Debate resumes on amendments Nos. 119 to 124, inclusive. Deputy Mary Flaherty was in possession. We have a large group of related amendments which are being discussed together — Nos. 119, 119a, 120, 121, 122, amendment 1 to No. 122 and 124. I am sure Members are conversant with precisely the stage we have arrived at.
Child Care Bill, 1988: Report Stage (Resumed).
Bill again recommitted in respect of Amendment No. 119.
Debate resumed on 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).".
—(Minister of State at the Department of Health).
I have more or less concluded. I have recorded my welcome for the extent the Minister has moved in providing their own legal representation for children, but I regret he has not moved as far as Deputy Yates wished in his amendment which was ruled out of order.
One of the important issues raised by one of these amendments is the selection of judges and how we can ensure that judges dealing with child care and other family cases have sensitivity and experience. While we are trying to touch on it in this Bill, it is clearly a matter that needs further and more direct attention.
This is one of the critical areas of the Bill. We have dealt with barring orders for adults and with the major issue of mandatory reporting. This is the third major issue in this legislation, the need for a proper children's court structure. We already know that the District and Circuit Court structures are incapable of applying little more than judicial roulette to the sensitive conveyor belt type of family cases they have before them.
In our amendments — which concur with amendments in the names of Deputies Howlin and Ferris — we are proposing that a new structure be established. I bring to the Minister's attention particularly the proposal made by the Child Care Coalition that we set up a guardian ad litem system. This is to allow the courts to have a panel of experts available to them who will be called “guardians ad litem”. These are court appointed professionals who have a specific and independent role in relation to children who are the subject of court hearings. The main purpose of these guardians is not to have a therapeutic role but rather to specifically serve the purpose of court hearings.
We have an adversarial as opposed to an inquisitorial legal system and the interests of parents and children and professionals working in agencies tend to compete. We are proposing that guardians be appointed and operate independently with the right to work with children individually and meet all relevant parties to the case. This is the case in other countries. Guardians first came to prominence in the UK when it was found necessary to protect the interests of children who were going for adoption because of competing interests of adoptive and natural parents.
Some months ago in the new Judicial Separation Bill arrangements were made to provide professionals to report to the court. However, there are two deficiencies in this. First, it does not take into account other child welfare cases such as the proceedings under this Bill. Secondly, it does not cover the costs. In amendment No. 119 the Minister is allowing for a limited provision of access to a solicitor, and I welcome that as far as it goes. However, I believe there is a strong case for a judge appointing a guardian to protect the interests of children in such cases.
To date we have a lack of a tradition of use of guardians ad litem. While there is provision where a judge can appoint a solicitor to act as guardian in very limited cases, such as a road traffic accident, it is not satisfactory. I do not want to go on into this in depth although I could do so. But I feel this is what is aimed at in amendment No. 123 which provides that the child shall have “at its disposal a range of professionals to give evidence on behalf of that child”. Amendment No. 1 to amendment No. 122 in the names of Deputies Howlin and Ferris serves the same point. It provides that “A panel of specialist child care advisers shall be established in each Health Board area and shall be available to give expert and independent advice to justices hearing proceedings....”
This coupled with the establishment of children's courts which would have specialised judges with specialised training and skills, as opposed to the present situation of a voluntary interest of judges in this area, means we will have the first development of a proper family court structure that could be extended into every other area of family law. We will be challenging a vote on this point of guardian ad litem. There is a need for a panel of special advisers because that is a critical area where expertise can be brought in.
As a person who has had direct experience in two District Court hearings earlier this year as a witness, I can say that the courts are totally unsatisfactory. I have no problems with the competence of the district justices who deal with everything from parking tickets to family cases to criminal cases. The work they do is amazing but the facilities in the district courts where criminals have to queue up with witnesses and others is simply appalling. As I am sure our legal friends will admit, there are many harrowing circumstances. That is not the fault of the district justices but we need a separate structure to deal with family cases. We will be challenging one vote on this package, but the issue is clearcut. The Labour Party, The Workers' Party and ourselves have a clear picture of what we want to achieve.
I cannot understand how Deputy Yates is challenging a vote on these sections because these are probably the sections of the Bill in which the Minister has gone furthest. Last night I complimented the Minister and his advisers, and I know that the Attorney General was involved in drafting these amendments to take care of some of the queries and problems some of us had on Committee Stage and here. I referred last night to what Supreme Court Judge O'Flaherty said in a case involving the Children Act 1908, that there should be some provision for legal representation for children. The way the Minister has achieved this is appropriate. To give a child an absolute right to legal representation in all child care cases is probably unnecessary. A child of from three to five years would not really need legal representation if we accept that in all cases the health board would have the interests of the child as their paramount consideration. Where a child of from 17 to 18 would have his or her own opinion as to what was to be done in the court about him or her it is preferable that the section leave it to the judge to decide in what circumstances he sees fit that legal representation be given to the child.
The other element of the section relates to legal costs. I spoke to the Minister and other Members on this side of the House since the last Special Committee meeting. If we give representation to children we have to give them the means to pay for it. It is inconceivable that a child of 17 would be able to afford representation in court. Some mechanism had to be devised. I understand there was a proposal to tie this into the free legal aid system. I can fully appreciate the difficulty there because it is a different Department. Probably the best solution would be to make the health board responsible for the cost, or alternatively to give the justice discretion, in some circumstances, to charge the cost against other people.
Deputy Yates made a point about a professional body of witnesses being available. Amendment 119a takes care of all the circumstances that would arise in cases to do with child care. It gives a discretion to the justice to call whatever witnesses are necessary or to ask for further reports. That happens in most legal cases particularly in relation to children. The justices ask for and get reports.
Deputy Yates referred to the harrowing circumstances in district courts. My experience in the area of family law and child care is that justices are well aware of the sensitivity of these cases and they ensure that the families of the children do not have to mix with the criminal element in the District Court.
In relation to amendment 119, it is very important to give legal representation to a child and to pay for it. In cases where there is a single parent family and where the parent has in some way abused the child, it is very important that there should be, particularly for the older child, legal representation available because the child would not have anyone to turn to. They would not be able to turn to the health board. They would not even know these people, except perhaps the social worker. They would not be able to turn to the parent because the parent would be the alleged abuser. It is important to allow some element of legal representation for the child. The Minister and his Department are to be congratulated for the forward step in this area.
I thank the Minister for submitting amendments Nos. 119 and 119a. These amendments to a large extent address some of the problems we in the Opposition had with this section. The amendments go a long way towards addressing the concept of a children's court.
I share Deputy Fitzpatrick's view that a children's court is not the correct name because we are not trying children. We are trying to protect their interests. I accept that for the purposes of a hearing in relation to an abused child the health board act as parents or guardians in the interim period when they have sought an order for either care or supervision. During the trial period the health board acting as parent or guardian had the power to pay for legal expenses of the child. That is a major step forward. It is refreshing to find a Minister at this stage of the Bill going that far down the road to ensure that children at risk and the need of legal assistance for them are catered for. Subsection (4) of amendment No. 119 reads:
... 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.
That means that the health board are obliged to seek and pay for legal assistance. This is a backdoor to free legal aid which takes into account the difficulties people have in seeking free legal aid because of staffing and financial problems.
Amendment No. 1 to amendment No. 122, seeks to set up a panel of specialist advisers in the child care area. We envisage that that would be helpful to the Judiciary. Deputy Yates suggests in amendment No. 124 that a panel of district justices should be selected on the basis of sensitivity and previous experience. Pending the appointment of those district justices, or indeed the formula suggested by Deputy Fennell, Deputy Howlin and I feel that there should be specialist advisers available in the event of a district justice requiring such advice or assistance. It would not be obligatory on the district justice to call on these people but we are anxious that the panel be available.
In the Minister's amendment No. 119a he provides that a court may, of its own motion or on the application of any other party to the proceedings, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child. That is the same concept we have in mind but we are anxious to have the panel set up in the event of it being requested.
Deputy Fitzpatrick said that these experts are normally health board employees, perhaps in health board area outside the area where the case is being held. Surely within the Department of Health or indeed in the Law Reform Commission, experts who would advise and compile reports for the Minister and make their views publicly known on these subjects. There are people who specialise in this area and I am quite sure they would be honoured to be considered for a panel which would be available to justices. That is all we are asking in amendment No. 1 to amendment No. 122.
