Skip to main content
Normal View

Dáil Éireann debate -
Tuesday, 7 Nov 1989

Vol. 392 No. 7

Private Members' Business. - Children Bill, 1989: Committee and Remaining Stages.

Question proposed: "That section 1 stand part of the Bill."

At the outset I would say that continuing on from a very brief Second Stage debate it is our intention to facilitate the Minister in what he proposes with the exception of section 6, with which we have difficulty, but the main thrust of what we will be doing this evening is to propose some additions to what the Minister is doing which is not in contravention of what he proposes but to fill what we believe are to be the gaps.

Section 1 defines what is a "fit person". I suppose this is the nub of what was found to be invalid in relation to the court orders. As far as it goes it conforms to the definition of a health board or the personnel under the control of the health board as defined by the 1970 Act and we have no difficulty with it. I should say that one of the difficulties we have — and this comes out in section I — is that the health board was always a fit person, in other words the element of retrospection. Some of the advice we have, vis-á-vis section 6, is that to say, for instance, that a court order was always valid might not be constitutional. I would ask the Minister to let me know his legal advice from the Attorney General as to the element of retrospection and the constitutionality of it.

In relation to this section, obviously the whole focus of the decision of last Thursday is on the questions of the health boards not being deemed to be fit persons. I would need some convincing from the Minister for Health and from his officials in relation to the legality of this section. I would go so far as to ask the Minister for Health if he could inform the House or if he could give us details of the legal opinion and the legal advice which he has before him on this part of the Act. Obviously the rest of the Act will fall if section 1 does not have validity and if it does not have the retrospection which he is seeking to have. Certainly, in many instances of which I am aware it is not possible to give retrospection by way of introducing legislation. I would be extremely concerned that the orders which up to last Thursday were valid will now remain invalid even after the passing of this section tonight. I would like if the Minister, or the Minister of State, would inform the House on the basis upon which they have satisfied themselves that this section will withstand any challenge that might be made because we have to take it, as a matter of course, that challenges will be made in relation to this Act as they have been in relation to the 1908 Act. I would ask the Minister as a matter of urgency to give us the basis and the details of the legal advice which is available to him.

On reading this section I asked for an opinion from the Attorney General's Office and I am assured that they are happy with that section legally. Section 1 does not say that a court order was always valid. It provides that a health board has and always has had the power to act as a fit person and it makes no mention of a court order. The fit person definition under section 38 (1) of the 1908 Act reads as follows:

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 the protection of poor children or the prevention of cruelty to children.

The Supreme Court has ruled that this definition does not encompass a health board, hence the need to provide it, to be taken to include and always have included a health board. There is no specific provision in the Health Acts authorising a health board to act as a fit person. Health boards have always operated on the basis that they have an implied power to do so. The effect of the Supreme Court judgment is that health boards cannot assume such a power, hence the need to provide here that health boards have, and always have had, the power to act as fit persons.

The Minister has given us the reasons in response, to Deputy Yates and Deputy Spring, why he has put that section in the Bill. I do not think he has responded adequately to the query raised. The Minister of State quoted a paragraph from my book on Family Law in The Republic of Ireland. Earlier this evening I was worried that he would quote from another book which I had recently written but he avoided falling into that trap——

I have seen both.

——in which I point out that there was no explicit power conferred on health boards but that health boards — and I deliberately used the words —"may properly exercise the power"— in the context of a particular section of the Children Act. The word "may" was very carefully used. I made the point that in practice health boards, as the Minister has said, would act as fit persons but there was always a doubt. That is why that paragraph was written in that way because there was always a doubt as to the health board providing these powers. The Minister has referred us to section 38 of the Children Act, 1908. The effect of the Supreme Court decision is not to say, just on Thursday last, the health board lost that power, but that since 1970 when the Health Act became operative, health boards have lacked the statutory capacity, either as a statutory body or as a body corporate, to be a fit person.

The difficulty we have here is that the Minister's amendment is, in effect, retrospective legislation. The Minister is retrospectively saying that from now on, although the health board did not have the power a week ago, or two months ago, or two years ago, or six years ago we will deem the health board always to have had that power. The Minister had two ways of approaching the difficulty presented by the Supreme Court decision. The first way of approaching it was to provide for a power on the part of health boards to act as fit persons in all future court cases and in a sense to thereafter require, with regard to all children who are currently in care and whose welfare require that they remain in care, that there be a new application to the courts for a care order, then no one would have had to rely on retrospectivity. The alternative means of dealing with it — and this is the one the Minister has adopted — was by way of retrospectively attempting to validate the orders made in cases in the past, all of which are clearly valid at present. This is retrospective legislation.

I would ask the Minister, very particularly, what advice he has received from the Attorney General with regard to the position if we pass this legislation, if this day week a parent challenges an order in the High Court that was made six months ago and says that at the time when the order was made the health board could not act as a fit person and goes on to say that you cannot now insert a power that did not exist six months ago, that the orders are still valid. I would draw the Minister's attention to a very recent court case and I wonder if the Attorney General has had any regard to it. It is a judgment delivered on Tuesday, 31 October, and reported in The Irish Times on Wednesday, 1 November. I do not think the formal signed judgment is yet available. It related to a decision by Mr. Justice Blayney concerning the position of a district justice who, it turned out, was not properly appointed as required by the Constitution. An order had been made under section 49 of the Road Taffic Act, 1961, against the applicant in these proceedings. It was argued that since the applicant had been tried by a person who was not duly appointed a judge, his trial could not have been in due course of law. In a reserve judgment Mr. Justice Blayney said that District Justice Seamus Mahon, who was appointed a temporary justice with effect from 11 October, 1976 and a permanent justice from 20 May 1977, had not been properly appointed as a justice and that the Courts (No. 2) Act, 1988 which gave power to act as a district justice retrospectively could not validate the conviction, that Mr. Shelley had a constitutional right to be tried in a court of law. That was not done. The respondent was not a judge appointed in a manner provided by the Constitution. A validation of his conviction would conflict with his constitutional rights since it would purport to validate a trial which had infringed such a right.

It seems the Minister is trying to validate a court decision which was invalid at the time it was made. I would be very interested to know what advice the Minister has obtained from the Attorney General and whether when the Attorney General considered the decision of last Thursday in commenting on this legislation he also had regard to the decision of 31 October 1989. If he did not have such regard, the issue raised by Deputy Yates and Deputy Spring is of some considerable importance. Where this section may prospectively allow health boards to act as fit persons, there is very serious doubt as to whether it is constitutionally permissible for it to render valid a whole series of court orders that are clearly invalid.

I have no difficulty in accepting that once this legislation has been dealt with in this House and the Seanad the health boards will be considered by the courts as fit persons within the meaning of section 38 of the 1908 Act, but I share the fears which have been ably expressed by Deputy Shatter. The Minister did very little to allay those fears and I would ask him in the interests of all of us and certainly in the interests of the 800 children who are in limbo at present if he could give us some insight as to the advice available to him. It would be constructive and would help us in considering this legislation.

I am sure questions were put to the Attorney General by the Minister and his officials in relation to retrospection. My understanding in general law is that one cannot regulate matters retrospectively. Whereas the Bill when enacted will certainly cater for the future, I would have worries and doubts as to whether when passed the health boards will be given a new status in relation to being fit persons to cover events which have taken place in the past at a time when by virtue of the decision of last Thursday they were deemed not to be fit persons. I would ask the Minister again to give us some insight into the advice available to him, not just that the advice is that it is okay but the basis of the advice. I am sure the constitutionality of the question has been teased out by the Attorney General and his staff, as well as the officials in the Department of Health. It is in the interests of everybody, particularly of the children, that the Minister should clarify this matter.

Like other speakers on this side of the House, I am not satisfied with the Minister's response in simply using a formula to the effect that the Attorney General has been consulted and has expressed satisfaction with the constitutionality of this section. When we were dealing with the Courts (No. 2) Bill, 1988, addressing the problems of District Justice Mahon we were assured that the provisions of that Bill would stand up to the test of judicial inquiry and would act to validate all the actions the justice had taken. In The Irish Times report of the review of the decision by Mr. Justice Blayney, the point was well made that many of the orders of the district justice would now have been spent in effect and consequently there would be very few who could seek a remedy. I remember reading the statistics of the colossal amount of work the man had managed to dispose of in any one year. We were talking about tens of thousands of cases and orders made by him in any year. All of those would have been spent and no problem arises. That is not so in this instance. The vast majority of the orders affecting 2,500 children in care would have been made at the instigation of or to a health board as the fit person to receive the child into care. The position of each and every one of those persons and their welfare is now called into issue.

The Minister should be in a position, in answer to the questions raised by Opposition speakers, to expand as to the grounds on which the Attorney General assures him, so that we can in some way review that opinion and decision.

I think I speak for all Opposition Deputies when I say that it is not that we do not want health boards to be fit persons. We want it to be sufficiently sound that further problems will not arise. Can the Minister quote any precedent where legislation was brought before this House with the effect of retrospection which subsequently withstood any constitutional challenge against it? Has he given any consideration to referring this Bill under Article 26 to the President to test its constitutionality?

I do not wish to cover ground which has already been well trodden. The debate on section 1 is uncannily similar to a debate in December last year on the Courts (No. 2) Bill, 1988. In the course of the reply by the Minister on Report Stage he dealt with the kind of concerns raised here during the past few minutes. He stated he was satisfied on the advice given to him by the Attorney General that there would not be any constitutional difficulties arising from that legislation which attempted to validate the decisions of a district justice who was not at the time lawfully acting in that capacity. What the Minister for Health is doing this evening is exactly the same. It was stated categorically in the recent Shelly case in the High Court that the decision of the district justice was not valid and that our attempt to validate retrospectively district court judgments under the Courts (No. 2) Act, 1988, was a failure.

On that occasion the Minister for Justice was asked to explain exactly the same thing we are asking the Minister for Health to do now. It is of fundamental importance that, prior to passing this legislation tonight, the Minister answers categorically whether he is satisfied that section 1 of the Bill is not repugnant to the Constitution. If the answer is no, I ask the Minister to elaborate having regard to the recent decision in the Courts (No. 2) Act, 1988, because we appear to be going down the same road as we did in 1988. The Blayney decision of last week in the Shelley case is one of a string of cases which will create extreme difficulties. Section 1 will lead to exactly the same situation and having regard to the seriousness of this legislation the Minister has a duty to the House to explain his reasons for saying — if indeed it is his statement — that section 1 is not repugnant to the Constitution.

We have to presume, as the Bill is in this form and has had the advice of the Attorney General, that the Attorney General must have advised that in this case there is a distinction to be made in the other case, the Courts (No. 2) Bill. If the Minister could simply tell us how the Attorney General made that distinction and the basis for it we might be satisfied. If he cannot do that I do not see how we can get very far with this Bill.

The only bar in the Constitution on retrospective legislation is in relation to making criminal an offence which was not unlawful at the time it was committed. Deputy Yates raised the question of retrospective legislation. It is not unique to provide an element of retrospection in legislation. For example, many Acts dealing with superannuation have been retrospective. Deputy Yates raised the point about referring the Bill to the President. It is not a matter for the Minister or the House to recommend to the President what he should do as he has a constitutional right to decide whether any Bill should go to the Supreme Court to test its constitutionality.

With regard to the McMahon case referred to by Deputies Shatter and McCartan, I am advised that a distinction can be drawn between that case and the one we are dealing with here. In the McMahon case the criminal convictions were invalid because a person has a constitutional right to be tried by a properly appointed judge or justice and in the McMahon case that was not so. This is not the situation here as in this case there was a proper judicial hearing by a properly appointed justice who decided that the parents were unfit to have custody of their children. Just because the wrong person was nominated as a fit person after the decision was made that the parents were unfit does not invalidate the decision that the parents were unfit to have care of their children.

The Minister is digging the hole a little bit bigger into which he may soon disappear with the Bill. Surely the essence of the proceedings on the fit persons orders relates to the liberty of the subject, the child in the first instance and the constitutional rights of the parents in the second? We know how strongly those rights are written into the Constitution and how much, therefore, as legislators we are obliged to protect them. There is as strong a constitutional regard to be had to the process of a judge making a decision in a criminal case as there is in regard to a judge making a decision in the care and committal of young persons and — by correspondence — the denial of a parent's right of custody or access to a child. There can be no equivocation or suggestion that one is less important than the other, they are of equal importance.

The issue comes down to whether the Minister of the Legislature can retrospectively validate all the orders. Will the Minister — if he can — expand on this issue by reference to an opinion, a note, memorandum, document or résumé from the Attorney General's Office that must be to hand in his files in relation to this? This is the kernel of the Bill and the central issue of what we are about in the House, trying to put right what has not been right up to this either in law or in the administration of justice according to the Constitution.

This brings me on to a second point raised on Second Stage in the context of the Minister reviewing the position of all the cases under the jurisdiction and responsibility of the health boards. It seems, in the light of doubts that clearly exist about the correctness of this approach, there may well be an impossibility facing us as a Legislature. It may very well be that it is impossible to put right by law now what has not been right to date and that perhaps the only possible, practical, proper steps to be taken is for all those cases within the jurisdiction of the Minister through the health boards to be re-represented to court and proper orders made according to the law corrected by this Bill when it is passed here and in the Seanad tomorrow. That is the reason for the urgency of the action and review. I will be suggesting to the Minister, whatever about other reviews in the light of how probitive procedures were undertaken, that there is certainly a cogent argument for suggesting there is a need for the review of cases so that we are in a position to act without delay if the Minister is convinced tonight — or if a court should convince him at a very early date — that this Bill cannot be retrospective in the way he hopes it will.

