should be looked into, but we must deal very carefully with all those aspects and not rush in here. These issues must be teased out properly.

There was some comment about the way this was handled in the debates here on Second Stage of the Child Care Bill. Deputy Leyden, Minister of State, in November last year confirmed that the reasoned opinion at that time was that the health board was a fit person to be nominated. In the judgment of 15 July 1988 High Court Justice Mella Carroll in the Midland Health Board case felt that if an employee of a health board was nominated, that employee may very well go sick, lose the job, or go out of the job or retire. That would lead to unnecessary court applications for changing the names. We need to tread very warily there if we decide to put in particular persons as the nominee of the health board.

Section 6 causes a light problem which perhaps we can tease out on Committee Stage. At a later stage there could be some sort of action which could put the matter here in jeopardy. It is vitally important for the 800 or so children who are in limbo at this stage that we pass this legislation to tighten up that matter now and later we can get down to the detail and the minutiae of the Child Care Bill so that we can deal with this area properly.

An Leas-Cheann Comhairle

Deputy Wyse, and he has eight minutes.

Mr. Wyse

I thank Deputy Ahern for sharing his time with me. On behalf of the Progressive Democrats I welcome the speedy introduction of this legislation here today. Since the ruling of the Supreme Court last week the actions taken by the Minister for Health and his Department have reflected the urgency and seriousness of this situation. However, it is unfortunate that it took last Thursday's ruling for the Department to recognise how critical it was. The seriousness and inevitability of the position we now find ourselves in had been well flagged in advance.

The initial ruling of the Supreme Court last July gave a clear indication of the likely nature the full decision would take when eventually announced. The dangers, however, were apparent long before even that. In the Second Stage debate of the Child Care Bill which took place in this House on 14 June 1988, a year and a half ago, Deputy McDowell spoke on behalf of the Progressive Democrats. During his contribution he warned of the urgency of the Child Care Bill. In particular he spoke of the rulings which some judges of the High Court had made even then which raised serious questions about the legality of health boards invoking powers of the District Court to have a fit person order made in respect of a child or to have children detained against the wishes of their parents. He said that in this context the health boards had as much function in relation to the welfare of children as Bord na Móna or CIE. Deputy McDowell warned on that occasion that, given the situation, there would be some parent who after receiving legal advice would go to the High Court and have a District Court order quashed under the 1908 Act. It is a salutary lesson to us all in this House that, 14 months after that specific warning, what was indicated then has now occurred, and instead of having anticipated this with revised legislation we are responding to it with an emergency measure. The whole episode highlights once again the sorry rate of progress made on child care legislation and child care in particular. That legislation was designed to revise and update the 1908 Children Act, but it has taken so long to go through that it seems now that it originated in the 1908 Act itself.

I welcome the decision that has been reached to establish a special committee for Committee Stage of the Bill. We must move carefully but speedily to ensure that the legislation is completed.

The Bill is welcome in so far as it brings to an end the limbo in which up to 800 children have been since the ruling of the Supreme Court on Thursday last. The potential consequence of that ruling was that courts would have to order the return of children to homes from which, on foot of careful decisions, they had been removed. It is a relief that this Bill removes that danger.

However, there is need for caution in regard to some areas of the Bill. For example, it is provided in section 3 that any child or young person in possession or control of any person in consequence of an order made or purporting to have been made under Part II or Part IV of the Children Act, 1908, shall be deemed to be lawful in such possession or control. I would be concerned lest the blanket nature of this measure would have the effect of legalising many orders which might be judged irregular for reasons very different from those we are concerned with at the moment.

I would be concerned also in relation to section 4 in that the wide ranging nature of this measure would be beyond the needs of what is needed now. It may be that this whole area would be served better by debate that is less rushed when the full consequences could be teased out.

