Amendment No. 107 in the name of the Minister. Amendment No. 108 is related and I suggest therefore that we discuss amendments Nos. 107 and 108 together. Is that satisfactory? Agreed.
Private Members' Business. - Child Care Bill, 1988: Report Stage (Resumed).
I move amendment No. 107:
In page 14, line 4, delete "treatment or attention" and substitute "medical or psychiatric examination or treatment".
At the Special Committee a number of Deputies suggested that the phrase "treatment or attention" was too vague and did not adequately describe what was intended. The amendment makes it clear that the court may order the parents to cause the child to attend for medical or psychiatric examination or treatment at a hospital, clinic or other place. I hope this new amendment meets the point raised by the Deputies, in particular Deputies Howlin and Ferris in their amendment, and that they will consider withdrawing the amendment.
I introduced an amendment at the Special Committee and the Minister accepted the objective I had in mind. However, he had some difficulty about the word "assessment" and resorted to his dictionary. He said that he would come up with a more suitable phrase on Report Stage. Quite frankly, I am not sure that the phrase he proposes is better than the one I sought to have inserted at the Special Committee. The Minister's amendment would delete the phrase "treatment or attention" and substitute "medical or psychiatric examination or treatment".
I remain to be convinced that the phrase "medical or psychiatric examination or treatment" would cover all eventualities and am of the view that the word "assessment" would be more clearly understood by and more in tune with the normal vocabulary of the medical and paramedical profession. I was concerned initially that the original wording would not allow an assessment of this sort to be carried out. I am not sure if there was any reason for not accepting my amendment at the Special Committee and I remain to be convinced — I do not want to delay the House on what seems to be a minor issue — that the phrase I have proposed is less suitable, less appropriate and is not all-encompassing.
The Minister's phrase "medical or psychiatric examination or treatment" would be appropriate in a case where treatment was required within a day or a week. However, an assessment, in the area of geriatrics and psychiatry involves a whole series of tests which could take up to two or three weeks to complete before a final definitive diagnosis is made. I am not satisfied that the amendments the Minister has tabled to delete the words "treatment or attention" and substitute therefor "medical or psychiatric examination or treatment" will cover what we want built into this subsection. The word "assessment" is the most acceptable word from a medical point of view and would encompass all of the connotations involved in its usage. For example, there are now special assessment units in hospitals in various specialities. It can take up to three weeks to have a proper assessment carried out.
From that point of view the Minister might consider withdrawing his amendment in favour of that in the names of Deputy Howlin and myself. Ours is much more specific in medical terms and covers the broader issues involved in assessment.
I think we are splitting hairs here. My view would be that one examines in order to treat and one assesses in order to treat. Therefore, I do not think it really makes any difference.
It is not a matter of treatment; it is a matter of assessment which is fundamentally different from treatment.
I think we could insert the phrase "medical or psychiatric examination or treatment" and possibly also work in the word "asessment"; they are not mutually exclusive or mutually inclusive. I can see merit in introducing the word "assessment" because it can be an ongoing exercise spread out over weeks or months. We could get into semantics at this stage and become very pedantic.
I strongly support the amendment for the reason pointed out by Deputy Fitzpatrick. When it comes to the addition of a word such as "assessment" how could anybody oppose that unless somebody had some particular grievance? Is not that what it is all about: is not assessment the most important aspect, as has been agreed here? Therefore, I support amendment No. 108 in the name of Deputies Howlin and Ferris.
I do not think they are mutually exclusive. In effect one could support one by including the Minister's words and subsequently add the words suggested by Deputies Howlin and Ferris.
I have listened with great interest to the passionate pleas to include the word "assessment". While I am not convinced it would have other connotations, educationally, performance-wise and so on, I am prepared to accept the amendment.
I move amendment No. 108:
In page 14, line 4, after "attention", to insert "or assessment".
May I just say that section 19 (4) would now read:
...which may require the parents of the child or person acting inloco parentis to cause him to attend for medical or psychiatric examination, treatment or assessment.
Is that satisfactory? Agreed.
I move amendment No. 110:
In page 14, between lines 18 and 19, to insert the following:
"(8) On the expiry of a supervision order the health board shall be obliged to return the child to the court so as to allow the court to decide whether to revoke or extend the order."
This amendment, at the Special Committee, carried the number 99 and was referred to at column 570 of the Official Report of the proceedings of 27 March 1990. For some reason it was not debated. The words were changed from "child care authority" to "health board" and there was no substantive discussion on it.
What I am proposing is that, when a supervision order is over, be its term six months, a year or whatever, the matter would return to the court for final determination, whether that be that the relevant health board are seeking an extension of the supervision order or, having gained sufficient evidence, are looking for a care order, but that the matter be brought to finality. It would be a bad thing to have a supervision order and no subsequent decision on the matter. In such circumstances a cloud would hang over the guardians or the parents of the children at issue. Therefore, it is important that it be made obligatory to return the child to the court to allow the court decide whether to revoke or extend the order. This would bring finality to such a matter. In view of the circumstances involved — whether they were mistaken allegations by a health board or were well founded — it is in the best interests of all parties.