I detect a certain reluctance on the Minister's part to impart more information to us in relation to the Attorney General's advice. I am beginning to wonder about this matter. Was the question put to the Attorney General? I would have assumed it would have been necessary, from the point of view of the Minister putting the Bill through the House, to be able to quote, chapter and verse, from the Attorney General's advice. As the previous speaker said, surely there is a memorandum from the Attorney General's Office to the Department of Health advising on this very important issue because, without this being clarified, there will obviously be an air of doubt over the legislation?

The example which the Minister gave in relation to retrospection — the question of superannuation — can hardly be compared with the question of the natural rights of parents and the liberty of children. Certainly I could not see a High Court or Supreme Court judge equating superannuation rights with the subject matter of this Bill from the point of view of retrospective legislation. I do not accept there is any need for the reticence the Minister has displayed in relation to the question of referring this Bill to the President. There are many precedents for recommending the reference of legislation to the President, particularly in an instance like this where the doubt persists. I would much prefer to see another fortnight or month of uncertainty on the basis of the Bill being referred than our awaiting some lawyer to challenge it in, say, 12 months or two years time, putting us back in the same position. If the only satisfaction the Minister has for himself is: yes, it is all right; I do not have to state the reason, or the strongest reason I can give is that we have had instances of retrospective legislation on questions of superannuation rights; in that instance probably an explanation becomes more desirable now than it was 20 minutes ago before any attempt was made to explain how this legislation would be valid. I would ask the Minister to give us some insight into the advice given to him. There are very genuine doubts being expressed by all the speakers who have risen on section 1. I would certainly hope that the Minister could go somewhat further in allaying those fears and doubts than he has in the past 30 minutes.

Opposition Deputies are in somewhat of a difficulty in so far as we have tabled some very important amendments we want to reach. The more we talk about one section of the Bill the more we deprive ourselves of debate in the limited three hours remaining.

I should like to summarise the position of my party at this stage, which is that we remain totally sceptical about the constitutionality of this section and the element of retrospection in sections 1 and 6. We feel the best way to deal with this issue is for the Minister and the Government to consider referring the matter to the President to test its constitutionality. I would disagree with the Minister when he says that the Government or Minister have no role in this. I might cite the precedent of the Adoption Act when the Government referred that legislation to the President for that type of consideration and it was tested on that basis. I want it formally recorded for future reference that we remain sceptical notwithstanding anything the Minister has said.

Deputy McCartan referred to the rights of children. He referred also to children who are in care and the question of appeal to the court. The provisions of section 3 give that right of appeal. I am sure Deputy McCartan would agree that what we are dealing with in this Bill is the particular loophole obtaining and decided in the Supreme Court on Thursday last. The Deputy will agree that these children were before proper judicial proceedings, that their cases were examined before the courts, the courts deciding that the children should be in care. That decision was taken having regard to the court procedures. Whether or not there are children in care who should not be is not an issue that is involved in this Bill. My view is that if they were before the courts and the courts heard their case in a proper fashion — whether a health board was or was not a "fit person" is not an issue in regard to whether they should be in care. The courts did decide that they should be in care. Therefore, we are here validating the health board as a "fit person" to have them in care. As I have said already, there is no constitutional bar on this retrospection in accordance with the advice I have been given.

With regard to the question raised by Deputies Spring and Yates about the President, it is not correct to say that we made a recommendation to the President that he should refer the Adoption Bill to the Supreme Court. In fact we are very careful on this side of the House to recognise the constitutional position of the President. We do not believe it is our function to recommend to the President. We have confidence in the President to take whatever decision he thinks is correct in the interest of good legislation.

Deputy Spring suggested that we should delay resolving the matter for a month or so. That would not be realistic because there are 800 children in care whose legal status is unclear. We cannot really delay clarifying their status. It is right that there be no doubt about their status. Therefore, it is important that the Bill be passed as a matter of urgency.

I might point out that, of course, the Minister is quite correct — Bills are not referred to the President for the purpose of constitutional reference. But it has been the practice that, where there are doubts expressed in this House of a serious kind on the constitutionality of a Bill, that is a factor which the President takes into account in making up his mind. Second, it is a fact that in the last decade or so it has emerged that legislation, which is thought to be particularly appropriate for reference to the Supreme Court by that method, is legislation dealing with a net point which can be settled by the court very simply rather than complex legislation where even a full reference might miss out on some point. This Bill seems to me to be pre-eminently of the kind which could be so referred. On the Opposition side we feel there would be merit in doing so, although of course it is for the President to decide.

However, it would be unfortunate if the Minister misled himself on one point in connection with this when he says we could not afford a month's delay because there are children in care and something might happen. This Bill, when passed by these Houses, is deemed to be law until such time as the Supreme Court find it is not. I think I am right in saying that constitutionally nobody would be able to take any action on the basis of this Bill not being constitutional until the Supreme Court has decided. I do not think the courts would look behind the existence of the Bill before the Supreme Court had taken their decision. I do not think that is an issue. I hope the Minister will not press that. At some point in the debate I hope he would be willing to indicate, as we in Government indicated about the Rent Restrictions Bill — that we would see merit in a reference while the matter remained entirely for the President to decide.

The provisions of section 1 constitute the real reason for us having an emergency Bill before this House this evening, that is to rectify an obvious fault in existing legislation. The more Deputies on this side of the House listen to the Minister the more worried we become that we might enact a Bill that does a lot of things but will not address the problem we set as our primary and main objective.

The Minister has said quite clearly, after the enactment of this Bill, that, in relation to all care proceedings that have taken place in the past, children will be lawfully in care inasmuch as clearly their parents will be unfit. The issue we are addressing is not that some people were found to be unfit. The issue we are addressing is who is to be seen to be a "fit person" and whether we can decide retrospectively that a health board is such a "fit person". That is the main issue, that is the nub of the issue. The Minister contends there is no constitutional bar on retrospection.

Many Deputies on this side of the House have tried for the past 40 minutes to extract that clear assurance from the Minister. The Minister was asked on more than one occasion: was the advice of the Attorney General sought? If so, would he please inform the House what was that advice, read it into the record, so that we may be fully assured. We all want to establish that health boards are "fit persons" under the Act. The instances the Minister has given so far clearly would not give us any encouragement to believe that this section is constitutional.

We are dealing with a Bill on which there are based fundamental and sensitive human rights — the rights of children, the rights of parents, rights that are enshrined in the Constitution. It is not a matter of the price of a gallon of petrol being retrospectively adjusted. These are issues of extreme sensitivity.

The Minister indicated, in response to Deputy Spring, that it would not be realistic to wait. I must say that there is a certain amount of cheek involved in that considering we have waited so long to enact this legislation and since the actual judgment has been signalled for a long time. The fundamental thing we must do is get it right on this occasion. I do not mind inconveniencing this House in having to debate the provision in 12 months or two years time but I object to putting the 800 plus children who we are trying to assist tonight in jeopardy again by creating further uncertainty.

In conclusion I ask the Minister to answer the two simple direct questions which will settle this issue: has he sought the advice of the Attorney General and will he read into the record what that advice is?

Following what was said by the Fine Gael spokesperson on this issue I simply want to say that we in The Workers' Party have equal misgivings about the constitutionality of this provision. I am concerned more and more at the Minister's failure to advise us in full as to the Attorney General's reasons for the advice he has given.

Moving from the constitutional issue — there is no point in pursuing this issue much further in the light of the silence from the Minister's side — I want to refer to the legal effect of what is being proposed. In the case which prompted this Bill — the proceedings of The State (D.) versus G. and Others — the Supreme Court ordered the release, by way of habeas corpus from custody and care, of an infant because the person in whose care the infant had been placed, the Eastern Health Board, was not a fit person on the basis that it was not legally correct. The child was granted habeas corpus and released, I presume, back to the parents. What is to stop the parents of any one of the 800 children who are at issue tomorrow, the next day or whenever the opportunity is available of going to court and seeking a similar remedy to that of the parents in the case of The State (D.) versus G. and Others? What remedy would be available to the courts in that instance to protect the child?

Is the Minister telling us that the words "and shall be deemed always to have included a health board" in section 1 be sufficient for the purposes of retrospectively redefining what a fit person was or are we going to be faced with the type of ruling which was presented in the Blayney judgment of last week, which suggests that we cannot retrospectively redefine? Leaving aside the constitutional issue, if the Minister says that the Attorney General told him and the issue is a criminal offence only is he satisfied beyond doubt that a High Court or a higher court would allow those words to redefine the status of a fit person who received into custody and, by definition, deprived that infant of custody and the parents of their rights, as sufficient for the purposes of validating those orders whenever made? Has the Minister begun to conduct any survey of the 800 children he talks about?

The first point I want to make about the matter before the House is that one should have a care about coming to the conclusion that the legal advice given to the Minister is necessarily correct and necessarily will turn out to be correct. I wish that were so but I am afraid experience shows that it is not so. We saw this in the not too distant past in the case of the Courts (No. 2) Bill. I remember very well when that Bill was being rushed through in one day, as this Bill is, raising with the then Minister for Justice, Deputy Dukes as he is now, the question of the constitutionality of that Bill. I remember being assured at the time by the then Minister for Justice, Deputy Dukes, that his legal advice and the legal advice made available to him assured him that it was all in order and would turn out to be all right. That legal advice turned out to be entirely wrong and that is why one should have a care about coming to the conclusion that the advice which is forthcoming is necessarily going to turn out to be right.

There is one aspect of this matter which I wonder about and whether consideration has been given to it. What is the position going to be of the child G. who was the subject of the Supreme Court decision which gave rise to this situation? That person is specifically excluded from the terms of the Bill under section 7. A very anomalous and strange situation will result under which one law would apply to every other child who is in care under a position taken up by the health board except child G. who would have been in exactly the same situation. I wonder whether the Supreme Court can tolerate that kind of situation as being constitutional when there will be one law for every child but G. and a separate law for G.

I must express some concern about this because that in itself could give rise to some constitutional difficulty. The issue of the child G. should have been addressed specifically in this Bill. I know that might be a very unusual thing to do but, of course, the House has the power to overrule the Supreme Court and in effect the Bill purports to overrule that next point of law taken by the Supreme Court in the G. case. I would have thought that consideration should have been given to overruling their decision in the G. case and dealing with the G. case specifically. Otherwise it may well be argued in some court, the Supreme Court in particular, at some future date that that imbalance of the legal position of the child G. could not be tolerated as giving rise to an inequality affecting children who are in care. I wonder if any thought has been given to this specific point.

I did not intend to make any further contribution. I said earlier today that I have to make a declaration of interest in the sense that in the particular case which has given rise to all of this controversy I was the lawyer representing the parents. Deputy Taylor's contribution was extraordinarily unusual and odd in the sense that if anything has been established in constitutional law it is that the Oireachtas cannot in effect overrule a decision of the Supreme Court, and the Sinn Féin funds case many years ago told us that. The suggestion that either that decision of the Supreme Court or indeed any other decision of the Supreme Court could be simply willy nilly overruled by legislation passed in this House is so extraordinary as to deserve some comment in so far as this case has been dealt with and the child concerned is properly dealt with in the context of this legislation. Again I am careful to say that I was the lawyer involved with the parents in this case, and I do not make any special pleading on their behalf, but it is not unreasonable to say that they have been through enough during the past two and a half years without suggesting that having come to the end of a two and a half year court case this House is going to attempt to reverse the decision of the Supreme Court, something it cannot do anyway. With all due respect, Deputy Taylor is very seriously off the mark in that observation.

The debate on this section of the Bill indicates the regrettable nature of the debate, the fact that the Bill had to be put together so quickly and the debate taken in such a short time today. I am not a lawyer but it is patently obvious to any person who has had any dealings in the drafting of legislation that there is question mark over the section. We all know the cardinal rule in regard to this. When I was involved in the preparation of the Status of Children Bill it was claimed that we could not have retrospective legislation. There seemed to be a bar on even considering it.

I do not know how the section will change things because since last Thursday's decision the position is as if the court actions under which the children were taken into care had never happened. I am not sure how each one of those cases will be validated by this section. We are into a belt and braces issue. We have to be absolutely certain that the provisions of the Bill will withstand a test in the courts. I am familiar with the preparation of Government memoranda and I hold the view that at some stage the Attorney General would have argued the points put to him and given reasons for adopting a certain line. Could the Attorney General be consulted at this stage and his arguments brought forward? If that was done we would be able to reassure people in regard to the provisions in the Bill. I hope that the unseemly haste with which we have had to put through this legislation will not be in vain.

I should like to refer to the comments by Deputy Shatter. He is, of course, well learned in the law and I do not by any stretch of the imagination come close to or equal his deep and detailed knowledge of all branches of the law. However, the Oireachtas has the power to change the law and if that is not the case then I do not know what we are engaged in tonight. I appreciate that the Oireachtas does not have the power to change an interpretation by the Supreme Court of a constitutional issue but that is not what we were engaged in. Clearly, it is within the competence of the Oireachtas to change the law.

I have never doubted that.

