Having deliberated and reflected on this matter I have decided——
Child Care Bill, 1988: Report Stage (Resumed).
Debate resumed on amendment No. 64:
In page 11, between lines 10 and 11, to insert the following subsection:
"(8) Where the provisions of this section are availed of written notice of the relevant procedures and rights of parents shall be issued to them at the time the child is taken into care.".
—(Deputy Yates.)
I should enlighten the Deputy as to what the position might be following his presentation. I have a note here which advises that Deputy Yates has circulated a new amendment, amendment No. 64a, which is an alternative to amendment No. 64 the subject matter of which has already been discussed extensively. Accordingly, I cannot allow a reopening of discussion and I now call on Deputy Yates to conclude on amendment No. 64.
Where does amendment No. 64a lie?
When the Deputy has concluded he will then be in a position to withdraw amendment No. 64 and press amendment No. 64a, if necessary.
With or without debate?
Without debate.
Therefore, any points I have to make should be made when concluding. I should say that there was support in principle on all sides of the House for amendment No. 64 but the Minister had a difficulty with it. He outlined that it may be difficult to give parents written notice in all cases because the whereabouts of parents, whose children are being taken into care, might not be known. I am now proposing to withdraw amendment No. 64 and make two changes, the first of which is to insert the words "where practicable" so that the Minister's fears can be met and, secondly, the amendment would apply to a parent or parents, as the case may be. I am making that change having received advice from both the Bills office and the Minister's office. I formally request your approval, a Leas-Cheann Comhairle, to withdraw amendment No. 64 and I will be pressing amendment No. 64a in the hope that we will reach agreement in the House.
Amendment, by leave, withdrawn.
I move amendment No. 64a:
In page 11, between lines 10 and 11, to insert the following:
"(8) Where the provisions of this section are availed of, written notice of the relevant procedures and rights of a parent or parents shall be issued, where practicable, to them at the time the child is taken into care.".
I want to be as helpful as I can but I have gone as far as I can in accommodating Deputy Yates and the House. If I take an amendment on board I will do so in an effort to have the best Bill passed into law. I appreciate that Deputy Yates in the substitute amendment, amendment No. 64a, has gone a long way towards eliminating the difficulties I mentioned when we discussed amendment No. 64 prior to lunch. I want to repeat that I sympathise with the principle that parents should be fully informed of the implications of their child being taken into care. However, the very strong advice available to me is that this is not the best way to achieve what we all desire. Let me explain further.
In this instance, we are talking about a major family crisis. A child being taken into care is likely to have a very traumatic effect on the parents who are likely to be upset, confused, perhaps even angry and aggressive. I do not believe that handing them an official document containing legal terminology is likely to be of much help to them in that situation. What would be of much more value would be for the social workers involved to sit down with the parents to explain exactly what is happening and what the parents should do. I understand that this is what happens at the moment.
I reconsidered this matter during lunch and had consultations about it. I want to give the House a firm commitment that I will direct that the practice of consultation, advice and guidance for the parents will be included in the guidelines to be drawn up and which will be issued to the health boards. I will recommend that in implementing this section the parent or parents should be kept fully informed. A leaflet outlining their rights and the services available to them will be made available to them at that time.
I give this firm commitment here having reconsidered the matter. I regret that I was unable to accept the amendment prior to lunch and I further regret I cannot accept this new amendment. Instead, I am prepared to give a pledge that this practice will be included in the guidelines and the information will be made available to the parents. In view of this, I would be grateful if Deputy Yates withdrew his amendment.
Do I have the opportunity to conclude?
Unfortunately, Deputy Yates does not have an opportunity to reply and I think Deputy Yates and the House——
There is a lot I could and should say.
Is binn béal ina thost uaireanta. The House will appreciate that Standing Orders prescribe the manner in which amendments should be tabled. In the present circumstances, the Ceann Comhairle accepted amendment No. 64a but he would wish that I advise that what has happened in respect of the acceptance of amendment No. 64a would be taken as the exception rather than the precedent. It will not happen again. Does Deputy Yates wish me to put the question?
We would not like a good relationship to break down.
I am afraid that ad hoc work relationships can establish precedents which lead to botheration later on.
I understand that I cannot conclude but I wish to assure you——
In so far as we allowed the Minister of State an opportunity to respond we will take a brief comment from Deputy Yates.
I do not want to go back over the issues but I am disappointed that the Minister is unable to agree to the amendment and I will be pressing it.
Amendment put and declared lost.
I move amendment No. 65:
In page 11, between lines 10 and 11, to insert the following subsection:
"(8) If a justice of the District Court is satisfied on the application of a child care authority or on information supplied on oath by any person that there is reasonable cause to believe that there is an immediate and serious risk to the health or well-being of a child, the justice shall have discretionary power to bar the alleged offender from the child's home for a period not longer than 72 hours, pending a court hearing.".
Amendment put and declared lost.
I move amendment No. 66:
In page 11, between lines 10 and 11, to insert the following:
"(8) 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.".
This amendment has already been discussed.
Amendment put and declared lost.
I move amendment No. 67:
In page 11, to delete lines 11 to 16 and substitute the following:
14.—(1) Where a child is delivered up to, or placed in the custody of, a health board under this Part, the board shall as soon as possible inform or cause to be informed a parent having custody of him or a person acting in loco parentis of that delivery or placement unless that parent or person is missing and cannnot be found.
(2) For the purposes of this section, a person shall be deemed to have been informed of the placing of a child in the custody of a health board under section 13 if he is given or shown a copy of the emergency care order made under that section or if that person was present at the sitting of the court at which such order was made.".
At the Special Committee there was agreement that every effort should be made to ensure that parents are informed as soon as possible when their children have been taken into care in an emergency. The existing section is inadequate in a number of respects. For example, it requires a health board to inform the parents when an emergency care order is made. Where a child has been removed by a garda under section 12 it may be some days before the order is made and thus some days before the health board would be obliged to notify the parents. The existing draft does not take account of situations where the parents are missing. The new subsection remedies these defects and I hope the amendment can be agreed to.
Amendment agreed to.
We come to amendment No. 68 in the name of the Minister. I ask Members for their indulgence and suggest that perhaps they take pen and paper because it is proposed that we take amendments Nos. 186, 189, 191, 192, 194, 195 and 196 with it in so far as they form a composite proposal. We might also take with amendment No. 68 amendments Nos. 137, 198, 200, 201 and 203 which are consequential. With the agreement of the House it is proposed to take the amendments I have listed together for discussion purposes. Is that agreed? Agreed.
I move amendment No. 68:
In page 11, line 18, to delete "managers" and substitute "registered proprietors".
This amendment effects a minor technical change required to facilitate the radical overhaul of Part VIII of the Bill which deals with children's residential centres. I might refer Members to amendments Nos. 186 to 203 on pages 25 to 31 of the list. At the Special Committee there was an unanimous agreement on all sides that the Bill should be amended so that it would not be lawful for any person or body to operate a home for children unless it was registered with the local health board. The later amendments seek to give effect to Deputies' desire that the registration system for such homes be set in place. I might add that the registration scheme we are proposing is modelled closely on the new Nursing Homes Bill recently passed by the House which has since been enacted into law. I hope these amendments will receive the support of all sides of the House so that we can strengthen the Bill and clarify the position.
Is the amendment agreed?
May I explain to the House that Members agreed that any discussion will take place on the amendments I have now announced. Separate questions, as required, can be put presently.
Yesterday, when dealing with a group of amendments like this, we allowed ourselves the luxury of actually accepting the principle but allowing some time for debate in the context of the section as we get to it. Would it be possible to follow that precedent from yesterday, accept the Minister's amendment No. 68 — the specific one we have reached — and not agree to take them grouped, as you suggested, Sir, so that we can have some degree of discussion when we reach the amendments in the context of the registration of homes, which is completely separate from what we are dealing with here?
Deputy Howlin, that might appear to be a reasonable proposition, but, on the other hand, we always live in fear of creating precedents. I have indicated to the House what is the relevant Standing Order. If the House is not happy I suggest it would be better not to agree to take them together but rather to take them seriatim and discharge them as we go along. We cannot have the best of both worlds.
May I suggest, a Leas-Cheann Comhairle, that we do that?
All right, it may be slightly more tedious but, if it is in accordance with the wishes of the House, so be it.
Because of the large number of amendments involved and the difficulty in assimilating all the information in regard to them, I agree with what has been suggested by Deputy Howlin.
I take the point. The Deputy can take it that, when he meets them, he will discover there is such an affinity between them, an affinity within the first group and that the grouping of the other alternative amendments suggested was not unwise. However, we shall proceed as indicated. Is amendment No. 68 agreed?
Amendment agreed to.
Amendment No. 69 not moved.
Amendment No. 70 in the name of Deputy Yates. Amendment No. 128 is an alternative amendment so that, for discussion purposes, I suggest that we take amendments Nos. 70 and 128 together.
In the list of groupings I was not aware that these were being grouped.
No, there is only one other amendment, No. 128 being taken with No. 70.
Yes, we were given a list of pairings but these did not appear on this list.
There is a new list, the third today.
I move amendment No. 70:
In page 11, between lines 20 and 21, to insert the following:
"16.—It shall be an offence for any person to conceal a child who is the subject of an emergency care order.".
What I am proposing in this amendment is that it shall be an offence to conceal a child who is the subject of an emergency care order. In any practical circumstance this would be a very serious matter, where there would be already a court order, and emergency, where it was decreed that the relevant child would be taken into care. This must be dealt with in such a manner as to show that this is a crisis. Anyone who would seek to conceal a child in those circumstances deserves to be put in a position that there must be a deterrent to their so doing. Therefore, I believe it should be an offence to conceal a child in those circumstances.