This would not be another bureaucratic structure and there would be no question of paying somebody who may never be asked for their advice. It is a question of designating people who would give their services or advice, if required, and in that event they would be paid a stipend. We want to make sure that these people are available if they are required, and I think the Minister had this in mind in his amendment No. 119a.
Perhaps, as this part of the Bill is recommitted, the Minister will have an opportunity to consider our suggestions, and there may be no need for a vote on this section if we can reach agreement. The Minister has been so forthcoming up to now in other sections that he might be able to satisfy Deputies on all sides of the House, including Deputy Yates, who has a commitment to ensure that this Bill is the best possible before it is guillotined at 7 p.m. today. We hope the Minister will be forthcoming in this regard.
This is a very important part of the Bill dealing with jurisdiction and procedure. Section 23 requires the court to have regard to the rights and duties of parents and to the welfare of the child as the first and paramount consideration in any proceedings in relation to the care and protection of the child. Section 24 requires the District Court and the Circuit Court on appeal to have jurisdiction to hear and determine care proceedings. Section 25 provides that these proceedings will be heard in private and will be as informal as possible, and that is very welcome. That procedure will be very important in the implementation of the legislation, but experience shows that what happens in practice is very different.
Recently in my area of Cork there was a long delay in finding a district justice to hear an inquiry and there are many other cases about which one could go on at length. There is going to be a problem in this area. As regards the amendment proposed by Deputy Howlin and Deputy Ferris, it is inevitable that such a body, perhaps called a review body, be established by the health board. Within each health board there are many different sections. Again, from experience one finds there is a lack of co-ordination in health boards but we do not blame them because it is due to their volume of work. They do not have time to plan or co-ordinate the policies that should be implemented.
I favour very strongly this amendment. The review body need not necessarily be a statutory body but would have functions of overseeing the problems of children in care, supervision orders and so on. At the outset I outlined the importance of this section but without such a review body I would see major problems arising. We are dealing with a legal minefield, and a review body of that nature would help to co-ordinate the work.
I have always been an advocate of some change in the courts system, especially in relation to the very sensitive area of dealing with children. I spoke on Committee Stage about the excellent system in Scotland. The Minister deserves great credit for the innovative amendments he has brought in and the Bill deserves more praise than it has received from the outside world.
The suggestion that a child would have representation is very important. For instance, where a child of 15 or 16 years is living at home and his parents find him too much to handle, the health board may decide that it would be in his best interests to take him into care. The child will see that the health board is working on behalf of the parent, although that may be a fallacy. He may feel he has been unjustly treated and that he has had no say. This provision will definitely go a long way towards alleviating those fears, and therefore, very important. I know of several cases in my health board area and perhaps the problems would have been diminished if such a provision was in place. I am glad to see that the cost factor is being considered in the Bill. We are all aware that if people have not enough money they may be left without representation, and that is very unfair.
As regards the Opposition amendments which propose the establishment of a board of advisers, we should not be too restrictive as regards a justice and his access to reports and expert advice. Amendment No. 119a covers the points raised in the amendment proposed by Deputies Howlin and Ferris in that it directs a court to give directions "as it thinks proper to procure a report from such person as it may nominate on any question...".
The court may be able to nominate experts, perhaps outside health boards. I appreciate what Deputy Fitzpatrick said, that many experts are attached to health board areas but the courts would have access to outside advice. There are many experts working in educational establishments and voluntary organisations.
In relation to amendment No. 124 tabled by Deputy Yates, if you are not in the legal field and have not worked within the court system you might feel that it might be necessary to choose a district justice, someone who would have had experience in family and child care. I do not know how district justices manage as they have to deal with anything from parking fines to the family courts. I commend them for doing away with the court formality in a children's court. Everybody is nervous going to court but, in that kind of area, the district justice has done a lot.
I appreciate Deputy Yeats's point that a district justice should be sensitive to the issues brought before him — or her — but it is very difficult to choose someone. "Sensitive" could mean many things and it is very difficult to ascertain what a "sensitive" person is. It means different things to different people. I know that most of the people who work within the family court system have a lot of experience in that area and most district justices are familiar with the problems and keep themselves briefed. After all, you can be sensitive to a situation but you might also have to make a harsh decision in the best interests of the child. A personal viewpoint cannot influence a decision.
I still feel as good about the Minister's amendments as I did last night. I commend him on introducing them and I do not think there is much difference between us in what we are trying to achieve. Deputy Coughlan said it would be difficult to select "sensitive" district justices. Recently, when speaking about a proposal for reform, somebody said we should emulate the American system where a Senate Selection Committee examine the credentials of various applicants. Maybe that only applies to Supreme Court or High Court Judges — they have been men in America——
What about Judge Sandra Day-O'Connor?
Very well, men and women. At any rate, their attitudes to sensitive areas are checked, maybe that is the way we should look at the problem. It is obvious that the desires of people to move towards a structured family court and children's court system will not be solved overnight. It will be done by small reforms and changes. We will not get another opportunity for a long time to reform and change this area and that is why it is important to give time to those two amendments to make sure that, when we pass this section, it has all the provisions we possibly need.
In courts in the United Kingdom specialised people in the whole area of child psychology, child rehabilitation, theraphy, marriage breakdown and mediation are very effective in helping to make decisions at court level. Given the Minister's commitment to the section and the changes he has brought in, I hope he will go a little further along the road. When we talk about changing the system we must also look at the buildings, the environment in which these cases are heard. I will not labour the point because I do not want to hold up the debate, but resources are needed to update cour-houses.
Deputy Sherlock gave a graphic description of the courts in this area with people crowded in corridors in damp, grim, bleak buildings, which were more suited to Victorian times. What is the role of the Minister for Health in this legislation? When money is being discussed the Minister of State will not be sitting at the Cabinet table, it will be the Minister for Health. There is a need for substantial spending in this area and there should be provision for resources in the budget. The Minister for Health should be here listening to Members and contributing to this very important Bill. I question his contribution and role in terms of spending needs.
I hope Deputy Fennell was not calling the commitment of the Minister of State, Deputy Treacy, into question.
No, no.
I know the Minister for Health has been very involved in this and Members on this side of the house had a number of meetings with him and the Minister of State in relation to this matter. Both Ministers are fully commited to it but the Minister has the brief.
Amendment No. 119 — subsection (5) of the new section — may cause a difficulty from a practical point of view in relation to apportionment of costs in a court case where the health board are given the power to apply to the court to pass on the cost to some other party. There may be a problem in passing it on to one or more parties and, even in the case of one party, maybe that party would not be obliged to pay all the costs. Perhaps the Minister could bring in something on the lines of "pay to the board any costs or expenses or portion thereof payable by the board". He should also consider the point regarding one or more parties being involved.
Is Deputy Yates opposing the fact that the Minister is giving legal representation to children in child care cases and the right to costs?
The Deputy misunderstood me.
I am motivated to speak again, although I contributed last night, on this group of amendments because the tone of the debate has altered somewhat, which is a pity. I should like to restate my deep appreciation to the Minister of State for his approach to the attitude of, not only Opposition Deputies, but to the majority of Deputies who wanted to fundamentally change the atmosphere in which proceedings in relation to children were taken.
We had hoped to achieve more dramatic results. We wanted to establish children's courts, separate and completely different from the normal court, with a different panel of judges and justices presiding who would be expertly trained and be totally informal with none of the normal trappings of the Judiciary. We did not achieve that, but, frankly, as I stated last night, we have gone further down the road than I had anticipated we could go. For that I am very grateful to the Minister of State.
Amendments Nos. 119 and 119a are extremely good and I heartily welcome them. They give support to the child; they give independence and legal representation to the child. There are some funding aspects included to allow for a procedure to circumvent the waiting list for legal aid. A further amendment in the Minister's name does away with the gowns and the trappings that I think should be done away with in all court cases.