We all know that Deputy Shatter is very clever but other Members have their own ideas about issues and sometimes they are nearer the knuckle. We are considering changing the law even though it was the Supreme Court that determined the law. It would also be open to the Oireachtas to deal with the case that was before the Supreme Court by way of special provision.

Consideration could have been given to that. It would be open to the Oireachtas, surely, to deal with the case of the child that was before the Supreme Court.

To overturn the Supreme Court in an individual case? No, the Oireachtas could not do that.

It could deal with that case by a special Bill or by a special section within the Bill before us, and provide that the child be taken into care.

That is outrageous. Is the Deputy now suggesting that an individual child should be taken into care——

It is no more outrageous than what the Deputy has suggested.

We are reaching the point where a person with or without legal training might feel that he was not a fit person to occupy this Chamber. That would be a position that we should be very reluctant to establish. Could we agree, having devoted almost an hour to this matter, that we have reached the point where we should make a decision?

I take the Chair's point and I agree with it substantially. If, as Deputies FitzGerald and Shatter say, it is outrageous to deal with one individual case of which the House has no knowledge, then it must be equally outrageous to purport to deal with the other 799 cases and declare them ex post facto to be valid when the House knows nothing about them.

I have listened with great interest to the contributions. In my view we must return to the original decision of the High Court where Miss Justice Carroll found that, taking the Health Act, 1970, in conjunction with the Children Act, 1908, the order in the case was valid.

That was over-ruled by the Supreme Court.

I did not interrupt the Deputy and I should like to ask him to please wait and listen. The advice available to successive Ministers for Health, and to the Department of Health, is that the health boards are fit persons within the 1908 and 1970 Acts to hold children in care. The Supreme Court, on one of five questions, ruled on a point of law that health boards were not fit people and ordered that the child be returned. That takes account of Deputy Taylor's point. As legislators we have been given the task of changing the law to take account of decisions in the courts. Under the guidelines of the Department of Health, 1983 and 1987, that is taken into account. Surely, we have a duty as legislators to enact the best law possible.

Deputy Shatter, and others, questioned the constitutionality of the retrospection element incorporated in the section. I should like to refer the House to the Garda Síochána Act, 1979, which dealt with the doubt about the appointing date of the then Garda Commissioner. The House dealt with that legislation and ensured that any decisions taken by the said officer were retrospectively in order even though there may have been a doubt about the date of appointment.

In this case the Attorney General has taken a personal interest in the compilation of the Bill and elevated a lot of time to considering its provisions.

Did he prepare a memorandum?

I did not interrupt the Deputy.

Why is it that the Minister cannot produce the memorandum?

The Attorney General is not there to advise the Deputy.

The Attorney General is satisfied that the Bill as drafted is constitutionally in order. The House should accept that.

I should like to take up the point raised by Deputy Ahern from the back seats about the Attorney General not being available to the House for advice.

I should like to deal with a number of points raised. Deputy McCartan referred to the judgment of last July.

We should avoid as far as possible what might be regarded as legal irritation with each other. Let us decide on what is before us and proceed to get a commonsense decision.

I should like to tell Deputy McCartan that the judgment issued last July did not deal with the issue that the Supreme Court dealt with last Thursday. The judgment of July 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 the procedures had not been carried out in accordance with the necessary standards of natural justice thus rendering the fit person order unsafe. It was for this reason that the court ordered the release of the child and its return to its parents.

Deputy Howlin referred to the fact that we were talking about children and not about a gallon of petrol. I agree with him on that and that is why we considered it so important to have the Bill before the House. It is important that the children who are in care have their interests looked after. Nobody is questioning the competence of the court that examined the cases originally or the competence of the witnesses of decisions that were made. The question is whether the health board was or was not a fit person. That question and the wording of section 1 were raised with the Attorney General and his advice is quite clear, that in his view as far as care orders are concerned there is no constitutional problem in relation to the wording of section 1.

Question put and agreed to.
NEW SECTION.

Here we have amendment a1 in the name of Deputy Brendan Howlin. Amendment b1 in the name of the same Deputy is related. I suggest, therefore, that we discuss amendments a1 and b1 together. Is that satisfactory? Agreed.

I move amendment No. a1:

a1 In page 2, before section 2, to insert the following new section:

2.—In any case where an application is made by a health board or any of its officers for an order pursuant to Section 24 of the Children Act, 1908, it shall be incumbent on the court hearing such application, before making any

order under the said section, to inquire whether the welfare of any child whose welfare might be in issue clearly requires its removal from the custody of both its parents, and should an innocent parent be available, able and willing to retain custody of such child, and to ensure the child's continuing safety and welfare, no order shall be made under the said section other than an order appointing such innocent parent as a fit person for the purposes of the said section.

While commenting briefly on the Second Stage debate I said it was my intention and the intention of the Labour Party to facilitate the passage of this Bill because of its importance and the limited time available to us. I do not propose to delay over-long on amendments.

However, we have to be aware that pending enactment of the main legislation, the main Children Bill, which may well be some considerable time off yet by the time it concludes its passage through the Special Committee back into this House then to the Seanad and is enacted by signature of the President, there may be a considerable time lapse. For that reason it is important that the procedures we put into place which will be the law until the new Bill comes into force are as good as we can make them.

We have given some consideration to the legal situation since the Children Bill, 1989, was circulated this morning and we feel the amendments put down in my name would improve it. The first amendment I have down is to insert a new section. The main import of the new section is to preserve as far as is practicable the family situation. A child who is identified by a health board as being vulnerable and needing protection from a guilty parent who is abusing, molesting or interfering with the child in any way, obviously has to be protected. However, often another parent is involved and the subject of the amendment the Labour Party have put down is to give a clear duty to the court to look after the interests of the innocent parent and to inquire whether the welfare of any child might be at issue, requiring its removal from the custody of both its parents and whether an innocent parent is involved who would be available, able and willing to retain custody of that child. The fundamental rights of that parent should be acknowledged and vindicated. If a parent can establish that he or she is innocent in every way and anxious to retain custody of the child and is willing and able to protect the child and afford that child every care and attention, surely that parent should have the custody of the child rather than have the child taken away from the family and unnecessarily, in this instance, breaking up the family unit. We think it very important that this provision be inserted into the Bill so there is a clear direction from the Oireachtas as to the preference for the maintenance of the family unit as far as practicable even when one individual parent has to be excluded from the family unit for the wellbeing and welfare of the child involved.

I rise to support these amendments. Both on Second Stage of this Bill and dealing last week with Committee Stage of the more comprehensive Child Care Bill, I said repeatedly, as did other Opposition Deputies, that invariably when a child is at risk of abuse or violence or at risk generally, it was most likely that one adult was involved rather than two adults and that in those circumstances it was absolutely desirable, if not imperative, that the child be put where possible in home environment circumstances so that the disturbance and stress on the child would be kept to a minimum. I have no doubt that there are different ways of trying to arrive at the same result. I have tabled amendments and more amendments are being tabled to seek to get an ex parte barring order against the offending adult to remove not the child but the offender. Often the psychology of these circumstances is that the child, whether he or she reports it to the social worker by way of admitting it or, further to investigation by the social worker, feels in some way he or she is the guilty party which, of course, is totally untrue and unfair. Therefore, in the interests of natural justice, leaving aside the best welfare of the child, it is imperative that the offender be removed. I am open to whether an ex parte barring order or what Deputy Howlin has proposed, is a better way of going about this, but I have no doubt that in descending order the most desirable circumstances for the child at risk are to stay with the family and for the offending adult to be removed, secondly, to be in fosterage which is as near to a home environment as you can get, and as a last resort, residential care. Not only are we talking about a family network of parents or a parent. There are uncles, aunts, first cousins, grandparents and so on, and in removing the child from the family circumstances you are removing him or her from that whole network of relationships and support to that child.

The lengthy, eight page judgment handed down unanimously by the Supreme Court last week referred to these points and it would be consistent, as my layman's interpretation of Mr. Justice Finlay's words, with their interpretation of what would be the most desirable action under the 1908 Act.

I heard some months ago a lengthy radio programme, mostly recorded interviews with the mothers of children who had been taken into care. One heard the most distraught descriptions of circumstances. Women who had sacrificed everything for their children and had themselves endured wife beating and, say, an alcoholic abuser of a husband saw a final tragedy, through no fault of theirs, of the children being removed from the family circumstances instead of removing the adult in question.

This amendment is worthy of consideration. I regret we have no more time to deal with it. It does not fit exactly into the type of amendments we had tabled to fill the gaps we felt the judgment exposed in the Minister's Bill, but we will support the amendments.

The Workers' Party also support the two amendments being proposed. They are very much in keeping with the judicial directives that were handed down by Mr. Justice Finlay, the Chief Justice, in delivering the unanimous decision of the Supreme Court in the case at hand. I think it is worth quoting from the judgment at page 16 where in making this very unusual and almost out of desperation step of giving judicial directives to us as legislators, he indicated his view of what should be the matter of the law and practice in dealing with future applications, and unless we address these in our legislation with regard to child care proceedings we will be on the wrong side of the Supreme Court yet again when this legislation comes around to be scrutinised by that court. It is also important, in view of the lack of progress on the substantial legislation and of suggestion in the House today, that has not been contradicted, that we are facing into a year to 18 months before we can ever hope to get the substantial legislation of the Child Care Bill into law.

Those are your words.

They are not my words.

It will be dealt with in due course. You will have your select committee.

Let us face up to the reality of the progress in relation to legislation in this area. I am talking not only of the past week but of the past decade. That rate of progress has been so slow so far as parties on all sides of the House are concerned that we are talking of a minimum of 12 months before we will be in a position to have the substantive law in place. That being so, we should use the opportunity of this smaller Bill to improve on the situation in practice as it is. The three amendments from the Labour Party proposing new sections address directly the issues addressed by the Supreme Court. At page 16 of the judgment, the Chief Justice said:

I am satisfied that in a case the facts of which are similar to those arising in the instant cast, namely, a suspicion grounding the original application under section 24 of illtreatment or abuse by one parent only, that there is a very definite and positive obligation on a Court to whom an application is made either under Section 24 or Section 21 of the Act of 1908 carefully to consider whether the welfare of the child clearly requires its removal from the custody of the innocent parent. A justification for so doing could only be if the innocent party was unwilling or, as might well be the case, unable to protect the child from the risk of harm from the other parent.

I do not think the case could have been put stronger. The Supreme Court is telling us how the innocent parent should be regarded. Up to now the innocent party had no say in the matter of these types of applications. Invariably the parents went together to court and the motion was to take the child out of their custody. In, perhaps, 99 per cent of these cases the child will have been placed already, on foot of a safety order, in the care and control of the health board.

What the Supreme Court is saying is that it is time to stop. It says this because of the regard that must be had to the innocent parent and to the institution of the family as laid down in our Constitution and in our laws. The court is telling us that we must address the matter both in practice and in law. Clearly, this is what the Labour Party has attempted to do. Their amendment is eminently sensible and should be supported.

The second point the Labour Party referred to is the concept of making a clearly identifiable person responsible for the care and custody of a child being removed into care. Further, in the judgment, the Chief Justice said:

Thirdly, I am satisfied that where an Order is made for the commital of the care of a child to a fit person with the intention that it will reside with an individual that it should be made nominating such individual by name and that where the commital of the child to some institution which was run by a person which would qualify as a fit person pursuant to the Act of 1908 is intended that it is desirable that an individual, be it the head of such institution or the effective matron or head of care, should be nominated.

That, again, is a clear declaration. If, after today, a court makes orders without having regard to those provisions or if we do not make such provisions in our law, there will be a possibility that proceedings in the higher court could well impugn any such order.

In their second amendment the Labour Party attempt clearly to address this position. Consequently, the amendment should be supported. The Minister has had this judgment for as long as any other Member so I trust he will have regard to these problems. There are other directives in the judgment to which we must have regard also. Now is the time to do that in view of the grave concern about the length of time it will take to put in place the more substantive legislation.

I support these amendments. I had tabled a substantive amendment on the same lines for the Child Care Bill. I do not think we needed the Supreme Court to tell us that where possible a child should not be removed from the home environment. Usually there is someone who is willing and able to care for the child. I have heard a replay of the radio programme Deputy Yates spoke of. In one of the cases concerned the mother had suffered a nervous breakdown as a result of her child being taken from her while she was ill. In another case the mother made a passionate plea to have her child returned to her on the basis that she was not the guilty party.

I am greatly concerned that mothers such as those may be caught up in the whole machine of bureaucracy, that they are powerless in the matter of making a case for themselves. We do not know this as these cases are heard in camera.

On the question of making funds available, if we are to have regard to that proposal in the judgment regarding not taking the child from the innocent parent except where it was absolutely necessary to do so, we must realise that in most cases the innocent parent will be the mother and that she may not have the financial resources to allow her provide for the child. If the child is put into an institution the cost to the State is much more than what would be involved in making funds available to the mother to care for the child at home. I trust that there will be a positive response to these important amendments.

In relation to the first amendment proposed by Deputy Howlin, I respectfully suggest that this question of "innocent party" is not a matter of black or white. No doubt Deputies will be aware of cases where the father of a child had been abusing the child sexually, with the knowledge of the mother, for a number of years without the mother doing anything about the problem. Could a woman in those circumstances be regarded as innocent?

She would be guilty by association.

Such circumstances might cause a difficulty later in determining whether the woman was an innocent partner.

The woman herself may be being abused.

