Further to conversations between interested parties in the House, I ask for the agreement of the House to withdraw amendment No. 29 and substitute amendment No. 29a, which is similar in terms of the structure we are seeking for child care advisory committees.
Private Members' Business. - Child Care Bill, 1988: Report Stage (Resumed).
Debate resumed on amendment No. 29:
In page 8, between lines 18 and 19, to insert the following:
"(7) Each child care advisory committee shall have the following powers and functions:
(a) it will have access to all information relating to child care services in its area;
(b) it shall make recommendations in relation to the improvement of child care services to the child care authority;
(c) it shall be a consultative body to voluntary organisations;
(d) it shall make annual reports to the child care authority on child care services;
(e) it shall submit plans for the future of services in its area;
(f) it shall review the needs of children in its area;
(g) it shall draw attention to individual child cases as it sees fit and promote the development of child care services in its area.".
Amendment, by leave, withdrawn.
I move amendment No. 29a:
In page 8, between lines 18 and 19, to insert the following:
"(7) Each child care advisory committee shall——
(a) have access to non-personal information in relation to child care and family support services in its area,
(b) consult with voluntary bodies providing child care and family support services in its area,
(c) report on child care and family support services in its area, when so requested by the health board,
(d) review the needs of children in its area who are not receiving adequate care and protection,
and where more than one child care advisory committee is established in a health board area, the provisions of this subsection shall apply with the necessary modifications.".
I thank the Minister for his co-operation in this matter, which has been exemplary. He gave a commitment in the special committee to introduce a new section to deal with child care advisory committees. He said that in response to the committee and in particular to Deputy Yates he was grateful for their co-operation and wanted to assure the committee that on Report Stage he would bring in proposals for a new section covering this area. What I am proposing is that each child care advisory committee shall have access to non-personal information in relation to child care as opposed to what I had originally proposed which was "all information". I propose that each child care advisory committee shall consult with voluntary bodies providing child care and family support services; report on child care and family support services in its area when so requested by the health board, and review the needs of children in its area who are not receiving adequate care and protection.
We can rest assured that the advisory committees will not be talk shops. I thank Deputies for their support for this amendment.
I join with Deputy Yates in thanking the Minister for the way he has accepted the new wording in this amendment. It now meets the wishes of the House that these committees would have a statutory role and guidelines laid down in legislation. I welcome it and support the new wording.
I support the amendment but I make the point that the fact that this amendment is likely to be agreed does not necessarily mean that child care advisory committees are limited to what is contained in it. I should like the Minister to clarify that. There are specific issues with which they could be involved.
I am glad the amendment was changed. What we really want to do — and this amendment will do it — is to build up in each health board area a body of information which, I hope, when it is exchanged with other health boards, will also be national. The information we are building up here will be of help to everybody working in the child care field. I welcome this amendment.
Maybe I should attend debates more often when I have this effect on the Minister. I welcome the refinements in subsection (a) and the relatively limited powers in subsection (c). I also welcome subsection (d) regarding reviewing the needs of children who are not receiving adequate care and protection. I hope this will give the committees confidence to raise the kind of issues I see as their primary function. It is a very welcome amendment which helps to substantially strengthen the Bill.
I commend the Minister for taking this amendment on board. As my colleague, Deputy Fitzpatrick said, we need to give an opportunity to these committees to play a very meaningful role. I have no doubt that they will and I look forward to seeing them in operation.
I welcome this amendment. I would be worried if we were confining the role of the child care committees to what is stated in the amendment but I presume we are doing this in conjunction with section 7 (1) and (2). I presume the role outlined in those subsections will be included and that we are not strictly confined to this amendment.
I listened with interest to the contributions of the various Members. I assure Deputy Flaherty that we know we need to set up committees and to have uniformity in the guidelines set down. We are not putting something into the Bill just for the sake of it. I believe in the collective wisdom of the Members of this House and in the democratic process. I thank Deputy Yates for retabling his amendments. I am pleased to assure the House that I will accept amendment No. 29a in its entirety.
Section 7 (1) is the key to the committee. It states, "a health board shall establish a child care advisory committee to advise the health board on the performance of its functions under this Act and the health board shall consider and have regard to any advice so tendered to it". That is a broad, wide-ranging subsection which we included as a result of the Committee Stage debate. Consequently, we now have the added amendment No. 29a to back up the request of Deputy Dempsey, and other Members, that the committees will not be confined to it. We will draw up guidelines and I hope the committees will have a key role. I am confident they will make a major contribution to child care services right across the country.
Amendment agreed to.
Amendment No. 30 is in the name of Deputy Yates. Amendment No. 31 is related and, by agreement, they may be discussed together. Is that agreed? Agreed.
I move amendment No. 30:
In page 8, lines 19 to 21, to delete "as soon as may be after the commencement of this Part and thereafter as occasion requires or as may be directed by the Minister" and substitute "within 12 months of the commencement of this Part and annually thereafter".
These amendments are to ensure a maximum level of accountability. They were discussed on Committee Stage and the difference between my proposed amendment No. 30 and what is already there is that it would be a minimum of one year before the first review of the services would take place, as outlined in section 8, as amended in Committee, under the review of services and annually thereafter. In amendment No. 31 I am suggesting that all the reports be brought before the Houses of the Oireachtas within four weeks of their receipt. These are not very substantial changes but they are aimed at providing greater accountability. I hope the House will support them.
I support both amendments. I welcome the fact that the health board will be involved and this is how we hope to monitor the progress of the implementation of the legislation. I will be speaking on this matter when we come to amendment No. 34.
It is my intention that the first reports to be provided under section 6 will be completed within 12 months of the coming into operation of this Part of the Bill. I have no dispute with Deputy Yates regarding that point.
As regards bringing reports before the Houses of the Oireachtas, I should like to remind Deputies that the purpose of these reports is to ensure that each health board carry out a regular review of the adequacy of the child care and family support services in their area. As such, the reports are an administrative tool to assist health board management to identify gaps in services and prepare plans for improvements. While proposing that the reports be laid before the Houses of the Oireachtas, Deputies are attempting to shift the debate, and perhaps also the decision making, from the local health board level where it should take place, at least in the first instance, to the national level. I do not think this is helpful, appropriate or ultimately beneficial to the provision of the best local services. Therefore, I am prepared to accept amendment No. 30 if Deputy Yates is prepared to withdraw amendment No. 31.
On the basis that half a loaf is better than no bread, I accept the Minister's offer and willingly withdraw amendment No. 31 on the basis that amendment No. 30 is agreed to.
The Chair will observe the need to make a slight change in amendment No. 30.
Yes, I have observed that amendment No. 30 is incorrectly phrased. Shall we have if suitably amended on the lines indicated by An tAire Stáit? Agreed.
Amendment agreed to.
Amendment No. 31 not moved.
Amendment No. 32 is in the name of the Minister. Amendment No. 33 is related so I suggest that they may be discussed together. Is that agreed? Agreed.
I move amendment No. 32:
In page 8, to delete line 25 and substitute "the needs of children who are not receiving adequate care and protection and, in particular—"
These amendments arise from the discussion on this section in special committee. The purpose of this section is to require health boards to undertake wider reviews of the adequacy of the child care and family support services in their areas. For this purpose, the boards' staff will be required to produce reports for consideration by the health board and by the Minister for Health. Subsection (2) lists certain categories of children whose needs must be considered in preparing these reports. The first amendment makes it clear that the report must deal with the needs of children who are not receiving adequate care and protection. This is fully in keeping with the duty imposed on the health boards under section 3 (1) to promote the welfare of such children.
The second amendment inserts an additional category of children whose needs must be considered, that is the children who are in the care of the board. These are children who have been placed in foster care and residential care by the health board. While it is intended that regulations under Part VI would provide for regular reviews of each child in care, it is also desirable that the needs of such children as a group should be addressed.
Amendment agreed to.
I move amendment No. 33:
In page 8, between lines 27 and 28, to insert the following: "(c) children who are in the care of the board,".
Amendment agreed to.
I move amendment No. 34:
In page 8, line 39, after "Minister", to insert "who shall cause each report to be published".