The only argument remaining, because I think we have built a broad consensus, is for the extra couple of steps we can go towards attaining the ideal, and I think they are reasonable. We will not have a panel of independent judges and justices who are specifically trained in this area. It is a reasonable request — and the Minister has touched upon it himself somewhat in amendment No. 119a — that at least there would be a panel of experts available to advise the justice who would be independent of the proceedings before him, who would not have a vested interest but would have an expert knowledge in the child care area to advise the justice and give direction and assistance to him in relation to his decision. It in no way compromises his independence. It was suggested by Deputy Coughlan that it would somehow put pressure on the judge. The justice could have regard to the recommendations and could decide whether to have their advice taken into account at all. That would be one further step on the road.
Deputy Yates's amendment No. 124 is a further step, and a welcome one. We can build barriers if we like and say it is impossible to select people on the basis of sensitivity and previous experience. Deputy Fennell last night indicated the Task Force on Child Care considered that it was possible and that there are other mechanisms that could be found — she suggested another one this morning — if we were committed to doing that.
I do not want to lose sight of the fundamentals. We have come a long way towards achieving our goal and for that I applaud and congratulate the Minister. Let me say on a personal note that I am glad it is the Minister of State, Deputy Treacy, we are dealing with and not his senior Minister because we seem to be getting more ground conceded. I think he is approaching this debate on the basis that he is not the fount of all wisdom and that the process of making law is a collective process for this House. Sometimes Ministers come in here with the view that they are the law-makers and that it is a sign of weakness if they concede. That has not been the experience all of us have had in the many months we have been involved in this Bill and for that I am grateful to the Minister of State.
In conclusion — and I hope we can bring this section to a conclusion and not go back to Committee Stage again — I am asking the Minister of State to reflect on all that has been said not only during this brief Report Stage but at the Special Committee and see whether he could take those extra few steps.
I will not delay the passage of this section for long. I want to record my appreciation of the sections introduced by Minister Noel Treacy and acknowledge his openness and commitment to this Bill. We have all found it a learning and, indeed, a pleasurable experience working in Committee and on Report Stage as a result of that sense of co-operating and working together.
So much has been introduced already but we still have so much to learn from other models. Deputy Coughlan is quite right when she said we could all learn a tremendous amount about court proceedings from the Scots. They have a panel of professionals that the child could recognise as supporting him and not sitting in judgment on him. That was a tremendous breakthrough. That was then integrated into the new British Children Act, 1989, following some terrible cases where as a result of a fall down in information and co-ordination, children actually died. People belatedly looked to find where the loopholes and the gaps were and set up a specialist panel with a guardian appointed.
As Deputy Howlin says, a specialist panel could be there to serve when needed and could be of tremendous support psychologically and emotionally because, as Deputy Coughlan pointed out, one of the greatest difficulties children have is this sense of isolation, of the whole world being against them, of the establishment being against them, and they need to know that there is somebody objective and professional there rooting for them. That is of the utmost importance. When we have reached so much agreement and have gone so far down the line on this section, it would be tragic if we could not agree to have a panel of specialist child care advisers available to give evidence on behalf of the child, as suggested by Deputies Yates and Howlin. They will probably not be necessary in every case but it would complete all the functions and powers we are asking for in this section.
Let me throw in my tuppence worth with regard to the judges because this has long been a hobby of mine as well. The French method is to choose law students from law schools who wish to go forward to become judges and they have a three year period of training at a special college in all the specialist areas that they would like to work in after they are qualified. While we have not debated that here fully yet, it is something we should look at with regard to children's courts and the whole area of law reform as we are becoming a much more complex, sophisticated and compassionate society. That is another way that we could find the sensitivity and the specialist skills we are asking for from judges.
I think brevity would be appreciated. We have been discussing this Bill over the last 12 months. For me it was a learning experience. I went in thinking I knew a lot about child care and came out humbled.
There were three great themes that we have debated over the last 12 months. One was in regard to central versus local control in regard to child care. I hope we got the mixture right on that. The relationship of the health board, vis-à-vis the justice who would be dealing with the legal aspects, was another. I hope we got the mixture right. We have come to the last great theme and it is the specialist versus the generalist attitude towards child care, especially as it works its way through the courts.
All the amendments from the Opposition come down on the specialist line of thought, that specialists would treat the cases better, more humanely and, perhaps, the child's interest would be better served by obtaining specialist advice. There is nothing in the Bill to prevent a justice seeking specialist advice. In fact, I would hope that the justices handling these cases would feel free to seek specialist advice from those working in the fields. Generally, I go for a well rounded broadly based background man or woman sitting on the bench. My experience is that specialists normally develop tunnel vision over the years and they see only the immediate problem without drawing back and getting a full picture of the child in his environment and background. Deputies opposite may say, "This is your background, you come from the general practice side".
A person dealing with a case must have a broadly based education background without necessarily having specialist knowledge and the other vital component that must be brought to bear is commonsense. We can have highly educated people, highly trained specialists, on the bench dealing with these cases but if they do not have commonsense the whole future of the child is in serious trouble.
On a point of order, we are in some difficulty regarding the position in which the Whips have placed us. We are now on section 24, there are 68 sections in the Bill and we have to conclude the debate by 7 p.m. There will be a sos and Question Time. I propose, therefore, with the agreement of the House, that we consider completing up to section 39 the end of Part VI, which deals with care issues by 1.30 p.m. That would leave us to deal with supervision of pre-schools after lunch and take us up to amendment No. 159. We are now debating amendment No. 119. There are many important issues to be discussed.
Very briefly, I support what Deputy Yates has proposed. Regarding the technicalities, I wonder whether it is necessary to bring in an order of the House and, if so, will it be on the basis of only amendments in the name of the Minister being taken if we have not reached them? I am rather suspicious of that. How is it proposed to do this? Will it be by way of concluding the section up to the end of Part VI and only ministerial amendments being adopted?
That is the standard practice.
I agree to that.
I am in the hands of the House and I agree to progress it as quickly as possible. I would like to respond to the long debate we have had on these issues.
Before the Minister responds may I make a brief point in case there may be a misinterpretation of what I said earlier. I want to make it clear that the Minister of State, Deputy Treacy, has been exemplary and has created a very good atmosphere. I was not criticising his role but trying to promote him to Cabinet.
I am sincerely grateful.
Regarding the point made by Deputy Yates, we will need to meet at 1.30 p.m. to sort out the procedure for concluding the debate so that all sections will be covered.
Is what I have proposed agreed?
I heard the tail end of what the Deputy proposed but in so far as there would be agreement among Deputies I could not disagree.
Perhaps we should refresh and restructure ourselves when we have disposed of these amendments. I am very grateful for the warm contributions that have been made on these amendments. We have had a long discussion, both in the Special Committee and in the House, on the composite group of amendments.
The question of legal representation for a child involved in care proceedings was one of the major topics we discussed on Committee Stage. I have had several consultations on this matter to achieve what is proposed here. These consultations were personal, private, legal, public, departmental, official, parliamentary, ministerial and governmental. After all these deliberations this is what we have brought forward. I want to assure Deputy Fennell, and the House, of the very detailed, personal commitment given by the Minister for Health. He was always supportive. He met me, and some of my colleagues on a number of occasions and he met my officials on many occasions. We had major difficulties in trying to find a legal way in which we could encompass what we have proposed. After we had due discussion with the Attorney General and his staff, for which we are grateful, the Minister took the proposals to Cabinet and got clearance for them. We have the full imprimatur of Government and the Minister. As Deputy Ahern has said, I have responsibility for this legislation and I have special responsibility within the Department on a Government order. The Minister for Health is not here and that is the only reason he is not.
Amendment No. 119 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 dealng 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 solicitor's fees, incurred, will be paid by the health board involved in the proceedings unless the court orders otherwise.
Deputy Fennell raised the question of the free legal aid scheme. I would point out that in my amendment No. 119 the legal representation to be afforded to children will not be provided through that scheme. There is a technical reason for this, children under the age of 18 years are not covered by the terms of the free legal aid scheme. What we have provided is that the cost of legal representation provided by the court under amendment No. 119 will be paid by the health board. Thus the question of the legal aid scheme does not arise here. I am sure the House will be happy with that.
Under amendment No. 119a before the House 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 is similar to a section in the Judicial Separation and Family Law Reform Act and in my view meets adequately the point being made by Deputy Yates in his amendment.