There is no definition of innocent party. Perhaps the best way of dealing with this area would be by the use of the barring order procedure, where a health board could make application for a barring order to have the offending party removed from the home. In most of these cases, the father is the quilty party but there is no provision in the amendments for his removal from the home. The court may award custody of a child to the innocent party but the guilty party remains in the home and that can cause a problem. There is a procedure in the barring order legislation whereby a mother could apply for a barring order but this whole area should be teased out thoroughly. The insertion of a section on the lines proposed might only cause more problems than it would cure.

I am aware that the Law Reform Commission brought forward a consultative paper on child sexual abuse and addressed this whole area of barring orders in such incidents. That is the direction in which we should be going.

I endorse what has been said by other Members in support of these amendments. There have been many complicated cases where, psychologically and physically, a wife or partner has been forced into collusion or even denial because of fear or because of dependency or even of further outrages against herself or her children. I take the point made by Deputy Ahern that the aim of the major Bill and this emergency legislation must be that the family and particularly the child be protected at all costs. The child must be regarded as the vulnerable person and must be relieved of as much guilt as possible because it will be difficult enough to undo the other damage that will have been done. From research and sad experience, we know the offender may move on not only to other members of the family but to the extended family. We must consider not just the victim but the potential victims.

I thank the Opposition parties for their support of the amendments. I accept Deputy Ahern's point that these matters must be teased out. In a short time the debate in this House on the matter will be concluded. What we are putting in place is the procedures that will apply until the main Act is law, which could be some considerable time. While it is incumbent on us to tease out matters, it is also incumbent on us to ensure that this legislation is the best we can offer. The objective of the Labour Party amendments is to make the procedure as efficient, fair and as family-orientated as possible.

I will not go into the arguments again but I will elaborate on the second amendment and I will comment also on the point made by Deputy Ahern in relation to the phrase "innocent parent". That is there because the phrase was used by the Supreme Court. We must reflect on the decision of that court and what it indicated would be reasonable and fair legislation in relation to child care cases.

The second amendment in my name has as its objective the assigning of clear responsibility to an individual so that there would not be a corporate entity who would have responsibility for a child. Unfortunately we can all instance cases where children were taken out of a situation where they were abused and put into the care of a corporate entity, a health board. Since no individual was assigned clear responsibility for the child, the young person ends up in a home, is then moved to a foster parent and six months later is moved to another foster parent. All of this leads to instability for the child.

The Supreme Court has signalled that natural justice demands that an individual, a human person, should be responsible and that is what the amendment seeks to do. Should that individual move to a different job, there is no difficulty. All it would take is three minutes, another appearance in court to have another person assigned, if that is necessary. In that way there could be a constant monitoring of the child and protection for him. In this way children will not be sucked into a large system and forgotten. That has happened in the past.

The nub of the two amendments is to protect families as far as possible, to isolate guilty individuals who have wronged their family but not to shatter the family and the support mechanism of the extended family that should be available to all children. I do not see why the Minister will not accept this amendment because eventually that House will legislate this type of provision in the main Bill. I have no doubt that will be the case but why leave a gap of a year or 18 months without the proper cover? I appeal to the Minister to accept the amendments that have the support of all Opposition parties.

If the Minister was prepared to accept the amendments in principle, the point made by Deputy Ahern which could have some validity despite the use of the term "innocent" in the Supreme Court judgment could be met by deleting the word "innocent" in the two cases so that it would read, "and should a parent be available, able and willing to retain custody of such a child, who in the view of the court would ensure the child's continuing safety and welfare, no order shall be made...". I hope the Minister will accept the idea behind that.

I have listened carefully to the speeches of Opposition members who have made a good case for the amendments proposed by Deputy Howlin. His proposal has evoked some sympathy from me. However, Deputy FitzGerald has demonstrated, as perhaps Deputy Yates and Deputy Ahern inadvertently demonstrated, that there are a number of technical deficiencies in the amendment. That is no reflection on Deputy Howlin; it reflects the fact that the amendment had to be prepared in haste, just as this legislation had to be prepared in haste because it is narrow technical legislation designed to plug an immediate loophole the Supreme Court demonstrated exists in the law as it stands.

I was here during Committee Stage debate last Wednesday and I did not hear anything about taking 18 months to put legislation on the Statute Book. It is my earnest hope that it will not take that length of time to put the child care legislation on the Statute Book. The decision of the Supreme Court was issued only a few days ago and we need more time to reflect on it. Various speeches tonight have shown me we will have to consider this matter clearly in order to get the best possible legislation. When the special committee debates the substantive Bill I will appeal to the representatives from my party to look sympathetically at such a proposal. In the meantime, I appeal to the Minister to include some provision in the substantive Bill along the lines suggested by Deputy Howlin. This matter needs teasing out and, on reflection, I should not like to see it passed hastily tonight.

While I agree with the thrust of what Deputy Howlin wants to see in relation to the care of children, I do not think it would be appropriate to include the amendments at this time. The point has been made by my colleagues and also by Opposition speakers that there are defects in the amendments. I refer to amendment b1 where there is the following phrase "there is no natural person who is available, able and willing to provide for the welfare of such child". It appears to me this would hinder a health board acting as a fit person because it is not an actual person. It appears the court would have to exhaust all possibilities of placing the child with a natural person before it could even begin to consider placing the child with a health board.

I believe legislation is not necessary. I think it is incumbent on the District Court and the health boards to ensure that they have regard to the legitimate rights of the parent, or parents as the case may be, while ensuring that a child who should be in care is brought into care. The health boards would take account of the points raised by Deputy Howlin.

The District Court has always had regard to the position of the innocent parent. Following the Supreme Court judgment, the relevant part of which was quoted by Deputy McCartan, the District Court is required to proceed along the lines set out in Deputy Howlin's amendment. There is a definite and positive obligation on the court to consider whether the welfare of the child requires that he be removed from the custody of the innocent parent. The Supreme Court held that a court could only do so if the innocent parent was unwilling or unable to protect the child from the other parent.

I do not think it would be appropriate to accept the amendment at this time but I will look at the point raised by Deputy O'Dea as to whether some such amendment might be incorporated in the major legislation. I believe this should be teased out a lot more and the more appropriate place to do so would be the special committee because there will be more time to discuss it then.

I share Deputies' concern about the length of time involved in having that major legislation passed through both Houses but I can assure them that there will be no delay on my part, or on the part of my colleague, the Minister of State, in expediting that legislation through the House. I hope that will happen in the committee which was established today.

I seek clarification from the Minister. The general consensus seems to be that there is a need for an amendment of the nature suggested by Deputy Howlin. Both amendments are consistent with last Thursday's Supreme Court judgment, and the Minister seems to accept that it is necessary for us to move along the lines of the Supreme Court decision. However, he appeared to say that there is an obligation on the District and Circuit Courts to observe the directions of the Supreme Court. It would be far more opportune if, as of now, we were to give effect to the wishes expressed by Judge Finlay and his fellow judges.

I take the point raised by Deputy O'Dea when he said that the amendments are flawed because of the haste with which they were put together, but they are no less flawed than the Bill itself because of the haste in which it was put together. I do not think we have to apologise for being as human as those on the benches opposite. In my view it is a certainty that this legislation when passed by both Houses will be discussed by the courts and I will not be surprised if there is a referral.

I am surprised the Minister is not taking this opportunity to amend the Bill in a way which would be consistent with his views on the family as a unit in Irish society. It would be a major step forward in the protection of the family against all eventualities.

There have been cases cited where children were removed from the family environment, no matter how hostile or difficult that environment might have been, and that the travelling and placement of children in institutions, then fostering and back into institutions, at times had more long-term ill effects than had other arrangements been made, such as those suggested by Deputy Ahern. I appeal to the Minister to give these amendments more consideration. I believe Deputy Ahern's suggestion has great merit and it could be considered on Report Stage or when the Bill is being discussed in the Seanad.

I believe we are missing an opportunity to make this legislation far more effective, and there seems to be agreement on all sides that we wish to do that. Despite the assurances given by the Minister and others, looking at the parliamentary timetable, it will take more than 12 months to bring in substantive legislation. Again I ask the Minister to give this further consideration.

I do not think it is necessary to legislate for this because in natural justice there is a responsibility on the health boards and the District Courts to ensure that all factors are taken into account and to have regard to the rights of the natural parent. It is incumbent that the District Court would take account of the issues involved, and I believe that will be done.

We have a Bill with 64 sections and 57 amendments from the Government side because we believe they should be incorporated in law and we are very anxious to do that as quickly as possible. The Opposition put down 150 amendments because, I am sure, they too believe they should be incorporated in this legislation. We could spend the next two hours making a case for the inclusion of each of these 200 amendments and each of the 64 sections.

This legislation is to deal with a situation which arose out of a Supreme Court decision last Thursday and in my view, as far as possible, we should confine it to that situation because we do not want to worsen matters. I have already referred to amendment b1 in the name of Deputy Howlin. Regarding that amendment it would appear that there is an obligation on the court to exhaust their inquiries to see if some natural person can be found who is willing and able to take care of the child before recognising the health board as a fit person. This would make the situation worse than it is at present.

We are prepared to look at these two amendments in the context of the major legislation. We all agree with the thrust of what Deputy Howlin wants to do but I do not think it is necessary to have it in legislation. However, I am not against looking at it to see if there is any amendment we can bring forward in the major legislation.

I am anxious to proceed but we appear to have agreement on all sides despite the shift in tack in the Minister's last comment which differed substantially from his initial comments. There is no use saying there are 150 amendments. We are addressing this one. If all sides of the House agree that this is the correct way to go about providing for the welfare of children, why not enact it tonight so that the law of the land which will be enforced between now and whenever the main Bill is enacted, will reflect this right? Why not accept the amendment if the thrust is right? We are not talking about 150 other amendments. we are talking about this one.

This is the issue: if there is a parent the court deems to be fit he or she should have prior claim to custody of the child before the child is put into an institution or into fosterage. If there is a parent who is deemed to be fit and is willing and able to look after that child, he or she should be the person to whom custody is given. The Minister says he thinks this would be done by the court in natural justice but is that good enough? Would he not make sure it will be done by enacting legislation? Surely that is our duty.

If the Minister is reluctant to accept this amendment tonight, would he be willing to consider bringing it forward in the Seanad in view of the feeling of the House on the subject? This would mean he could reflect on it overnight.

As I said in my two contributions, I do not think it is necessary to legislate because I believe it is incumbent on the health board and on the District Court — not alone do I believe it is incumbent on the District Court out of natural justice but because of the Supreme Court decision referred to by Deputy McCartan — to take all the factors into account.

I am not satisfied with the wording in Deputy Howlin's amendments. I believe this is an issue which should be teased out in the longer debating time available. If we were to introduce such an amendment at this point in time we could well make the situation more difficult than it is. I have already given the example of amendment b1 and what I believe it would do.

May I ask how stands the amendment?

I would like the amendment to be put.

Amendment put.
The Committee divided: Tá, 69; Níl, 75.

  • Ahearn, Therese.
  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Byrne, Eric.
  • Carey, Donal.
  • Connor, John.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Finnucane, Michael.
  • FitzGerald, Garret.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Foxe, Tom.
  • Gilmore, Eamon.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Kenny, Enda.
  • Lee, Pat.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • McGrath, Paul.
  • Mitchell, Gay.
  • Moynihan, Michael.
  • Nealon, Ted.
  • Noonan, Michael.
  • (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine.
  • Timmins, Godfrey.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Calleary, Seán.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lyons, Denis.
  • Martin, Micheál.
  • McDaid, Jim.
  • Molloy, Robert.
  • Morley, P.J.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.
Tellers: Tá, Deputies Howlin and Ferris; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
NEW SECTIONS.

Amendment No. b1 in the name of Deputy Howlin was discussed with amendment No. a1.

I move amendment No. b1:

b1 In page 2, before section 2, to insert the following new section:

2.—A court to which application is made for an order pursuant to Section 24 of the 1908 Act shall not commit the care of the child to a health board by way of an order under the said section unless it is clearly shown that there is no natural person who is available, able and willing to provide for the welfare of such child.

Amendment put and declared lost.

Amendment No. 8 is an alternative and I suggest that we discuss amendments Nos. c1 and 8 together. Is that agreed? Agreed.

I move amendment c1.

c1 In page 2, before section 2, to inert the following new section:

2.—Where any health board or one of its officers applies to a court for an order for the appointment of a person as a fit person pursuant to Section 24 of the 1908 Act, the court shall not enter on a consideration of such application unless:

(i) the court has been satisfied that the applicant has furnished a statement to any parent or parents of a child the subject matter of such application, setting out particulars of all matters that may be alleged against such parents and which are alleged to warrant the removal of the care of the child from the care of such parents;

(ii) the court is satisfied that all reports prepared by medical practitioners and social workers, and touching upon the welfare of such child, have been furnished to the parents of such child in good time in advance of the application;

(iii) the court is satisfied that any recordings, whether audio or audiovisual, have been made available for inspection and to be heard and seen as appropriate by the parents of such child and/or their advisers.

Time is passing very quickly and there are very important sections which have yet to be reached. The reasoning behind my amendment is the judgment of the Supreme Court and to afford natural justice. The clear decision of the Supreme Court in the judgment of last week indicated that a procedure such as the one outlined in the amendment would have to be enacted in order to give natural justice to those defending an action for custody taken by a health board.