At this stage it should be very easy to get agreement from the Minister to this amendment in view of the fact that he has already agreed that a report will be drawn up and submitted to the Minister. I am asking that the health board should submit a report that the Minister could publish.
I would dearly love to be able to accept Deputy Sherlock's amendment but the amendment refers to reports which will be prepared by the health boards primarily for consideration by members of the boards and their child care advisory committees. A copy of these reports will be furnished to the Minister for Health to enable him to exercise his overall supervisory responsibilities. As the reports will be prepared by the relevant health boards, the responsibility for dissemination and publication should rest with the board rather than with the Minister for Health. I do not therefore propose to accept the amendment.
Could the Minister give me some reason? The emphasis is on the fact that the health board shall draw up the report as directed by the Minister, on the adequacy of the child care and family support services in the area. This is very good and laudable and is exactly what we need so that we can monitor the progress or otherwise of the Bill as it is implemented. Under the section the health board are also required to submit a copy of the report to the Minister. As it is the Members of the Parliament who enact the legislation, is it not reasonable to suggest that the Minister having received the report should publish it in a way in which Members of the Parliament could have a copy? If it is left to the health board or their committees there is no possibility that Members of Parliament will receive that report to consider whether or not what is being done is adequate. For that reason I would ask the Minister to think again.
The Deputy has replied to the debate. If the Minister wishes to comment he may do so briefly.
Amendment, by leave, withdrawn.
The next amendment in the name of Deputy Yates is amendment No. 35.
On mature reflection, having read through the Committee Stage debate, which illustrated that in some areas there may not be voluntary organisations in the given jurisdiction, I do not wish to move the amendment at this stage.
Amendment No. 35 not moved.
Amendment No. 36 in the name of the Minister is a drafting amendment. Amendments Nos. 37 and 38 are cognate, and I suggest therefore that we discuss these amendments together, by agreement.
I move amendment No. 36:
In page 8, line 42, to delete "voluntary organisations" and substitute "voluntary bodies".
The three amendments are minor drafting points which have been recommended to the House by the parliamentary draftsman, to eliminate possible confusion. The term "voluntary organisation" is used in section 9 whereas "voluntary body" is used in sections 7, 8 and 10. For the sake of clarity and consistency it is proposed that the term "voluntary body" shall be used throughout the Bill.
Amendment agreed to.
I move amendment No. 37:
In page 8, line 43, to delete "organisations" and substitute "bodies".
Amendment agreed to.
I move amendment No. 38:
In page 9, line 2, to delete "voluntary organisation" and substitute "voluntary body".
Amendment agreed to.
I move amendment No. 39:
In page 9, line 2, after "other person" to insert "other than an agency approved by Ministerial regulations".
The purpose of this amendment is to widen the scope of voluntary organisations. On Committee Stage there was some difference of opinion as to whether the scope needed to be widened. I would like to hear the Minister's response and I will then consider my position.
Subsection (2) prevents the board from delegating to a voluntary body or other person their duty to receive children into care under section 4 or their power to institute care proceedings under section 16. The thinking is that these functions are so important that they should be performed only by health boards as the statutory authorities responsible for child care and protection. The amendment seeks to enable these functions to be dealt with by an agency approved by the Minister. I do not see any justification for the proposed change. In the first place, I am not aware of any agency that would have the necessary staff, expertise or access to foster care and residential facilities that would be required if they were to take on this new role. In any event, it would not be a good idea, now that we are imposing clear statutory duties on health boards in relation to the care and protection of children, to hive off to other agencies some of the key functions in relation to child care and protection. This would give rise to enormous confusion and duplication as to the respective responsibilities of the health boards and any agency that might take on this role.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 9, to delete lines 4 and 5 and substitute "to apply for an order under Part III, IV or VI.".
This is consequential on changes made in Parts III and IV on Committee Stage. The purpose of subsection (2) is to prevent a health board from delegating certain functions to a voluntary body. The reference in lines 4 and 5 to the power under section 16 to make application for a care order, or a supervision order, has been rendered inadequate as a result of the various changes made on Committee Stage. For example, it does not cover the power to apply for an emergency care order under section 13, an interim care order under section 17, an access order under section 18 or an order for the recovery of a child under section 37. These are all encompassed by the revised formula proposed in amendment No. 40.
Amendment agreed to.
I move amendment No. 41:
In page 9, between lines 14 and 15, to insert the following:
"(2) Payments provided for under this section shall be paid on the basis of fixed terms of renewable contracts with a defined level of service as laid down by the Minister.".
I attach some importance to this amendment. Its purpose is to ensure that there will be a clear relationship between voluntary organisations and health boards in providing services. I am thinking here of organisations like the ISPCC and others. From the point of view of voluntary organisations, it is important that they should not operate on a hand to mouth basis. In exchange for a clearcut service requirement there should be some prospect of medium-term security so that these organisations could develop their services without being in a stop-go situation.
In other areas of the health boards, for instance in relation to mental handicap, there has been friction between the voluntary organisations and the health boards. I quote Cheeverstown House as an example. In such cases it is vital that there is not a nebulous working arrangement but fixed contracts which in some cases would be renewable. I notice that the Minister had some difficulty with this on Committee Stage, purely on the basis of the word "renewable". The Minister felt that that obliged him to renew every contract that would exist. A contract has a legal life of its own, and it does not have to be renewable. I was trying to exclude the possibility that they would not be renewable but in some cases the contract would be for a three or a four period. I do not accept the validity of the Minister's objection on those grounds. There is a real need to formalise the basis and relationship between health boards and voluntary organisations because we all know who is the stronger and who is the weaker. All the bureaucracy and legal advice are available to health boards; voluntary organisations by their very nature are weak.
Section 9 deals with the provision of services by voluntary bodies and other persons. This work should follow a proper format. I see this extending to foster care, foster-parents and other areas so that there would be blueprints of contracts of service which would vary taking into account the local and regional circumstances. I have been lobbied by organisations to say that in some areas, where they are a national organisation, they have different relationships with different health boards. That is unsatisfactory. There is need for uniformity throughout the country and, hopefully, that uniformity would include the best procedures in all health boards. It is important that we reassess this aspect on Report Stage as we have done on other amendments. I ask the Minister and the House to support some clear-cut proposals but if he has a better wording I will certainly consider it.
I support the amendment. It is very important that two things happen: first, that there is proper legislative recognition for the work of voluntary bodies and, second, that their work is recognised professionally, that they would have security of tenure in the knowledge that if their work were of a sufficient standard and recognised by the Minister and his Department they would be treated in a professional manner. Without going into specifics, we are all aware of cases where excellent work is done by a voluntary agency at local or national level that reaches certain communities and the local health board, strapped for resources, might be envious or downright hostile to the work of such a voluntary agency.
Where excellent work is being done by a voluntary agency — and the Minister recognises this in section 10 — and where a child care service or a family support service is being provided, it is important that this is on recognised conditions over a fixed period and treated in the professional manner the service warrants.
I spoke at some length on Committee Stage about the family support services. I had the opportunity to study some work being carried out in the UK by reach-out services and family support units there. I thought they were an excellent model to break the terrible cycle of deprivation, poverty and illiteracy which often besets a family. Regardless of how much the spotlight is on a family, often we find that resources seem to be channelled to break that cycle, but that is never properly done. A comprehensive family support unit can achieve that, but that must be recognised. Perhaps every health board will not be in a position to establish a comprehensive family support unit in every community but where one does exist, set up by a voluntary institution, it should be supported, recognised and should have a fixed term. It should not be at war, as often happens, with the health board, who often find themselves strapped for resources and feel that an excellent service in a compact area, unfortunately, sometimes is compared with their strapped service and shows them in a bad light. There is great merit in this amendment and I ask the Minister to approach it in the same generous manner as he approached previous amendments, and to accept it.
I, too, support the amendment. This is a very good section but paragraph (a) is vague. It reads:
by a periodic contribution to funds of the body or person;
At present representatives of the Wheelchair Association are helping mothers with mentally handicapped children. These mothers are being advised by that body that the number of hours they will be able to help them will be reduced in the new year because that voluntary body cannot raise the necessary funds to pay those who are providing that service. For that reason it is necessary to be specific about fixed terms of payment to such bodies. Those people are providing a service that enables the parents, particularly mothers, of mentally handicapped children to treat them at home, otherwise they may have to take them into care. I have experience of that. This is an area that needs to be addressed. Section 10 (c) reads:
by a contribution in kind (whether by way of materials or labour or any other service).