Deputy Howlin raised the question of the children's courts and Deputy Yates has included it in amendment No. 120. The introduction of legislation to provide for children's courts would be a matter for my colleague, the Minister for Justice. While I can see many merits and advantages in such a development, I would not be happy to delay the passage of this much needed Bill to await the possible establishment of family courts. If, at some stage in the future, a system of family courts were to be set in place, it would be a relatively simple matter to transfer jurisdiction in relation to child care proceedings to a family court but this would necessitate a major amendment to the Courts of Justice Act, 1924, for which I would have no responsibility.
Amendment No. 121 contains certain provisions which will be to prohibit the wearing of wigs and gowns by members of the Judiciary and by barristers when dealing with proceedings under this Bill. The new subsection (4) contained in amendment No. 122 provides that proceedings in the High Court arising out of 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 so I am sure that this new provision will be acceptable to the House.
In response to amendment 1 to amendment No. 122, which has been tabled by Deputies Howlin and Ferris, I would ask the Deputies to appreciate the significance on what amendment No. 119a provides for. It gives the court a wide ranging power to procure a report from any person it considers appropriate in the particular circumstances of the case before it on any question affecting the welfare of the child. Equally importantly, it gives any party to the proceedings the right to request the court to procure a report from any person nominated by that party. In addition it will allow a party to the proceedings to call the person who prepares the report to give evidence to the court on the question at issue. Not alone can they produce a written report which the court can consider but the court in its wisdom, or even at the request of another party, can have the professional person who prepared the report called before it to give oral evidence and verify the written report they have presented.
Amendment No. 119a would enable the justice to call on the services of an unlimited number of persons with expert knowledge in child care. This is essentially what Deputies Howlin and Ferris are seeking to achieve in amendment No. 1 to amendment No. 122. However, my amendment goes even further in that it will also allow a party to the proceedings to ask the justice to call on the services of such specialists.
In line with what Deputies Howlin and Ferris are requesting I will ensure in all consultations with the health boards and in the preparation of guidelines for them that they are advised of the need to have a core of professional staff available in a District Court area and who could be called to any part of the country. The difficulty with the amendment proposed by the Deputies is that they have not specified whether it is the court, the health board or the State who shall provide the specialist group. There is a slight technical defect in the amendment. That broad latitude will be encompassed in the guidelines which we hope to agree with the health boards.
I have to say that I am astonished at Deputy Yates' attitude to this whole issue. As I said last night, this matter was addressed at the Special Committee and at that time I was unable to meet the wishes of many Deputies. However, as I said earlier I have consulted widely on the issue in the meantime. Once I was convinced of the merits of the case I worked tirelessly together with my officials to ensure that children at risk, which is what the Bill is about, would have the maximum protection possible. I am satisfied that this is a major and imaginative step forward in our legislation. I want to thank the Deputies on all sides of the House who have acknowledged this fact. I was very gratified by their remarks.
What we are debating here is one of the most caring and imaginative pieces of legislation to have come before this House in a very long time. During the past few days the Government and I have been attacked by some Deputies for not being progressive enough in some areas of the Bill. I do not accept that allegation. This provision has been acknowledged by most Deputies as very progressive but Deputy Yates, in particular, cannot accept it. Instead he has put down a number of amendments, as is his right, and is calling for a vote. I do not think his attitude reflects the consensus of shared acceptance or the warmth of the welcome which had been expressed by Members on all sides of the House for this provision. I believe it would be better if there was agreement by all sides to accept the proposal rather than having it voted through by way of a division. In the interest of the children of the nation and of good law there should be unanimity about the amendments we have brought forward. They are not my amendments; they have been brought forward as a result of joint collective efforts with the best expert and legal advice available and with governmental approval. In the interests of the children of the nation we should agree to accept the amendments.
Does Deputy Yates wish me to put the question?
There is a whole series of questions.
Amendment, as amended, agreed to.
Amendment reported.
Can I make one point before Deputy Yates comes in? I should like to draw the attention of the House to a minor technical error in amendment No. 119a. The word "either" in the first line of subsection (5) should read "any". I hope the amendment can be agreed, subject to this correction. I move amendment No. 119a:
In page 15, between lines 13 and 14, to insert the following:
24.—(1) In any proceedings under Part IV or section 34, 37 or 38 the court may, of its own motion or on the application of any party to the proceedings, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child.
(2) In deciding whether or not to request a report under subsection (1) the court shall have regard to the wishes of the parties before the court where ascertainable but shall not be bound by the said wishes.
(3) A copy of any report prepared under subsection (1) shall be made available to the counsel or solicitor, if any, representing each party in the proceedings or, if any party is not so represented, to that party and may be received in evidence in the proceedings.
(4) Where any person prepares a report pursuant to a request under subsection (1), the fees and expenses of that person shall be paid by such party or parties to the proceedings as the court shall order.
(5) The court, if it thinks fit, or either party to the proceedings, may call the person making the report as a witness.
Amendment agreed to.
I move amendment No. 120:
In page 15, line 16, after "Part III or IV" to insert "and when hearing cases under these Parts shall be known as the Childrens' Court and hearings of this Court shall not take place on the same day as criminal proceedings.
Amendment put and declared lost.
I move amendment No. 121:
In page 15, to delete lines 23 to 25 and substitute the following:
"(2) The provisions of section 33 (1), 33 (2) and 45 of the Judicial Separation and Family Law Reform Act, 1989, shall apply to proceedings under Part III or IV as they apply to proceedings to which these provisions relate.".
Amendment agreed to.
I move amendment No. 122:
In page 15, between lines 25 and 26, to insert the following:
"(3) The District Court and the Circuit Court on appeal from the District Court shall sit to hear and determine proceedings under Part III or IV 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.
(4) Proceedings before the High Court in relation to proceedings under Part III or IV shall be as informal as is practicable and consistent with the administration of justice.".
Does Deputy Howlin wish me to put the question on his amendment No. 1 to amendment No. 122?
In view of the Minister's response I will not be moving my amendment.
Thank you, Deputy.
Amendment No. 1 to amendment No. 122 not moved.
Amendment No. 122 agreed to.
Amendments Nos. 123 and 124 not moved.
Perhaps Deputy Yates would refresh our memories on his proposals for a structured grouping of amendments to ensure that we complete all amendments before 7 p.m.
Before Deputy Yates does that, I want to say that it would be helpful if he would indicate, bearing in mind that we are on Report Stage, the amendments rather than the sections. Was a suggestion made that we complete all amendments up to amendment No. 159?
Yes, it was suggested that we deal with all amendments up to amendment No. 159 to section 39 in Part VI at a minimum. In other words, we will resume after the sos with Part VII which deals with the supervision of pre-school services.
I think we can tentatively agree that we aim at completing all business up to amendment No. 159 by 1.30 p.m. Is that agreed?
Hopefully we will have a debate on each amendment.
Is the proposal that we dispose of all business up to amendment No. 159 by 1.30 p.m. agreed? Agreed.
I move amendment No. 125:
In page 15, lines 26 and 27, to delete "or IV" and substitute ", IV or VI".
This is a technical amendment to extend the provision of section 26 which will enable the court in certain circumstances, in proceedings under Part VI, to hear a case in the absence of a child. The proceedings in question are those under the following sections: 34, removal from foster or residential care; 37, recovery of children in care and, 38, application for directions. I hope that this amendment will be accepted.
Amendment agreed to.
Amendment No. 126 in the name of Deputy Yates has already been discussed.
No, it has not.
Was it not taken with amendment No. 89?
No. May I suggest that it be taken in conjunction with the Minister's amendment No. 136 because it deals with access to children in care.
Amendment No. 136 has already been discussed.
I move amendment No. 126:
In page 15, between lines 36 and 37, to insert the following:
"27.—Where a child is in care it shall be the duty of the health board to allow the child maintain contact with his brothers, sisters, relations and friends and to facilitate visits of the parents should the child so wish.".
This amendment goes further than the Minister's proposal by providing for access to children in care by other family members, such as brothers, sisters, relations and friends. It is important to maintain the maximum possible family and personal contact with such children who may feel isolated.
This matter was discussed at the Special Committee on 4 April. At that time the Minister said he realised that the phrase "maintain contact" may envisage more than just access by persons to children in care. Therefore, I am going further than what the Minister is proposing. I believe it is very important to maintain these links. I ask the Minister to accept my amendment.