I look forward to hearing the Minister's explanation in regard to the various issues that have been raised and to hearing from him also as to the need for the sections to which attention has been drawn. It is my hope that the response of the House to this legislation will reflect the urgency of the matter we are dealing with. However, we must realise that this can be only a temporary measure. The issues that have been raised in the past week and which have been aired here today demand in the longer term careful and considered opinion on such questions as, for example, the whole suitability of the District Courts to deal with matters of the kind we are debating and on the need for setting up a scheme of family courts as promised in the agreed Programme for Government. These considerations must urge the House to deal finally and properly with the Child Care Bill and to do so without delay.

Mr. Shatter

I welcome the opportunity to contribute to the debate on this Bill. I am familiar, as I am sure are other Members of the House, with the proceedings which gave rise to the situation we are dealing with. Wearing my legal hat I represented the parents who were involved in the court case concerned.

The background to the case in question gives rise to a variety of concerns while the court judgments that have been delivered require emergency legislation. No doubt, though, the legislation before us cannot deal adequately with all the problems in this area of child care.

The court proceedings, as referred to by the Minister and by others, arose out of an allegation that a father had sexually abused his child, as a result of which the child was taken into care. At all times the parents strenuously denied that their daughter had been sexually abused and it took two and a half years, through the High Court and the Supreme Court, to have released from care the child who had been taken into care — by the health board in this case.

At the time the District Court made the decision that the child be taken into care an assessment had been carried out which was referred to subsequently by the Supreme Court in its decision as not being a safe assessment with regard to the procedures of the court employed in determining the issue. The parents were given very little prior notice of the allegations being made against them. I emphasise that I was not the lawyer involved at that time but the lawyers for the parents then had sight of a report of an assessment on the morning of the hearing of the case. A video was made of the assessment procedures but the parents, the lawyers or the courts did not view this video.

The assessment technique that was used to determine whether the child had been sexually abused was by way of the use of what are known as anatomical dolls. The Supreme Court, in its judgment delivered in July last, made it clear that where such a vital matter as that relating to taking a child out of the care of parents arises, the court must have before it all relevant evidence, that it must view the video concerned, that the parents must see in advance the detail of the allegations being made against them and that assessments on the part of health boards must be furnished to the parents and to their lawyers well in advance. It is implicit in the judgment of the court that the parents must have access to their child to have an independent assessment carried out.

In this area it is essential that we do two things: that we protect the welfare of the child and in so doing provide a balance of approach. No court, social worker, doctor or health board should ever enter into a case of alleged child sexual abuse or any other allegation of abuse on an assumption either that abuse is automatically taking place or that abuse never takes place. There is a danger that we in Ireland have swung from the position of some years ago of assuming that child sexual abuse was not a problem within our community to assuming now that it is a problem of a far greater nature that what is the reality. Therefore, there is need to provide a balance and a perspective in this area. I am greatly concerned that we have lost sight of that balance in recent years, though it may have been redressed by the impact in this country of much of what happened in the Cleveland case in England. I believe there is a number of cases which require review because of the approach that may have been adopted by health boards in the past three or four years, approaches which today, in the light of experience, would be accepted as defective.

In this Bill we are failing to address a number of matters. It is not my intention to refer to those provisions in the Bill giving the health boards expressly the power to act as fit persons. Deputy Yates has referred to that aspect and we are tabling some amendments for Committee Stage which will help to have that matter teased out to a greater extent. What concerns me is that the Bill fails on a number of counts to ensure that any care proceedings brought in the intervening period between now and the coming into operation of the more comprehensive Bill will not be equally defective. This Bill requires a provision to ensure, first, that pre-trial procedures protect the welfare of children and of parents. If a child is being seriously abused it is in the interest of his or her welfare that they be taken into care and provided with protection. Equally, however, it would be totally contrary to a child's welfare that as a result of a mistaken allegation of abuse, an allegation that may be made from the best of motives, the child is taken from the family and suffers the horror of being removed, not only from parents, brothers and sisters, but from the entire extended family of grandparents, aunts, uncles and so on. There is a necessity to ensure that we get the balance right and that future care orders are valid. Consequently, there must be provision in this emergency legislation to set out the entitlement of parents to have full access to assessments, to impose an obligation on health boards to give access to parents in relation to videos of assessment and to ensure that a child believed to be at risk is placed in safety. The Bill, as drafted, is defective in that it does not contain any such provision.