That is a very good provision. Where a person is physically or mentally disabled and additional accommodation is required, very often it is not possible for the parents, if they get a two-thirds grant, to provide the one-third needed to provide essential accommodation such as bathroom and toilet facilities. While this is a good section, the amendment is specific, and I support it.
The important thing about this section and the amendment is that the same principle underlines both. What the Minister and Deputy Yates are trying to achieve is that voluntary organisations are adequately rewarded — that is not even the right word — for the work they do on a voluntary basis, and that whatever assistance is given to them will allow them to continue that work on a longer term basis. Whether one looks at the section or the amendment the principle is the same. The problem is that the amendment states:
Payments provided for under this section shall be paid on the basis of fixed terms of renewable contracts with a defined level of service as laid down by the Minister.
One of the basic principles in this Bill — and I think all sides agreed on this on Committee Stage — was that we should allow health boards maximum flexibility in the implementation of the Bill. In the case of the amendment, while I can understand what Deputy Yates is attempting to achieve, I think some of the flexibilty would be removed by bringing the Minister into a relationship in which he should not be involved, — that is, the relationship between voluntary organisations in the health board area and the health board themselves.
I agree — and I think everybody in the House agrees — that voluntary organisations provide very necessary services to health boards and to different groups and categories of people. They should not be out of pocket or working on a hand to mouth basis from year to year. I do not see anything in the section as it stands to prevent agreements from being drawn up between the health boards and the voluntary organisations along the lines suggested in Deputy Yates's amendment.
However, I see a danger in drawing the Minister — not just the present Minister but any Minister — into the relationship between the health boards and the voluntary organisations. If Deputy Yates looks again at his amendment perhaps he will, on mature consideration, see the point I am making and withdraw the amendment. I do not think we are at odds on the principle that voluntary organisations should be assisted and helped as much as possible by the health boards in long-term planning, that the rug should not be pulled from under them at a week or two weeks' notice. However, the Deputy's amendment goes the wrong way about achieving this and, therefore, should be reconsidered.
I support the objectives of the amendment. Given the amiability, co-operation and understanding shown by the Minister today, I ask him to accept the amendment and, if needed, reword it. Because the voluntary sector is so essential to all our community services, whether they are for old people, the mentally handicapped or children, it is vital that they be given a guarantee of continued funding and support. That is the intent of this amendment. We are very fortunate in this country to have so many people involved in voluntary work. If the Minister cannot accept this amendment I ask him to accept its intent and come back with his own wording.
I have no problem with the motives behind this amendment but I have problems with the language used in it, for example, it refers to renewable contracts. Voluntary bodies must know where they stand not on a year to year basis but over a period of four to five years. This should not be done in consultation with the Minister but in consultation with the health board in whose area they are operating.
The whole thrust of the Bill is to bring child care down to health board level. If Deputy Yates reflects again on this amendment he will probably agree that the place to argue and discuss this point and reach agreement on it is at health board level. Those of us who are members of health boards are aware of the day-to-day and ad hoc basis on which agreements are reached. I am aware of the problems facing voluntary bodies. Like Deputy Fennell, I believe they do outstanding work and without them the people they look after would not receive the degree of service they currently receive. As I said before, while I agree with the motives behind the amendment, I believe this issue should be argued and discussed at health board level.
This amendment should be considered in the context of section 10, which provides that a health board may assist a voluntary body. This is a discretionary section and provides, as worded by the parliamentary draftsman, that "A health board may, subject to any general directions given by the Minister ..." All the amendment provides is that in the event of the Minister giving a general direction to a health board to give assistance to a voluntary body, it would be appropriate, particularly when money is involved, for them to have a programme which needed a renewable contract with a defined level of service as laid down by the Minister.
The amendment provides two safeguards for the Minister; first, the provisions in section 10 will come into play only if the Minister thinks fit and, secondly, there will be a renewable contract only if a defined level of services is agreed by the Minister. The health board will act on the Minister's authority in the beginning. It is important that voluntary bodies should have some continuity in what they are doing. One of their problems is that when they start a programme they do not know if they will have sufficient funds to finish it. There are exceptional circumstances and I believe the amendment, in the context of the wording of the section, is appropriate.
I concur with many of the sentiments expressed by Members on the other side of the House. I would certainly like to see voluntary organisations operating on a sound basis and having a considerable degree of security. That point was put to me very recently by a number of voluntary bodies. Nevertheless, I would be concerned about tying health boards into renewable contracts. We have an awful lot in common but, as my colleague, Deputy Fitzpatrick, said, if we tie health boards into renewable contracts we will be placing them in a straitjacket, depriving them of a lot of flexibility and reflecting on the professionalism of the people involved. Allowing for the validity of much of what has been said, I do not think this is the right direction in which to go.
I have a number of difficulties with this amendment. First, I should point out that section 8 enables a health board to make a once-off grant or a periodic contribution towards the expenses incurred by a voluntary body providing child care or family support services. In the case of such a once-off grant or periodic payments the question of renewable contracts does not arise. The health board must have the discretion to pay a once-off grant without being tied into a renewable contract.
While I can see that in certain cases, for example, the provision of ongoing residential services, it would be good practice to have a contact between the board and the voluntary body, it would not be appropriate in other cases, for example, in the case of a small once-off grant to set up a toy library for children.
I also have doubt about the suggestion that the proposed contacts would be based on a defined level of service laid down by the Minister. I do not believe it would be practicable to create a situation in which every contact which a health board wished to make would have to be vetted, and at the discretion of the Minister. However, it seems that this would be the effect of the amendment.
Under section 3 health boards are placed under a statutory obligation to provide child care and family support services. It is a matter for each health board to decide on the type and level of services required in their area, having regard to the particular needs of that area. While the Minister for Health will have powers under section 52 to give general directions to health boards in relation to the performance of their functions, I do not think it would be desirable for the Minister to take unto himself the right to dictate to the health boards in specific detail the types and levels of services which should be provided.
In response to Deputy Howlin, sections 9 and 10 give recognition to the role of voluntary boidies in the provision of services. I know the House concurs with the sentiments expressed by Deputy Fitzpatrick that without the voluntary sector the State by itself could not continue to sustain the level of service given to people who need State support. While the health boards need flexibility and discretion and need to be in a position to disburse funds in any given situation, at any given time, to rectify any given problem, I think the voluntary sector would like the opportunity and flexibility to be able to seek funds on a discretionary basis rather than being tied into a contract. Taking all those points in totality, I regret I will not be able to accept this amendment and I would be grateful to Deputy Yates if he would withdraw it.
I thank the Members who spoke in favour of the amendment. I do not think there is a need to discuss any further the issues involved as they have been properly thrashed out. One could read into the Minister's remarks that he is quite happy to live on with the present vague position. I am not saying there should be a contract for every service but that there should be contracts in a number of areas where there are no contracts at present. I do not wish to delay the House but I will be pressing amendment No. 41.
Amendment put and declared lost.
I move amendment No. 42:
In page 9, line 18, after "services" to insert "and shall ensure that a proper assessment of child care needs nationally is carried out annually".
It is important that we notify all Deputies, if they are not already aware of this, that amendments Nos. 43 and 44 cannot be discussed and some of the issues involved overlap. Therefore, the importance of amendment No. 42 is underlined.
What I am seeking is that an obligation be placed on the Minister for Health, under section 11, to carry out a proper assessment of child care needs nationally on an annual basis. Before one can establish any plan relating to the provision of child care services one must carry out research. However, the Minister's proposals in section 11 in relation to research are very weak. That section states "the Minister may conduct or assist other persons in conducting research" and "a health board may conduct or assist other persons". We have already discussed the wording and we may take it that where it is stated something "may happen" this will not happen, having regard to the financial pressures——
It could happen.
Given a change of Government.
It could but the chances of this happening are not great.