I supported this amendment at the Special Committee. It is important to spell out clearly the section of people who can have access to the child rather than leaving it in general terms. I support the amendment because I believe it will improve the section.
To use Deputy Yates's words, he certainly goes further than the Minister — he goes too far. The truth of the matter is that this amendment would allow a person who may have abused a child an unqualified right of access to that child.
There is no qualification in the amendment as to who may or may not visit a child. Accordingly, it would not be in the best interests of the child and, without qualification, I would strongly oppose it because the Minister's amendment includes the qualification that the individual visiting the child would have to have a bona fide interest in the child. It is necessary to insert that safeguard without any question of doubt.
I would have thought the last five words of Deputy Yates's amendment "should the child so wish" provide the qualification required. Is that not enough?
No.
Having regard to the fact that we are introducing a Bill dealing with the care of children, if they have a particular wish we should try to help them.
If we were to do that we would put the onus on the child. How could we put the onus on a child aged between four and eight years? I have to agree wholeheartedly with Deputy O'Donoghue who said that Deputy Yates's amendment goes too far. We have to be very cautious and need to look at this matter very carefully again.
I disagree.
This matter was discussed at the Special Committee. I thought that Deputy Yates had accepted that what is now section 20 of the Bill requires health boards, subject to the interests of the child, to allow a child in care to maintain contact not just with his parents but also with his brothers and sisters, relatives and friends. I accepted an amendment yesterday in the names of Deputies Howlin and Ferris which strengthens the section by requiring health boards not just to allow access but to facilitate it. On the basis that I have extended this facility, the Deputy might consider withdrawing his amendment.
Amendment, by leave, withdrawn.
I move amendment No. 127:
In page 16, between lines 37 and 38, to insert the following:
"(2) Rules of court may make provision for the furnishing of information and documents by parties to proceedings under Part III or IV or under section 34 (4), 37 or 38 to each other or to solicitors acting for them.".
Amendment agreed to.
I move amendment No. 128:
In page 16, between lines 39 and 40, to insert the following:
"30.—(1) Without prejudice to the law as to contempt of court, where the District Court has made an order under Part III or IV directing that a child be placed or maintained in the care of a health board, any person having the actual custody of the child who, having been given or shown a copy of the order and having been required, by or on behalf of the health board, to give up the child to that board, fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.
(2) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order made under Part III or IV if that person was present at the sitting of the Court at which such an order was made.".
Amendment agreed to.
I move amendment No. 129:
In page 16, between lines 39 and 40, to insert the following:
"31.—Where a justice has made an order under Part IV directing that a child be placed or maintained in the care of a health board, a justice may for the purpose of executing that order issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or such other persons as may be necessary, to enter (if need be by force) any house or other place specified in the warrant (including any building or part of a building, tent, caravan, or other temporary or moveable structure, vehicle, vessel, aircraft or hovercraft) where the child is or where there are reasonable grounds for believing that he is and to deliver the child into the custody of the health board.".
The purpose of this amendment is to close off a loophole which has recently come to light. Section 13 (3) enables a justice making an emergency care order to grant a warrant to the Garda to search for the child and deliver him up to the health board. However, there is no equivalent provision where an interim care order or a care order is being made. The purpose of this amendment is to make good this gap by giving a justice the power to issue a warrant to enable the Garda to search for children who are the subject of interim care orders and care orders.
Amendment agreed to.
Amendment No. 130 not moved.
I move amendment No. 131:
In page 17, line 1, after "him" to insert "preferably".
This amendment relates to section 30 of the Bill which provides the health board with a range of options when deciding where to place a child. They will have the option of either placing the child in foster care or residential care, adopting the child or making other suitable arrangements — I presume boarding out. What I am seeking is a legal preference in favour of fosterage. It is important that this House makes a clear statement that it believes that the family environment is the best possible setting of alternative care for children. Many reports have indicated that this is the best option when a child is removed. It is my view that the offending adult should be removed first, where possible, but, unfortunately, we could not reach agreement on that point. However, some statement should be made to the effect that there is a preference for foster care having regard to the need to promote fosterage and the excellent work being done in that area. We are all aware of the great joy and happiness that many children have found in new homes in fosterage which led to their adoption. I feel very strongly about this issue and believe that this area is underfunded. This issue needs to be debated and I ask for support.
I concur entirely with Deputy Yates who said that foster care is very important and an excellent and valuable form of care. I pay tribute to everyone involved. However I do not believe that we should create a legal preference in favour of foster care over other forms of care. The Bill should be equal in its acknowledgement of the need for diverse types of care. The needs of some children can only be met in a residential setting while other children may require specialised therapeutic care which the average foster parents could not provide. We should leave the question of the most appropriate form of care for each child to be determined by the professional staff. We are fortunate to have very caring and high quality professional staff who make judgments having regard to the circumstances and the needs of each individual child. Consequently, I would be grateful if the Deputy would withdraw his amendment.
I reluctantly withdraw the amendment and am sorry that the Minister will not give a commitment to give more money.
Amendment, by leave, withdrawn.
Amendment No. 131a in the name of the Minister. Amendments Nos. 133a and 137a are related and may be discussed with it.
Amendment No. 131a has already been debated.
Ní hea, we are asking the Minister to move amendment No. 131a and seeking the agreement of the House that amendment Nos. 133a and 137a will be discussed with it.
They were discussed with amendment No. 4.
The amendment was not circulated. The amendment has been brought forward in response to the discussion on amendment No. 4.
The Minister to move amendment No. 131a.
I move amendment No. 131a:
In page 17, line 1, to delete "in foster care," and substitute "with a foster parent,".
These amendments arise out of our discussion on Tuesday on amendment No. 4 which was put down by Deputy Yates. I gave a promise at that time to look at the matter again and the amendments now before the House give effect to that commitment. Amendment No. 133a proposes to insert a definition of "foster parent" in the Bill and amendments Nos. 131a and 137a are consequential on the insertion of the new definition. In view of the publicity given to our discussion on Tuesday I would like to clarify my position in relation to amendment No. 4 and foster care generally.
I was unable to accept amendment No. 4 because it was technically defective but I want to reject suggestions made by certain Deputies that I and my Department have no commitment to foster care and do not value the work being done by foster parents or that we are in any way negative or uncaring towards foster parents. The Foster Care Association will verify and confirm our full, positive and constant support and commitment to the wonderful work they are doing. We have a wonderful relationship with them and salute and thank them sincerely. We look forward to working with them for many years to come.
I and my Department have the height of respect and admiration for foster parents and the great work they do. They provide in invaluable service to the most deprived children of the nation and I want to place this on the record of Dáil Éireann in order to set the record straight. Consequently, I hope that these amendments can be accepted.
We agree with these amendments and are very glad that the Minister has mended his hand in this area——
I have no need to mend my hand.
——and has now seen fit for the first time to put in our legal code a definition of "foster parent". He was not willing to do this at the Special Committee. This amendment, on top of the regulations he is going to introduce, will make sure that we have a proper code for foster care and the promotion of fosterage. As the House is aware, the Minister has the right of reply in this truncated Report Stage and I ask him when replying to state, seeing that he is so committed to the Irish Foster Care Association and so much in favour of the related aspects of fosterage, if he is prepared to increase the resources made available to the health boards as practical proof and evidence of his good intentions.
I welcome the amendments submitted by the Minister which clearly define "foster parent". As I mentioned earlier, if there was recourse to the law it would be difficult to define the meaning of "foster parent" in the absence of such a definition. Amendment No. 133a which clearly defines "foster parent" should be very helpful to all concerned and I welcome that amendment.
We discussed the need for such a definition on Tuesday last. The Minister subsequently circulated an amendment on white paper which we were satisfied met the concern expressed by everybody on this side of the House. It is important that "foster parent" be defined in legislation and this is being done in the Minister's amendments, which I welcome.
There are many foster-parents in my constituency and I know the extremely good work they do. At times they are equal to adoptive parents in the service they give to children who in the long term may have no future. When the occasion arises for the health board to take back the child there is much trauma.
Foster-parents often love these children and it breaks their hearts when they are taken away, especially if they have cared for them from the age of three days or, perhaps, six months. It is a heartbreak to be told by the health board to surrender a bouncing baby. We are not able to legislate for the sensitive area of breaking the bond between foster-parent and baby. No words of mine can adequately record the work of foster-parents. Adoptive parents, although they may have to wait for years to be blessed with a child or have to go to Romania to find one, know that they have that child for his or her lifetime, except during the initial period when the natural mother maintains some rights.