The specific steps outlined are clearcut, would not impose any great burden on health boards and would assist in allowing the courts to arrive at the correct decision in relation to a custody application. It would mean, as is normal in most contested cases, that both sides would have access to all relevant information, particularly to any statements or audio visual tapes which would subsequently come before the courts in making a decision.

I do not want to take up too much time on this amendment but it springs directly from the decision of the Supreme Court, and once again I urge the Minister to accept it and to insert it in the Bill.

As in the case of the previous two amendments in the name of the Labour Party, I support Deputy Howlin's amendments. His two amendments attempt to achieve the same ends, namely, giving regard to what the Chief Justice said — not in the most recent of the two judgments, but in the ruling handed down on 27 July 1989. That is important because it means that the Minister has had that ruling at least for a good deal longer than the ruling handed down two days ago.

The passage from the judgment delivered in July states on page 6:

Furthermore, for a lawyer acting on behalf of the parents and, therefore, joining issue on the question of abuse to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had in good time before the trial reports or summaries of the evidence which was to be given and, in addition, an examination of any video recorded by him and by any medical witness he proposed to call.

The judgment goes on to establish an important point that the proceedings in this nature are not of themselves in essence adversarial but that there is a higher concern — the duty of the court and of the parties concerned to establish what is in the best interests of the child and not necessarily to do so by mere adversarial means. The judgment establishes that adequate opportunities must be given to the parties on both sides to consider in full the case to be called, to consider any extraneous material that might be relied on, such as the video recording, reports and assessments, and to facilitate access for the parents to the child for the purpose of carrying out their own assessment or examination on a professional or other basis.

The drift of the judgment in laying down a judicial directive to us is that the legislation must change direction and emphasis from what has existed heretofore. For too long in proceedings of this kind the health board or the other authority involved were able to take a child from its parents by way of a temporary order relating to a place of safety and from then on it was a fight, tooth and nail, between the social workers, the representatives of the health authority or the other body corporate involved and it was often in very sad circumstances that a court would be asked to adjudicate on a matter.

The law now, courtesy of the Supreme Court, recognises that there are sides to the issue which must be respected and facilitated and that a great deal of investigation and inquiry need to be carried out. The Supreme Court make the point that in pursuing the interests of the child there is a duty on the court ultimately to make sure that all information is available, viewed and considered by the court before a decision is taken. These amendments are trying to address this point, but I again sadly anticipate that the attitude of the Minister will be that this is all for another day. My concern is in regard to when that day will be and how long we will have to wait for it. Both amendments are well and carefully drafted and they would not fall foul of any court of law. They would easily and well address the problem and should be introduced to the legislation tonight.

I propose, with the agreement of the House, to reach section 6 by 11.30 p.m.

Does the House agree with the suggestion proposed by Deputy Yates that we will have disposed of all sections up to section 5 by 11.30 p.m.? Agreed?

Agreed.

I should like to thank all Members of the House. In an endeavour to meet that requirement I will be as quick as possible.

Amendment No. 8 in the names of myself and Deputy Shatter, which is being taken together with the earlier one for discussion, achieves broadly the same aspiration as Deputy Howlin's amendment. The Minister, in defence of his position earlier this evening, stated that he was refusing previous amendments on the grounds that the purpose of this Bill was that he only wished to deal with matters arising out of the Supreme Court judgment, that there is no doubt that the Supreme Court judgment stated it was invalid to obtain a court order without adhering to certain reasonable procedures. One of those reasonable procedures was to allow parents to have access to all material relating to assessments of the children in question. Surely it is only reasonable — if we are trying to plug the gaps that have arisen out of this judgment — one gap that should be plugged is that the proper procedures for obtaining care orders be adhered to? I have no doubt that, even in the narrow terms of what the Minister defines as the purpose of this evening's work, amendment No. 8 deals with that. The wording has been compiled in such a way as to deal with what Mr. Justice Finlay laid down both in July and now.

The reason I would prefer amendment No. 8 to Deputy Howlin's is that section 58 of the 1908 Act also enters in here. Our amendment asks that Parts II and IV of the Children Act — although this is only a technical matter — be enlarged. I am advised legally that it is more comprehensive.

We also go two steps further in saying that as a matter of sound procedure in amendment No. 8 the court itself would have a right to view all video recordings made of such assessments. We are talking about a delicate balance of judgment here — whether it is correct that a child is at risk, whether or not abuse has taken place, whether there is a likelihood of abuse again in the future. The court is looking at this situation coldly. It is only right that it should have access to the professional, modern technology available in reaching that decision. It is not standard procedure, where video recordings have taken place, that the court would seek to obtain same. I know of such cases. That is wrong and can lead to faulty justice. That is just commonsense as well as a requirement laid down by the Supreme Court.

Finally, it is only right that the parents or those in loco parentis could seek a second professional opinion in asking for a separate, independent assessment to be carried out. That would also contribute to the achievement of a balance of justice.

We heard earlier on Second Stage examples of over zealous social workers, difficult circumstances, relationships breaking down totally between the professionals and the family and a separate independent assessment that would deal with some of the techniques, anatomical dolls and so on that have been questioned in Cleveland and elsewhere. The common denominator between Deputy Howlin's and our amendment, is that all material, as of right at a pre-trial procedure, be furnished; in good time; that the parents be given notice of the allegations or material against them; that the court itself would become more professional in its approach; that it must view all video recordings; and that an independent assessment could be sought. On the grounds of natural justice, on the pretext of what the Minister has said — that this evening's work arises out of the Supreme Court decisions and judgments — these amendments should meet with the Minister's narrow criteria and be agreed by the House this evening.

In case Deputy Yates misunderstood me, I was talking about the judgment of Thursday last, 2 November, not that of 27 July last. The effect of this new section would be to require the health boards to make available to the parents of a child who is the subject of personal proceedings full details of all reports of medical and social workers and other assessments carried out by the board on its behalf together with access to any video recordings of such assessments. That is already the position in law following the Supreme Court judgment of 27 July in the case which gave rise to last week's judgment. In that area of judgment the Supreme Court ruled that all such assessments and videos must be made available to the parents in advance of the court hearing. Immediately after the court delivered that judgment my Department circulated it to the health boards to arrange for its implementation in consultation with their legal advisers. I am informed that this process is under way in all the boards. Draft guidelines to assist health board staff in operating these new procedures are being prepared.

With regard to subsection (2) of Deputies Yates and Shatter's amendment, it seems unnecessary to require the court to view all videos whether or not they have been presented in evidence. For example, the health board and the parents might be in full agreement that there is nothing on the video that is of any assistance to either party and may decide there is no point in presenting it as evidence. In such a case it would not make any sense to require the court to view all the videos. Of course, if the health board or the parents present the video as evidence the court would be required to view it. That is clear from the Supreme Court judgment of 27 July last.

I find the Minister's attitude predictable but depressing. Now that we have Fianna Fáil and the Progressive Democrats in Government, we are back into the old nonsense in this House when Governments, just for the hell of it, never agree to any amendments tabled by Opposition parties no matter how constructively intended they are or how useful they may be.

That is predictable also.

I still wish on occasions that perhaps the media themselves would sit in when we reach this stage in debates as well and not disappear because politicians are constantly harangued from outside this House for not acting as legislators. The problem is that when politicians try to act as legislators they get the sort of negative attitude displayed by the Minister when he delves deeply into his Departmental brief to think of the most spurious of reasons for rejecting amendments tabled to legislation that can only improve it.

Deputy Howlin in the context of his amendment and Deputy Yates in the context of ours have indicated the reason for these amendments. The merit of the amendment tabled by Deputy Yates and myself over and above that tabled by Deputy Howlin is simply that it applies to all care proceedings under Parts II and IV of the 1908 Act and not merely section 24 of that Act. That is what is required as a result of the Supreme Court judgment. It does deal with courts viewing videos. Even where parents and a health board reach a conclusion that perhaps they do not want the court to view the video, because the Supreme Court have said that the dominant issue is the welfare of children and that an individual district justice has a discretion he must exercise in the context of his duty to protect the welfare of children, whether parents and a health board reach agreement about a video of an assessment being shown or not being shown in court, it seems to me the health board has a duty to tell a district justice that such a video has been made. A district justice may decide, despite the views of the parents or a health board, to view the video. That clearly arises out of the Supreme Court decision. Equally, it clearly arises out of the Supreme Court decision that the parents are entitled to have their child made available to them, when a place of safety order has been made, for the purpose of independent assessments. The Minister says that he acknowledges the Supreme Court has imposed these new requirements and that he has actually gone to the stage of issuing guidelines to health boards to tell them how they should deal with it. Are we now to scrap the entire Child Care Bill that is supposed to be going to select committee on the basis that we do not need any legislation, that what we need is the distribution of secret guidelines by the Department of Health to social workers?

Have these guidelines been published? Will they be tabled on the floor of this House? Will they be lodged in the Library of this House? Are we going to have a Kafka-esque situation where secret guidelines will emerge out of Departments to indicate to health boards secretly how to deal with court cases? Are these guidelines to be made available to parents whose children are being taken into care or where a care application is made? Will they be made available to a district justice? Is a district justice dealing with a child care case to be put in a position where health board social workers are operating on the basis of secret guidelines he cannot be made aware of? With due respect, that is the height of nonsense. The Minister recognises that the July decision of the Supreme Court requires a marked change in approach on the part of health boards. It requires a change of approach on behalf of the courts. The way one makes provision for that is not by the issuing of letters containing guidelines; one makes provision for that by embodying it in legislation.

Amendment No. 8 tabled in the names of Deputy Yates and myself in the first list of amendments which were distributed deals with all of those matters as they arose in the July judgment. If the Minister says he agrees with what is needed and he agrees with this amendment. I do not understand why it should not be included in this Bill which is designed to deal with the difficulties arising from the Supreme Court case because it is this Bill the lawyers, social workers and district justices are going to have regard to in future cases. I predict that if this amendment is not contained in this Bill. I presume the Minister's guidelines have not gone out to district justices because they operate independently of ministerial guidelines and the district justices have not read all the guidelines — some district justices will not have read the Supreme Court decision and will not take it all that seriously, because it is a bit of case law somewhere which they might not have access to and they will not view videos where they should view videos. As a result there may be some instances where children should be taken into care——

I should remind the Deputy that earlier on he asked me to put the question to the House. We want to discharge three sections and, unless we exercise some restraint, magnanimity or self-sacrifice and do not look for as much time as the Deputy has taken, the Deputy is not going to honour that to which he has already agreed.

The problem can be solved very simply if the Minister accepts the amendments we have tabled.

Hear, hear.

The point at the end of the day is that if the Minister will not accept this amendment I have absolutely no doubt there are going to be instances where care orders, made in circumstances where district justices have to view videos, where health boards have not supplied them for some reason or another or where children have not been made available for independent assessments, will be set aside by the courts in the future. Perhaps they will be set aside in circumstances where it is in the interests of the welfare of the particular child to which they are relevant that that child should in fact remain in care. I would invite the Minister to move away from the caricature approach which I have seen so often in this House in the past and to regard the amendments tabled by the different parties in this House this evening as constructive attempts to improve the Bill. The Minister will not lose anything of his public image if he accepts one or two of these amendments. I invite the Minister to look very seriously at amendment No. 8 which we have tabled and to consider accepting it.

Is Deputy Howlin pressing amendment No. c1?

Yes, because no cogent reason has been given by the Minister as to why the amendment should not be accepted. In fact, he accepts the principle of it and tells us it is the practice. If it is the practice by way of procedures issued by guidelines from within the Department surely it should be practice by an Act of the Oireachtas since that is the way the business of the country should be organised? Laws enacted here should reflect what the elected representatives of the people want to see done. It is not by statutory instrument, ministerial guideline or any other way but by laws enacted by the Oireachtas.

I want to make it very clear that it is the law of the land now by virtue of the Supreme Court decision of 27 July, I find it hard to understand Deputy Shatter's approach. He seems to have a very poor view of health boards and district justices.

It might be well founded.

He would give the district justices no discretion whatsoever. With regard to the health boards, the health boards will present the evidence on behalf of the child. I cannot envisage any situation where a video recording which would be of use in the court would be withheld by a health board to the detriment of the interests of the child. I do not understand this point.

As regards the guidelines, they are not being prepared by me or my Department; the guidelines have been prepared by the health boards themselves and I understand the legal advisers of all the Health boards are coming together to achieve uniformity in the light of the Supreme Court decision.

There is no uniformity yet.

I am satisfied that there is no need for this amendment.

With respect, what the Minister is saying is that there is no uniformity now, and that is the problem. Each of the eight health boards operate different procedures and sometimes they operate differently within each community care area within a health board——

And with different legal advisers.

——and they each have different legal advisers.

That is why the eight of them are coming together.

The purpose of this is to provide uniformity of approach. The Minister is clearly not familiar with what happens in reality in many of these care proceedings where the health boards' commission outside medical personnel and sometimes outside the area of the individual health board, such as happened in many instances with the sexual assault unit in the Rotunda Hospital——

The Deputy complained when I set up two units at Crumlin Hospital and Temple Street Hospital.

And the Deputy is on the record.

I complained because the Minister did not set up enough units——

The Deputy cannot have it both ways.

——and they do not exist in other health board areas. That is the problem we have.

Why did the Deputy object when we established two units?