The Deputy will have to sit and wait.
I firmly believe that the real purpose of the national children's council would be similar to that of the Combat Poverty Agency and many other organisations who speak for those who cannot speak for themselves. We have recognised in other areas that there is a need for an independent and organised articulate voice who would carry out sound research on which planning and budgetary decisions which are both clear and forward-looking could be made.
I am not happy with section 11 as it is too weak. Therefore, it should be amended along the lines of section 42 with the word "may" being changed to "shall" to ensure that a proper assessment of needs is carried out. There is a difference between "need" and "demand" as it is not always the case that lobby organisations identify the need but, instead, rather create a demand. This is an important issue and I ask for the support of the House. The Minister should be in favour of this type of carefully planned approach rather than an ad hoc stop-go type of arrangement which may or may not happen.
I share the dismay of Deputy Yates and most of the Opposition Deputies in the House at our inability to persuade this very accommodating Minister that there is a need for a national children's authority or council. We debated this matter at great length at the Special Committee and, unfortunately, the next two amendments, amendments Nos. 43 and 44, have been ruled out of order as we on this side of the House may not introduce anything which would impose a charge on the Revenue. That underscores the importance of this amendment, which gets through the barriers put up to obstruct Deputies in trying to amend, for the better, legislation before the House.
Given that there will not be a national children's authority charged with the responsibility of monitoring the provision of child care facilities, carrying out research, keeping in touch with both national and international agencies on best practices in child care, drawing up a charter of rights for children and doing all the things we would like to see a national children's authority doing, which we outlined in great detail at the special committee, a proper assessment of child care needs should be carried out on a national basis annually. That is all this amendment seeks to do.
I am afraid it is a very poor second or third best as compared to the council we wanted to establish but for some reason the Minister has resisted this. I have always found, from my earliest dealings with the Department of Health, a strong resistance to this concept. I fail to understand the reason. For those reasons it is important that this minor amendment be accepted so that an annual report is drawn up on the needs of children to see what progress has been made. As I said, if we can get that much enacted it would be a minor consolation for us, given that we have failed to persuade the Minister and his colleagues on that side of the House that there is a need for a national council.
I have no problem with a national childrens' council——
Very good.
——but I do have problems with the way Deputy Yates, in this instance aided and abetted by Deputy Howlin and Deputies on the other side of the House, wish to go about it. Child care advisory committees will be set up at local level in health board areas. From these eventually a national children's council or something approaching that will emerge. In principle, I am against ministerial fiat; in other words, directives in tablets of stone coming from Government to the Eastern Health Board, the South Eastern Health Board, the Western Health Board and so on. Once these advisory committees have been established and once they become aware of and get to grips with the problems in their areas, as a natural progression I would see individuals first of all, and eventually other people from these councils, getting together to discuss the problems facing them to see if pressure could be brought to bear on whatever Government are in power. At least the initiative would be taken from the ground upwards and not from the top downwards. I appreciate this is taking the long road but in the longer term we may get a better result if we take this road.
The purpose of section 11 is to enable the Minister for Health and the health boards to undertake research into child care and family support or to assist other persons in carrying out such research. The type of research I have in mind here might include, for example, a detailed analysis of the factors in society and in individual families that give rise to children having to be taken into care, comparative studies of the relative advantages and disadvantages for the child and the family of placement in foster care or residential care, follow-up studies on children who have been in care and so on.
These are just some examples of possible research topics in the child care area. I am sure members of the committee and Members of the House would have many ideas of their own. However, what Deputy Yates seems to be referring to in his amendment is not what I would term research. The type of assessment he mentions is more like the ongoing administrative or managerial view and assessment of services. This is going on all the time at both health board and Department of Health level. We have dealt already with this type of assessment in section 8, which will require health boards to carry out reviews of the adequacy of the child care and family support services in their respective areas. As the House will recall, I accepted an amendment at Special Committee to section 8 which will require these assessments to be carried out on an annual basis. I might also remind my colleagues that the Minister for Health will have to be supplied with details of every such assessment. In the circumstances I do not see any need for this amendment. I would be concerned that it might serve only to divert attention away from the type of detailed research projects I mentioned earlier. Therefore, I would be grateful if the Deputy would consider withdrawing this amendment.
This is a missed opportunity on the part of the Minister because whether one calls it "assessment", "research" or something else is somewhat pedantic. The issue is that there may be no research, there may be no prior assessment on a national level if section 11 is left as drafted. In my view that is unsatisfactory and needs to be pressed.
Amendment put and declared lost.
Amendments Nos. 43 and 44 not moved.
I move amendment No. 45:
In page 9, between lines 23 to 24, to insert the following:
"12.—The Court may order that any child who is the subject of proceedings under this Act be made available for an assessment procedure.".
This is a most important amendment which we spent some considerable time discussing at the Special Committee on that other fateful day of 24 January last when the Minister gave a commitment to which I will come in a moment. This was originally tabled as amendment No. 46. I was seeking that, before a child would be taken into care, the court would have the additional string to their bow of being able to get an assessment carried out on the child at the wish of the court. Arising out of that the Minister gave statistics in relation to fit person orders and so on, which indicated that perhaps it would have been better in some cases had prior assessments beeen carried out. In response to this, the Minister said — this is a very detailed point I wish to make — that he was tabling amendment No. 67 at that time, on page 11 of the old Bill which dealt with that section. However, I would now submit to the Minister that those amendments basically cover the question of emergency care orders and other specific circumstances. I think it was Deputy Shatter who went on to point out in some detail that, first of all, the Law Reform Commission in their interim and final reports recommended that children should not necessarily be subject to court proceedings but the court should have the power to have an assessment carried out. As the Minister may know, in the discussions there was reference to the United Kingdom legislation. That Bill was latterly amended to allow the court to fill this vacuum that exists as regards getting an assessment carried out.
I should like to draw the Minister's particular attention to column 254 of the Official Report of the proceedings of the Special Committee of 24 January last, when the Minister said:
I am prepared to give an undertaking that I will have this matter looked at within the broadest possible spectrum taking into account what the Law Reform Commission recommend and taking into account the views of the members of this Committee. I am confident we will be able to come forward with an amendment on Report Stage that will encompass all those views.
At that time I withdrew amendment No. 46, now amendment No. 45. What we were discussing at that time, what was teased out at the Special Committee, was that the Minister would actually go further than what is now contained in amendment No. 45, that this gap in terms of assessment would be filled.
The Minister will be aware of the final report of the Law Reform Commission in relation to child sexual abuse, which endorsed this recommendation. Essentially, this deals with the issue of assessments to be carried out on children. The important thing is that the quality of the administration of justice on the part of our District Courts, on the part of what we would like to call children's courts — as they may develop under the new rules — would have proper regard to the need for assessment. The better the assessment carried out on a child the more accurate will be the decision to ascertain what is in the child's best interests, whether it is to go for fosterage, whether it is to be returned to the parents for just a supervision order, whether the child should be taken into care, or whatever. We must ensure the maximum level of assessment. I would ask the support of the House for this amendment in view of the Minister's previous commitment.
When a similar amendment was discussed at the Special Committee on 24 January last I gave a commitment that I would examine the need to give the court power to order that a child be assessed without having to place him or her in care. I want to assure Deputy Yates and the House that I had long, arduous consultation on this matter. As Deputies are probably aware, the Law Reform Commission recommended that such a procedure be introduced to deal with suspected cases of child sexual abuse. I have been exmaining how best to give effect to that recommendation and to Deputies' wishes in the matter. I propose to achieve this by effecting a number of changes in section 19 dealing with supervision orders.
I might refer the House to amendments Nos. 98, 103 and 107. The effect of these amendments would be that a supervision order could be obtained where there were reasonable grounds for believing that a child had been or was being assaulted, ill-treated, neglected or sexually abused. In other words, a health board would be able to obtain such an order where they could show cause for reasonable suspicion rather than having to prove the matter.