I am glad that for the first time the importance of foster-parents is being recognised. I hope we will continue to look at their special needs and remember the understanding they need in the care they give to children.
I welcome this amendment wholeheartedly. The recognition of foster-parents in the Bill, and the legal definition, represent an extremely important milestone in the history of Irish family law. Foster-parents have given a tremendous amount to the care of children over the years. The fact that they are now recognised in statute law for the first time is an indication that this legislation is proving to be the most progressive in the area of family law, possibly this century.
They were opposing all this on Tuesday.
I refer to amendment No. 133a. Perhaps the Minister will state why the relative of the child is excluded. Many instances occur where relatives take a child but would want to be regarded as having some kind of authority. Was consideration given to that?
Deputy Yates is not correct in saying that this is the first time we have had a definition of foster-parent on the Statute Book. There has been such a definition in our foster care regulations for many years. I am glad now to be able to insert a definition in the Bill.
Deputy Yates referred to resources for foster care. The development and expansion of our foster care programme will be one of the priority issues to be addressed and funded when the Bill is implemented. I have no difficulty in giving such a commitment to the House and we will convey it to the health boards. As soon as the Bill becomes law I, the Minister for Health and our officials will analyse and study the legal and financial implications contained therein. I pledge to the House increased resources for childcare services in the future.
Regarding Deputy Sherlock's query, the absence of relatives from the definition can be explained if we look at section 30 (1) (d) which enables a health board to place a child in the care of a relative.
Amendment agreed to.
I move amendment No. 132:
In page 17, to delete lines 2 to 4, and substitute—
"(b) by placing him in residential care (whether in a children's residential centre registered under Part VIII, in a residential home maintained by a health board or in a school or other suitable place of residence), or"
This is a minor technical change to bring the wording into line with that used in sections 31 and 33 and to take account of the proposed introduction of a registration system under Part VIII.
Amendment agreed to.
I move amendment No. 133:
In page 17, lines 9 and 10, to delete "or other suitable person".
Section 30 was substantially amended on Committee Stage. It sets out the ways in which a health board may provide care for children. Subsection (1) (d) enables a board to place a child with a relative or other suitable person. I have been looking at this again and I think the reference to "other suitable person" is confusing, given that subsection (1) (a) already allows a child to be placed in foster care. It is proposed, therefore, to delete the reference to "other suitable person".
Amendment agreed to.
I move amendment No. 133a:
In page 17, between lines 10 and 11, to insert the following:
"(2) In this Act, 'foster parent' means a person other than a relative of a child who is taking care of the child on behalf of a health board in accordance with regulations made under section 32 and 'foster care' shall be construed accordingly.".
Amendment agreed to.
Amendment No. 134 is in the name of Deputy Yates. It is suggested that amendments Nos. 138, 139, 140, 141 and 142 are related and that they may be taken together for discussion. Is that agreed? Agreed.
I move amendment No. 134:
In page 17, between lines 14 and 15, to insert the following:
"(3) The child shall have a right of review of the type of care that is being provided if he is dissatisfied.".
This is a very important area. Only in the past two days Deputies will have received a submission from CARE givng their views on this weakness in the Bill. I want to refer back to what the Minister said to Deputy Sherlock on 1 May last, as reported in the Official Report of that date at column 690:
In reply to Deputy Sherlock, we do not propose to set up a statutory review body. I emphasise that we are talking about exceptional circumstances. We have the utmost confidence in the professionals to make the best judgment. We must respect the decisions of the court and adhere to them.
That basically rejects the need for a review procedure in relation to care. I feel very strongly that there is the possibility of an error in relation to a child being misplaced and it is very important that a full review procedure be allowed. The very professionals to whom the Minister adverted have made a submission to the effect that there should be a detailed, comprehensive, clear-cut review procedure so that the best interests of the child can be served.
It is proposed that within 45 days of a child having been taken into care there should be an initial review. If the child remains in care there will be a review every six months. The purpose of each review would be to ensure that there is a long term placement plan for the child consistent with the child's interest. At each review there would be a hearing of the health board to consider all aspects. There should be set procedures for these hearings by the health board. This would be long after the court had disposed of the case and the child would be in the custody of the health board, in foster care, in a residential home or whatever.
Therefore, there are two vital elements to these oral reviews: first, the people who would be given an opportunity to contribute would be the parents or guardians of the child, the provider of the care, the child if he or she is 12 years of age or older — and in all cases the child would be informed of developments — and any other person who is deemed to have a bona fide interest in the child's welfare. Those are the people who are involved.
In relation to the content of the review, that would cover such issues as the child's progress in placement, the implementation of previous decisions at the earlier reviews, efforts taken by the health board — this is a very important point — to facilitate the return of the child to the home or alternative long term care if reunion is not feasible; the health board should consider all factors to ensure that, where possible, a long term reunion, if desirable, is achieved.
It is also essential that the location or provision of services for the parents, where the family might be deprived would be considered in the context of the review. Let us suppose that in the case of an alcoholic parent, efforts would be made to provide treatment facilities for the parent, if that was perceived to be the problem. Then there should be set procedures whereby a health board, within ten days of the hearing, would notify their findings to the following people — the parent, carer, child itself, if over 12 years of age, any other bona fide person — and that all the records and information in the possession of the health board would be confidential to the participants in the review.
Any party to the statutory review procedure who feels that a decision taken is not in the best interests of the child shall be provided with a hearing by the independent review committee. This would mean that if, say, a friendly uncle, aunt, grandmother or grandfather said: "we really believe from our discussions with the child, that the child is not happy," that person would have a right to a hearing at the review procedure.
In view of these new powers coming on stream for the first time, giving health boards enormous capacity to review cases, all these amendments have brought to light the need to review the matter.
I am not contending that my humble amendment No. 134 constitutes the sole solution to the matter but I am certainly satisfied that the position, as we left the Special Committee, was wholly unsatisfactory in this area. I would ask the House to ensure that, on Report Stage, we invoke proper legislation and regulations that deal with the comprehensive details of the statutory — I emphasise the word "statutory"— review procedure which will confer legal rights on all parties concerned.
I very strongly support the views expressed by Deputy Yates. I have had the same representations made to me by the caring agencies who sent me submissions which I have had time to consider. We are in more than a slight dilemma in that to achieve what I now believe is required would necessitate the tabling of a completely new amendment. We do not have an amendment before us which would achieve the objective just enunciated by Deputy Yates. The nearest we can get to it is the Minister's amendment No. 142, in which there is one fundamental flaw and under the provisions of which the Minister will be required to make regulations. One aspect that has recurred or arisen frequently in our deliberations is the fact that more and more important work is not debated or enacted by the Houses of the Oireachtas but is referred to departmental officials who draw up regulations of extreme importance to the implementation of important legislation.
I would be much happier if we could agree on a draft — perhaps the Minister has thoughts about the regulations already — so that we could somehow formalise them by way of a ministerial amendment, even now and insert into this section, so that we would have not an enabling clause that would allow proper regulations to be introduced in the future but rather have the type of regulations spelled out in the Bill itself. This would mean we could deal with them now and reach a consensus on exactly the type of statutory review procedure we require. Clearly we are devolving a huge range of new powers to health boards to interfere and involve themselves in families up and down the country. There must be a mechanism where decisions taken are monitored and reviewed. That should be done on a statutory basis.
I will not go into the detail of the statutory review proposed because Deputy Yates has read a lot into the record already. I broadly support that concept. But we have a dilemma because I do not see any amendment before us that would achieve that objective. I appreciate that the Minister has come some distance from the position he adopted on Committee Stage when he did not see any need for this type of review. At least he has moved significantly from that. Sometimes we feel we are achieving something when we observe this. But it is important to not only acknowledge the need but insert what is largely an aspirational clause that leaves it at the discretion of the Minister and his officials to draw up regulations that would meet the needs of the position. I would have been much happier had the Minister seen fit to share with us — perhaps he will yet by way of response — the ideas he has for the regulations. I would ask him directly, if possible now, to strengthen his amendment by inserting into the Bill the need, the type and scope of such statutory review.