Other health board areas are still using the Rotunda Hospital unit and the difficulty is that that unit provides information as to the result of assessments and medics attached to that unit can come to court and not produce the video. The video is not the property of the health board and on occasion medics attached to that unit have indicated they will not release either the assessment reports or the videos. Does the Minister know why they will not release them? They will not release them because they have been advised by the medical defence union that they should not release them to the parents. That is not the way in which to conduct care proceedings properly. The health boards do not have full control over what happens here and it is one of the reasons we need amendment No. 8.

I am putting the question——

One of the ——

Please, Deputy FitzGerald. I must advise the House that in respect of a presentation made to me earlier — obviously it had not been well thought out or those who formulated it did so in anticipation of everybody else remaining silent and they speaking — we can take it that this cannot now be honoured.

Hear, hear.

That is correct.

I do not know what that was all about. What I want to say will take less time than your remarks, Sir. The Minister seems to think that legislation is a matter for the courts, his Department and the health boards but certainly not for Oireachtas Éireann.

Hear, hear.

I was not directing my remarks solely at Deputy FitzGerald. I was referring to the generality of the situation where we agreed earlier on that we would have completed all sections up to section 5 but that is not possible now. That agreement no longer exists.

On amendment c1 in the name of Deputy Howlin, the question is: "That the new section be there inserted".

Question put and declared lost.
SECTION 2.
Section agreed to.
SECTION 3.

I move amendment No. 1:

In page 2, line 23, after "person" to insert "and the order would have been valid at the time it was made or purported to have been made if this Act had been in force at that time".

This is a technical amendment which has been suggested by the parliamentary draftsman. The purpose of this section is to provide that a child or young person who is in the actual possession or control of any person, for example, a social worker, foster parent or manager of a children's home, as a result of a fit person order made in favour of a health board shall be deemed to be lawfully in the possession or control of that person. The purpose of this amendment is to restrict the operation of the provisions to fit person orders rendered invalid as a result of last Thursday's Supreme Court judgment. It will not apply to orders which might be declared invalid for any other reason. For example, it could happen that an order might be declared invalid because of a gross violation of a parent's right to a fair hearing of the case. It would not be proper that such an order should attract the provisions here.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

I move amendment No. 2:

In page 2, lines 34 and 35, to delete ", certified industrial school".

The purpose of this amendment is to remove the term "certified industrial school" as a place where children can be put into care. I think Deputy McCartan referred earlier to the 1908 Act which related to a Victorian era. We do not have many certified industrial schools and those we have are totally unsuitable as places in which to put children. It is only reasonable to ask the Minister to accept our amendment. On Committee Stage of the Child Care Bill we sought to have a Garda station excluded and the Minister of State advised us that he was bringing forward his own amendment to remove that entire area of place of safety orders. I should like to ask the Minister to be magnanimous and reasonable and accept this minor change so that children will not be put into these draconian institutions.

I support the amendment. We have reached the stage where we are arguing about very important sections without impressing the Minister. The change proposed is a minor one but it is important in that it signals an ethos and a philosophy in a clear way. I am surprised that the Bill is as drafted and I should like to ask the Minister to show that he is willing to listen to us, that we are not talking in a vacuum, and accept the amendment. If he cannot accept some of the major changes we suggested, surely he can accept the minor change proposed by Deputy Yates.

While I agree with the sentiments expressed by both Deputies in their desire to discontinue the use of such an outmoded term as "certified industrial school", I am afraid I cannot accept the amendment at this stage. I am sure Deputies will appreciate why I cannot accept it. Some 21 of our children's homes, about half of the total, are still legally certified as industrial schools. Those homes no longer deal with young offenders but now provide a service on behalf of health boards in providing accommodation for children in care. It is proposed in the Child Care Bill to decertify these homes but in the meantime, I am advised, it is essential that that expression be used in the Bill.

I accept what the Minister has said provided these stigmatised type of institutions will be changed. I accept that as a temporary measure, for a period of months, the phrase should remain for legal purposes.

Amendment, by leave, withdrawn.

I wish to correct a typographical error. In page 3, line 12, the word "and" should read "an".

Question proposed: "That section 4, as amended, stand part of the Bill".

(Carlow-Kilkenny): I should like to raise a question about subsection (1) (d) which refers to making such other suitable arrangements as the health board thinks proper. What type of arrangements are involved? A home or a school or a place of residence are the obvious places where a child should be sent. A child could be sent anywhere under subsection (1) (d).

This covers other residential facilities such as hostels or, in certain circumstances, it might cover placement with other relatives.

With his granny.

(Carlow-Kilkenny): But a granny lives in her home and that is covered in subsection (1) (b).

"Home" in this case means a children's home approved under the Health Act, 1953.

I support Deputy Browne. Is this a blanket provision giving authority to health boards to send children wherever they wish? It would be better if the Minister specified what he means by that subsection rather than giving blanket permission.

Obviously, there will have to be some flexibility. Should there be some qualification rather than giving the health boards a blank cheque, as Deputy Yates suggested? Should we include the words "approved by the Minister" in that subsection? There should be some monitoring of this blank cheque. It is not qualified in the Bill. We have argued about Garda stations and so on but then, suddenly, we have a free for all at the end of the section. There will have to be some option other than those we have nailed down and, at the same time, there will have to be a monitoring of that option.

This has to be done in the interests of the child and that is a qualification in itself.

(Carlow-Kilkenny): If a child was put under the bushes the health board would be covered.

That would not be in the interests of the child.

The court will have to be satisfied.

Question put and agreed to.
SECTION 5.

I move amendment No. 3:

In page 3, line 22, to delete "sections 1 and 2" and substitute "sections 1 and 4".

The purpose of the amendment is to correct a simple drafting error.

Amendment agreed to.
Section, as amended, agreed to.
NEW SECTION.

We will now deal with amendment No. 4 in the names of Deputies Shatter and Yates. Amendment No. 7 is consequential and the two amendments may be discussed together.

I move amendment No. 4.

In page 3, before section 6, to insert the following new section:

"6.—(1) Where an application is made pursuant to Part II or Part IV of the Children Act, 1908 in relation to the care of a child or young person and the Court is satisfied that it would be proper to make an order under the relevant part of the said Act in substitution for any such order the Court may, where it is in the best interests of a child to do so, make an order (in this Act referred to as a `supervision order') in respect of the child authorising the health board of the area within which the child resides to have the child visited on such periodic occasions as the health board may consider necessary in order to satisfy itself as to the welfare of the child and to give to his parents or to a person acting in loco parentis any necessary advice as to the care of the child.

(2) Any parent or person acting in loco parentis who is dissatisfied with the manner in which a health board is exercising its authority to have a child visited in accordance with this section may apply to the Court and the Court may give such directions as it sees fit as to the manner in which the child is to be visited and the health board shall comply with any such direction.

(3) Where a court makes a supervision order in respect of a child it may on the application of the health board, either at the time of the making of the order or at any time during the currency of the order, give such directions as it sees fit as to the care of the child which may require the parents of the child or a person acting in loco parentis to cause him to attend for treatment or attention at a hospital, clinic or other place specified by the court.

(4) Any person who fails to comply with the terms of a supervision order or any directions given by a court under subsection (3) or who prevents a person from visiting a child on behalf of the health board or who obstructs or impedes any such person visiting such a child in pursuance of such an order shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £250.

(5) A supervision order shall remain in force for a period of twleve months or such shorter period as may be specified in the order and, in any event, shall cease to have effect when the person in respect of whom the order was made ceases to be a child.

(6) On or before the expiration of a supervision order, a further supervision order may be made on the application of the health board with effect from the expiration of the first mentioned order upon the court determining that to make such further order is in the best interests of the child.".

This amendment deals with the provision of supervision orders. The wording in the amendment is taken from amendment No. 65 circulated by the Minister for Health to the Child Care Bill. We have to acknowledge that health boards will find it more difficult to get care orders. The sufficiency of evidence they have to present to a district court in order to obtain a care order is such that they may feel that they cannot pursue the application for a care order because it might fail. That does not mean that the health board would be of the view that the child in question would not be at risk. It is the job of the House to ensure that children at risk are afforded a certain level of protection.

It has been deemed prudent — I am sure this will be agreed by all sides — that supervision orders are a reasonable way to proceed in so far as they allow a health board, and an outside independent agency, to observe, on a regular basis of visitations, the position of the child. Regular access will be defined by a court under a supervision order. It is only right that in the new circumstances we should give health boards permission to go to court to obtain a supervision order. No such order exists under the 1908 Act. It is generally agreed by all concerned, as is laid down in the Child Care Bill and the revised set of amendments, that this is a reasonable way to pursue it. I will kick it off with that. This is a new section to be inserted prior to section 6, which I want to come to, because I feel that is seriously defective and we will probably be challenging a vote on section 6. In the meantime I feel supervision orders are the best way to proceed and will afford the level of protection to children at risk that may not be available otherwise.

Currently if it is believed a child is at risk an application is made to the court and the court may decide the risk is sufficiently serious to warrant the child being taken into care or it may decide there may be some case for concern but the concern is not sufficiently serious to warrant the child being taken into care and as a result the child remains within the parental home. There is no half-way house between simply leaving a child in the care of its parents unsupervised and the draconian remedy of taking a child out of the care of the family.

In 1980 the Task Force on Child Care Services recommended there should be a mechanism within our law that allows the court to make a supervision order so that, where there is a concern that the child is at risk but the concern is not such as to warrant the child being taken into care, the court can provide for a social worker attached to a health board to have access to the home, to see the child in the home, to assist the parents if they are having difficulties in the care of their child and generally to supervise the position. Therefore, there is protection for the child's welfare. The Child Care Bill seeks to implement the provisions in relation to supervision orders. It is clear, as a result of the Supreme Court decision and the stringent guidelines set down as to how the courts must approach the taking of children into care and the expressed preference of the court where there is at least one parent available, who is innocent and can look after the child, that that parent should have custody rather than a care order being made.

Having regard to the decision of the High Court yesterday in a case the Minister has not yet adverted to, it seems essential that we provide the half-way house of supervision orders. If the Minister is agreeable that they are necessary under the Child Care Bill there is no reason we cannot enact this provision so as to extend to the courts over the next 12 months, where an application is made to take the child into care — be it as a result of a section 21 or a section 24 application or a section 58 or 59 application of the 1908 Act — the option, instead of placing the child in the care of a fit person or sending the child to an industrial school, of allowing the child to remain within the family home with a supervision order made.

In a sense this amendment is the ultimate test of the Minister's bona fides in his approach to this legislation. This is an amendment about which there is no party political disagreement between us. There is no reason this should not be included in this legislation at this stage except if the Minister feels, for some reason due to ministerial pride, that he cannot let an Opposition party get away with inserting a provision in a Bill. I ask the Minister to accept this amendment in the spirit in which it is tabled. It is tabled in the interests of ensuring we provide protection for children at risk in circumstances where the worries about those children are not sufficiently strong to warrant a child being taken into care but where there is a need for a health board to be involved in some shape or form in supervising the nature of the care the parents are providing in the home for their child.

I rise to support the comprehensive new section. I am afraid I anticipate that the response from the Minister will be the same as that to the other progressive sections we have tried to insert into this Bill. I have no doubt that he has no fundamental objection to the contents of the section or that, as I said on a previous section, in the fullness of time this will be enacted into law when the main Bill is finally arrived at. Therefore, it escapes me why, on virtually every amendment that has come before us tonight, the Minister has taken virtually the same attitude: that it is right, but not now — make the law good, sweet Jesus, but not yet, seems to be the Minister's reaction to all attempts from the Opposition benches to make this, not a comprehensive Act, but as good as we can in the limited time we have. The intention of the movers of this amendment is to put in a new mechanism that is widely accepted now by the caring agencies, the Members of the House, the Minister and his Department. I am going to sit down and listen to the Minister's response. I can only hope that for once in this long debate the Minister will surprise me and say "Yes, this is good; I agree with it and, what is more, I am going to accept it and legislate for it."

Over to the Minister. Yes, Minister.

(Interruptions.)

The debate on this section raises one of the fundamental difficulties in having this legislation before us while major legislation on the same subject is going through the House.

Take opportunities, Minister.

The point I made earlier is valid. There are 64 sections in this Bill and 200 amendments, 57 of which I would like to see incorporated in the legislation.

Let us deal with one or two of them and see if supervision orders will work as effectively as all our social workers are telling us they will.

I could equally spend the next hour giving reasons other sections of the Bill should be included and why amendments should be included. I am sure Deputies on the other side of the House when they put down amendments to the Child Care Bill were very anxious that they would be law——

(Interruptions.)

——and would be expedited rapidly. As I say, it raises one of the fundamental difficulties in legislation like this. In fact, the Deputies opposite took one of our amendments ——

That was to make it more acceptable to the Minister.

——and inserted it in their own name for this legislation.

We drafted it in the way it is tabled in the hope the Minister might accept——

One of the virtues — if there is such a thing — in this House of Committee Stage is that everybody gets an opportunity of speaking. I think we have learned by now that rapid fire against any speaker is not the best way——

The difference is this is not a debate.

Deputy Shatter——

He might——

Deputy Shatter, we must live with the rules of the House, as you appreciate. You enjoy the protection of the Chair if anybody interrupts you and I think you would accept you should reciprocate, as should everybody else. Let the Minister make his case and everybody else will be given an opportunity to reply if he or she so wishes.

It is unfortunate that the Minister's case should be so foolishly expressed.

Gach duine agus a chiall féin aige.

If the Minister is——

No, I am not finished.