In section 19 (4) a health board, when applying for a supervision order, would be able to ask the court to give directions as to the care of the child. Amendment No. 107 provides that such directions could include directions requiring the parents to bring the child to a hospital or other place for the purposes of medical or psychiatric examination or treatment. These amendments, taken together, provide a mechanism, through the supervision order, to enable a health board to seek court approval for the carrying out of medical of psychiatric assessment or treatment of the child without having to take the child into care. They give effect to the recommendation of the Law Reform Commission. In view of this, I hope the House will be satisfied and that Deputy Yates will be prepared to withdraw amendment No. 45.
It is a pity that on a piece of paper in relation to amendments that were being grouped there was no reference to this in relation to my amendment No. 45, which the Minister is asking me to withdraw on the basis of some later amendments, because I could have had greater time to consider those other amendments in relation to supervision orders. Therefore, I have to do some thinking on my feet on this matter.
It seems that the question of an assessment to be carried out at the court's discretion now applies to emergency care orders and supervision orders. I would have to reflect on whether that covers the totality of cases that might arise. In the discussion we had in Special Committee there was some detail in relation to the gap that existed at the time. Obviously, we cannot engage in questions but I would be very interested to know, and perhaps the Minister could nod or shake his head, if this amendment more or less conforms with the position in the UK in relation to the powers of the courts for assessment. If not, would the Minister perhaps consider in the Seanad expounding further on this area with a view to clarifying the situation?
I feel there is a gap here in terms of ensuring that (a) the courts have more resources and more opportunities for assessment and (b) that more prior assessments are carried out in virtually all cases. If prior to any supervision order an assessment is carried out, if prior to any emergency care order an assessment can be carried out — I appreciate that in emergency care cases things may be so urgent that it is not possible to do so — have we covered the totality of cases where an assessment is required? I will be happy to withdraw amendment No. 45 if the Minister with the agreement of the House will give some brief comment on that.
Is the House agreed that the Minister of State can make a second contribution? Agreed.
Rather than being out of order, I will be brief and say we are substantially similar to the situation in the UK.
I am happy to withdraw the amendment.
I thank the Deputy.
Amendment, by leave withdrawn.
Amendment No. 46 in the name of Deputy Fennell. Amendments Nos. 65, 66 and 114 are related. We propose then to take Nos. 46, 65, 66 and 114 together for discussion. Is that agreed? Agreed.
I move amendment No. 46:
In page 9, between lines 23 and 24, to insert the following:
"12.—(1) On application to it by a parent (in this Act called the `applicant parent'), the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of any child so requires, by order (in this Act called a `barring order')—
(a) direct the other parent (in this Act called the `respondent parent'), if residing at a place where the applicant parent or the child resides, to leave that place, and
(b) whether the respondent parent is or is not residing at that place, prohibit that parent from entering that place until further order by the Court or until such other time as the Court shall specify.
(2) A barring order may, if the Court thinks fit, prohibit the respondent parent from using or threatening to use violence against, molesting or putting in fear the child and may be made subject to such exceptions and conditions as the Court may specify.
(3) A barring order may be varied by the Court on the application of either parent.
(4) On or before the expiration of a barring order a further barring order may be made with effect from the expiration of the first-mentioned barring order.
(5) If, between the making of an application for a barring order and its determination, the Court is of opinion that there are reasonable grounds for believing that the safety and welfare of any child so requires, the Court may make an order (in this Act called a `protection order') that the respondent parent shall not use or threaten to use violence against, molest or put in fear the child.
(6) A protection order may be made notwithstanding that the summons in relation to the application for a barring order has not been served on the respondent parent.
(7) A protection order shall cease to have effect on the determination by the Court of the application for a barring order.
(8) A barring order or a protection order shall take effect on notification of its making being given to the respondent parent.
(9) Oral communication to the respondent parent by or on behalf of the applicant parent of the fact that a barring order or a protection order has been made, together with production of a copy of the order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent parent of the making of the order.
(10) If the respondent parent is present at the sitting of the Court at which the barring order or protection order is made, that parent shall be taken, for the purposes of subsection (8), to have been notified of its making.
(11) An order varying a barring order shall take effect on notification of its making being given to the parent other than the parent who applied for the variation, and for this purpose subsections (9) and (10) shall apply with the necessary modifications.
(12) The Court, on making, varying or discharging a barring order or on making or discharging a protection order, shall cause a copy of the order in question to be given or sent as soon as practicable to the applicant parent, the respondent parent and the member of the Garda Síochána in charge of the Garda Síochána station for the area in which is situate the place in relation to which the application for the barring order is made.
(13) Non-compliance with subsection (12) shall not affect the validity of the order.
(14) A respondent parent who contravenes a barring order or a protection order or, while a barring order is in force, refuses to permit the applicant parent or any child to enter and remain in the place to which the order relates or does any act for the purpose of preventing that parent or child from doing so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or both.
(15) Subsection (14) is without prejudice to the law as to contempt of court or any other liability, whether civil or criminal, that may be incurred by the respondent parent.
(16) A member of the Garda Síochána may, on complaint being made to him by or on behalf of the applicant parent, arrest the respondent parent without warrant where the member has reasonable cause for believing that the respondent parent is committing or has committed an offence under subsection (14) or (15) of this section.".
I suggest the Minister is going to have another sense of deja vu. He can see the number of related amendments and he will recall the very intense debate we had on this issue of barring orders. I tabled this amendment on Committee Stage prior to the Law Reform Commission's final report. At the time my amendment was based on the Family Law (Maintenance of Spouses and Children) Act, 1976, to enable a specific family group to be dealt with. This was a family not based on marriage because I was aware at that time, as were many other members of the committee, of the vulnerability of unmarried people who were living together when there was cruelty, violence or sexual abuse in the home, and one member was responsible. There was no facility under the 1976 Act to debar that person as there is and has been for over ten years in the case of a married father where the father is the culprit. That was the thinking at the time I tabled that amendment. There was wide agreement that there was a need for it but the Minister did not accept the amendment. I will return to the report of that meeting in the context of the Minister's commitment at that time.
I think there is widespread agreement and awareness of the need for a realistic measure of this kind. For instance, it is seen as not being in the best interests of the child in every case to remove the child where there is a reported case of child sexual abuse in the home. This can compound the child's sense of guilt and shame and his or her feeling that he or she is responsible if he or she is removed on a protection order, emergency care order or some other kind of order. The perceived wisdom is that there should be a provision for removing the person who is committing the assault on the child where that is possible, and not removing the child.
This proposal has been made several times by the Law Reform Commission in their original consultative paper on illegitimacy. We have their up to date report and I will read into the record what they recommend. On page 89 they recommend that the barring order should be available in respect of any person who is or has been a member of the abused child's household or who, while not a member of the child's household, comes into regular contact with the child. Where a barring order is made in relation to a person who is not a parent or sibling of the child, it should, save in exceptional circumstances, be made only in respect of the child's family home. The report goes on to make a further recommendation which is very important: that the health board should have the power to seek a barring order as an alternative to a care order, and the District Court should be given power to grant a barring order as an alternative to a care order where the justice is satisfied that this is a most appropriate method of securing protection of the child. Further it says that the right to seek a barring order should be extended to the child.
These are very clear, explicit recommendations and the Minister will recall that at the time we were aware that this consideration was in hand, and when he was replying to the members of the committee on 24 January, he said, and I quote from column 266 of the report of the Special Committee:
It would be inadvisable and overhasty for us to proceed with changes in the law in this area in advance of the commission's final report and recommendations. I would respectfully suggest, therefore, that the Deputies might consider withdrawing their amendments and leave these matters for consideration on Report Stage, by which time the final report of the commission should be available.
I accept that the Minister did not give a firm commitment, but overlaying all our debate was the awareness of this important body who would be making direct recommendations on this section. They have made very clear recommendations in this area. They say that, because of the difficulties and the technical aspects on child sexual abuse, this warrants different legislation but in the report they say that this section could be proceeded with and that barring orders are a measure that should not necessarily only be part of a special Bill on child sexual abuse and, since they are necessary in other legislation, the provision could be included.
This Bill will be seriously deficient if we do not have a barring order, an exclusion order or whatever kind of measure will enable the assailant or the abuser to be removed from the child's environment, the child's home. I ask the Minister, as a sign of his generosity and enlightenment, to give us this measure in this very important Bill. I am sure he is aware that all the agencies, child care groups and organisations have expressed grave reservations about the Bill because this provision was not in it originally, and is not in it even in its amended form. I cannot speak strongly enough about the need for this measure and I ask the House for support.