In the Bill it is for a health board to decide whether to apply for a further supervision order when the term of an existing one expires. The effect of this amendment would be to take this decision away from the health board. Instead it is proposed that a health board would be obliged to go back to the court so that the court could decide whether to make a further order. I do not believe that such a change is necessary or desirable. It will be the health board who will have to implement the supervision order and, as a result, they are in the best position to judge whether it is necessary to seek a further order. For example, the position in the child's home may have improved to the extent that the health board are satisfied that there is no longer any need for health board supervision. In such a case, under my proposals, a health board would not have to take any action when the supervision order expires. On the other hand, under Deputy Yates' proposal a health board would have to go to the considerable trouble and expense of going back to court, which would probably involve serving summonses on the parents and so on and, at the end of the day, the court may decide not to make a further order.
The arrangements contained in the Bill are the normal provisions that apply to the extension of orders in family law cases. I see no good reason to depart from them.
I support this amendment and suggest that the reasons outlined by its proposer are clear and sensible in so far as if one wants to extend an order one goes back to court and the court takes a decision about it. It could quite easily happen that a supervision order would just peter out, that there would not be any legal, definitive termination of such an order. In many instances, families and the children concerned might well regard it as somewhat of a stigma. To have a natural termination of such an order built into the Bill would be worthwhile. I ask the Minister to consider doing so.
I see the logic behind the Minister's argument in this case, but I am impressed by the argument of the proposer that a supervision order should be in clear defined terms.
Under the provisions of section 19 (6) the maximum period a single supervision order can remain in force is 12 months. We are all aware of the pressures under which health boards operate. We are also aware of the sparsity of social workers employed in health board areas. I could cite details from each health board region but I am sure the Minister has such details to hand.
The fear I expressed throughout this debate is that we are devolving a range of new powers and responsibilities onto health boards which they are not equipped or adequately staffed to deal with. It is a very reasonable fear that a supervision order be carried out by a health board, that they have several to monitor. If things seemed to be going all right they might simply allow it peter out and not be obliged to take a definitive decision at the end of the period. There is great merit in inserting an obligation in the Bill on health boards to have a final declaration made as to the status of the child so that a judge can have the facts placed before him once again, determine that the child needs to be supervised further, and the attendant monitoring continued or now no longer requires such supervision.
There is great merit in the case. I support the amendment.
Again we are talking about hypothetical situations. We are talking about a health board being so negligent that they are going to allow supervision orders to peter out.
No. Social workers in County Wexford——
Not all the people in Wexford need a social worker, as Deputy Howlin well knows.
That is rather flippant.
We are talking about bringing people back into court to allow the court decide whether to revoke or extend an order. In this case where there is a supervision order and personnel from the health board have been monitoring the situation closely over a 12 month period, the decision whether the order should finish at the end of 12 months or whether a further supervision order should be applied for — it is up to the court to decide whether it should be granted — should be made by the health board. All sides of the House are concerned that we avoid putting children into traumatic situations. After 12 months if everything is going well, most of the trauma that brought about the supervision order would have been put behind the child, its parents and so on and matters would be on the way to beig mended, but bringing the child back into court means that all that trouble is raked up again. Evidence might be needed or the health board might be able to say they were satisfied there was no need to continue with the supervision order, but I do not think bringing the child back into the atmosphere where the supervision order was granted is a good idea and I think the Minister is right not to accept this.
The essential point here is that the court is not the complainant. The court is the decision-making body. To bring somebody into court there has to be a complainant. It would be unprecedented for a court of the same jurisdiction to review its own decision, and this is exactly what it would be doing——
It could lift an injunction.
It would be ridiculous if a court, having made a supervision order for three months, were to review the decision it made three months ago to see whether the decision was correct or incorrect. That would not be acceptable. Would the health board not feel that when the child no longer requires the supervision order it is unfair to the child or his family to bring the child back into court again? I cannot support this amendment.
As the debate goes on one's ideas develop. Usually I approve of the word "shall" being included and so I thought on this occasion, until I heard in the debate that it is not necessary, it would be too specific. Deputy O'Donoghue's argument does not stand up. The child is brought to the court by some responsible agency, which is the health board, for the protection of the child. As has been pointed out, we live in an era of grave social problems with so very few people to attend to such problems that there is always the danger that somebody will lapse in regard to attention. If we provide that it is compulsory in such circumstances, then we could be guaranteeing continuity, and that is what we want.