A matter of great concern is the way in which anatomical dolls have been used in the past and continue to be used as probitive mechanism to establish whether a child has been sexually abused. In the Cleveland report one of the doctors giving evidence referred to the hazards of over-enthusiasm in using what are known as "disclosure techniques" and the problems of the use of anatomical dolls to establish child sexual abuse in the context of a crusade to establish that abuse is a great deal more prevalent than it is in reality. The conclusion of the Cleveland report is that in the context of anatomical dolls and of the techniques of interviewing children and the use of such dolls as an initial part of determining whether an allegation of abuse is correct there are "very serious dangers in their use at too early a stage in the evaluation".

As in this case the Supreme Court found the decision of the court that a child had been abused was unsafe, that it could not be relied upon, that the necessary protections had not been applied, I am concerned there may be other children at present in care who have been taken into care without the court applying the protections required to protect their welfare and to protect the rights of parents as laid down by the Supreme Court. I ask the Minister to indicate this evening if he is prepared at this stage to ask each health board to review every case that has been processed during the past three years in our courts where a child has been taken into care on foot of an allegation of child sexual abuse which has been corroborated in court proceedings solely by one medical practitioner giving evidence and the evidence being based on disclosure techniques deriving from the use of anatomical dolls.

I wonder how many other children may be in care by mistake, because either lawyers or a district justice did not realise that these techniques are not fool-proof because they were led to believe that these techniques ensured that an allegation made could be positively established as correct. I do not see it as posing any risk to children in care that the position with regard to their being taken into care be reviewed. I hope and expect it would be found where children have been taken into care that in the majority of cases the court decisions were correct but I am concerned that there may be some children who should not be in care and whose parents were not able, or did not have the strength of character to pursue the matter in the courts in the way the parents involved in this case pursued the matter.

I am concerned there may be some people involved in what is now euphemistically described as "disclosure work" who see themselves as involved in a crusade to establish that we have problems of child sexual abuse that may have been greater than many people thought ten years ago but are possibly not as great as the crusaders believe they are. That is a major problem we have not addressed this evening. I ask the Minister to ensure that health boards conduct that review. I ask him to accept the amendments we propose with regard to ensuring that in future assessment reports are made available, the videos are viewed by the courts and that independent assessments are carried out.

This is extremely important in the context of the judgment delivered but it is also important that amendments relating to giving parents the right to communicate with children taken into care are accepted. The Supreme Court in the decision delivered on 2 November indicated quite clearly that the taking of a child into care, except in special circumstances, should not automatically cut off that child from its parents. There must be proper arrangements for access and for communication. That was a problem in this case where I have knowledge that other Members of this House do not have because of my involvement in it.

When a child is taken into care, if that child has been seriously assaulted or abused of course he should be protected from the abuser but we also need to attend the issue of the innocent parent having contact with and access to that child. We need to consider the devastating impact on a child, not simply being taken out of contact with an abusing parent, but being cut off from the extended family. Children have relationships with aunts, uncles, grandparents, cousins. They have extended relationships and the draconian impact currently of care orders in the context of health boards being unco-operative with regard to access can often mean that a child is taken away from all contact with the extended family. That is something that will be addressed in detail on the major Child Care Bill but in this Bill we must make provision for access. I predict if we do not make that provision that will be another basis on which child care orders will be held to be invalid in future. We will then have a similar problem and more rushed emergency legislation.

There is another problem with regard to validating the place of safety order procedure. Some years ago I tried to draw to the attention of the Department of Health that some health boards were using a place of safety order as a sort of pre-emptive strike to take children out of the homes of their parents and to put them into care where there was a suspicion that a child was at risk but where that suspicion could not be substantiated. That is still a major concern. We must have a half-way house between leaving children unsupervised with parents and taking children completely away from the parental home and placing them in care. The supervision order mechanism would provide for that.