He forgot himself for a minute.

No, but I like to obey the Chair and when the Chair was speaking I sat down, which I understand is the protocol. As I was saying, it represents one of the difficulties we have in legislation coming in the middle of the major legislation. The effect of this amendment and a later amendment from the Deputy would be to bring forward into this Bill proposals contained in the Child Care Bill and related to the creation of a new sort of order——

Would that not be awful?

——known as a supervision order. No, it would not.

Would it be good?

This is an important new proposal and it requires careful consideration. I believe it is not appropriate that it be rushed into law by way of amendment to the Bill; rather, it should be dealt with by the special committee who are to handle the 1988 Bill. There was nothing in last week's Supreme Court ruling which relates directly to the introduction of supervision orders. There is no such thing as a supervision order in current legislation. In this case we should tease this out in the context of the comprehensive Child Care Bill which is at present before the House. This Bill is interlinked to sections of the Child Care Bill, for example, to section 11 which deals with emergency care orders, to section 15 dealing with care orders and to section 16 which relates to the supervision order. In addition there is an interim care order. These should be looked at in the context of the major legislation, which we hope will not take too long to put through Committee Stage. We are making good progress this evening on a number of amendments.

We have not made any progress. The whole thing is a farce at this stage.

The health boards are reviewing their procedures and the legal advisers are getting together to consider how there might be uniformity between health boards. Already there is supervision in a voluntary way by health board social workers.

By way of a circular from the Department?

If a parent were to refuse to allow a visit to a child from a social worker, surely there would arise the question of whether the child should be in care but that would be a matter for the judgment of the health board. There is supervision in respect of many children on the part of all the health boards. Social workers and other personnel are calling on these children to ensure that there is no problem for them.

In the interest of clarification, as I understand it, the Fine Gael amendment borrows heavily, if not almost totally, from a proposal drafted by the Minister. Therefore, we are clear that our drafting is correct and that the principle is agreeable to the Minister, as it is to the rest of us. I support the inclusion of this provision in the Bill. The only issue, apparently, is that the Minister would have this provision later rather than earlier. That brings us back to the nub of an issue I raised at the beginning of this debate. I refer to my serious reservations about the commitment of the Government to pursue with any haste or sense of urgency the general area of legislation and the improvement of the law with regard to the care of children. This exposes fully the way in which the Minister can play around cynically with this important area of law reform, that he is not prepared to address this area.

What is being proposed here would not interfere in any way with the order of the existing regime. It is merely the introduction of something more than what exists, that is, giving power to the court, where necessary, to direct supervision in the home of the parents.

The Minister talks of not rushing through this provision. Let us put the matter straight. We have had the report since 1980 and we have been talking on and off here since 1985 about this legislation. The Bill has been available since 1988 so who can talk of rushing anything in regard to amending the law as it relates to child care? Least of all can the Minister talk in this vein. He has prior responsibility in this area. It is regrettable in the extreme that all we have had is an attempt on the part of the Minister to put through what I can only call this plaster affair of a Bill in order to keep the status quo in regard to the law, not being prepared to make a jot of improvement in the existing law. Once again this underlines the Minister's total lack of commitment to either reforming or improving the law in this area. The Minister is a cynic.

The only pleasant remark I can make about the Minister's response is that, like beauty, progress is in the eye of the beholder. So far as we are concerned there has been no progress here tonight. It is regrettable that the Minister was not present for all of the debate the other day on the Committee Stage of the Child Care Bill. While the Minister of State did his best to deal with the matter, there was a lengthy debate on when the major provisions of that Bill would be enacted. Deputy McCartan tabled an amendment which was ruled out of order on the basis that it proposed a charge on the Exchequer. That amendment was that one year from the date of its enactment, the legislation would be brought into operation. The Government ruled that out of order. There was a vote on the section and we sought a commitment to some date for implementation but none was forthcoming, not even 1992. Therefore, what the Minister has said tonight is of great concern to us. Both within this House and outside it the Minister has said much about co-operation in expediting the passage of this legislation through the Houses. Let it be recorded that we have had no co-operation from the Government in the matter of improving this legislation. Every co-operation was given by this side of the House in regard to the passage of the Bill. By his actions the Minister is literally leaving to hang out to dry a child who has been adjudged by a social worker to be at risk and where the parent or parents refuse the social worker any further access to the home.

All the main players in this legislation, including the Minister, are here tonight and we all agree on the principle of what is proposed. We have used the wording that was used by the Minister's officials. If the Minister continues with his intransigent approach the only sufferers will be the children who are at risk of abuse, who will have no protection whatever now and in respect of whom, as we know from the Supreme Court judgment, it will be even more difficult now to get a care order. That is unacceptable. If the immediate protection being sought is not to be put in place there is no point in continuing to pretend that we are having a reasonable debate. In such circumstances we will have no choice but to press the amendment to a vote.

Without wishing to appear to be over fastidious, the Deputy said that the Government ruled the amendment out of order. That would not be the function of the Government. It would be a matter for the Chair.

It is a minor point but I take the correction.

After what we have heard here tonight from the Minister his new maxim must be: "make me a good law-maker, sweet Lord, but not yet". We have had a very co-operative Opposition who on foot of a Supreme Court judgment of last week reacted quickly and tabled Private Notice Questions to the Minister asking for action. We were prepared to scrub today's Order of Business as proposed in order to allow this legislation to be taken. We acted in good faith but we have been faced with a Minister who refuses to budge on anything, who accepts the merit of amendment after amendment but who, without any cogent reason, refuses to accept any of these amendments. The Minister is refusing to accept from this side of the House any proposal that would improve the legislation. What do we put it down to? Is it intransigence? We cannot even say it is arrogance because the amendment we are talking about will be his own, drafted by his Department.

The sorry part of this whole unedifying spectacle is that once this Bill is enacted this will be the framework of law under which health boards will seek to look after children at risk. We can make it better and the Minister knows that. He knows there is merit in the amendments but he said no to each of them for one reason, which he has repeated again and again — the time has not come. Therefore, we are enacting defective legislation by excluding the amendments which the Minister accepts have merit. It is beyond understanding.

The Minister has said we are making progress tonight and he commented on the 64 sections and the 200 amendments so far tabled on the main legislation. Is this the Minister's view of progress? The Opposition put considerable work into drafting progressive proposals, they sought advice from the caring agencies and tried to improve legislation but all their amendments are thrown out by the Minister as irrelevant. If that is progress it augurs very badly for the work of the select committee established today. I despair of making progress on this important matter. Is the Minister unwilling to yield on any issue?

The nub of the issue has to be addressed on this amendment and at this time, namely, is Dáil Éireann going to enact the best possible legislation within the time constraints and the pressures we are working under, or are we going to have a deficient piece of legislation because the Minister refuses to accept progressive proposals simply because they come from this side of the House?

I have listened to the arguments advanced by the Opposition speakers. I want to take issue with Deputy Howlin. The Opposition are not trying to improve this admittedly narrow measure but are trying to get substantial portions of the Child Care Bill passed tonight.

Is that so bad?

Yes, it is bad and I will explain the reason.

It is trying to get some protection for children.

The Deputy did not get a position in the last Government and he will not get one in the current Government. He should come to terms with reality.

(Interruptions.)

Deputy Shatter knows it all but I will not take any arrogance from him. The Deputy's unpopularity even on his own side of the House is well known to all and I will not take this from him. Deputies Shatter, Howlin and McCartan know that there has been substantial Government legislation, for example, the Companies Bill. We have seen a raft of Government amendments to that Bill; there have been amendments to amendments. According to the arguments put forward by Deputies Howlin, McCartan and Shatter we should put through draft legislation on the nod after a few hours' debate. In this case the proposals have been accepted in principle by this side of the House but they deserve detailed consideration. The Deputies are not being fair to the substantive Bill. We have had the report since the early 1980s and there have been various proposals but we have had only the first draft of the Bill in the past few weeks.

We are on section 6 of the Bill.

I am trying to deal with that. The Opposition are trying to get a substantial portion of the Child Care Bill rammed through here in a short debate and I do not think the Government or the House should accept it.

Let us put in perspective what we are proposing to do here. I am delighted we are joined by the Progressive Democrats' wing of the Government. Whatever about the kind of approach adopted by the Minister, I would have expected that their input in the Government would have resulted in a different approach, particularly on this issue.

The amendment seeks to insert a provision in the Children Act to allow the court where a child is at risk to make a supervision order so that a health board can lawfully supervise the welfare of that child while the child remains in the home of a parent. It is a provision that where it is believed a child is at risk but where the evidence before a court is not sufficiently strong to warrant taking a child into care, it will allow the court to ensure that the child is not simply left unsupervised in a position where possibly he or she could be at greater risk at a later stage without the health board being aware of it. It is a simple provision to provide for the making of a supervision order, a half-way house between leaving a child unsupervised at home and the draconian measure of taking a child into care. It is something the Progressive Democrats advocated when they were in Opposition; it is something supported by all the Opposition members in this House; it is something advocated even by the Minister, and supported by the task force on childcare.

The Minister's attitude to all of this is that it is a good idea but we will not do it now. The attitude is that there are children at risk, that not all of them can be taken into care, that the health boards are perhaps supervising them even though they have no legal authority to do so and that perhaps in a year's time we will do something about the matter.

This is supposed to be a legislative assembly, not a rubber stamping machine for legislation drafted by Departments. We are attempting to legislate but the Minister is refusing to allow the House to perform its proper function. This Government, composed of Fianna Fáil and the Progressive Democrats, are telling us they will not allow this legislation to be used as a vehicle to make two or three important modifications that could be passed through this House this evening. The Minister will not do this because the proposals come from the Opposition benches.

I hoped we had moved away from that kind of sterile politics. We moved away from it in the period 1987 to 1989 because we had a minority Government who had to accept the reality of the numbers here. Fianna Fáil are still a minority. I hope the Deputies who represent the Progressive Democrats and who are now present for the debate will look at what is happening here tonight. It is becoming quite obvious we will not have time to deal with the other amendment.

It is not our fault.

There is no point in dealing with amendments when we are dealing with a Government who are not prepared to accept the goodwill of Members on the Opposition benches who are trying to improve legislation. We might as well have closed up shop at 8.50 p.m. this evening. We have a commitment to improve the legislation and to get it right. We have now reached the ludicrous point where we have tabled an amendment to support a change we want, using the wording the Minister regards as appropriate for the Child Care Bill, but the Minister will not allow that amendment to be made to this Bill. I do not believe there is a single person outside this House who could comprehend the illogical approach of the Minister. I fail to understand it. For our part this issue will be put to a vote. Bearing in mind the time we have, I hope both senior Ministers and the two junior Ministers present will consider between now and when the vote takes place that this Committee Stage should adjourn at 12.30 a.m. by agreement and be continued tomorrow morning because the legislation we are enacting is too important, to use the words of Deputy O'Dea, to be rammed through the House with no real consideration of what we are at.

If the Minister was willing to indicate that he would be prepared to agree to such an adjournment at this stage to give further consideration between now and tomorrow morning, when his officials might be able to cajole him into taking a more sensible and realistic stance as opposed to doing the usual back-up job of trying to invent reasons to oppose something, he might realise that what we are proposing here is sensible in the context of providing protection for children at risk.

If Fianna Fáil and the Progressive Democrats vote against this amendment, what they will be voting against is providing protection for children at risk by introducing a legislative measure that every social worker in every health board has wanted to see enacted into law for something like ten years. The Minister is saying he will not do it——

The Deputy wants the other 64 sections implemented too.

——and there is no logical excuse for that. To refer to 64 sections and 200 amendments tabled to the Child Care Bill is a non-sequitur because there are not 200 amendments tabled to this Bill. Between all the Opposition parties there are 12 amendments tabled to this Bill and not a single amendment has the Minister been willing to consider or accept.

I can understand Deputies' enthusiasm to take part of the child care legislation and try——

The Minister of State does not share it——

——to put it on to this Bill. We must put this in perspective. We made it clear at the outset that this Bill was a direct response to last Thursday's decision of the Supreme Court. The Opposition has made all kinds of allegations and claims but when we debated that Bill last week it took two hours to deal with one section; we did two sections in four hours. There was no effort on that occasion to make any great progress.

That is an outrageous assertion.

Will the Minister give us an example of when he was flexible?

The Minister resisted every amendment.

We gave two hours extra this evening.

The Government did not even define the time scale to enact the legislation.

In their enthusiasm to take sections from the Child Care Bill——

The Minister should not to be condescending.

——the Deputies were so anxious to rush in with this amendment that they did not even get the terminology right. This amendment speaks only of children, those under 15 years of age; it makes no mention of young people, 15 to 17 years of age. If this amendment were accepted it would be possible to make a supervision order in respect of a child but not in respect of a young person.

Let us make these orders for children under 15.

Let us be quite clear.

What a lot of nonesense.

The Deputies have misrepresented the purpose of this Bill and may have underestimated the generosity of the Minister——

The Minister's bluster does not fool anyone.

The Deputy has made a hobby of this House and he has made a lot of money outside this House.

That should be withdrawn.

That is a scandalous remark. The Minister should be asked to withdraw that remark.

This is typical of the Minister's attitude to this Bill and the Bill taken last week.

(Interruptions.)

If I had the level of understanding——

Deputy Flaherty on a point of order.