I thank Deputies Sherlock and Howlin for their comments on this. They are absolutely correct in saying there are financial considerations which may play heavily on this factor. I have just read section 19 very closely and it will be, as the House is aware, new law. I am very disturbed by section 19 (2) which provides that: "A supervision order shall authorise the health board to have the child visited on such periodic occasions as the board may consider necessary in order to satisfy itself as to the welfare of the child and to give to his parents...Maybe the court is going to tell the board to do it, and we can see from subsection (4) and so on that a court may lay down all sorts of directions but there is nothing about what is in the jurisdiction of the board. Therefore, I am very fearful that the financial considerations, staff considerations, embargo considerations, restrictions on staff, mileage restrictions, time restrictions, the hassle and inconvenience, that all those factors will play a vital part.
That section was amended in Committee.
In musical terms your backing group adds to the sum total of your case at times. In this case the court is not reviewing its own decisions. The court will make a decision after the expiry of the first decision, so it requires a second——
If there is a necessity for a second period they made a mistake the first time.
Section 19 (6) provides that the maximum period for which they can do it is a year, so what happens in the 13th month? The court would not be reviewing its own direction. Under section 19 (7) a health board are entitled to seek a second period of supervision. They are not reviewing a decision. It is a case of whether a second decision will be taken on it. Arising out of the debate there is a need to have continuity on the one hand or finality on the other hand. Knowing as we all know on the ground how financial and staffing considerations can play havoc with the best intentions of this House, I feel this amendment is essential and I wish to press it.
Amendment No. 111 in the name of the Minister. Amendment No. 112 is related and I suggest therefore that we discuss amendments Nos. 111 and 112 together, if that is satisfactory to the House. Agreed.
I move amendment No. 111:
In page 14, between lines 18 and 19, to insert the following:
20.—(1) Where, in any proceedings under section 7, 8 or 11 of Part III of the Guardianship of Infants Act, 1964, or in any case to which section 3 (3), 11 (b) or 16 (g) of the Judicial Separation and Family Law Reform Act, 1989, relates, or in any other proceedings for the delivery or return of a child, it appears to the court that it may be appropriate for a care order or a supervision order to be made with respect to the child concerned in the proceedings, the court may, of its own motion or on the application of any person, adjourn the proceedings and direct the health board for the area in which the child resides or is for the time being to undertake an investigation of the child's circumstances.
(2) Where proceedings are adjourned and the court gives a direction under subsection (1), the court may give such directions as it sees fit as to the care and custody of, or may make a supervision order in respect of, the child concerned pending the outcome of the investigation by the health board.
(3) Where the court gives a direction under subsection (1), the health board concerned shall undertake an investigation of the child's circumstances and shall consider whether it should—
(a) apply for a care order or for a supervision order with respect to the child,
(b) provide services or assistance for the infant or his family, or
(c) take any other action with respect to the child,
(4) Where a health board undertakes an investigation under this section and decides not to apply for a care order or a supervision order with respect to the child concerned, it shall inform the court—
(a) its reasons for so deciding,
(b) any service or assistance it has provided, or it intends to provide, for the child and his family, and
(c) any other action which it has taken or proposes to take, with respect to the child.
At Special Committee there was agreement that a linkage should be created between this Bill and the Guardianship of Infants Act. This would enable a court dealing with a custody dispute between parents to refuse to grant custody to either parent and instead place the child in the care of the health board or to grant custody to one or both parents subject to the child being supervised by a health board. The amendment before the House gives effect to that but goes further again by providing that such powers will also be available to the court in proceedings under the Judicial Separation and Family Law Reform Act or in any other proceedings for the return or delivery of a child. I think this is a very important development and I trust it is to the satisfaction of all Members.
I move amendment No. 113:
In page 14, to delete lines 19 to 35.
I move amendment No. 114:
In page 14, between lines 35 and 36, to insert the following:
21.—Where on the application of a health board or child care authority with respect to a child who resides or is found in its area, the court is satisfied that the child has or is being assaulted, ill-treated, seriously neglected or sexually abused, the court may make an order under this section whereby the offending adult may be removed from the home and barred from re-entry until such time as the court may deem fit, so as to protect the interests of the child. The court may use such a barring order as an alternative to a care or supervision order.
I move amendment No. 115:
In page 14, line 40, after "determination." to insert "The hearing of any appeal under this section will not postpone or delay the effect of any order, or the renewal of any order, previously made by the court.".
This was discussed in my absence on 4 April at the Special Committee. What is intended in this amendment is that in any appeal in relation to an order under this section, which would be all the care orders, the emergency care order, the care order itself and supervision orders, if someone sought to frustrate the decision of the court they would not have the opportunity of delaying the effect of an order by an appeal. What I am seeking to insert is that the hearing of any appeal under this section would not postpone or delay the effect of any order or the renewal of any order previously made by the court. Obviously the right of any appellant to have the case reconsidered by a higher court on a point of law or whatever is only natural and plain and proper justice. What is at issue here is that I would not like a situation where a decision to take a child into care or to provide for a supervision order would be put off for three or four weeks because someone lodged an appeal. I would not like well paid lawyers or even professional expert lawyers for that matter — who are very capable of boring holes, not to speak of constitutional weaknesses, in legislation — would frustrate the workings of the legislation. I would like clarification from the Minister as to how this appeal procedure will work and the effect it would have on orders before I would consider withdrawing my amendment.