The Supreme Court has indicated that where a child has been abused by one parent before a care order is made there is an obligation on the court to see whether that child can properly remain in the care of the innocent parent in circumstances where that parent can ensure the protection of the child. That matter is not properly addressed in this measure and that is another flaw in it. Where there is a suspicion that a child is at risk but that is not confirmed — in some instances it may be wrong — there must be a different approach other than leaving the child in the family home and doing nothing to provide protection or the draconian approach of lifting the child by way of a place of safety order, taking the child from the home and the health board arranging to have an assessment carried out in the hope that the assessment will prove them to be right. In that regard we are tabling an amendment to provide for the making of a supervision order where there is a suspicion a child may be at risk but where that suspicion does not give rise to sufficiently serious allegations to warrant the child being taken into care in order to give the health boards and social workers the right to involve themselves with the family and to provide a degree of supervision in the care of the child. I hope the Minister can accept that amendment as a constructive proposal.

Because of concern for children unfortunately on occasion some health board personnel and some medical practitioners have run headlong in the belief that new techniques developed outside this country provide the answer to determining whether abuse has occurred, particularly in the area of child sexual abuse. I have already given the instances of the problems of the use of anatomical dolls. I believe that cases in which they have been used as a probitive mechanism which have convinced courts to take children into care should be reviewed. Those cases were prior to the time when we had individual teams operating in health board areas. In fact, they go back to the time which the sexual assault unit in the Rotunda Hospital initiated this type of technique.

An Ceann Comhairle

I am sorry to interrupt, but I must call on the Minister to reply.

Mr. Shatter

The Cleveland report casts aspersions and raises doubts about the validity of what is known as the anal dilation test that has been employed by health boards and convinced district justices to take children into care. I am asking the Minister to have cases reviewed where the primary evidence has been based on the use of anatomical dolls. I want him to ask the health boards to review cases where the primary evidence has been based on a single doctor making use of the anal dilation test as a proving mechanism to establish that abuse has occurred.

An Ceann Comhairle

I am calling the Minister to reply.

Mr. McCartan

On a point of order in advance of the Minister of State replying and in view of the importance of this Bill and of developments in regard to ordering time earlier today, I insist that a quorum be called.

An Ceann Comhairle

Is the Deputy aware that in accordance with a decision taken by the House this morning, I am obliged to call the Minister at this time?

Mr. McCartan

Yes, and under Standing Orders I am asking for a quorum.

An Ceann Comhairle

Is the Deputy aware that we must proceed to other business at 7 p.m.?

Mr. McCartan

Yes.

Dr. O'Hanlon

Is it in order to ask the Deputy if there is any particular reason he does not want to hear the Minister of State's reply.

Mr. McCartan

This is such an important and significant Bill that I believe there should be a quorum to listen to the Minister of State's reply to the Second Stage debate.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Minister of State at the Department of Health (Mr. N. Treacy)

At the outset I would like to sincerely thank all the Deputies who have contributed, apart from Deputy McCartan. Their contributions were very positive. I cannot understand how a debate on such an important Bill could be upset and obstructed by a Deputy who has not been in this House for very long but who legally should know better than to interrupt and try to intimidate the House when we are trying to do our business.

This is a short Bill which is an immediate response by the Government to deal with the situation which has arisen as a result of the Supreme Court judgment of last Thursday. I am satisfied that this Bill deals with the difficulty that has arisen. Some of the media coverage and public comments relating to that Supreme Court judgment have suggested that the decision that health boards do not have statutory authority to act as fit persons was in some way signalled by the earlier judgment in the same case, which was delivered on 27 July last. I have studied that judgment in great detail and have to say there was no foundation for this assertion. The judgment of 27 July last dealt solely with the pre-trial procedures and the trial itself in the District Court where the fit person order in question was originally made. The court came to the conclusion that these procedures had not been carried out in accordance with the necessary standards of natural justice thus rendering the fit person order unsafe. As a result, the court ordered the release of the child and its return to its parents.