On Committee Stage the Minister said that we must bear in mind that difficult circumstances may arise, that people who have abducted a child may react in an unpredictable way. Notwithstanding that, there is a need that something so serious, affecting someone as defenceless as a child, be treated as a crime against a person, that is to abduct them against their will. I feel strongly that this provision should be inserted into law, should be part of this Bill, and that in so doing we would be giving a clear message of the gravity with which we view the concealment of a child.
Both amendments address the same problem. As the Minister's amendment suggests a penalty, perhaps that is the road we should travel. Perhaps the provision is in a more appropriate section than Deputy Yates suggested. I have just read through the Minister's amendment. Probably it meets Deputy Yates' point. Possibly the Minister's amendment is better.
The need for a provision along the lines of amendment No. 70 proposed by Deputy Yates was discussed at the Special Committee. At that time I promised to look into the matter. As a result, I now propose amendment No. 128. That amendment is designed to deal with circumstances in which a parent refuses to hand over a child to a health board despite the fact that an emergency care order, an interim care order or a care order has been made. As the District Court does not have a contempt of court jurisdiction, it is necessary to create a statutory offence in order to enforce these orders. In view of this perhaps Deputy Yates might be prepared to withdraw his amendment No. 70 and accept amendment No. 128.
As you know, a Leas-Cheann Comhairle, my nature is to be generous, warm and open about these matters. Having reflected on this, I withdraw amendment No. 70.
Amendment, by leave, withdrawn.
I am afraid that personal characteristics are not always accepted in the House. However, in this case we will be happy to accept them and move on to amendment No. 71 in the name of Deputy Yates.
I move amendment No. 71:
In page 11, line 23, after "appears" to insert "on the basis of its own investigation".
This relates to Part IV of the Bill which deals with care proceedings. I am seeking to firm up the provision by inserting "on the basis of its own investigation" after "appears". I have been advised by health workers that this would be clearer because things like this do not appear out of thin air and it would be more logical to allow a legal basis for the health board to carry out prior investigations into cases requiring care proceedings before they come before the court.
I have one little problem with this. The amendment provides that "on the basis of its own investigation" it shall be the duty of the health board to take a certain course. If the health board, got information in any other circumstances, would the amendment prove a restriction? Is it superflous to insert that?
That is precisely the point I was going to make on this amendment. Rather than strengthening this section, to include "on the basis of its own investigation" would restrict the health board unduly. It would mean that a health board or an agent or employee of the health board would have to have carried out their own investigation. I do not think that wording would be suitable in this section. We are dealing with urgent cases that need to be tackled quickly. My reading of this is that it would exclude the possibility of acting on, say, a report received from a teacher, a social worker who was not employed by a health board, a voluntary organisation involved in child care or whatever. A whole range of responsible people and bodies would be excluded if we put this in. On mature consideration the Deputy might withdraw the amendment.
Deputy Dempsey did not mention that perhaps a health board would not be able to take on board a medical report from a doctor outside the health board who may have been involved in the case. This could be restrictive; it could be a legal minefield. Some very smart lawyer could say, "You cannot use that report because it was not a result of the health board's own investigation; it was the result of an investigation by someone else." I ask Deputy Yates to withdraw the amendment.
I was trying to find the text in the report of the Special Committee because I thought we had dealt with this previously. We want to achieve in this legislation a broadening of powers to health boards and I am of similar mind to those Deputies who have raised concerns about the narrowing of this provision. This legislation will be under close scrutiny in the courts, section by section, as individual cases arise and it is incumbent on us not to build into it loopholes or flaws that might be exploited to overcome the objectives we in the Oireachtas seek to put in place. For that reason I share the concerns of the other Deputies that by this amendment we may be building in unnecessary difficulties.
Do we take it that Deputy Yates's vouching for his good nature is sustained?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 72 in the name of Deputy Yates. Amendment No. 73 is consequential. I propose, therefore, to take amendments Nos. 72 and 73 together. Is that agreed? Agreed.
I move amendment No. 72:
In page 11, line 23, after "health board" to insert "or approved agency".
This is a most important issue and there is no adequate way I can get this matter dealt with other than by this amendment. I remind you, Sir, that my amendments Nos. 3, 5, 6 and others were ruled out of order and this is the best device I have to get those issues discussed here.
Whether the health board should be the sole instrument or body operating this legislation, in my view, is very questionable. I am seeking to allow at some future date a more enlightened Government to establish a different structure to operate this legislation. Call it what you may, "a child care authority" or "other approved agency", for the third time I would like the Minister to respond to a question he has chosen to neglect so far: which Department of State will be given responsibility now or in the future for all child care issues? Umpteen reports, umpteen commissions, umpteen working parties committees and every other consultative structure, conclude that the biggest single problem in the area of child care is the fact that across the range of issues there has been a shuffling of administrative responsibility between the Departments of Health, Education and Justice. We have seen juveniles brought before courts where they had to be remanded repeatedly and brought back to the court because there was no place or centre for them simply because the health board in their own jurisdiction were not able to cope.
In this debate we have had references to the fact that particular matters pertain to the Minister for Justice rather than the Minister for Health and are, therefore, taboo in our discussion. It has becomes self-evident in this debate that health boards are too narrow to deal with the facilities and procedures required under this new legislation. Anyone who is a member of a health board will tell you he is overburdened between the general hospitals programme, the special hospitals programme and the community care programme and he cannot cope with additional powers, let alone take on board new structures. I feel very strongly that the Minister is flying in the face of all the advice and all the interdepartmental necessities for a new structure. Therefore, I am seeking to provide in these two amendments that at some future date the Government of the day can allow some structure other than the health boards — they may be abolished in the fullness of time——
If the Deputy becomes Minister here.
Absolutely.
His colleague may be appointed in that regard.
We do not know who will be in Government, if we will be in Government on our own——
(Interruptions.)
Sir, I always welcome these provisions but they are not orderly, you will appreciate.
I have to be neutral.
I am seeking to insert the words "or approved agency", which would have to be approved by the Government of the day to allow the possibility of another vehicle administering the care proceedings, supervision orders, emergency care orders and all the panoply we are proposing. This is a window that should be left ajar.
The present health board structure cannot take into account the work of the gardaí, the juvenile liaison officers, the school attendance officers and the main-steam work of our education system, not to speak of the voluntary community related work that has been done by social workers and others. In all those contexts this legislation must be seen to be limited and narrow in its outlook and for that reason I ask for support for this amendment.
What Deputy Yates appears to be suggesting is that if he became Minister for Health he would abolish the health boards. That means that his amendment is superflous because health boards were set up under the Health Act, 1970. If Deputy Yates wished, at some future time, to abolish health boards, other legislation would have to take the place of the present legislation and the functions of the health boards would have to be transferred to some other body or bodies. That would be the time to decide what to do in relation to care proceedings.
My view is that since health boards were set up by legislation, taking over the functions of local authorities, they can only be dissolved by legislation. I take the view that Deputy Yates' amendment is, to say the least, and with the greatest of respect, ill-timed.
That interpretation of what Deputy Yates said is probably the greatest stretch of the imagination I have ever heard. If Deputy Yates wants to abolish health boards he would have an amendment down to remove the words "health boards". When Deputy Yates was trying to achieve was a change of heart by the Government and get them to decide that the most appropriate way to handle child care problems would be to set up a national children's council. This has been advocated by many professional people and many members in this House. My colleague, Deputy Howlin, has continually pursued it as has Deputy Yates. Many of us hoped the Minister would concede this but he has not done so. We must not rule out the possibility that in the future some other approved agency could be responsible for or, indeed, assist health boards if necessary. I see nothing wrong with having this provision written into this section. If the words, "or other approved agencies", were inserted after "health boards" that would leave flexibility for a possible change of heart on the part of the Government to agree with all the suggestions about setting up a national children's council.
While this is a very small amendment it has very wide implications for the health boards. The amendment shows the problem the Fine Gael parliamentary party have with the role of health boards. There was a much vaunted proposal before the last election that Fine Gael would, if they got into power, abolish health boards and put in regional bodies which, in my opinion, would be more cumbersome, to oversee the health of children and adults. It again brings to mind the ideological hang up that Fine Gael have about decentralising decisionmaking into the regions. I, for one, would be vehemently against any dilution of our health board system because I feel they have stood the test of time since they were set up in 1970. Prior to that health services were run by the county councils and that was not a particularly great system. While the county councils and local authorities do not run our health services now the proposal from the far side is that the health boards would be done away with and everything would be run by the Department of Health. I do not agree with that.
That is not the proposal.
I beg the indulgence of the House because I have not taken part in this debate up to now having been involved with the British/Irish parliamentary body. I do not see anywhere in the Bill a definition of an approved agency. This amendment should not be passed in its present form. I do not agree with it. Health boards should have sole responsibility for the care area. That amendment is defective because it does not say what an approved agency is.
I do not necessarily agree that some other agency outside a statutory agency should have a say in the care of children. I admit that from time to time cases are thrown up where there is difficulty deciding where the responsibility lies, whether a case comes under the jurisdiction of Education, Justice or Health. That could not be dealt with in a Bill of this sort. In future some effort should be made to properly define the areas of responsibility and ensure that the odd case that comes up does not hit the headlines.
We are dealing with the care of children in extreme or emergency cases and where their physical well-being is at risk. If any Department should be looking after that it should be the Department of Health, and the responsibility should devolve on the health boards. I reject the proposed amendment.
I must say that I greet with a wry smile an attack by a Government Deputy on Fine Gael for having ideological hang-ups. It has been my experience that neither his party nor Fine Gael were overly burdened with ideology, much less ideological hang-ups.
I want to address the amendment before us. A lot has been read into it on the other side of the House. It is as if there was a proposal to abolish the health boards, centralise all health administration and radically reform health administration here. There is no such intention and no such impact would follow from enacting this simple amendment.