It might be helpful to the House if I began by explaining the purpose of section 21. Normally where a court makes an order and the person affected appeals against it the operation of the order is suspended pending the outcome of the appeal. For obvious reasons this is not appropriate where there is a risk to the health or well being of a child. This section provides that an appeal will not normally delay the coming into effect of a care order, supervision order or access order. It would only be delayed if the court gave a direction to that effect. Even then the court could impose conditions. For example, in an appeal against a care order the court could allow the child to remain at home but grant the health board the right to visit but at home pending the outcome of the appeal.
It is not exactly clear what Deputy Yates is trying to achieve in his amendment. It appears that he intends that an appeal could not under any circumstances delay the operation of the order. This might be going a bit too far and we should depend on the good sense of the courts to decide in each case whether the operation of the order should be delayed.
What is contained in section 21 is the standard provision in relation to the appeals used in family law cases, and I see no good reason to depart from this. I would suggest that Deputy Yates might reconsider the situation and withdraw his amendment.
The Minister sees no good reason to change his script. It is, word for word, what he said in April.
If it was worth saying once it is worth saying twice.
During the sos, I read what the Minister just read. The issue is quite clear. Now that I have the Minister's words in front of me we can digest them more carefully. My section provides that an appeal will not normally delay the coming into effect of the care order, supervision order or access order. It would only de delayed if the court gave a direction to that effect. What I am saying is that, if the court deemed it was proper that a child immediately be taken into care, someone could not frustrate it. It is quite clear from what the Minister said that it is possible for, we will just assume, some very wealthy parents to totally frustrate the court, and that is not entirely satisfactory.
As the Minister said earlier, normally where a court makes an order and the person affected appeals against it, the operation of the order is suspended pending the outcome of the appeal. Can we take it that if normal practice applies to this legislation, all orders will be suspended for the period of the appeal? That is, if normal practice applies. I think, normally speaking, we should do something about this. It is a pity that this was not teased out in the Special Committee because it is clear from what the Minister said that the situation will be unsatisfactory.
I do not wish to take from anyone their right to appeal. I am not against a second opinion on the first decision of the court, but we all know how long a case takes to get to the High Court. If one is appealing it to a higher court it could delay it for months. I think there should be a set of circumstances to deal with this. To just ignore it and not to have a section dealing with this is quite unsatisfactory.
I regret that there was not more debate on this but in view of the Minister's reply I will have to press the matter. I would also ask the Minister for his own sake and for the sake of the children, to have another look at this when it arrives in Seanad Éireann.
The next amendment is No. 116 in the name of the Minister. It is a drafting amendment. I observe that amendments Nos. 117 and 158 are cognate. I suggest, therefore, that we discuss amendments Nos. 116, 117 and 158 together if that is satisfactory. Agreed.
I move amendment No. 116:
In page 14, line 43, before "vary", to insert "renew,".
In our perusal of the Bill after Committee Stage we observed that there was a slight technical loophole in this section. Section 18 (2) enables the court to make a care order until the child reaches 18 years or for such shorter period as the court may determine. The court is given discretion to make short term orders to deal with cases where there may be a possibility that the underlying family problems may be resolved. However, if that improvement does not occur the court must have the power to renew the order for a further period or until the child reaches 18 years. This is what is proposed in these amendments, and I would be grateful if the House would agree.
I move amendment No. 117:
In page 14, line 44, before "vary", to insert "renew,".
I move amendment No. 118:
In page 15, between lines 2 and 3, to insert the following:
23.—Where a court finds or declares in any proceedings that a care order for whatever reason is invalid, that court may of its own motion or on the application of any interested person refuse to exercise any power to order the delivery or return of the child to a parent or any other person if the court is of opinion that such delivery or return would not be in the best interests of the child and in any such case the court, of its own motion or on the application of any interested person, may—
(a) make a care order as if it were a court to which an application had been made by a health board under section 18,
(b) make an order remitting the matter to a Justice of the District Court for the time being assigned to the district court district where the child resides or is for the time being or was residing or was at the time that the invalid order was made or the application therefor was made; and where the matter has been so remitted the health board shall be deemed to have made an application under section 18,
(c) direct that any order under paragraph (a) shall, if necessary, be deemed for the purposes of this Act to have been made by a Justice of the District Court for the time being assigned to a district court district, specified by the court, or
(d) where it makes an order under paragraph (b), make a temporary order under paragraph (a) pending the making of an order by the court to which the matter or question has been remitted.
Recommittal is necessary in respect of this amendment as it involves a charge on the public revenue.