May I take it a step further? I am dealing particularly with the Minister's amendment No. 142 which we are discussing with Deputy Yates's amendment No. 134. The first part of the Minister's amendment is affirmative in that it says:
34.—(1) The Minister shall make regulations requiring the case of each child in the care of a health board to be reviewed in accordance with the provisions of the regulations.
But it then continues:
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision——
This means that the Minister having used the word "shall" in the first subsection resorts to the use of the word "may" in subsection (2), the effect of which will be that the Minister may well not make provision. I will read the whole of the second part of the Minister's amendment into the record:
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision——
(a) as to the manner in which each case is to be reviewed,
(b) as to the frequency of reviews, and
(c) requiring the board to consider whether it would be in the best interests of the child to be given into the custody of his parents.".
There are there a whole lot of options not sufficiently definitive for us to ensure that there is a specific built-in statutory review date and the need therefor. One way of overcoming this difficulty would be to draft regulations that would be circulated and agreed before being implemented because, once laid before the House, they cannot be changed; all we can do is vote against them. Some of them might be all right but we would have to vote on them as a whole. Before reaching amendment No. 142, perhaps the Minister would strengthen it in the way Deputy Yates suggests which would be a more definitive way of doing so by way of legislation.
As others have said, this is an extremely important matter. In a small minority of cases circumstances have arisen, in residential care centres for children, which were, to say the very least, regrettable. Accordingly, the need for review is quite evident, and there must be such provision in the Bill.
It would appear to me that, at subsection (1) of the Minister's amendment, there is a statutory imperative on him to make the relevant regulations. I would have thought that, at subsection (2), it was merely stated that he may take paragraphs (a), (b) and (c) into account but that he might take other matters into account as well in drawing up the review regulations. It is a very complicated area, one in which one would need to tread very carefully to ensure that the method of review is watertight and that the watchdog-type regulations required are of the right kind. Deputy Yates's amendment, while laudable, may be somewhat simplistic. These matters should be left to the Minister and the Department to enable the necessary regulations to be drafted for an extremely important area.
I agree with Deputy O'Donoghue. Putting in the word "shall" in subsection (2) simply means that that is all the Minister can make provision for under that section. My learned legal friend will know more about that than I, but I think it would be confining the Minister to just considering (a), (b) and (c), and there are a number of other areas in the submission made to members of the Committee by CARE groups that were mentioned. We would be precluding the Minister from doing that.
With reference to Deputy Yates's amendment No. 139, in Committee it was agreed to leave the wording "and at such intervals as may be prescribed" because it was felt again that people should have a discretion. It might be necessary to review matters every month or couple of months or at varying periods, maybe every 12 months and the phrase "and at such intervals as may be prescribed" was to cover that eventuality. All in all the Minister's amendment covers the points made at the Special Committee.
The Minister's amendment covers a great deal. From the time we debated the issue previously it has been seen that there is a need to make provision in this regard. Nevertheless, we need to be clearer on what is envisaged. As I have said previously, there are a number of legal problems across the spectrum and if the Minister has to introduce statutory regulations, a review committee and a statutory review procedure perhaps would cover more than is provided for in amendment No. 142. Such a committee, who would include the Minister's representatives and experts working in the field, would engender confidence that a procedure can be laid down whereby the anomalies and problems that are sure to arise can be dealt with expeditiously.
One of the great problems in dealing with issues is the time lost trying to bring the various strands together to get a coordinated effort. Co-ordination is the name of the game and there will have to be a committee who will have statutory obligations under the Bill. In his amendment No. 142 the Minister recognises the need, and that is commendable. Perhaps he will say the regulations he will bring in giving effect to the provisions in the Bill will also provide what we are seeking here.
In regard to amendment No. 134 and the other associated amendments, this amendment is similar to the one we discussed on Tuesday. On that occasion Deputy Yates withdrew his amendment on the basis of a personal assurance from me that the question of allowing a child to initiate a review of his case by the health board will be considered when regulations to be made under amendment No. 142 are being prepared. We have received this document from the Professional Coalition on Child Care and we have studied it in detail. We have no great difficulty with it. We intend to incorporate most of what is contained therein when we are drawing up the guidelines. We have had consultations even in the last week with professionals right across the board on this whole area, and the House can be fully assured that we will take a very wide consensus view when we are drawing up the guidelines. The guidelines will also be circulated and anybody looking for a copy will be more than welcome to have them before the regulations are finally agreed.
I refer again to amendment No. 142, subsection (2) which provides that; "Without prejudice to the generality of subsection (1), regulations under this section may make provision—". We are leaving wide latitude there and we are not confining it. Any other problem or proposal that will come forward can be considered. I assure the House that the guidelines will be broad and detailed and we will cover all the eventualities that we can. On that basis I will be sincerely grateful if Deputy Yates will withdraw his amendment.
I am glad there is agreement in the House on all sides that a statutory review procedure is now necessary. I do not have to quote everybody on the Special Committee saying it was not necessary. The argument has come full circle. It is a case of whether we accept the Minister's bona fides in this matter. I support fully the detailed basis on which I have outlined terms for the people to be involved in the review procedure, the regularity of it and the content of the review. If the Minister can nod in the affirmative that the regulations will encompass this as a basis, then to facilitate progress, because I am very concerned about amendment No. 159 and I may seek the indulgence of the House that we go only as far as amendment No. 158——
The Deputy will not be disappointed when he comes to it.
I hope amendment No. 159 will not be left so that it will not be discussed. We might review that. To facilitate progress I withdraw amendment No. 134.
Amendment, by leave, withdrawn.
Amendment No. 135 not moved.
I move amendment No. 136:
In page 17, between lines 14 and 15, to insert the following:
31.—(1) Where a child is in the care of a health board whether by virtue of an order under Part III or IV or otherwise, the board shall, subject to the provisions of this Act, allow reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child and such access may include allowing the child to reside temporarily with any such person.
(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—
(a) make such order as it thinks proper regarding access to the child by that person, and
(b) vary or discharge that order on the application of any person.
(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child's welfare, may—
(a) make an order authorising the board to refuse to allow a named person access to a child in its care, and
(b) vary or discharge that order on the application of any person.
(4) This section is without prejudice to section 4 (2).".
I move amendment No. 1 to amendment No. 136:
1. In the third line of subsection (1), to delete "allow" and substitute "facilitate".
Amendment to amendment agreed to.
Amendment No. 136, as amended, agreed to.
Amendment No. 137. Amendments Nos. 186, 189, 191, 192, 194, 195 and 196 form a composite proposal.
On a point of order, this has come up previously. In this proposed grouping the element of registered proprietors was agreed but we said we would take the other matters seriatim. I am quite happy to agree amendment No. 137 but some of the others are one and a half pages each.
I am happy with that. I move amendment No. 137:
In page 17, lines 15 and 16, to delete "managers" and substitute "registered proprietors".
Amendment agreed to.
I move amendment No. 137a:
In page 17, lines 33 and 34, to delete "persons with whom children are placed in foster care;" and substitute "foster parents;".
Amendment agreed to.
I move amendment No. 138:
In page 17, to delete lines 37 to 39.
Amendment agreed to.
Amendment No. 139 not moved.
I move amendment No. 140:
In page 18, to delete lines 9 to 11.
Amendment agreed to.
Amendment No. 141 not moved.
I move amendment No. 142:
In page 18, between lines 11 and 12, to insert the following:
34.—(1) The Minister shall make regulations requiring the case of each child in the care of a health board to be reviewed in accordance with the provisions of the regulations.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision—
(a) as to the manner in which each case is to be reviewed,
(b) as to the frequency of reviews, and
(c) requiring the board to consider whether it would be in the best interests of the child to be given into the custody of his parents.".
Amendment agreed to.
Amendment No. 143 comes next. Amendments Nos. 144 to 150, inclusive, are related. I propose, therefore, for discussion purposes to take amendments Nos. 143 to 150 together for discussion. Is that agreed? Agreed.
I move amendment No. 143:
In page 18, to delete lines 12 to 25 and substitute the following:
34.—(1) A health board may, in accordance with regulations made by the Minister, remove a child in its care from the custody of any person with whom he has been placed by the board under section 30.".