I have just re-read the debate we had on this amendment on Committee Stage. It was interesting to read the degree of tension that it raised. We addressed two fundamental issues. One was the refusal of the Government to legislate for a national children's authority, although the huge weight of opinion on the Opposition benches, and from all the agencies outside, indicated that was the correct course to follow. Parallel to that was the view expressed again and again by Government speakers in the Special Committee that there was a need to achieve a centralisation of policy in relation to children and that Health was the appropriate Department to co-ordinate such a policy. I commented at that stage that the basic aspiration seemed to be, "make me good, Lord Jesus, but not yet". We have not progressed much beyond that because the aspiration is still there.
The good Lord has made us better.
Only slightly better, and the Minister has a long way to go before he is very good.
I trust in God.
We hear the aspiration again and again from that side of the House indicating that it is a good idea to have central co-ordination but that we do not have the mechanism to do that. Therefore, when a crisis arises, when a difficult case arises, it will be juggled between the three Departments, Education, Justice and Health, and that is sad. When it comes to the crunch they will all buck-pass, one to the other. It is important, as I said on another amendment, that we focus in on this.
Quite frankly the two amendments in Deputy Yates' name would obviously be a lot more meaningful had the Minister accepted the strong argument on Committee Stage to establish a child care authority. At least he has given an indication that he is not abandoning the aspiration to work towards better things, and we might, in the fullness of time, have such a body. It is a long time since we addressed this issue by way of legislation. It is important that we at least put some signpost in the Bill if we cannot have the milestones that all of us on this side of the House have sought with such vigour over the last number of months.
I find it ironic that the opposite side of the House could accuse Fine Gael of getting rid of independent bodies and centralising power, considering the history of An Foras Forbartha, ACOT, the Health Education Bureau——
Did you not propose that?
——and the attempt on the National Social Service Board.
There was no expense involved in those——
(Interruptions.)
We should not give the impression that this is a nursery.
Did I not tell you that this would rise tension?
Deputy Monica Barnes, without interruption.
With a lack of child care facilities we could not really allow it to degenerate to nursery status. It is no wonder there is a sense of tension here because this amendment is fundamental to the history of child care and also to the present position. Hopefully we will have a brighter future. What has bedevilled and beleagured the whole area of child care, and indeed left a lot of tragedy and victims in its wake, is the fact that we had no central agency to deal comprehensively and constructively with this matter. There was no central body with responsibility for the lives of our children, particularly those at risk. That is an outrage and everybody in the House must recognise that. District justices and judges in the courts dealing with these cases have expressed their total disappointment, disillusion and indeed anger at the fact that there was no responsibility by Government Departments in this area. The buck has been passed from Health to Education to Justice and nobody wanted to take responsibility. In the light of what we are attempting to do, in protecting and supporting children and giving some sense of independent support to those who most need it, how can we argue that what we are doing will even begin to fulfil our duties and responsibilities? That is the basis of this amendment and out of this whole Bill.
In a debate on an earlier amendment today the Minister said that he could not talk about guidelines regarding the specialist training of gardaí in this area because it is outside his responsibility. He said there is no way in which he as Minister for Health could dictate to the Minister for Justice. That is at the centre of this discussion. Our difficulty is that there is no independent agency that can take complete responsibility for this area and, as a result, children are wandering the streets of Dublin and other cities. Anybody who denies that is denying what has been happening and particularly what has been highlighted by our courts in the last two to three years.
The Minister and everybody in this House have committed themselves to bringing in a Child Care Bill that will provide for all our children, but how can we do that when there is a total denial of responsibility by Departments and health boards? That is the fulcrum of this amendment and that is why we have to approach it in this way. Up to now we have not been able to get through to people that it is only by setting up authority with responsibility in this area and by giving them the necessary resources and powers that we are going to meet the crisis of children in our country.
I support this amendment. Since listening to the arguments I am more convinced of the need for such an amendment. Part IV of the Bill provides for care proceedings. Throughout the Bill the health board are mentioned as the agency involved but as has been pointed out there are other agencies that could also be involved. As we proceed with the legislation, that will come very clearly to the fore. In view of that it is important that "approved agency" be inserted. In the final analysis it is the Department who will have to make the decision on what is an approved agency. There are many problems in the whole child care area and perhaps it is not right to confine the question of care proceedings to health boards. For that reason I support the amendment.
I will try not to add to the tension in the Chamber. At the equivalent stage of the Special Committee I may have added to the heat but I will try to avoid that now. One of the points made by speakers opposite is that there is a necessity to avoid a repetition of the situation that has arisen over the past six to 12 months whereby one Department or body passes the buck as regards young people and children, with nobody taking responsibility. I would ask people to read what is being proposed here. In the Bill the Minister proposes that it will be the duty of health boards to institute proceedings. If a phrase such as "where it appears to a health board or approved agency" as is suggested in Deputy Yates' amendment is accepted we would be back to the position that everybody on the other side of the House wants to avoid. The health board would pass the buck and say that a certain approved agency should take the court proceedings and that it is not their responsibility. If we accept the amendment we would be making it easier for health boards to evade their responsibilities, although I am not saying they would want to do that.
Deputy Barnes in particular made a very strong point — I have no problem with the general concept of what she said — that there should be a central agency for child care. The amendment would simply let health boards off the hook and would allow them to say that this is not their duty, that an approved agency or the Department should take responsibility. The amendment would have the opposite effect to what Deputy Yates intends. For that reason he should reconsider it. All Members have been talking about providing for, as, I think, Deputy Yates said, "some stage in the future". If an approved agency is to be set up at some time in the future obviously there will have to be regulations or legislation to enable the approved agency to be put in place. That is the appropriate time to amend this Bill and to insert "other approved agencies." I have tried not to raise the tension in this debate but I should like this amendment to be reconsidered.
In the final analysis everybody agrees that it is not who does the job that counts but how the job is done. If adequate resources were made available to a health board — or a section within the board — to do the job effectively, that is what would count. The health board have the capacity to do that provided, as I said, they get adequate resources.
I am afraid that Deputy O'Donoghue, like a hare at a coursing in Kerry, escaped me as he has had a second short trot. The fact that he absented himself earlier may have been part of the conspiracy.
As I mentioned earlier, the purpose of this section is to impose a clear statutory duty on health boards to institute care proceedings where this appears necessary. This is fully in keeping with one of the primary objectives of the Bill which is to establish the health board as our statutory child care and child protection agency.
I listened with interest to contributions from the other side of the House and I identify with their desires and aspirations to have all child responsibilities incorporated in one body. If Utopia was a computer probably that would be possible——
The Minister could set up a Ministry.
Perhaps but we must look at the facts. The Department of Education have a clear, legal constitutional duty to look after the education of our children; the Department of Health have a similar legal duty in regard to health and the Department of Justice have a clear duty in relation to the legal, criminal justice side. Major changes like this would involve the total transformation of the whole departmental and governmental structure and it could not be done without setting up a very broad, highly skilled, professional commission to examine the connotations. I do not think it would be possible to make changes in a Bill which would take all the legal and statutory duties under one agency and tell them that it was their responsibility. It is a huge area and something on which we must make haste slowly. I advise caution in this regard.
The amendment, on the other hand, proposes that the duty to take care proceedings in appropriate cases would be vested in the health boards and in other agencies at the same time. This is not desirable; in the first place I am not aware of any agency — I presume the House has voluntary agencies in mind — which would have the necessary staff or expertise to take on such a difficult task. I am not aware of any agency who have indicated their desire to perform such a role.
The proper investigation and management of child abuse demands clear lines of responsibility and accountability. This can best be obtained by placing the statutory responsibility clearly and unambiguously on the health boards, who are the statutory bodies under the 1970 Health Act, charged with the responsibility of administering the health service right across the regions.
I would be concerned that this amendment could lead to confusion. For that reason I regret I will not be able to accept it.
Initially, in some of the contributions from the Government side there was a reference to health boards and their future. I realise that within the Government party, especially at local authority level, it is considered a particular perk to be able to go to regional meetings and to be a member of a regional health board. However, this amendment is not about that issue. The Minister talked about setting up a commission to examine the whole matter and to analyse it. A commission already reported in the late sixties — and their views have since been endorsed — that we need a new approach in this regard. Obviously, the report was a total waste of time because imagination and new thinking have not extended to — or beyond — health boards at this stage. It is obviously not possible to gain agreement on this. However, the marker must be put down. I would have preferred if we had been able to debate my earlier amendments on child care authorities but it was not possible as they involve a charge on the Exchequer. Time will tell but Deputy Sherlock was nearest the point when he said in yesterday's contribution that he knew of a case where three social workers were involved in one case. That epitomises the problems on the ground. The people most directly in touch with those problems have asked for structures — other than the narrow ones of the health boards — to be put in place. For that reason, I intend to press this amendment.
Amendment put and declared lost.
Amendment No. 73 not moved.
Amendment No. 74 is in the name of Deputy Yates. Amendment No. 127 is related. Is it agreed that they will be discussed together? Agreed.
I move amendment No. 74:
In page 11, between lines 28 and 29, to insert the following:
"17.—(1) All reports of assessments carried out by health board personnel and their conclusions shall be made available to the relevant child's parents.
(2) Where there are video recordings compiled by the health board in a case, these will be made available to the parents of the child and their legal representatives.
(3) It shall be the duty of any court in the course of its proceedings to view all video recordings referred to in subsection (2).".
I have looked at amendment No. 127 in the name of the Minister and I note that it contains a general statement that all information and documents will be referred to the parties. I am open to persuasion that the Minister's amendment is preferable to mine. Perhaps, when the Minister replies, we will be able to make a quick decision.
Amendment No. 74 seeks to give parents of children involved in care proceedings a statutory right to details of the evidence to be presented by the health board at the court hearing.
When this matter was discussed at the Special Committee on 6 March last, I gave an undertaking to examine the need for such a provision in consultation with the Attorney General. Amendment No. 127 is the result of that consideration.