When this amendment was first mooted I thought it would be very progressive and, perhaps, a solution to a problem but, on examining it more closely, looking at different documents and awaiting the final report of the Law Reform Commission, I can see we could have some problems in relation to the barring order. At the moment this is limited between spouses, but I would be very worried about the fact that the health board could apply for a barring order. I do not know whether the lawyers and legal people here, and the Minister's legal advisers, will say whether that can be done. I think there would be a constitutional conflict in relation to a health board interfering in a marriage, irrespective of our abhorrence or other emotions in relation to sexual abuse.
The amendment also takes from that old maxim that one is innocent until proven guilty. We may be going down a very dangerous road; we are talking about an alleged offence and there may not actually be proof of an offence. It is a difficult emotive problem which has become more and more prevalent, unfortunately. We have to consider whether or not a spouse would want the health board to apply for a barring order. I feel very strongly about the health board being able to intervene in that type of case. It would be more appropriate for the health board to consider seeking an emergency care order or removing the child. There would be legal ramifications to applying for a barring order although, at the same time, I can see Deputy Fennell's point. The Law Reform Commission can only make recommendations. They do not have all their home work done, in my estimation; if it comes to a constitutional conflict they ask us to look at that point to see whether or not it is feasible.
My worry is about the role health boards would take upon themselves. There is also the problem of how this would work in the case of cohabitees and civil law marriages. Can a brother or sister within a family be barred? Those are legal minefields in my view. I know there are other avenues which Deputy Shatter outlined on Committee Stage. Under the Guardianship of Infants Act orders can be made that non-married people leave a home. There are other avenues open to the courts apart from going for a straight barring order. The major problems I see are the constitutional aspect of the health board intervening and whether a barring order would actually be effective. Are we taking it upon ourselves to become the judge and jury prior to the court proceedings? We would need to look very hard at this amendment even though I can see that there has been some popularity for another avenue open to women, especially those who have found themselves in a desperate situation, where they cannot cope, and feel this is the only measure they can take for their own safety and, perhaps, that of their child. I would ask the Minister to clarify the constitutional aspect as I am not one of those legal eagles we have the Dáil.
I take it that as amendments Nos. 65 and 114 are in my name I will have a right to reply as well.
No. As I explained before, when you agree to the taking of the three amendments together you automatically lose your right to reply. The only person who replies is the Deputy who moves the initial amendment.
Perhaps I will reserve my comments until after the Minister has spoken.
I am sorry Deputy Coughlan has left the Chamber because Deputy Fennell made such a good case on amendment No. 46 that I thought she would have convinced Deputy Coughlan that it was a very clearcut issue. Amendment No. 46 states: "On application to it by a parent (in this Act called the `applicant parent'), the Court may,".
I will now speak to amendment No. 66 which states:
Where a justice is satisfied on the application of a health board or on the basis of information supplied on oath by any person that there is reasonable cause for believing that there is an immediate and serious risk to the health or well-being of a child he may issue an order barring from the home of the child any person whom he believes to be responsible for such risk, for such period as he considers necessary.
That is very straightforward. If a child is deemed to be at risk and an application is made to the court it is the district justice who makes the decision on, as is stated in that amendment, information supplied on oath. There could not, therefore, be any great fear that there would be any abuse of that provision because this is availing entirely of the court procedure. What other way would one suggest to deal with such a serious matter that may arise and, from reports, very often arises? I want, therefore, to support amendment No. 46.
Deputy Coughlan spoke about legal eagles. I am not a legal eagle either and I do not pretend that the amendment under discussion is completely straightforward. There are certainly complications. A few fundamental principles are not difficult to follow. One is that where a child is abused or under threat of being molested there is, in many instances, huge psychological and physical damage inflicted on that child. Often the removal of that child compounds those psychological damages. The child is often removed from the support that exists, his own family, his brothers and sisters, and loving parents sometimes. The option should certainly be there for the court to protect the child not only by removing him to a place of safety but by removing the offender so that the child is safe. The normal supportive background of the family should remain and the allegedly guilty person should be removed from it. That is a fundamental principle and is one that is worthy of teasing out in very great detail. I note the Minister did not in any way distance himself from that principle or the view of incorporating it in this legislation when he spoke on Committee Stage. He strongly suggested that we should wait for the report of the Law Reform Commission and said that Report Stage of the Bill would be the appropriate forum for making the final decisions on it.
The Law Reform Commission report acknowledges the difficulties and the reluctance of courts to bar an offending parent from the family home. It recommends strongly that that provision should be there. It has been said by a speaker from the other side of the House that the Law Reform Commission are not the beall and end-all when it comes to wisdom in relation to the Constitution, but they are a very important forum of legal wisdom and we should certainly be very aware and cognisant of their opinions.
It is very important that this provision is enacted, and I say that on the basis of immediate and personal experience in the past week. A family in my constituency literally had to take to the streets in the middle of the night to get away from an abusing father. The children literally walked the streets at night looking for alternative accommodation. Certainly in that instance it would be much more appropriate that the offending adult be removed and the mother and children stay in the family home rather than the reverse.
On balance, the Minister should have had sufficient time to reflect on the arguments put forward by Deputy Fennell and others on Committee Stage and on the report and deliberations of the Law Reform Commission, which he has had for some time. I hope he is convinced by the direction of all opinion — in the Law Reform Commission report and from this side of the House — and will accept the amendment.
When a child is at risk there are two options available, one as suggested in this amendment and the other to put the child in care. Both options have traumatic consequences for the family and particularly for the child who is at risk. The option which would perhaps cause the least trauma would be to bar the parent who is causing the problem. That is the practice that is most likely to be reversed if the situation is not as was thought. In other words, it is easier to remove a barring order, as is suggested in amendment No. 46, than to get a child out of care.
Unfortunately, barring orders are commonly used as a way of addressing the crime committed in homes, usually by the father. My experience from talking to constituents is that the making of barring orders is becoming more widespread, in many cases to maintain the whole fabric of the home. If there are grounds to suspect that a child is at risk from an offending parent it might be easier to adopt the approach suggested in this amendment, difficult as it might be but accepted in principle by the Law Reform Commission, than to go through the whole procedure of putting the child in care, which may be difficult to reverse. Perhaps the Minister, as he said he would do on Committee Stage, would consider this matter now and give us the benefit of his wisdom and the views and consultations which no doubt he has had with his legal advisers. We will be anxious to hear his response.
The question of extending the barring order system to child sexual abuse and other child care cases was discussed at great length at the Special Committee. As the House will be aware, the Law Reform Commission in their recent report on child sexual abuse recommended that a health board should be given power to seek a barring order as an alternative to a care order and that a barring order should be available in respect of any person who is or has been a member of the household where a child has been abused. The commission also recommended that the courts should have the option of removing the alleged abuser in a child abuse case as an alternative to placing the child in care under an emergency care order. It is also proposed that a health board should be entitled to seek a protection order in respect of a child on an ex parte basis and that courts hearing criminal cases should have power to make barring or protection orders as appropriate against persons found guilty of offences involving child sexual abuse.
I have read the commission's report in detail. One can quote from any section of it but I would like to quote two sections. It states:
In many cases the removal of the child will be more appropriate, particularly where it offers a better guarantee of the child's safety.
It goes on to state:
The barring procedure can be, and is sometimes, used at present in cases of child sexual abuse, but its scope is limited. The three principal limitations are that only a spouse can be barred, only a spouse may apply for a barring order, and a barring order is not available on an emergency ex parte basis.
Read on.
That is the current law.
The commission envisage major changes in the barring order legislation and radical extension of the circumstances in which a barring order can be obtained. I want to ensure the House that I have had long, detailed and arduous consultation, deliberations and discussions on this very delicate question. The Government have carefully considered the matter and believe it is not appropriate that such a major change in policy and law should be implemented by way of an amendment on Report Stage of this Bill. I regret, therefore, that I will not be able to accept these amendments.