I move amendment No. 119:
In page 15, between lines 13 and 14, to insert the following:
24.—(1) If in any proceedings under Part IV or section 36, 37 or 38 the child to whom the proceedings relate is not already a party, the court may, where it is satisfied having regard to the age, understanding and wishes of the child and the circumstances of the case that it is necessary in the interests of the child and in the interests of justice to do so, order that the child be joined as a party to, or shall have such of the rights of a party as may be specified by the court in, either the entirety of the proceedings or such issues in the proceedings as the court may direct. The making of any such order shall not require the intervention of a next friend in respect of the child.
(2) Where the court makes an order under subsection (1) or a child is a party to the proceedings otherwise than by reason of such an order, the court may, if it thinks fit, appoint a solicitor to represent the child in the proceedings and give directions as to the performance of his duties (which may include, if necessary, directions in relation to the instruction of counsel).
(3) The making of an order under subsection (1) or the fact that a child is a party to the proceedings otherwise than by reason of such an order shall not prejudice the power of the court under section 26 (2) to refuse to accede to a request of a child made thereunder.
(4) Where a solicitor is appointed under subsection (2), the costs and expenses incurred on behalf of a child exercising any rights of a party in any proceedings under this Act shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.
(5) The court which has made an order under subsection (2) may, on the application to it of a health board, order any other party to the proceedings in question to pay to the board any costs or expenses payable by that board under subsection (3).
The question of legal representation for a child involved in care proceedings was raised at Special Committee. I have since been in consultation with the Attorney General in the matter and the amendment now before the House is the result of that consultation. The amendement will empower a court to make a child a party to all or part of the proceedings and to appoint a solicitor to represent the child in any case where the court is satisfied that this is necessary in the interests of the child. It is envisaged that a court might exercise this discretionary power when dealing with an application relating to an older child who is at odds with the health board in relation to the board's plans for him. The court would obviously have to be satisfied that the child has sufficient understanding to instruct a solicitor.
The amendment generally speaking gives effect to a recommendation in the Law Reform Commission's Final Report on Child Sexual Abuse that a child involved in care proceedings should have a right to independent representation by a legally qualified person. Where a solicitor is appointed by order of the court, the costs and expenses, including solicitors fees, incurred will be paid by the health board involved in the proceedings unless the court orders otherwise.
There is a typographical error in the first line. The reference to "section 36" should be to "section 34". Subject to this correction, I hope the amendment can be accepted.
Where is the reference?
In the first line.
Perhaps you would help me on a point of order, a Cheann Comhairle. Amendment No. 119 in the name of the Minister provides, among other things, for a legal advocate on behalf of the child, and the right of the child to its own legal representation. My amendment No. 123 also seeks to deal with this issue. The material dealt with in amendment No. 119 is also deal with in amendment No. 120 which seeks to establish a children's court and in Deputy Howlin's amendment No. 1 to amendment No. 122. To facilitate a general discussion on these matters, I would ask with the agreement of the House, that we arrange some grouping of these amendments so that all the aspects of what would be termed a children's court can be dealt with together. We will be calling a division on these amendments and one vote will cover all the amendments. Perhaps some grouping arrangement could be suggested.
I am sure I am out of order, but I would like to voice my opinion on this matter. This is a complex issue and to debate it on Report Stage will not be easy. In drafting the amendment to the Minister's amendment what I had in mind was to provide for specialist courts outside the normal court sitting and the formality of the normal court environment. I propose that justices should have independent support from experts in the area. This is not a substitution for having specialist trained judges, but is in the same vein. Perhaps we could group these amendments, and I would support a single vote.
What is the number of the Deputy's amendment?
Amendment No. 1 to amendment No. 122. There are a number of amendments that could be grouped.
We are now in Committee Stage and I see no reason the amendments referred to in the names of Deputy Yates and Deputy Howlin cannot be entertained and can be presumed to be recommitted also.
Could my amendment No. 119a be included with those amendments?
Can the Minister give a resume of the amendments to be taken together?
Amendments Nos. 119, 119a, 120, 122——
And its amendment.
I have noted that amendments Nos. 119, 119a, 120, 122 and 123 will be taken together. Is that agreed?
Amendment No. 120 should be excluded.
No, I do not agree. Amendment No. 122 states: "...at a different place or at different times or on different days from those at or on which the ordinary sittings of the Court are held." My amendment No. 120 states: "...known as the Children's Court and hearings of this Court shall not take place on the same day as criminal proceedings." I cannot understand why, if we are taking amendment No. 122 we cannot take amendment No. 120 also.
I propose, if the House agrees, that we take amendments Nos. 119 to 123, inclusive.
What about No. 124?
Does the Minister want to speak on his own amendments?
I want to get this clear: amendments Nos. 119, 119a, 120, 121, 122 and 123 will be taken together.
And amendment No. 1 to amendment No. 122.
Is that agreed? Agreed.
Do I take it that the Minister is the only person who would have a right of reply? If he can outline all his views, say what he had originally intended on amendments Nos. 121 and 122, if he wishes.