It is proposed that rules of court may make provision for the furnishing of information and documents by parties to care proceedings to each other or to their solicitors. These rules could require the health board to furnish the parents with details of the witnesses it proposes to call, to supply them with copies of the medical or other evidence it proposes to adduce etc. The reason for choosing the rules of court approach rather than specifying the matters in legislation is to provide greater flexibility. It would be quicker and easier for the relevant rules of court committee to amend their rules in the light of new requirements laid down by the High Court or Supreme Court rather than having to amend the Bill.
I hope that Deputy Yates might consider withdrawing his Amendment No. 74 in the light of Amendment No. 127.
Amendment, by leave, withdrawn.
I move amendment No. 75: In page 1, between lines 28 and 29, to insert the following: "17.—All parents shall have the right on a request made to the court to have a separate independent assessment carried out on the child where the assessment of the child by the Health Board is in dispute.".
I would refer Members of the House to our deliberations in the Special Committee on 6 March last. This amendment is seeking a legal right for parents to obtain from the court a right to have a separate independent assessment carried out on the child where the assessment of the health board is in dispute. We have had cases where fit person orders granted to the health board were subsequently found to be invalid when a second assessment was made. The Minister in his reply to the original amendment in the special committee said that it was the practice that the health boards made arrangements to facilitate parents in obtaining second opinions if they wished to do so. It is not satisfactory to leave this to the discretion of the health boards. There should be a legal right to a second opinion. There is a point of substance here. The House should try to ensure that consultation is minimised, and that justices can make the best possible decision. These aims would be best served by accepting amendment No. 75.
I support the amendment as I did on Committee Stage. There was general agreement on both sides of the House on the desirability of affording parents the opportunity to have an independent assessment done if the health board assessment is in dispute. It is important to put that into legislation. The Minister's argument at the time was that parents had that right anyway and that it was the practice. However the Minister accepted the principle. If it is a good principle, if it is a right that we want to spell out, we should incorporate it into the Bill and the Bill will be all the better for it.
I accept the spirit of what Deputy Yates is trying to achieve but I am advised that the drafting of the amendment leaves a lot to be desired. I have been in touch with the Attorney General with a view to bringing forward an amendment that would give the courts wide discretion to procure reports on children involved in care proceedings. If Deputy Yates would consider withdrawing this amendment I am prepared to give a commitment that a comprehensive five part amendment on this subject will be circulated shortly for Deputies' consideration.
Is Deputy Yates happy with that?
Yes, on the basis of the Minister's assurance. The Minister realises that tomorrow is the last day?
The Deputy will have it in half an hour.
Amendment, by leave, withdrawn.
In the exceptional circumstances of the precedent already set it will be allowed. That is the only reason, but otherwise no.
I move amendment No. 76:
In page 11, line 29, to delete "is satisfied" and substitute "is of the opinion".
It was put to me that the phrase "is satisfied" is a requirement that is too strong in judicial terms, that a district court would have to have almost a judicial determination in order to be in a position to grant an interim care order. I seek to remove the phrase "is satisfied" and replace it by "is of the opinion". I am advised that that would be preferable and would allow a greater scope to a justice to intervene in the case where an interim care order may well be required and allow for the child to be in a place of safety until a proper determination is made in the matter. I am open to hearing the Minister's view on this. It is important that we get the balance right in relation to the degree of proof we require before an interim care order can be made by the court.
Debates on other legislation will show the Minister for Health to have preferred the phrase "is of the opinion". The Minister as a busy practitioner before becoming Minister for Health would have used this terminology extensively. Doctors and people in the care area regularly give their opinions. All they are expected to do is give their opinion. It is important that this legislation is based on opinion which in turn is based on professional training and experience. In medical terms "is of the opinion" is a much more definitive term than "is satisfied".
There is a difference between "is satisfied" and "is of the opinion" in legal terms. "Is satisfied" is much more definite and it infers that a decision is made when the judge has taken all things into consideration. I can see why "is satisfied" was put in. In all these issues it is up to the health boards to be of the opinion and make an application to the court. It is then up to the district justice to be satisfied taking everything into consideration before he makes an interim care order which in every case is a very important step in relation to the care of a child. I am happier with "is satisfied" so that injustice would not be done, so that a child would not be taken from the parents without proper investigation or proof to the judge. Putting in "is of the opinion" would not be judicially correct. The justice has to be satisfied before making a decision and that is the way it should be left in the section.
I agree with Deputy Ahern. In criminal proceedings a district justice must be satisfied beyond reasonable doubt. In civil proceedings he must be satisfied on the balance of probabilities. In virtually all judicial decisions a judge or justice has to be satisfied. The standard of proof in relation to how satisfied a judge should be is not set out in the Bill. I suppose that the decisions of all courts could be described as matters of opinion. In this instance the necessity to be satisfied is clearly very important because of the consequences of what the judge is doing. This is a very serious matter. A judge is deciding that an interim care order should be made in relation to a child. It has to be done on a certain standard of proof because of the implications involved. Accordingly, I strongly urge Deputy Howlin and Deputy Ferris to be satisfied to accept the word "satisfied".
Deputies may recall that during the Special Committee I moved an amendment to what is now section 13 (1) to provide that a justice need only be "of opinion" that certain circumstances exist, in order to justify the making of an emergency care order. It is appropriate that in an emergency we should not impose a standard of evidence that is too strict; therefore the test of the justice being "of opinion" is appropriate in section 13.
However, here we are dealing with section 17 — interim care orders. At this stage, the matter is somewhat less urgent. The child has been removed from the source of danger and has been placed in the care of the health board. The question now to be addressed by the justice is whether the child should remain in care or should be returned to the custody of his parents, pending the determination of an application for a care order.
It is important at this stage that the health board be required to satisfy the justice that the child should remain in care. To require any less than this from the health board would do great injustice to the parents against whom unsubstantiated allegations had been made. I am advised that the phrase "is satisfied" is the appropriate one to use here and that "of opinion" would not be sufficient.
I hope that in the light of this explanation the Deputies might be prepared to withdraw this amendment.
We have to progress with great care in this area. I was concerned that the burden of proof in relation to an interim care order, which is not a final determination on the future of a child, might require a degree of proof that might be too much. I am satisfied in relation to the argument put forward by the Minister. The emergency care procedures will allow immediate intervention and on that basis I withdraw the amendment.
Amendment, by leave, withdrawn.
We now come to amendment No. 77 in the name of the Minister. I observe that amendments Nos. 70 and 80 are related. I suggest, therefore, that we discuss amendments Nos. 77, 79 and 80 together. Is that satisfactory? Agreed.
I move amendment No. 77:
In page 11, to delete lines 34 to 36 and substitute the following:
"(b) there is reasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of section 18 (1) exists or has existed with respect to the child and that it is necessary for the protection of the child's health or welfare that he be placed or maintained in the care of the health board pending the determination of the application for the care order,".
These amendments arise out of lengthy discussions that took place at two meetings of the Special Committee on 20 and 27 February last when I moved an amendment to insert a new section in the Bill to provide for the making of interim care orders. There were a number of matters which concerned Deputies on that occasion and these three amendments seek to deal with them.
The first question raised was whether the section itself is constitutionally sound in view of the fact that the section gives a district justice wide discretion to deny parents custody of their children pending the determination of an application for a care order. The first amendment seeks to copperfasten the constitutionality of the section by setting down clearer and more precise grounds which must be satisfied before the justice can make an interim care order.
The second question related to the power given to the justice in subsection (2) to extend the term of the interim care order. Some Deputies were concerned that an interim care order could, at least in theory, last indefinitely and suggested that some limit be placed on the number of extensions that could be granted. I made the point then, and I repeat it now, that it would be undesirable to impose on arbitrary limit on the number of extensions that could be granted. We cannot predict what difficulties may arise in individual cases and the need to extend orders must be considered by the justice having regard to the circumstances of each case.
However, while I am opposed to a fixed time limit, we must ensure that an interim care order is extended only where this is clearly necessary. The second amendment here seeks to ensure this by providing that an extension could be granted only where the justice is satisfied that circumstances which would justify the making of the interim care order, continue to exist with respect to the child. I hope that this additional safeguard meets the concerns of Deputies in this regard.
The third of these amendments, No. 80, seeks to clarify the circumstances in which an interim care order may be made ex parte, that is, without notice to the parents. At present, subsection (3) provides that an application for an order or an extension shall be on notice unless the justice directs otherwise. It is proposed to strengthen this by providing that the application must be on notice unless the justice, having regard to the interests of justice or the welfare of the child, directs otherwise.
In view of this I hope the House can accept these amendments, clarifying, strengthening and firming the proposed legislation.
Amendment agreed to.
I move amendment No. 78:
In page 11, line 42, after "the parent" to insert "having custody of the child".
This is a technical adjustment to make it clear which parent is being referred to here; it is necessary to deal with cases where parents are unmarried or are married but separated.
Subsection (2) allows the court to make an interim care order for a period in excess of eight days if the parent consents. The use of the word "parent" here without qualification may create difficulties when they are unmarried or are married but separated.
It is proposed, therefore, to require the consent of "the parent having custody" of the child. In the case of the child whose parents are not married, this would generally be the mother although it could be the father if he had been awarded custody by the courts. In the case of a married couple who have separated, it would mean the partner having custody of the child. Where both parents had custody of the child, be they married or unmarried, the consent of both parents would be required.
I hope the House can accept this amendment.
Amendment agreed to.
I move amendment No. 79:
In page 11, lines 47 and 48, to delete "that this is necessary in the best interests of the child" and substitute "that grounds for the making of an interim care order continue to exist with respect to the child".
Amendment agreed to.
I move amendment No. 80:
In page 12, lines 3 and 4, to delete "except where the justice otherwise directs." and substitute "except where, having regard to the interests of justice or the welfare of the child, the Justice otherwise directs.".
Amendment agreed to.