That is very disappointing.
This is a major cop-out. It is very disappointing indeed. I do not want to detract from what has been achieved in this Bill but this must be considered the single most important failing of the Bill. The Minister has failed to grapple with this issue.
Thus far.
That is more an indictment on the Minister than anything else. The consultation paper on child sexual abuse states that when dealing with emergencies the courts should have the option of removing the alleged abuser instead of the child from the home. The Minister quoted very selectively from the report of the Law Reform Commission, but I would like to quote a little more liberally. It states:
Discussion of barring procedures in the context of child sexual abuse is important because in some cases the most appropriate and the least distressing way of protecting a child who has been the subject of abuse is to order the removal of the abuser from the child's household.
The report further states — and this is important:
We pointed out in the Consultation Paper that a barring order is not at present available where a child is sexually abused by an unmarried parent, a step-parent, a co-habitee ... It is available only for spouses ... We provisionally recommend that a barring order should be available in respect of any person who is or has been a member of the abused child's household... We therefore confirm our recommendations.
The report also states that more discussion was needed on the balance to be struck between the protection of the right to live in one's own house and the protection of the child's right not to be abused. It tosses the arguments backward and forward. It goes on to say:
The question must therefore be asked whether such a radical development is justifiable. We think that it is, provided that the District Court confines the grant of barring orders to appropriate cases.
The report further states: "It should be stressed that the health board's power to seek a barring order would derive from its duty to protect children at risk". The result of the Minister failing to deal with this issue effectively means he is not prepared to make it the duty of a health board to protect abused children by bringing in a barring order to remove offending adults. That is extremely sad.
I am prepared to protect the children but I am not prepared to use a barring order.
If the Minister only knew the feelings of guilt which attach to those children. They feel they are the guilty party and that is the psychological reality. The Law Reform Commission state:
We therefore recommend that health boards be given power to seek a barring order as an alternative to a care order, and that the court be given power to grant a barring order as an alernative to a care order where the justice is satisfied that this is the most appropriate method of securing the protection of the child.
The Minister is not prepared to do that. He is not prepared to give district justices that opportunity. Shame on the Minister. He has deceived us. Deputy Fennell did not quote from what he said on 13 February, which was that he would give a commitment to the Committee that if amendments were withdrawn he would take into account on Report Stage what Deputies had proposed and the recommendations of the Law Reform Commission. He said we could have a further discussion of the issues on Report Stage. The Minister has reneged on his commitments. He misled the Committee. He has not brought forward one amendment to deal with this issue. It is a scandalous situation of neglect. He has not put up any argument to say that this is the wrong policy direction. It is a total cop-out to say that some 82 years after the Children Act, 1908, was passed we are faced with the situation that the Minister and his officials did not see fit to have a barring order brought in.
In amendment No. 46 we propose to deal with the situation where only the spouse is covered by including the cohabitee. People should not be left in a situation where alcohol abusers frighten the living daylights out of their cohabitee and the children. It is a great pity that this matter is being dealt with at this hour of the night when the media are not present to see the scandalous and shameful neglect by the Government in failing to meet their responsibilities in this area. The Minister might take some temporary succour from that, but when people see that he has given a particular gesture to the Law Reform Commission and has reneged on his promise to the Committee they will view it as a poor day for such defenceless children.
I do not understand how the Minister fails to see that the abuser must be removed, given his flexible approach on other issues. Deputy Coughlan was quite wrong to say that in cases where abuse was not proved and there was only a suspicion of abuse no aspersion should be cast on the potential abuser. Aspersions are cast on the young people who make the allegations. It is appalling to take young people out of their environment and send them to a home. I remember listening to embittered crying mothers on the Marian Finucane programme whose children were taken away from them by the Eastern Health Board because their violent husbands abused the children.
It is remarkable that the Minister should see fit to mislead the Committee and raise expectations. It was dealt with in the consultation paper originally. He came calmly into the House and said "at this time" as if there was another time, when there is no other time only now in this Bill. It is despicable and shameful. If the Minister had any self-respect he would give a commitment to the House that when this Bill goes to the Seanad he will introduce an amendment. The Minister can rest assured that we will vote on each of these amendments.
I accept Deputy Yates's bona fides no matter how expansive his language. Since we are discussing the Law Reform Commission Report on Child Sexual Abuse we might quote other relevant passages. On page 32, paragraph 3.35 it states:
We emphasise that, if removal of an alleged abuser by a barring order made on an ex parte basis were to be contemplated, it could only be in the most extreme circumstances. Removal of a parent on an ex parte basis is clearly a drastic remedy in terms of its effects on the rights and on the welfare of the parent. In addition it may not always guarantee the safety of the child.
That is what we are discussing tonight.
What is the recommendation?
I quote further:
As we stated in the Consultation Paper at paragraph 2.24, "there is also always some risk attached to leaving a seriously at risk child within its home. If the alleged abuser is the father, the child's protection will depend on the mother being prepared to enforce the order excluding the father. She may not be fit, willing or able to do so. There may also be occasions on which it would not be clear who the abuser is".
What is the recommendation?
I support the very strong case made by this side of the House and share in the great disappointment we feel that the Minister has not moved in this area as he indicated he might and as was recommended in the Law Reform Commission report.
On Second Stage of this Bill our approach to the child at risk was based on the fundamental principle that you take the child out of the situation. We began to argue on Second Stage that we should examine that. There may be some advantage in legislating 100 years late in that we can benefit from the experience of other countries. The Toronto Protocol was pointed to and the view was expressed that the direction child care legislation should go in was to remove the offender rather than the child. The Law Reform Commission came out in favour of that approach.
I share the view that this is a grave defect in the legislation and join with the requests made by others that it should be accepted as a fundamental element in our new thinking in relation to children at risk of abuse which should become the essential philosophical plank in how we care for them. It is very important and highly desirable. I hope the Minister will respond, if not today, in the Seanad, to the depth of feeling expressed here and to the general disappointment that I am sure will be expressed by other organisations as the news spreads to those who are directly concerned on a daily basis in a voluntary and professional capacity in the area of child care. The Minister's attitude is out of keeping with his response to other amendments.
I wish to thank Deputies who contributed but I am disappointed and angry that the Minister has maintained his approach to this amendment. It grieves me that, in matters of this kind, Fianna Fáil are still in the Stone Age. They will not grasp the nettle. They come to the threshold of change and the threshold of realistic improvement but they draw back. They are terrified of the Constitution, the Catholic Church and all kinds of phantoms which do not exist.
I am sorry that Deputy Coughlan is not here, as her remarks, coming from one so young and idealistic, saddened me. In the mid-seventies — outside this House — I was involved in attempting to bring in barring orders for wives who were being beaten, abused and kicked in Irish homes. We were told the exact same thing then, that it would be unconstitutional to interfere in the intimacy of family life.
Where is Deputy Shatter?
We were told that we could not interfere with the privacy of family life.
The Minister should hang his head in shame.
The Minister at the time, the former Deputy Cooney, had the courage to bring in barring orders. I think this country was the first in these islands to do so and indeed, in many jurisdictions, the practice does not exist even today. I cannot stress strongly enough how important this measure is and how wrong and unjust it is for this House to refuse to give that protection which has been in existence for 15 years for wives who have been abused. In refusing to accept this amendment, the Minister is discriminating against children. The amendment deals with children who are not of a marriage, children of a marriage have this protection. A parent can now go to a court and get a barring order to protect the children.
The Minister is saying that children who are born to people living together because they cannot be divorced and remarry in this country will be discriminated against. If the Minister thinks about it, he will realise that that is what he is saying.
The proposal in regard to the constitutionality of the measure was considered by the Law Reform Commission and they took this matter very seriously. Those of us involved in this area went to seminars and working parties and gave our commitment with all the other people involved in this area. The Law Reform Commission Report says, in regard to constitutionality, that where the welfare of a child is in question it seems probable that the constitutional duty to vindicate the rights of a child by presenting further reviews would justify the barring procedure. I accept, as the Minister said, that there may not be that many circumstances in which it might be necessary to implement it but it should be there for the extreme cases. It should be a part of the Bill.