I will try to cover all the amendments in my name which are included in this group. When we were discussing amendment No. 75 in relation to independent assessment, I indicated my intention to bring forward a composite amendment to cover the various points raised, particularly by Deputy Yates, who graciously withdrew his amendment at that time.
In amendment No. 119a the court will be given wide powers to procure reports from any person it may nominate in relation to any question affecting the welfare of the child. This amendment mirrors a provision in the Judicial Separation and Family Law Reform Act, 1989, and adequately meets the points made by Deputy Yates. Accordingly, I ask that this amendment be accepted.
In amendment No. 120, tabled by Deputy Yates, I accept that child care proceedings should not take place at the same time as criminal proceedings. We discussed this at the Special Committee and I undertook to look at the matter again for Report Stage. I refer the House to amendment No. 122, in which the new subsection (3) provides that child care proceedings shall be heard at a different time, or in a different place or on a different day from ordinary sittings of the court. I hope that this meets the point raised by Deputy Howlin.
As regards the title of the court when dealing with children, section 11 (1) of the Children Act provides that the District Court, when dealing with care or criminal proceedings in relation to children, shall be known as the juvenile court. The Courts of Justice Act, 1924, provides that such hearings in Dublin, Cork and Limerick are known as the Children's Court. I hope that, in the light of this, Deputy Yates might consider withdrawing this amendment.
I propose to take my amendments Nos. 121 and 122 together. I will deal with amendment No. 122 first. At the Special Committee meeting on 4 April there was some discussion about the need to ensure that child care proceedings are heard at a different place and time from ordinary criminal proceedings. I promised to look at this and I am now proposing the insertion of a new subsection (3) to deal with that matter.
I also propose to avail of the opportunity to insert two further subsections here. The new subsection (4) provides that proceedings in the High Court, arising from the Bill, should be as informal as possible. There is already such a provision in section 25(2) in relation to the District Court and the Circuit Court. Therefore, I am sure that this new provision will be acceptable to all.
Amendment No. 121 extends certain provisions of the Judicial Separation and Family Law Reform Act to proceedings under this Bill. The effect of this will be to prohibit the wearing of wigs and gowns by members of the Judiciary and by barristers in dealing with proceedings under this Bill.
On a point of order, the Minister could also discuss amendment No. 124 because it deals with the same issue.
If Deputy Yates and the House are satisfied I am happy to agree.
Is it agreed that amendment No. 124 be included in this group for discussion? Agreed.
I am dealing with amendments Nos. 119, 119a, 120, 121, 122, 123 and 124. We have given exhaustive consideration to this situation and we have had consultations at the highest level. We have taken the matter to Government and we have got clearance from them and the Attorney General. We have had consultations with personnel in the health boards and we have brought forward three composite and imaginative amendments, amendments Nos. 119, 119a and 122. These are very broad and composite amendments. I thought I would have no difficulty in reaching agreement in the House and we have gone a long way, much further than many people expected. We went much further than the public anticipated in regard to this Bill but we want to ensure that, above all, the primary concern, the importance of the child, is protected in the broadest possible humane and legal way. I would be disappointed if, after all this, Deputy Yates might choose to vote against these very generous amendments.
Is the amendment agreed?
Nothing has yet been agreed.
On a point of information, when the Ceann Comhairle accepted the motion by An tAire Stáit for recommittal, at the same time he put the question that the other amendments would be taken on the same basis. Is that right?
It means that anybody can speak at any time?
I was hoping that Deputy Sherlock, from his experience in the Chair, would not reveal that we were reverting to Committee Stage. However, because amendment No. 119 has been recommitted we revert to Committee Stage and Deputies may speak at any time provided they are relevant.
Does "Deputies" also include the Minister? I am a Deputy first.
The Minister of State is a very special Deputy.
I will try to be relevant. I compliment the Minister of State on amendment No. 119. I — and a number of other Members on this side of the House — had a particular difficulty in regard to the debate on this issue in Committee, particularly in view of the remarks made by the Supreme Court Judge, Mr. Justice O'Flaherty, in which he referred to the question of legal aid and the representation of children in these cases. The Minister, in his amendment, has gone as far as I would have liked him to go. The amendment is eminently satisfactory and I do not see how anybody in the House could vote against it. It is along the lines of the undertaking given by the Minister for Justice in relation to the Bill dealing with rape. This side of the House should be complimented for having addressed this very important issue. It is necessary to have legal representation for a child in certain cases and it should be left to the discretion of the court to decide. There could be cases where a child of 17½ might want legal representation and might dispute what the health board are doing in regard to his or her life. The amendment is a milestone in this sort of legislation and it followed the good example set by the Minister, Deputy Burke, in relation to the Bill dealing with rape. Most of the other amendments are alternatives and the Minister's drafting is probably tighter than previously. I commend the amendments to the House.