We now come to amendment No. 81 in the name of the Minister. I observe that amendments Nos. 83, 86, 100, 102 and 105 are cognate. I am suggesting, therefore, that we discuss the aforementioned amendments together. Is that satisfactory? Agreed.
I move amendment No. 81:
In page 12, line 14, to delete "seriously".
At the Special Committee the question was raised as to whether it was appropriate to have the word "seriously" before the word "neglected". It was put to me that the level or degree of neglect which warrants intevention should be a matter for the courts to decide having regard to the circumstances of each case.
I have looked at this again and I accept that the reference to neglect should not be subject to the word "seriously". I am, therefore, proposing that "seriously" be deleted wherever it appears in sections 18 and 19 and I hope the House can agree.
Amendment agreed to.
I move amendment No. 82:
In page 12, line 16, to delete "wellbeing" and substitute "welfare".
Amendment agreed to.
I move amendment No. 83:
In page 12, line 17, to delete "seriously".
Amendment agreed to.
We now come to amendment No. 84. I observe that amendments Nos. 98 and 103 are related. I am suggesting, therefore, that we discuss amendments Nos. 84, 98 and 103 together. Is that satisfactory? Agreed.
I move amendment No. 84:
In page 12, line 18, to delete "there are reasonable grounds for believing that".
At the Special Committee meeting on 13 March last, some Deputies expressed reservations about the fact that the grounds on which a supervision order can be made are the same as those for the making of care orders. It was suggested that if the relevant circumstances existed, for example, if a child is being assaulted or sexually abused, the proper response should be a care order rather than a supervision order.
I have been looking at this again and I propose to make a number of changes in sections 18 and 19 in order to make clearer the circumstances in which each order would be made.
Briefly, it is proposed in amendment No. 84 that in the case of a care order, the court would have to be satisfied that the circumstances set out at paragraph (a) or (b) or (c) exists. However, in the case of a supervision order the other two amendments provide that it would only be necessary to show that there were reasonable grounds for believing that the circumstances mentioned in paragraph (a) or (b) or (c) exists.
These refinements help to distinguish between the two forms of order. As the care order involves a significant intrusion on the rights of the child and his parents, it should only be granted where the court is satisfied that the conditions exist. On the other hand, a supervision order is far less intrusive and is for a short term and so a lesser standard for evidence should suffice. I hope these amendments clarify the orders and that they are acceptable to the House.
Amendment agreed to.
I move amendment No. 85:
In page 12, line 19, to delete "wellbeing" and substitute "welfare".
Amendment agreed to.
I move amendment No. 86:
In page 12, line 20, to delete "seriously".
Amendment agreed to.
Amendments Nos. 87 and 88 not moved.
Bill recommitted in respect of amendment No. 89.
With the approval of the House, we will discuss amendments Nos. 89, 113 and 136 together as they are clearly related.
I move amendment No. 89:
In page 13, to delete lines 3 to 7.
The new provisions in relation to access which were inserted on Committee Stage have been warmly welcomed by health boards, foster-parents and parents of children in care. It is proposed that the access procedures be extended to all children in care and not just, as in the present draft, children in care under care orders. This means the provisions would apply to children in voluntary care under section 4, children under emergency care orders under section 13, children under interim care orders under section 17 as well as those under full care orders.
In order to achieve this it is necessary to move this section from Part IV to Part VII of the Bill and to make a number of minor technical changes. The first is the insertion of the phrase, "whether by virtue of an order under Part III or IV or otherwise". This is to make it clear that the provisions apply to all children in care no matter what the basis of their admission to care.
The second is to change the proviso from "subject to the provisions of this section", to "subject to the provisions of this Act". This is to deal with cases where directions as to access have been made by a justice in relation to a child in emergency care under section 13 (7) (a) (ii).
The third change is the insertion of a provision allowing a child to reside temporarily with his parents or other person. At present this is provided for in section 18 (4) but only in relation to children under care orders. The Law Reform Commission expressed some concern about that provision and about health boards allowing children who had been placed in care to return home. These returns may be for one night, a weekend or holiday and are used selectively by health boards where there is a prospect of reuniting the child permanently with his parents. The suggestion that each return home should require the sanction of the court is impracticable. However, I accept that the power of a health board should not be open-ended so the new provision refers to "temporary arrangements". I hope these amendments will be accepted by the House as we want to ensure that the Bill is as clear and firm as possible.
On a point of clarification, are amendments Nos. 113 and 136 being taken with amendment No. 89 for discussion purposes?
That is so.
I have put down an amendment to amendment No. 136 which was circulated today. Is it appropriate for me to discuss it now?
I do not see why not.
I am in agreement with what the Minister wants to do in his amendment, and I welcome his decision. My amendment to amendment No. 136 seeks to substitute the word "facilitate" for the word "allow" in subsection (1). The Minister's amendment would put an obligation on a health board to allow reasonable access to the child by his parents. I feel strongly that the word "allow" is too passive. In many instances allowances are made for visits but sometimes they meet in corridors or in totally unsuitable accommodation.
The inclusion of the word "facilitate" would indicate that the Oireachtas requires health boards to take positive steps to allow such visits to occur, that they should make arrangements by way of transport and the provision of suitable rooms for such meetings. The word "facilitate" is a far stronger and clearer word than "allow". There is almost a begrudgery factor in allowing such meetings to take place; it almost means that one is opposed to them. The word "facilitate" would be far more positive, less passive, stronger and would be more in accordance with the wishes of the Minister and the Oireachtas.
I support Deputy Howlin's amendment to amendment No. 136.
I have listened with interest to what Deputy Howlin has said. I note that Deputy Yates is in agreement with his amendment. I have had consultations on the amendment and I will be pleased to accept it.
It will be moved at the appropriate time.
Amendment agreed to.
Amendment reported.
We now move to amendment No. 90 in the name of the Minister. Amendments Nos. 91 and 92 are alternatives. I suggest that we discuss amendments Nos. 90, 91 and 92 together. Is that satisfactory? Agreed.
I move amendment No. 90:
In page 13, to delete lines 8 to 11, and substitute the following:
"(5) Where, on an application for a care order, the court is satisfied that—
(a) it is not necessary or appropriate that a care order be made, and
(b) it is desirable that the child be visited periodically in his home by or on behalf of the health board,
the court may make a supervision order under section 19.".
There was much discussion about section 18 (5) at the Special Committee. Conflicting views were expressed as to whether the subsection should be deleted altogether or retained. One view was that there was a danger that supervision orders might be made in circumstances in which what was needed was a care order with consequent risks for the child left at home. The contrary view was that the subsection is of value in that it allows a justice to make a supervision order where there is insufficient evidence to justify the making of a care order without the health board having to make a fresh application to the court.
The Law Reform Commission also considered subsection (5) and recommended that the subsection be retained but that the justice be placed under an obligation to satisfy himself that a supervision order will adequately protect the child. Essentially that is what I am proposing here.
Amendment No. 90 provides that a supervision order could be made under the section only where the justice is satisfied that it is not necessary or appropriate that a care order be made. This could arise where there was not sufficient evidence to justify the making of a care order or where the danger to the child's health or welfare was not so serious as to require that the child be separated from his parents. In either event a supervision order could be made if the justice felt that the child should be visited by the health board. This gives sufficient guidance to the justice on the use of this power and I hope it will reassure the Deputies who were unhappy with the original draft. I also hope that Deputies Howlin and Ferris will consider withdrawing amendment No. 92 in the light of this new proposal.
The House may recall there was certain amusement when I submitted a similar amendment at the Special Committee. The Minister accepted the case I made and agreed to remove the section but the argument to retain it was not made from the Government benches but from the Opposition benches. I feel the argument can still be justified and the primary decision on the appropriate form of action to be taken should rest with the health board rather than with the judge. I am impressed by the Minister's amendment and will happily withdraw my own in favour of his.
Are we also taking amendments Nos. 91 and 92?
If amendment No. 90 is agreed then clearly amendments Nos. 91 and 92 cannot be moved as they are alternatives.
I have no difficulty with the Minister's proposal to delete subsection (5) of section 18 and replace it with the new subsection proposed in amendment No. 90 as that is an improvement. We should remember that supervision orders are entirely new creatures in law and I welcome them, but my amendment, No. 91, deals with a different matter. What I am trying to ensure is that, in circumstances where a care order is applied for and not granted, a supervision order, at the minimum, would be granted instead; in other words, if for some reason the justice adjourned the hearing and stated further evidence was required as he could not make up his mind whether to grant the care order or not, I propose that, at the minimum a supervision order would apply pending the completion of the case.
This matter was discussed at the Special Committee on 13 March and I refer the House to column 501 of the Official Report. I should say that, unfortunately, I was absent on that occasion — this was the only committee meeting I missed — and Deputy Fennell filled in for me——
Very ably.
Very ably but perhaps she conceded too much.
You cannot take your eyes off them.
The Minister said it would be unthinkable not to give the justice discretion——
I have not changed my view.
I would reflect on that and ask in what areas do we want to remove this discretion. The area involved in very narrow. If for any reason a period elapses between the application for and the granting of a care order — this may be a month or a shorter period — at the minimum a supervision order should apply during that period. We should remember that a supervision order is the minimal order which can be granted, it is a lesser order than an interim care order, or emergency care order or a care order. We are putting the judge in a position where he will have to decide whether to grant a care order or not. However, if he is certain that a supervision order will automatically be granted, this might ensure that people who would be put in care wrongly will not be put in care.
While I have little difficulty with the Minister's proposal in so far as it is an improvement on what is there, it does not meet my point. I realise that these amendments are grouped together but different points are at issue. I ask the Minister to reconsider what he is proposing. All of this pre-empts section 19 which deals with supervision orders. If this change is made will there not be consequent changes in paragraphs (a) and (b) of subsection (1) of section 19? If subsection (5) of section 18 is deleted, then consequent questions will arise on section 19. The point I want to emphasise is that the health board should know that when they apply for a care order they are guaranteed a supervision order pending a final decision on the care order.