Other things may flow from a barring order, such as non-molestation clauses and protection orders. Surely the Minister will consider the provision of a protection order, which is part of the barring order procedure? This is not the end of the matter, I am sorry but this is a threat. It will come up again and again.
It is sad.
I am sorry because we had a very good relationship which I appreciated, but it is now at an end.
Get a barring order.
I feel very strongly about this very serious issue and I know my colleagues on this side of the House feel the same. How could everybody involved in this be wrong and Fianna Fáil be right? I am very disappointed.
Amendment put.
The Dáil divided: Tá, 48; Níl, 58.
Tá
- Ahearn, Therese.
- Barrett, Seán.
- Boylan, Andrew.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Creed, Michael.
- Crowley, Frank.
- D'Arcy, Michael.
- Deasy, Austin.
- De Rossa, Proinsias.
- Durkan, Bernard.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flaherty, Mary.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kemmy, Jim.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John (Wexford).
- Calleary, Seán.
- Callely, Ivor.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cullimore, Séamus.
- Davern, Noel.
- Dempsey, Noel.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hyland, Liam.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Lawlor, Liam.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies V. Brady and Quinn.
Amendment declared lost.
We will now proceed to amendment No. 47 in the name of Deputy Yates. Amendments Nos. 48, 52 and 61 are related. I suggest, therefore that we discuss Nos. 47, 48, 52 and 61 together by agreement. Is that satisfactory? Agreed.
I move amendment No. 47:
In page 9, line 24, after "Garda Síochána" to insert "or a social worker employed by the Health Board as such".
This matter was discussed by the Special Committee on 30 February and a satisfactory resolution was not found on that occasion.
Amendment No. 48, in the names of Deputies Howlin and Ferris, is better than mine. The issue at stake is whether the Garda Síochána should be the sole people or are the most appropriate people to take children into care or carry out emergency care orders. The notion of bringing a criminal environment into this by the presence of uniformed gardaí is not entirely satisfactory. At present the Garda Síochána, under the provisions of Part III of the Bill, may remove a child to safety. Elsewhere in the Bill we have excluded the role of the Garda barracks and diminished the role of the Garda and put social workers, or other specialised personnel, in place.
In his reply at the Special Committee the Minister stated that he did not think that powers that were available to gardaí should be conferred also on health board staff. He said it would not be suitable to have them barging in and taking away children in the way gardaí would. The best balance is achieved in amendment No. 48 which asks that gardaí be accompanied by health board personnel on all occasions, that the tone of the whole approach be not a confrontational criminal type one by gardaí and that instead we have a more professional approach.
The same points apply in the case of amendments Nos. 52 and 61 in my name. In relation to amendment No. 61, in some cases a designated social worker should be substituted for a member of the Garda Síochána regarding visitation arrangements, inspection of family home circumstances, supervision orders and so on. This is an important matter and is not one that can be rectified by regulations subsequently, neither is it a matter that can be regulated by the courts subsequently. It is a matter for this House and one that should be dealt with now. I ask the Minister to accept some of the amendments to ensure that the Garda, who are very busy dealing with criminal and serious indictable offences, are not left to deal with the most sensitive of family circumstances involving children.
This is a very important issue. We had much discussion on it on Committee Stage on 13 February and I have given much thought to it since. We had a concensus built that gardaí arriving by themselves into a situation of conflict, where a child is the victim, may not be the most reassuring comfort for the child. I read with care again the Minister's argument against devolving the function exclusively to a social worker to act independently. I am cognisant of the argument put forward by him on that occasion that there could be a very violent reaction and that it would not be proper to put somebody, such as a social worker, into that difficult situation.
On balance we should allow, as suggested by the Minister, the Garda Síochána to implement and enforce the law but that he or she act on the advice of the social worker for the health board concerned. That is most important. The amendment may not appear very important but for the garda acting in that situation it would be of the utmost importance that he or she have the benefit of a trained social worker to advise him or her.
If we do not amend the procedure it will be left to the member of the Garda Síochána to decide that he has reasonable grounds for taking action. If amendment No. 48 in the names of Deputy Ferris and I is accepted it will be left to the garda who arrives at the scene to decide if there are reasonable grounds to act or, if he is advised by a social worker employed by a health board, that the other conditions are met and that the child is at serious risk. That is a considerable improvement on the Bill as it stands.
As Deputy Yates said, we have moved away from much of the police, Garda station, officialdom and cold aspects of the Bill that were initially ensconsed in it towards the caring areas so that the victim is not further terrified by a procedure which is designed to protect, save and intervene on his or her behalf. I urge the Minister to consider the two amendments. I appreciate Deputy Yates suggesting that amendment No. 48 is the more appropriate one and I urge the Minister to accept it. There was nothing in his arguments on Committee Stage that would in any way rule against acceptance of amendment No. 48.
I should like to make a number of points to elaborate our concern about the section as drafted. I would refer the Minister to his reply to the debate in Special Committee. If the section remains as drafted the Garda Síochána, following a call from a distressed parent, would act if they had reasonable grounds for believing that a child had been or is being assaulted or illtreated. That may arise late at night but the complaint is likely to come from a social worker. We hope by inserting the words "or is advised by a social worker ..." that social workers would know they have the power to consult the gardaí to help them enforce an order. There may be a difficulty if there is not a link between the two agencies. The garda is important because he is the closest agent of law enforcement. The uniform may be an inhibiting factor and may be frightening for the child but if a social worker is involved either in consultation with the garda or accompanying the garda it would lessen the trauma that may arise, particularly if the social worker, having worked in that area, has reason to believe that the intervention of the Garda Síochána is necessary. That is the view the Minister expressed at the Special Committee. We are trying to meet the Minister's views and have the section as strong as possible.
I support the amendments for the reasons already stated. Gardaí may be first on the scene in certain circumstances but, without doubt, the people in the front line in cases of family problems are the social workers. If the section is adopted without the amendment social workers may say, "That is not my job, that is the garda's job". A child may be at risk, abused, assaulted, ill-treated or neglected. In those circumstances there may be a delay before action is taken. It is imperative that the social worker, who is always in the front line in such matters, should be involved. For that reason I support the amendments.
Perhaps some Member might wish to move that the debate be adjourned.
If the Minister is willing to accept the amendment we can conclude the debate on it; if not we will adjourn.
The time is up.
Can we indulge for a minute?
I presume we are discussing amendments Nos. 47, 48, 49, 52 and 61.
That is correct.
The purpose of amendment No. 49 is to clarify the circumstances in which a garda will be able, without warrant, to remove a child to safety and also to grant to the Garda the powers of entry for the purposes of this section. At the Special Committee there was an interesting debate about the circumstances in which the Garda should be able to intervene in child abuse cases. I think it is fair to say that there was a consensus that the Garda should be able to remove a child without warrant only in exceptional cases, for example, where there is a threat of serious violence or where violence has actually been committed. It was agreed by all sides that in the vast majority of cases the removal of a child should only be considered after the careful assessment by the social workers and other professionals of the child's needs and the overall family situation.
Where admission to care is considered desirable the usual procedure would be for the health board to seek an emergency care order or to apply for a full care order. However, cases will arise where the risk to the child is so serious and immediate that it would not be sufficient to follow these procedures. Amendment No. 49 makes it clear that in such cases a garda will be empowered to intervene without warrant to take a child to safety.
The second part of the amendment — I think this covers the points made by Deputy Yates — contains two features which are not in the current provision and which were raised at the Special Committee. First, it provides that a garda may be accompanied by other persons, for example, a social worker or doctor, when he goes to remove a child. Secondly, in order to ensure that there is no doubt about the matter, the Garda are being given a specific power to enter houses and other premises or places in order to remove a child.
I hope this amendment will be acccepted and that Deputy Yates will consider withdrawing his amendments Nos. 47 and 61. Perhaps Deputies Howlin and Ferris will withdraw their amendment in the light of what I have proposed in amendment No. 49.
I will be happy to withdraw amendment No. 47. Perhaps the question could be put on amendment No. 48.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 9, line 25, after "that", to insert "or is advised by a social worker employed by the Health Board that".
Amendment put and declared lost.
Debate adjourned.