Amendment No. 119 represents a new departure and is one of the most progressive amendments to legislation introduced in a long time. It gives an opportunity for a child to be represented in court and this is an extremely important right because, in child care proceedings, unlike other kinds of proceedings, the individual in relation to whom an order is made is the innocent party but his or her future is being discussed and considered. It is an enlightening step to allow a child to be represented. It is even more progressive and enlightening to allow the court in its discretion to appoint a solicitor or legal representative for the child. This is greatly welcomed. Amendment No. 119a is very progressive and lends credence to the statement in the Bill that the interests of the child are paramount. The idea that the court might of its own volition or on the application of any party to the proceedings give directions in order to procure a report from any such person as it nominates, is new, progressive and enlightened. These two amendments are extremely important and progressive.
In relation to amendment No. 124, I do not know how one could assess the sensitivity of a District Court justice.
I will start by asking the Minister to take a bow.
She is praising you.
I certainly commend the Minister on bringing in these progressive amendments. Many people working in the area will be very pleased and may even be surprised.
I think surprised. I am so grateful for the Deputy's generous comments.
I am afraid I will be less charitable.
I know how the lead was set for the Minister when his colleague, the Minister for Justice, took similar action on the Rape Bill. Nonetheless I will not take from this Minister's action or considerable motivation in this.
We operate as a team.
Having complimented the Minister and accepted his amendments, I must pose a question. What about the free legal aid system? We must consider resources. What about the long queues and the great difficulties for people under the free legal aid system? Is this giving a right with one hand and removing it with the other.
The whole area of child representation, a children's court, the quality of courthouses and the need to improve the environment in which these cases are heard and the standard of sensitivity of judges who hear these cases are questions that must be examined. I hope answers will be forthcoming. We have heard the arguments for a children's court for years. I will just quote from The Task Force on Child Care Services of September 1980, to point out what they say they envisage the children's court as being. They say:
S5.3.2 The Children's Court as we envisage it will have three important functions:
(a) filter: referring cases which are not apporpriate to it back to the agency which brought up the case, or to another appropriate agency;
(b) arbitration: holding meetings with children, their parents and other parties, and arranging agreements between them;
(c) orders: considering the case for compulsory intervention and making formal binding orders if necessary.
S5.3.3 Any Children's Court will have the power to affect the lives of children and parents very radically. We are very conscious of the special characteristics of children. As we said in the Main Report, "a child is more impressionable, more vulnerable, more changeable and more liable to being influenced for better or for worse than an adult.
I am sure we all agree with that but it is no harm to restate it.
Deputy O'Donoghue asked how does one decide on the sensitivity of a judge or how does one select judges for their sensitivity. The report also has a very practical proposal on that. They say:
Children's Judges should be recruited by an independent body—
It is a very radical idea but it should seriously be considered.
—such as the Civil Service Commission, or a special judicial commission, from among qualified barristers or solicitors with at least five years' practical experience. Their appointment should be conditional on their successfully completing an appropriate course of studies and practical experience designed to equip them for the specialised work. They should have the same rank and salary as District Justices. We have not attempted to specify exactly how many Children's Judges are required but the number would be of the order 12 to 15:
That is a very practical suggestion which is the closest we will get to achieving a corps of judges who will have the necessary qualifications. I am quite convinced that many of the men and women at present working in the courts do not have the sensitivity or the training for the kind of cases that come up.
I welcome the Minister's amendments and I hope that they will not be nullified by the problems with free legal aid. I support the amendments generally.
What the Minister has done here is to be highly commended. It arose from the Minister's commitment and the commitment of all members of the committee who discussed these sections thoroughly in the Special Committee. However, I will take the opportunity of adding my congratulations to the Minister for his work in this area to amend this Bill. Most of the matters raised by Deputies about a children's court, wigs and gowns and so on, have been met by the Minister and we should welcome that.
What Deputy Fennell said in relation to free legal aid does not arise in the context of this Bill because subsection (4) of amendment 119 provides:
Where a solicitor is appointed under subsection (2), the costs and expenses incurred on behalf of a child exercising any rights of a party in any proceedings under this Act shall be paid by the health board concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or taxed.
That covers the point that the Deputy made. Most of us were looking for an extension of free legal aid when we discussed this case. This is even better in that people will not be caught up in the obvious delays in the system.
I share the view of Deputy Dempsey. I suppose we should not really restate cases. We are not getting the children's court but we are getting something that approximates to them. We have made a very significant advance and I thank the Minister for genuinely taking on board a lot of very good suggestions. Some very good advances have been made in this Bill. I acknowledge that freely and commend the Minister for it. It is philosophically a fundamental change, giving a support, a right and a standing to the child. Legal standing to a child in the courts is very important. I strongly support amendment No. 119 and amendment No. 119a which provides that the court may of its own volition, procure a report. Both of those amendments are very welcome. I do not think they achieve all we want but seldom in life do we get all of what we want. I believe it goes a significant distance down that road and should be given an opportunity to work itself out. When looking at amendments for Report Stage I was of the opinion that it was unattainable to get the children's court. I had thought of putting down an amendment of the type the Minister put forward in his own name. I sought a much more modest suggestion. Some of the suggestions put down as ancilliary amendments in this group could well be encompassed by the Minister.