Everybody will accept that prior to deciding to make a decision order, as opposed to a care order, the court would be expect to be satisfied that a care order was not necessary. One of the things that concerns me about this amendment is that it provides that, where an application is made for a care order, I presume by a health board, and the court is satisfied that it is not necessary to make a care order and it is desirable that the child be visited periodically at home by or on behalf of the health board, the court may make a supervision order under section 19. This clearly leads one to the conclusion that the standard of proof which would be required in respect of an application for a supervision order in the course of a care order proceeding would be the same as required in respect of an application for a supervision order only. What concerns me is that under section 19 such an application must be made by the health board and nobody else. However, it is not stated in this amendment who exactly will make the application for a supervision order. Is it the intention that the justice in the course of the proceedings would decide that he is not satisfied that he should make a care order and, of his own volition, could decide to make a supervision order or would it be necessary for the health board to make an alternative application to the court and, if so, how would this be done? It is necessary that any confusion be cleared up at this stage.
On a point of order, amendment No. 95 in my name and that of Deputy Ferris runs parallel with Deputy Yates's amendment No. 91. Would it be in order therefore for us to discuss them together? My amendment would insert an extra phrase in line 14 and give the justice the option of making a supervision order. The only difference between the amendments is that under Deputy Yates's amendment this would be mandatory whereas under mine it would be an option available to the justice during the period between the application for and the determination of the care order. Rather than go over the ground again when we come to amendment No. 95, would it not be more appropriate to take at this stage?
I would be agreeable to that.
If the House so agrees.
May I say a few words in relation to amendment No. 95? The intent behind Deputy Yates' amendment is very important, that we give as much flexibility as possible to the court and, at the same time, ensure that children who are believed by a health board to be at risk be properly monitored. I understand in Deputy Yates' amendment he mentions "child care authority"; and since that will not exist I presume it can be amended to read "health board". If a health board perceive that a child is at risk, it would be necessary that there be some monitoring of the position. If there is a delay in preparing a case that would satisfy a judge that a care order is justified, at least there would be the monitoring that would take place under a supervision order under section 19, which we have yet to reach: that is eminently reasonable.
We have all seen, particularly across the Irish Sea, many cases of children whose plight had been brought to the attention of care agencies, but who had not made a determination in relation to what course of action should be followed, who were subsequently seriously injured or, in one or two instances, actually killed. It is important that, if the attention of a health board is brought to a child at risk, there would be a necessity at least to have that child monitored.
I am impressed by the arguments being advanced by the other side in relation to the discretion a judge should have; I am also interested in the dichotomy between the views expressed by Deputy Yates and his colleague Deputy Shatter on Committee Stage. Deputy Yates was not present at that meeting. But the import of most of what Deputy Yates has tried to do in his contributions on this Bill is to give discretion to the relevant health boards and allowing the health boards in the regions take the lead in child care matters. Deputy Shatter was very strongly of the view that somehow the Judiciary should have primacy in dealing with these matters and was very adamant in arguing against the case I was making on the last occasion. Notwithstanding that, the halfway line between the two arguments would be that the court would have the capacity to grant a supervision order pending the determination of the application for a care order. That would be an eminently acceptable halfway house.
Since the House has decided to introduce Deputy Howlin's and Deputy Ferris' amendment No. 95, while not allowing procedure to become too untidy, it seems to me we should also now consider discussing the Minister's amendment No. 94. Amendments Nos. 95 and 96 clearly are related. What I am suggesting is that we discuss amendment No. 90——
Perhaps we could hear from the Minister.
Let me clear the field first. I am suggesting that we discuss amendments Nos. 90, 91, 92 94, 95 and 96 together. Is that agreed? Agreed.
We are dealing with section 19 (2) which says:
A supervision order shall authorise the health board to have the child visited on such periodic occasions as the board may consider necessary...
No, we are dealing with section 18.
Matters are becoming a little confused at this point. I have been trying to follow the procedure. When the Minister is replying would he indicate whether it is envisaged that the court would be given authority to appoint a guardian? In some of these amendments an interim period is mentioned. Would the Minister say whether that is ever envisaged, or whether there would be a possibility of drawing up a statutory instrument to that effect? I understand there is very little tradition in this country of the appointment of guardians. Seeing that there are such differences between care orders and supervision orders, would the Minister say whether there has been any consideration given to the appointment of guardians, and having such provision enshrined in legislation?
I am somewhat confused because there are people arguing here, having subjected the Minister to quite an amount of pressure on Committee Stage to table an amendment which the Minister has duly produced. Now we are hearing the Minister's own argument on Committee Stage being thrown back at him.
The most relevant contribution on Committee Stage, the reason this was reconsidered by the Minister, indeed the reason this amendment is before the House, is that — although it was one of those occasions in the course of Committee Stage when Government Deputies argued alongside Opposition Deputies, when people were being very flexible — Deputy Shatter's contribution made the case fairly strongly. I might quote from what Deputy Shatter said, at column 517 of the Official Report of the proceedings of the Special Committee of 13 March 1990 as follows:
That would deal with the problem of the interim situation and of what the position of the child would be pending the determination of the application. That does not deal with the problem that Deputy Ahern, quite rightly, referred to and that Deputy Fennell, Deputy Sherlock and I have raised, that is, when you come to the end of the court hearing, the judge feels a child is at risk. The judge takes the view that he does not have sufficient evidence before him to take a child into court. He is left with two choices about taking the child into care. He does not take the child into care or he does. Without substantial evidence or compelling reasons, as the Supreme Court stated, the child cannot be taken into care. you will then have the child released home and the judge will not have the option of making any other order to ensure that the child is protected.
I could continue to quote from the proceedings of the Special Commttee but I think Members have the Official Report before them. Most of us agreed with Deputy Shatter's summary on that date and the Minister's amendment before the House deals adequately with it. Rather than causing further confusion perhaps we should accept that amendment.
May I follow on from what Deputy Dempsey has just said. Deputy Shatter went on to raise the matter of discretion, contending that a court should be given discretion. It is very important that a court be given full discretion in all such cases. My fear is that acceptance of Deputy Yates amendment would compartmentalise the case. Within a court situation probably that would be very dangerous and might well lead to constitutional action.
In regard to Deputy Howlin's point about an alternative, the alternative is there in amendment No. 94 which would take care of what he was saying. Therefore I think the Minister's amendment should be accepted.
Do a health board have to apply for a care order in order to get a supervision order? I gather not; the health board can apply because it is said here at section 19 (1):
19.—(1) Where, on the application of a health board, with respect to a child who resides in its area, the court is satisfied that—
(a) the child has been or is being assaulted, ill-treated, seriously neglected or sexually abused, or
(b) the child's health, development or well-being has been or is being avoidably impaired or seriously neglected, or
(c) there are reasonable grounds for believing that the child's health, development or well-being is likely to be avoidably impaired or seriously neglected,
and it is desirable that the child be visited periodically by or on behalf of the health board, the court may make an order (in this Act referred to as a "supervision order") in respect of the child.
That is the option, we are getting to section 19.
The Chair is in some difficulty here because we are still on Report Stage. Consequently, Members should speak once only other than the mover of the motion. Can we please hear the Minister and perhaps decide these matters?
I am grateful, Sir, for your patience and concern to ensure there is no confusion and I will try to clear the situation. The effect of amendment No. 91 would be to impose a statutory obligation on a district justice to make a supervision order in certain circumstances. This would be a complete negation of the judicial discretion and independence vested in the Judiciary by the Constitution. For that reason I regret I will not be able to accept this amendment.
However, I point out to Deputy Yates that subsection (6) enables the court to give such direction as it sees fit as to the care and custody of the child pending the determination of an application for a care order. It seems to me this gives a justice adequate power to secure the safety or welfare of a child pending the outcome of proceedings while not interfering with his or her judicial discretion. In view of this perhaps Deputy Yates will reconsider the situation and withdraw his amendment. With your permission, Sir, I would like to formally move amendment No. 93.
When we come to it, Minister.
Let the Minister talk to us about it.
Sir, it is not grouped with the list you have given us.
It is. It has been discussed but it may not be moved until we have disposed of the amendments before it.
On a point of order, my understanding is that we grouped amendments Nos. 90, 91 and 92 together. I made points about amendment No. 91. I would be happy to withdraw amendment No. 91 on the basis of the arguments made by Deputy Howlin in relation to amendment No. 95. You allowed amendment No. 95 to be taken with amendments Nos. 90, 91 and 92 but said amendments Nos. 94, 95 and 96 should be grouped with that earlier trio. Therefore, if the Minister would comment in relation to his amendments Nos. 94 and 96 we might be able to move on.
If that is agreeable to the Ceann Comhairle I can deal with it.
Right, but there is a gap here in that we are not taking amendment No. 93 just yet.
Not just yet. On amendment No. 94 and similar amendments Nos. 95 and 96 being taken with it, Nos. 94 and 96 are minor technical amendments. The existing draft of section 18 (5) which is to be amended by amendment No. 90 provides for the making of a temporary supervision order pending the determination of an application for a care order. For the sake of clarity it is proposed to move this provision to subsection (6) which deals with the period between the making of an application for a care order and its determination. My two amendments Nos. 94 and 96 provide for this. It will, therefore, be open to a justice during the period between the making and the determination of an application for a care order to give directions as to the care and custody of a child or to make a temporary supervision order in respect of a child. I might also mention that these amendments Nos. 94 and 96 give effect to what Deputies Howlin and Ferris were seeking to achieve in their amendment No. 95. Perhaps these Deputies will consider withdrawing their amendment in the light of my amendments.
Is that satisfactory?
Yes.
Amendment agreed to.
Amendments Nos. 91 and 92 not moved.