I want to make it quite clear that the judgment of 27 July did not allude in any way to the question of whether a health board is empowered to act as a fit person. This was one of five issues on which the court reserved its judgment and its decision on these points was delivered last Thursday. In the judgment last week the Supreme Court upheld the original rulings of the High Court on four of the five issues but allowed the appeal on the question of whether a health board had power to act as a fit person. As this House is aware, the court held that health boards do not have such a power.

As this House is aware, the court held that health boards do not have such a power. It must be said however, particularly in view of the comments which have appeared in the media, that there were no reasonable grounds for the Government, the Minister for Health or his Department to believe before last Thursday that the court would find against health boards in this way. It is all very well for certain Deputies with the benefit of hindsight to criticise the Government for not anticipating this ruling. However, the fact is that up to last Thursday the legal position was as laid down by the High Court in July 1988, that is, that health boards could act as fit persons.

I have listened carefully to the contribution made by Deputy Yates and particularly to his views on the amendments he proposes to put down on Committee Stage. I reiterate what the Minister for Health said in his opening speech. This Bill is designed to deal with the immediate difficulty which has arisen and the Government are satisfied that the Bill before the House does that. The improvement and clarification of our child care legislation generally, in the Government's view, can best be done in the context of the debate on the Child Care Bill, 1988, which has now been referred to a Special Committee. I look forward to working with this committee and I am sure we will get maximum co-operation from the Opposition parties to have a comprehensive child care Bill enacted as quickly as possible.

I want to thank Deputy Howlin for his contribution on behalf of his party. I would like to assure him and the House that in drafting the Bill the Government have the benefit and advice of the highest law officers in the State. So far as humanly possible, every effort has been made to ensure that the legislation does the job it is designed to do, that is, to overcome the technical defects identified by the Supreme Court. Similarly, great care has been taken to protect the status of existing fit persons orders. I want to assure Deputy Howlin and the House that the Children Bill, 1989, is not a replacement, nor has it been intended as a replacement for the Child Care Bill, 1989. As I said earlier, this Bill is a direct response to the effect of the Supreme Court decision of Thursday last.

Deputy McCartan, in a wide ranging contribution, talked about the high cost of people having recourse to the higher courts in our land. He may be able to suggest ways of changing this. I thought section 6 is going a long way to provide maximum recourse and flexibility in the case of orders made or otherwise.

As regards amendments which have been tabled by the Opposition, I intend to respond to each of them on the Committee Stage later tonight. Every Deputy must look at this Bill on its merits and at its purpose, and then he will have a clear over-view of the comprehensive Child Care Bill which we will debate in the all party Oireachtas committee later.

Finally, we will be going into Committee Stage at 8.30 p.m. and I look forward to debating each amendment put forward at that time. I look forward to having the maximum co-operation of the House in ensuring that this Bill is enacted as quickly as possible. Various references have been made to Deputy Shatter's book Family Law in Ireland. I would like to quote from page 411 of that book. Deputy Shatter's own opinion was, until last Thursday:

Nowadays, the overwhelming majority of such proceedings are brought by health boards and in practice, a health board is usually named as a fit person, although no express authority is conferred by the Health Acts to so act. Section 5 (1) of the Health Act, 1970, does, however, provide that a health board is a "body corporate' and as, undoubtedly, part of a health board's function is "to provide for the reception or protection of poor children"——

An Ceann Comhairle

I am very sorry to interrupt the Minister of State but in accordance with an Order of the House of this day the time has come to put the question.

Mr. N. Treacy

I am just about to wind up.

——it appears that the health boards may properly come within the concept of a fit person as defined in the Act of 1908.

As far as we are concerned this view was upheld by the High Court 18 months later by Miss Justice Carroll.

Mr. Yates

It was settled out of court.

Mr. N. Treacy

We are now here debating this Bill and I look forward to your co-operation in ensuring that we get it through as quickly as we can.

Question put and agreed to.

Committee Stage ordered for 8.30 p.m.

Dáil Éireann debate - Tuesday, 7 Nov 1989

Children Bill, 1989: Second Stage.

Dáil Éireann debate -
Tuesday, 7 Nov 1989