Amendment No. 120 which states that "...hearings of this Court shall not take place on the same day as criminal proceedings.". That is straightforward. The amendment in my name and that of Deputy Ferris relates to the establishment of a panel of specialist advisers. I gave considerable thought to this amendment because unless we have the specialist corps of trained judges, who would have a specialist expertise in the child care area, as envisaged by the task force report which Deputy Fennell read into the record, there should be some mechanism whereby there would be a panel of expert advice to him which would not come from the health board involved in the case, and who would be available in the health board area to give independent advice. He could say: "I am not convinced of that argument; I want my own advice". Perhaps the Minister would consider that issue in amendment No. 1 to amendment No. 122. The establishment of that corps of advisers could involve three, four, or five individuals who would not be salaried or permanent but would be available to the court system and may or may not be used at the discretion of the justice. This would be a valuable addition in the development of better legal proceedings under this Bill.
Amendment No. 123 is largely superficial, sorry, superfluous — in no sense is it superficial — in as much as it is encompassed in the Minister's amendment. I strongly support amendment No. 124. If we are sufficiently broad-minded it will be possible to select justices on the basis of sensitivity and previous experience in this area. That is eminently feasible and there are ways in which it can be achieved.
We have made a very significant advance in this series of amendments. I thank the Minister for genuinely approaching this issue in a positive and constructive sense and for taking on board the ideology the Opposition put forward and putting it into a better legal framework than I had been able to do on Committee Stage. Perhaps he would go one further step down that road, not to the children's courts — which we will not get on this outing — but to accept one or two extra amendments which would improve the very good proposals he has put down.
In view of the fact that Deputy Howlin has referred to amendment No. 123, whether it is superfluous or superficial is irrelevant, it is out of order.
We have already agreed to take it for discussion purposes.
We may discuss it but it may not be moved.
At this hour of the night brevity would be of the essence. I was going to praise the Minister but my colleagues in the opposite benches have gilded that particular lily more than adequately. What they have said is outstanding and bears out what we thought ourselves.
Thank you Deputy.
To use your own phraseology, the backing group was quite good on this Bill.
I would like to deal with amendment No. 120 in the name of Deputy Yates. I have always been unhappy with the words "children's court" because in layman's language it always had connotations of guilt, whereas the child in this case is definitely not guilty and is the abused rather than the abuser. I would be very unhappy if these cases were tried in children's courts.
Regarding amendment No. 1 to amendment No. 122 is in the names of Deputies Howlin and Ferris. The problem is that most specialist advisers in this area are employed by health boards or voluntary groups subvented by health boards or the Department of Health.
They could be from another health board area.
In a small island, such as Ireland, one would have to go abroad to get them. In relation to amendment No. 124, the obvious answer is that we should go to Kerry for judges of such sensitivity and delicacy of tact.
We have many of them.
It appears that County Kerry is fairly well represented on the Judicial benches and they appear to be giving a satisfactory service all round.
I have been listening to the debate in my room. This amendment was one on which I contributed at the earlier stages. I recall having a very lively discussion that day about the capacity of children to express views from a very early stage, particularly in relation to such vital matters as who might care for them whether on a voluntary or involuntary basis. I welcome very much the substantial moves which have been made. Is Deputy Yates's amendment out of order because it imposes a charge on the Exchequer? If the Minister's amendment is all encompassing, does that not cover the extra charges involved in Deputy Yates's amendment or is it simply because Deputy Yates's amendment is providing for more extensive powers and a more general provision? This may be a minor point but not in the context that the Minister has gone a great distance——
The simple fact is that the Minister has power and the Opposition has not. That is the hard fact of life.
I understand that.
That is only a temporary reality.
That is the position as of now.
The Minister has already covered the cost in his amendment but I was concerned that his amendment was too narrowly framed whereas Deputy Yates's amendment is more general, and possibly more expensive but it is clearer. It will take some time before we know how cases are affected under the powers given in the Minister's amendment, and how courts will act. I suppose we can rely on the commitment of lawyers to make sure that children are aware of their entitlements.
This is a major step in this area, and I welcome it. It is doubly important, not just for the powers it gives but because it brings children to the centre, and their rights, desires and views on the matter are treated much more seriously. I hope, through our discussion of this Bill we have moved a good distance in relation to children, who up to now had been seen as passive figures, pawns in the context of making decisions. We were concerned about them but we considered them as people for whom decisions were made but we are now moving to a position where the children are seen as much more central in these issues, are being respected a great deal more and are involved to a greater extent.
The order requires that at 10 p.m. I ask the Deputy in possession to move that consideration of the Bill on Report be adjourned.