Have you any role in defending a Member from the most outrageous allegation? There is a Deputy in this House who has proved his worth by contributing to many Bills over the past 12 months, and that is the Deputy to whom the Minister referred in such obnoxious terms. What the Minister cannot stand is the fact that the Deputy is so good that he shows the Ministers up. That is their problem. It is outrageous that the Minister should attack him in that fashion and he should have the guts to withdraw his remark.

There has been a certan amount of disorder in the exchange across the floor of the House. I do not know to what precisely the Members are referring.

If it came from this side of the House you would know what was said.

An obnoxious allegation was made against one of the principal legislators in this House and in fairness and decency it should be withdrawn.

If some personal imputation has been made, the Minister might be good enough to withdraw it. I am not sure precisely what allegation was made.

I accept what you say. If what I said was offensive to either Deputy Shatter or the House, as one of 166 legislators no more important than any other Member, I regret what I said and I withdraw it.

If that remark had been made about the Minister he would be very offended.

Deputy McCartan said he had reservations about the Government's commitment to this legislation. The Deputy will appreciate that when the Dáil reassembled after the election the Bill was restored to the Order Paper and the Taoiseach promised the Committee Stage would commence as soon as the House reassembled after the summer recess and that promise was honoured.

I listened to Deputies talking about the Government not accepting amendments but I would have accepted an amendment if I thought it reasonable to do so. I would like to remind the Opposition Deputies that I was four years a spokesman in Opposition and not one amendment was accepted.

The Minister should not ask us to remind him of what he said during those four years.

Even a spelling error was not accepted.

Should we all come back in four years' time?

When we were on the other side of the House even a spelling error was not accepted, over a four year period.

Deputy Howlin said we wanted the best legislation within the time constraints, and that is exactly what we want. As has been pointed out so often here today, this legislation is to deal with a decision of the Supreme Court last week. I would have expected Deputy Shatter to be the first to stand up and say we should not take an amendment on a supervision order without taking it in the context of the other orders — the emergency care order, the interim order, the care order itself — and that they should all be taken together.

Three amendments in my name refer directly to the Supreme Court case.

Let us hear the Minister without interruption.

It is important that these matters should be properly teased out in the major legislation. As the Minister of State, Deputy Treacy, has already pointed out last week, it took two hours to deal with section 1 and two hours with section 2, and now we are dealing with a much more important section in the major legislation and trying to railroad it through in the space of minutes. That is what the Opposition want. I agree with Deputy Howlin when he says he wants the best possible legislation within the time constraints——

Extend the debate until tomorrow.

——and that is what we will have when we have finished this Bill. I have already pointed out that there are a number of sections I would like to see legislated through tonight and, as the Deputies pointed out, the amendment proposed by the two Deputies opposite are taken verbatim from the Bill as presented by the Government. We certainly would like to see it legislated, and the sooner the better.

But not tonight.

But because Deputy Howlin wants the best possible legislation within the time constraints it is my view that we should not take it tonight but that——

Why not?

——it should be taken in the context of the other major sections — the section dealing with care orders, with interim care orders and with emergency care orders. We should not rush in and take one major section and say we will pass it tonight.

As I have said, I am satisfied that the health boards are coping with this situation. I want to see the section incorporated in legislation but I want to see the legislation brought forward in an orderly fashion. I am satisfied that what we are presenting here tonight will deal with the issue which arose out of last Thursday's Supreme Court decision. It is better for this House that we debate the other major section in that major Bill in the Committee. To those who say we do not accept suggestions from the Opposition, I think it is ungracious of them to come in here and make that suggestion. Did we not put the Bill before a special care committee at the request of the Opposition? You could at least recognise that.

It took nine months to do it——

I do not care how long it took.

——and you only did it because you knew that we would take a motion to force you to do it.

At least we put it in, in response to a suggestion from the Opposition.

(Interruptions.)

I want to make it quite clear to all concerned that the reason we are pushing this amendment, among the several that are in our joint names, is that a situation is arising tonight that for either six days, six weeks, or six months, depending on how long it takes for all the processes of the major Bill to be enacted, there is the major chance that no legal protection will be offered to certain children who are at risk of abuse for whom a court order cannot be guaranteed in order to procure a care order. That risk is sufficient for us to press to a vote a situation to afford them some level of supervision by health board personnel. In the interests of those children, the Dáil must decide now that this amendment is worthy of consideration. I have nothing further to add. I regret that the Minister has not seen that potential risk and acted on it.

On a point of information, the Minister mentioned that during the time he was spokesman on health no amendments were accepted on legislation. I would refer him to the Seanad debates on the legitimacy legislation of 1966 when numerous amendments were accepted and incorporated in the Bill. In fact, it was withdrawn and brought back in again to the House. It is now better legislation because legislators in that House contributed to the entirety of the Bill. It is an example of what can be done and I would ask the Minister to seriously consider what happened at that time.

He was a less intransigent Minister.

May I ask the Minister, in the light of the seriousness of this legislation, that the Government do not drop the guillotine on this Bill at 12.30 a.m.? It is far too serious legislation to be simply guillotined without substantial sections being considered and further amendments being considered. In particular, this House needs time to look at the detail of section 6, as the Minister has it, and the amendment tabled by us on this side of the House. Instead of dropping the guillotine on the Bill, I propose to the Minister that it be agreed that this House sit later, until we complete the matter, or that it be agreed on all sides that the guillotine not be dropped at 12.30 and that we merely adjourn consideration of Committee Stage to resume at 10.30 a.m. I would ask the Minister to respond to that request.

I have listened, in my office, to the last half hour of the debate. The argument which Deputy Shatter has just made that we sit later is the strongest argument possible in the Minister's favour in that he has been more than generous. I have listened to speakers——

The Deputy did not listen to all the debate.

——throughout the day to Deputy Howlin interrupting from time to time. I have listened also to people such as Deputy John Bruton, of the Fine Gael Party, who has been a great advocate of the committee system and I have supported him. In listening to the Minister proposing a special committee, he has been more than reasonable and generous in saying that he has to deal with the Supreme Court decision of last Thursday. He is coming here in a generous mood and I do not blame the Ceann Comhairle for becoming annoyed. Quite rightly, you adjudicated with regard to the general guideline which ensued from some exchanges. People are going to get annoyed at this hour of the night. If Deputy Shatter suggests that we might delay it further, I am willing to sit here all night if he suggest that, but surely the Minister is right in saying that he cannot take amendments without looking at the context of other major sections of the Bill. I think it is most unfair of the Opposition to start nit-picking at this late stage, especially from a party who have advocated all-party committees on various items of legislation. This Minister is responding to a Supreme Court decision. He has the full resources of the State behind him. I am not getting into the detail of any specific amendments. Deputy Yates refers to certain children who will be in danger of certain abuses——

At risk.

——but surely Deputy Yates will appreciate that with the full resources behind the Minister he is entitled to come to this House and he has been generous in saying let us resolve the issue in response to a Supreme Court decision and let us get into an all-party committee where we can tease out the various aspects. Is it not safer to adopt that approach?

It is safer for the children who will be at risk in the interim?

I think it is very reasonable and I am most disappointed. In the long term and in the light of what has happened with regard to our constitutional position, it is a very reasonable and generous approach by the Minister. I am annoyed with many of the speakers. I have listened to Deputy Howlin and others from my office all day.

Before the hour arrives I would like to support the proposal put. I would ask that this issue be put to the House before we rise tonight, that the hour of 12.30 a.m. as previously agreed, now be abandoned in favour of this debate continuing until the amendments, tabled by the Opposition, are considered but particularly those relating to section 6.

Hear, hear.

I also support the proposal that we adjourn and report progress at 12.30 a.m. Clearly, we have insufficient time to deal with this Bill in a proper manner.

As the House appreciates, originally the order of Business was set that we would have Committee Stage of this Bill from 8.30 p.m. to 10.30 p.m. The Government did agree to a request from the Opposition that we would extend the sitting until 12.30 a.m. and we did that. I do not see any advantage in going beyond that time. It is important that this legislation should pass through the House tonight because it is going to the Seanad tomorrow. It is my view that if we extend the time of the House we will go on debating the major legislation and that we would not deal with the issue before the House. I regret, a Cheann Comhairle, that in my opinion——

We will sit until 2.30 a.m.

——we should adjourn and complete the debate now at 12.30 a.m.

We will sit until 2.30 a.m.

——in accordance with the second order of the House. Originally it was 10.30 and the Government acceded to a request for 12.30 a.m.

You are afraid to debate the inadequacies in the Bill without the approval of the House.

Do I hear the Minister say that he wanted to conclude the debate tonight at 12.30?

The Minister does not want to extend it beyond 12.30 a.m.

Is the Minister now saying that he is against postponing further discussion until tomorrow morning? Do I understand him to say that? Did I hear him say that he is rejecting all other amendments and that it does not matter whether we discuss them or not?

You are only waffling.

Is that the conclusion?

Question put: "That the new section be there inserted."
The Committee divided: Tá, 68; Níl, 76.

  • Ahearn, Therese.
  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Byrne, Eric.
  • Carey, Donal.
  • Connor, John.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Finnucane, Michael.
  • FitzGerald, Garret.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Kenny, Enda.
  • Lee, Pat.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • McGrath, Paul.
  • Mitchell, Gay.
  • Moynihan, Michael.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine.
  • Timmins, Godfrey.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Calleary, Seán.
  • Callely, Ivor.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foxe, Tom.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lyons, Denis.
  • Martin, Micheál.
  • McDaid, Jim.
  • Molloy, Bobby.
  • Morley, P.J.
  • Nolan, M.J.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Noonan, Michael J. (Limerick West).
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Treacy, Noel.
  • Treacy, Seán.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies V. Brady and Clohessy.
Question declared lost.

I am now required to put the following questions in accordance with the order of the Dáil of 7 November: "That the amendments set down by the Minister for Health for Committee Stage and not disposed of are hereby made to the Bill and, in respect of each of the sections undisposed of, that the section or, as appropriate, the section as amended, is hereby agreed to in Committee, that the Title is hereby agreed to in Committee, that the Bill, as amended, is hereby reported to the House, that the Fourth Stage is hereby completed and that the Bill is hereby passed".

I regret that you are putting the question in these terms as this Bill is not a suitable subject for a guillotine of that kind.

I am conforming to a decision of this House.

If you will indulge me for a moment, Sir. I had thought this morning when the Taoiseach agreed to give some more time to this Bill that there would be a more mature reflection on these issues. We have not reached the most important section in the Bill and I now invite the Government to again reflect and to defer the taking of this question until the House has had a chance to discuss the important issues arising under section 6 so that we can assure ourselves that we will have done our utmost to get the Bill right. I ask the Minister to give us time to allow us to consider these issues properly.

We debated this issue about 15 minutes ago, before Deputy Dukes came into the House. Listening to his own spokesman and indeed to Members of his party, I was of the opinion that we had already debated the most important section of the Bill. As I said earlier, we spent the night debating the Bill and the Deputies opposite have debated the major issues. I do not see any advantage in debating them any further and we should conform to the Order of the House. I might add that that was the second Order of the House, as the first stated that we would finish the Bill at 10.30 p.m. However, we agreed to the request of the Opposition to extend the time to 12.30, which was reasonable.

The Minister will lose nothng by giving us a little more time.

The issue is not open to debate now.

I am sorry that the Minister has taken this view. I particularly regret it in relation to the children——

A brief comment from Deputy Spring.

At your request, Sir, I will be very brief. A great deal of uncertainty was expressed in the earlier part of the debate tonight in relation to what we are trying to do for children and their care. There seems to be a view in the House that we will not cause any great harm by delaying it for 24 hours, or indeed two days, which would give people a chance to reflect on what has happened today. A lot has been done but there are still many questions to be answered and it would be wise if the Government made a decision to allow us to discuss the matter further.

I support the views of the Fine Gael and Labour Parties in this regard. We are extremely concerned at the way in which the debate has drawn to a conclusion. I do not believe anyone envisaged when we agreed on two occasions throughout the day to extend the period that we would run into the type of debate and concerns unearthed during its course. A very important section has not yet been touched on and if it is in order, notwithstanding what has been agreed earlier in the day and in spite of Standing Orders, I seek permission to agree to suspend the earlier Orders of the day and to continue this debate in Committee until we at least deal with the provisions of section 6.

The Chair has no option but to comply with the order of the Dáil of 7 November.

The question now is: "That the amendments set down by the Minister for Health for Committee Stage and not disposed of are hereby made to the Bill and, in respect of each of the sections not disposed of, the section or, as appropriate, the section as amended, is hereby agreed to in Committee; that the Title is hereby agreed to in Committee, that the Bill, as amended, is hereby reported to the House; that the Fourth Stage is hereby completed and that the Bill is hereby passed".

The Dáil divided: Tá, 74; Níl, 68.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John (Carlow-Kilkenny).
  • Calleary, Seán.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lyons, Denis.
  • Martin, Micheál.
  • McDaid, Jim.
  • Molloy, Bobby.
  • Morley, P.J.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foxe, Tom.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.

Níl

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Byrne, Eric.
  • Carey, Donal.
  • Connor, John.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Finnucane, Michael.
  • FitzGerald, Garret.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kenny, Enda.
  • Lee, Pat.
  • Lowry, Michael.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • McGrath, Paul.
  • Mitchell, Gay.
  • Moynihan, Michael.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine
  • Timmins, Godfrey.
  • Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Boylan.
Question declared carried.
Top
Share