We now come to amendment No. 93, which is being taken separately.
I move amendment No. 93:
In page 13, line 13, after "court", to insert ", of its own motion or on the application of any person".
The purpose of this amendment is to provide that the court may give various directions under this subsection either of its own motion, that is at the discretion of the court, or on the application of any person. Thus it would be possible for the health board, the parents or any other person with an interest in the case, for example, grandparents, to ask the court to exercise its powers under this subsection. I think this is a useful provision and I hope the House can accept it.
Amendment agreed to.
We now come to the Minister's amendment No. 94 which we have discussed with amendment No. 90.
I move amendment No. 94:
In page 13, line 14, to delete "of the child" and substitute "of, or may make a supervision order in respect of, the child".
Amendment agreed to.
Amendment No. 95 not moved.
I move amendment No. 96:
In page 13, line 15, after "direction" to insert "or supervision order".
Amendment agreed to.
We come to amendment No. 97 in the name of the Minister which is a drafting amendment.
I move amendment No. 97:
In page 13, lines 20 and 21, to delete "parents' means" and to substitute "means of the parents or either of them".
This is a technical adjustment consequential on an amendment made on Committee Stage which inserted a reference to "either of them" at line 18.
Amendment agreed to.
Amendment No. 98 has been discussed earlier with amendment No. 84.
I move amendment No. 98:
In page 13, line 26, after "satisfied that", to insert "there are reasonable grounds for believing that".
Amendment agreed to.
We now come to amendment No. 99 in the name of Deputy Ivan Yates.
I move amendment No. 99:
In page 13, to delete lines 27 to 30.
This relates to what I was alluding to earlier in regard to supervision orders under section 19 (1) (a) and (b). I believe it is wrong to have the same criteria to put before a court to look for a supervision order as is the case for a care order. In other words, if the health board really believe, as is the language used in paragraphs (a) and (b), that a child is being assaulted, ill-treated, seriously neglected or sexually abused, there should be no question of its getting a supervision order; instead I would say either a barring order or a care order. Similarly in relation to paragraph (b), the gravity of the charge is such that a supervision order would be too lenient. Paragraph (c) is lighter in tone and less specific certainly than paragraph (a); the criteria are different. Where under section 18 (1) (a) the child has been or is being assaulted, ill-treated, seriously neglected or sexually abused, a care order may be sought. How are a health board to decide whether they are to look under this legislation for a care order or a supervision order, because they are quite different in their import for that child? I think this ambiguity is bad law and puts the health board in a difficult situation. The health board could be open to wrong type of representations. They could take a more lenient approach where a stronger approach should apply. I do not think it is correct that the same criteria should apply to the health board's application for both. The fact that they do will create more confusion for the health board and the court, and these are very serious matters. I ask that the House accept that there be different criteria, and accept the deletion certainly of paragraph (a) whatever about paragraphs (b) and (c).
In regard to Deputy Yates's amendment, in accepting amendment No. 98 we have provided that where, on the application of a health board with respect to a child who resides in its area, the court is satisfied that "there are reasonable grounds for believing that...". Is Deputy Yates not closing the door by removing section 19 (1) (a): "the child has been or is being assaulted, ill-treated, seriously neglected or sexually abused"? I agree that looking for a supervision order in the context of that language might be a little incongruous but, even so, would it not be better to leave that language in rather than remove it?
I am aware of the objective of Deputy Yates's amendment because it is clear that where a child is in any way suspected of being vulnerable or at risk a supervision order would be the first line of defence, simply to require that the child be monitored. It does not take the child out of his home setting; it does not impact on the child directly. Somebody from the health board will be keeping an eye on him and, obviously, there should not be very deep or profound grounds to require this to happen.
Clearly under paragraph (c) of section 19 action can be taken if there are grounds to believe that the child's health, development or well-being are likely to be avoidably impaired. One can move in on those grounds and I suppose there is no great harm in having the other two grounds there. They are extra and not criteria standing on their own. If a child had been ill-treated in the past that would be grounds to keep an eye on him even though there might not be anything currently happening. I do not think it weakens the case although I see the point Deputy Yates is making, that it might seem to add a level of seriousness to the supervision order which we certainly would not wish to be there. Quite frankly, I am of two minds about it. On balance I do not see the necessity to remove those two sections.
I would be of the same mind. Paragraph (a) is specific as is paragraph (b). They provide respectively for a case where a child is being assaulted on the one hand and where a child has been or is being avoidably impaired or seriously neglected on the other. As was pointed out by Deputy Howlin, the other provision gives that bit of scope in the event that there is suspicion or, even stronger than that, if there are grounds or, as stated here, reasonable grounds for believing that the child is being impaired. It would be in the interests of the child to have that retained so that it could be presented on the basis that there are reasonable grounds..
I can see where there is evidence that the child had been ill-treated in the past there might be a case for monitoring. I share Deputy Yates' concern that as a result of the words "is being assaulted, ill-treated, seriously neglected or sexually abused", which is in the present tense, there should be room for a supervision order. It might leave it open to a health board to decide that that option would serve the purpose. In view of the seriousness of what might be happening, any loophole could have serious implications. I can see the usefulness of supervision if something has happened in the past and one wants to make sure it does not occur again. The fact that the present tense is used leaves us very concerned that a supervision order might be considered an option. It is one of these dilemmas that we have. Our difficulty is in language. I share Deputy Yates' concern, particularly as the present tense is used.
A similar amendment from Deputy Yates was discussed at the Special Committee. On that occasion I put it to Deputy Yates that the effect of the amendment would be to greatly reduce the range of circumstances under which a supervision order could be made. The whole purpose of the supervision order is to provide health boards, and the courts, with an alternative means of safeguarding children short of taking them away from their parents. Deputy Yates' concern was that a supervision order would not be appropriate where a child has been or is being assaulted, ill-treated, neglected or sexually abused. However, this concern was based on the section as it stood which required that the justice be satisfied that the child was being assaulted, ill-treated, neglected or sexually abused.
We have now amended this in amendment No. 98 so that a justice need only be satisfied that there are reasonable grounds for believing that the child has been or is being assaulted, ill-treated, neglected or sexually abused. As a result a supervision order would be available where there is suspicion but not proof of assault, ill-treatment, neglect or sexual abuse. In the circumstances it is all the more appropriate that paragraphs (a), (b) and (c) remain in the section, and I urge the Deputy to reconsider his stand and, perhaps, withdraw the amendment.
A few points arise out of the debate. First, it would have been better if amendment No. 98, and my amendment No. 99, had been grouped arising out of the Minister's most recent explanation. He is arguing now that I should withdraw amendment No. 99 because amendment No. 98 is so good. If we had taken them together it would have been better.
However, I will put the case slightly differently. Let us say that a Member of this House is defending a parent of a child whom it was alleged he had abused, assaulted, seriously neglected, or sexually abused. They are very serious charges. The barrister could say that the Oireachtas made it quite clear that for offences of this gravity it was quite all right to have a supervision order. He could say that the Oireachtas provided for that in section 19. There is the possibility of plea bargaining whereby someone could seek to mitigate the gravity of the offence by saying that the Oireachtas had given the justice the choice of whether to grant a supervision order or a child care order even if he was satisfied that these serious offences were taking place.
In my early days in this House I remember a very senior Member saying that the purpose of law was to have clarity and certainty so that the courts were not left to make up their own mind. The law is clear once the circumstances are clearly established by the justice as to what is happening in the case. We have created, with very good intent, the situation whereby a justice could go either way. He could say he is satisfied that assault is taking place, that abuse is taking place and, therefore, find against the defendant. The next thing that may happen is that the barrister may stand up and tell the justice he has a choice, to grant a supervision order or a care order, and press strongly on him to grant a supervision order. The child could then return to more of abuse.
I appreciate the change the Minister has made whereby in one case it has got to be found that these things have taken place and there must be reasonable grounds to believe that is the case, but I do not believe it is going far enough. Section 18 (1) (a) (b) and (c) and section 19 (a) (b) and (c) are identical. The circumstances where one would get a care order as opposed to a supervision order should be completely different. A care order is a very serious matter indeed. I am afraid I have to press this because we could be opening up a Pandora's box.
Question: "That the words proposed to be deleted stand", put and declared carried.
I move amendment No. 100:
In page 13, line 27, to delete "seriously".
Amendment agreed to.
I move amendment No. 101:
In page 13, line 29, to delete "well-being" and substitute "welfare".
Amendment agreed to.
I move amendment No. 102:
In page 13, line 30, to delete "seriously".
Amendment agreed to.
I move amendment No. 103:
In page 13, line 31, to delete "there are reasonable grounds for believing that".
Amendment agreed to.
I move amendment No. 104:
In page 13, line 32, to delete "well-being" and substitute "welfare".
Amendment agreed to.
I move amendment No. 105:
In page 13, line 33, to delete "seriously".
Amendment agreed to.
I move amendment No. 106:
In page 13, line 36, to delete "child." and substitute "child, having due regard to the wishes of the child where possible. If the court deems it is more suitable to make a care order the justice of the court will be empowered to make such a decision.".
This amendment was dealt with in the Special Committee in my absence on 13 March and was withdrawn by Deputy Fennell. It deals with whether a supervision order or a care order should be granted. If the health board apply for a supervision order and evidence is given in the middle of the case that so shocks the justice that he feels the matter should be taken a lot more seriously by the health board, the justice should be given the discretion to go further and grant a care order. That principle that the judge has discretion has been accepted — the Minister and other went into detail on this matter. Perhaps on first sight the health board may not realise the gravity of the case but as new witnesses give evidence under oath, it may be decided that a care order should be granted.
I said in the Special Committee on 13 March that it would not be appropriate to allow the health board to have a shilling each way bet, that it would be important that the health board, on deciding to take proceedings in relation to any given case, should have sufficient evidence to go to court. If a health board go to court it would be incumbent on them as the complainant to have evidence that would stand up. If the court is allowed to decide whether a supervision order or a care order should be made, the real danger is that the health board's case might not be as tight as it should. That possibility is there whether one likes it or not.
But you argued to give discretion to the justice.
If it appears to a health board during the course of proceedings that the application should have been for a care order, there is nothing to prevent the health board from making such an application. I do not believe the health board should be given — I will not use the word "incentive"— an option as to the weight of its evidence. It is important that the evidence presented to the court in relation to a care order be as tight as possible — the same applies to a supervision order. The health board should decide which order to apply for. To give discretion to the justice would not be wise. In the interests of clarity and certainty, I strongly urge that the provision be left as it stands in the Bill.
The Deputy should reflect on what he said on amendment No. 91.
The exchange between Deputy Yates and Deputy O'Donoghue refers to a discussion outside the House when the rest of us were not present.
I think it is Deputy O'Donoghue who requires the shilling each way bet. As I said on Committee Stage, it must be due to his legal training that the Deputy can argue any case at any time, regardless of his previous argument which is on the record.
I must put the Deputy in my next advertisement.
Is this the reshuffler?
What is intended here is a very serious provision, that if in the course of an application for a supervision order it is clear to the Justice that such an order is inadequate to meet the demands of the case, he should be empowered to take a stronger line and provide a care order. This would not be in any way letting the health board off the hook in relation to making their case. We often hear of guilty people who got off because the law was framed in such a way that the letter of the law was not followed. The argument from the Judiciary or those who have notions of being members of the Judiciary seems to be that everything must be compartmentalised and if the exact order is not right you have to punish the applicant — in this case the health board — by denying them what appears to the justice to be the correct course of action.
What we are dealing with here are children, and the only criteria should be what is in the best interests of the child. I support Deputy Yates's contention that if in the course of an application for a supervision order it becomes clear to the justice that there is abundant evidence that a care order would be more appropriate, that option should be available to him. It would be appalling if he had to say: "I believe that a supervision order is inadequate in this case; if I had my way I would make a care order but unfortunately the legislation prescribes that action". It would be a shame if that were to happen. We should allow the justice that measure of discretion.
Even in the courts, when an application comes before a lower court and the case is more serious than was thought at first, it is possible for the justice to decide it is beyond the competence of the lower court and to refer it to a higher court. In the same way, if in the course of an application for a supervision order it becomes clear that the gravity of the case merits a stronger order, the justice should have that discretion. For those reasons I support the amendment.
I must concur with Deputy Howlin that legal training makes it comparatively easy to argue the opposite case, as Deputy O'Donoghue has done. In the previous amendment we argued that certain options should not be available in the case of very serious assault, but we were told that it might damage the case if those options were not left open, and that the care of the child is paramount. Therefore we reluctantly accepted the argument. In this case we are proposing that an option should be available, particularly where the health of the child is at risk, and Deputy O'Donoghue knows — this is why the legal profession continue to flourish — that nobody goes into court with the evidence so watertight that they are quite sure what the outcome is going to be. The giving of evidence, the teasing out of evidence, the interpretation of that evidence and the case for and against being presented, produces a drama that nobody can take bets on beforehand.
Court cases are not open and shut. That is what gives them a sense of drama and even interest. I would say to the Minister and to Deputy O'Donoghue that no matter how much evidence a health board may have when applying for a supervision order, it may not always be sufficient. This is particulary so where the evidence of children may be required, as happens in some court cases. This is part of the difficulty that arises, as Deputy O'Donoghue is well aware, in the taking and interpreting of evidence where children are concerned. I appeal to the Minister to make it as open as possible for the protection of the children because the evidence, even with the best will of the health board, might evolve in such a way that a care order would seen to be a safer and more protective way of dealing with it. If we can leave that option open to the justice it is not alone just thinking of the paramount importance of dealing immediately with the care and protection of the child, it also means that we will not be traipsing back to court with different orders. Deputies have made this point in regard to other amendments. That would give an option and protection, particularly in the area of evidence affecting children.
If the health board made this order to the court for a specific purpose and if, during the procedure which followed in court, it was found on the evidence that another purpose would be better served at the discretion of the court, naturally we should try to ensure that the legislation would allow for that. It would not be obligatory or restrictive, it would be an additional option, otherwise the court would have to throw out the application before it and request that a further — and more substantial — application be made. In the interim period the child could be the sufferer and in danger because the court could not act without this additional requirement in the Bill.
It is a reasonable amendment which would improve the legislation. Of course nobody wants to railroad the Minister into accepting it, but perhaps he will consider it. It is an option which would not be too restrictive that he might like to allow to the court.
We are talking about a hypothetical situation which will probably never arise. We are going a little over the top in regard to something which will probably never arise.
That is what good law is about.
I cannot see a situation arising where a health board coming to court to get a supervision order — or any other kind of order — would not be able to see something which a justice would see during the course of a trial in relation to evidence. The health board would be charged with producing all the evidence in relation to the supervision order, investigating and presenting all the reports. They would be doing that motivated purely by the desire to look after the welfare of the child. That is their role. In relation to a supervision order, I cannot imagine that some dramatic new evidence will emerge——
There could be an admission of guilt.
If there is an admission of guilt at any time during the court case the justice can make the supervision order and the health board can apply for a care order the following day.
Why not give discretion to the judge to do it immediately?
I am not a lawyer or a solicitor, but I know that if anybody is charged with a particular offence it cannot be changed during the course of a trial and the person charged with a different offence.
The offence is the same; it is what the judge does.
My understanding of the law is that if you are brought to court on one charge you cannot be charged with something else. The person can be arrested the minute he leaves the court and recharged.
The analogy is not the charge, it is the penalty, whether it is a custodial sentence or the Probation Act.
The analogy I am drawing is the proper one in this case because we are talking about a particular charge and a particular set of circumstances where a health board are looking for a supervision order because they do not have the evidence to ask for a care order. If new evidence emerges during the case it is open to the health board to apply for a care order the following day.
The Deputy does not trust the judges.
The Chair knows very little about legal proceedings but he knows a little about the proceedings in this House. One is not entitled to question the witness on Report Stage.
Or to impugn the witnesses. I have made my case. We could be putting health boards into a legal minefield by allowing this amendment and it should be reconsidered.
Is An tAire offering?
He has just taken legal opinion.
I was discussing the matter with my junior attorney.
He advocated free legal aid before.
The first part of this amendment, which refers to the court having regard to the wishes of the child, is already dealt with in the new section 23 which requires the court to give due consideration, having regard to his age and understanding, to the wishes of the child. As a result, this first part of the amendment is unnecessary.
The second part of the amendment seems to envisage giving the court power to make a supervision order even though the health board had not seen fit to apply for one. I am not sure that this would be a good idea. As far as I am aware, the general practice in legislation is that where an application is made for a particular type of order, the court may grant that order or, alternatively, an order of lesser significance; generally, however, the court is not permitted to make an order of greater significance than the one sought. Similarly, in criminal cases, where there is a prosecution for, say, murder, the court can convict on the lesser offence of manslaughter, but not the other way round.
I see no reason to depart from that general practice here. Under this Bill, the decision on whether to apply for a care order or a supervision order is vested in the health board.
In reaching its decision, the board must take into account a wide range of factors, including the nature and severity of the abuse or neglect, and the risk of a recurrence, having regard to the guiding principle laid down in section 3, that it is generally in the best interests of a child to be brought up in his own family.
In deciding to seek a supervision order rather than a care order, a health board will have to satisfy itself that the risk to the child is not such as to necessitate the child's removal from his home and that there is a good relationship between the board's staff and the parents, so that it would be possible to supervise the child at home. In coming to this conclusion, the board may well have had discussions with the parents, who may accept that their previous conduct in relation to the child left something to be desired and that health board supervision would be helpful for them and for the child. The parents would be justifiably aggrieved if when the application for a supervision order went to court, the court decided to make a care order instead. On balance, the decision to seek a care order or a supervision order should remain with the health board. For those reasons I do not propose to accept the amendment. I hope the House can understand the situation.
We had a very useful debate on this. It should be seen in the context of the earlier debate we had on amendments relating to sections 18 and 19 of the Bill. We have already established that there are identical criteria for a health board looking for a care order and a supervision order. I could easily foresee circumstances in which a health board would get a report of child abuse. A teacher or a GP might have reported it but the parents might be absolutely adamant that this had not happened, that the allegations were outrageous and totally unfounded and that the health board could not prove it. Then, in the secrecy of the court, new evidence which was absolutely irrefutable could come forward in relation to a brother or sister, or the parents could break down emotionally in the court and admit everything. If the circumstances were so serious that it emerged in the court that the future custody of the child would be at serious risk, what the Minister is saying is that they should all walk out of the court and come back another day and open up shop and see how they might look at the whole thing again. There is the risk that a child could be abducted in those circumstances.
When I was proposing that a minimum of supervision order be given, when a care order was sought, the other side of the House referred to the utmost respect we have for our justices and indicated that this would not be necessary, that these justices knew what they were about and that we should not restrict them. Now we are being told that justices could not be told to up the ante at all, that it would be wrong to give the justices this power and that in court parents could feel very aggrieved that the justice took a fit of pique and was more liberal than he should have been. These are the justices for whom they had so much respect earlier on in the evening.
Natural justice.
One must remember that supervision order are new territory, so the Minister's guess is as good as mine. There is no evidence to suggest that supervision orders are clearcut in terms of protecting the welfare of children in regard to these serious criteria. We should in those exceptional circumstances give a justice the power to make a further order because, as we have established, paragraphs (a) (b) and (c) of sections 18 and 19 are the same. There is already a grey area. Because these are the same we should give the justice the power. I will be pressing this amendment.
We have changed the criteria in the order.
"on reasonable grounds" was the only issue.
Debate adjourned.