Section 34 provoked widespread opposition from foster-parents who feared the arbitrary removal of foster children by health boards. It was discussed at great length at the Special Committee and I gave an undertaking to review the matter at Report Stage.
The purpose of section 34 is to enable the health board to remove a child whom it has placed in foster care or residential care. There are many reasons why a health board might need to remove a child. It might be to unite the child with his parents, to move him to more appropriate placement; it might be that the child himself wishes to move. It could even be that there are allegations that the child is not being properly cared for in his current placement.
While the health board should have the right to remove a child where necessary we must guard against arbitrary, unplanned and inappropriate removals. Foster-parents, in particular, need to have some sense of security that their fostering placement will not be abruptly ended without very good reason.
Given all the different situations that can arise, it would not be practicable to set out in the Bill the precise circumstances in which a health board should be entitled to remove a child. I propose that these should be spelled out in the regulations which would be made by the Minister for Health under the proposed new subsection (1) to be inserted by amendment No. 143. My other three amendments, Nos. 148, 149 and 150, are consequential on the proposed deletion of existing subsections (1) and (2) and the insertion of the new subsection (1).
Let me deal with amendments No. 144 and 145 put down by Deputy Yates. The result of the amendments would be to give the courts power to order the removal of a child from a particular foster-parent or a home. While it is appropriate that the courts be involved in decisions as to whether children should be placed or remain in the care of the health boards, I do not think it is desirable that the courts should be involved in deciding on the exact home or the particular foster-parents with whom the child should be placed. The amendment would draw the court into such decisions by requiring court approval to the removal of children from particular foster-parents or specific homes.
As I indicated yesterday, there are many reasons why it might be considered necessary to remove a child from the persons who are looking after him. It could be that the child is unhappy in that placement or that a place has become available in a residential centre which is in a better position to meet his needs. I believe that decisions about a child's placement are best left to the professional staff involved in the case. I do not accept that it is necessary or desirable that the courts should be involved. The changes I have proposed go a long way towards meeting the concerns of the foster-parents for security in relation to their position.
In view of my amendment I would ask Deputies to consider withdrawing their amendments Nos. 144, 145, 146 and 147.
As those four amendments are in my name I have to say that I have a choice quotation from the Minister at the Special Committee that fateful day, I May. He said: "I cannot agree that foster-parents should be given the right to delay or frustrate such a removal". That was in the context of section 34 of the Bill as it is now. I am glad to see that the Minister's discussions with the Irish Foster Parents' Association have yielded some fruit and that he and the Department have considerably changed their view.
I am not entirely happy about amendment No. 144. I do not think it is appropriate that the Minister should intervene in an individual case for removing a child from foster care. In the discussion we had on this it was quite clear that the health board had the authority to remove the child. During the Special Committee debate I asked the Minister if the health board could remove the child from the custody of a person without the consent of the Minister. The Minister asked me if I was talking about the Bill or the present law. I replied that I was referring to the Bill. The Minister replied that the Bill would give power to the health board to remove a child. I asked if that would be without the consent of the Minister and the Minister said "yes". It is quite clear that the health board has a clearcut power to remove a child from foster care. I do not see, therefore, why the Minister should be involved in this. I do not think it is suitable that the Minister should be involved. I would ask the Minister to accept amendment No. 144 in return for my acceptance of the draft regulations. In recognition of that I would withdraw the rest of my amendments because what I was seeking to do was to protect against circumstances where foster-parents who could have given great care and attention for years to children would find that those children could be removed out of the blue. That would be most unfair.
I am happy now that in relation to this legislation both the rights of foster-parents and the future of fosterage is guaranteed and enshrined in this legislation. While I have had many criticisms about the gaps in this legislation, the fact that there is no provision for adult barring orders, no proper provision for mandatory reporting and inadequacies in relation to children's courts, I will say that the Minister has done a good job in relation to foster care, that is, without seeing his regulations, provided that his commitment is genuine which I do not doubt. I would ask, however, that he take out the role of the Minister because I do not think that is appropriate when there are ample powers for the health boards.
Is it not correct that the power of the Minister is diluted considerably by his proposed amendment? He is proposing the deletion of the lines which would include that phrase, "if so required by the Minister". If that is the case the power is devolved more to the health board, and local discretion, which is more important, comes into play. The Minister is being very responsible. Indeed, I am delighted to hear Deputy Yates complimenting the Minister because we have here a very progressive Minister. I want to take this opportunity to put on record my congratulations to him. He is responding very favourably and in a very magnanimous way to discussions that took place at the Special Committee.
Despite the fact that most of the Deputy's colleagues were against change.
In introducing his amendment the Minister paid a compliment to foster-parents and agreed that it would be unacceptable that somebody could suddenly remove a child without due reason. The amendment recognises that we are dealing with human beings. In the care of children, foster-parents are one of the first ports of call. The Minister said it may not necessarily be the most desirable. There are those of us who believe that adoption would be the best approach in the beginning if that were possible. Foster-parents, however, fill a very vital role and I would not like to think that they would be treated with disregard by the Minister or by the health boards. We are very dependent on them. They are very special people.
There is need for consultation, and setting down regulations as suggested by the Minister will lay down the criteria for health boards to act without the Minister's personal intervention all the time. It is appropriate that there would be some flexibility at local level. I am aware that health boards have just taken children away and created problems. I am not saying it was not in the child's interests to do so, but it did seem to disregard the foster-parents. We should always be careful in dealing with foster-parents that they should never believe they have a child permanently because that is what leads to problems in the final analysis. We must take into account the line between adoption and fostering. If fostering is to continue to be successful we must treat foster-parents in a special way. The regulations the Minister will make will go a long way in that regard.
I have been prompting the Minister in the last three days about the possibility of drafting the regulations in consultation with the spokespersons in this area. A procedure was agreed by the Minister for Health and the Minister for Social Welfare that before regulations would be published we could give our stamp of approval. I know regulations are highly technical and complicated and are not always easy to follow, but if the Minister would consider this procedure of consultation on the draft regulations it might go some way towards dispelling doubts we might have about what will or will not be in them. I hope the Minister will indicate whether he is prepared to do that. The Minister has gone some way towards addressing my concern about foster-parents and how they should be treated. It is appropriate that national regulations be laid down so that all health boards would act in a uniform way. There should be a consensus on how foster-parents, and of course the children in foster care, are dealt with.
The proposed amendment refers to the custody of any person with whom a child has been placed by the board under section 30. It very rarely happens that the foster-parents are recommended by the health board. What is important — this is the reason I rise to speak, and it has been mentioned by another Deputy — is that the health board may, only in accordance with regulations made by the Minister, remove a child in its care from the custody of any person. That adequately covers the point. The regulations will firstly have to be introduced and it is only in accordance with such regulations that the child can be removed. For that reason the amendment is a good one.
The point I wish to raise has been made but it is no harm to emphasise it. Concern was expressed in the Special Committee not only by Deputy Yates but by Deputies on all sides that the Minister would have to intervene in individual cases and that he would be involved in day to day decisions. As Deputy Sherlock has rightly said, the Minister has met the concerns of all Members by making regulations and by making it clear that a child can be removed only in accordance with the regulations. Rather than criticising the Minister for being flexible — he accepts that we are concerned about this matter — it would be better if we praised him for being so.
I thank Deputy Yates for his comments. I am delighted he is still quoting political scripture. He is not correct in suggesting that individual cases would be subject to ministerial approval. That has been the position under current legislation.
I did not say that. I said the Minister has the power to intervene.
I will clarify the matter. That is the position under current legislation but we are changing it in these amendments. The Minister's only role in future will be to lay down regulations setting out the circumstances in which health boards may and may not remove children from foster care or residential care. The Minister for Health will have no role whatever in individual cases. Under current legislation the Minister has a role in individual cases but we are now changing that position and referring the matter back to the health boards. The words "if so required by the Minister" quoted by Deputy Yates will be deleted by my amendment No. 143; I put down a similar amendment No. 148. Consequently the Minister will have no hand, act or part in individual cases. His function will be to set out regulations and guidelines. There is no need for concern.
In relation to amendments Nos. 146 and 147 perhaps the Minister could say exactly what the appeal procedure would be. What does he intend to put in the regulations? I would like a rough idea.
I am dealing with 230 amendments in a very broad Bill and I have the best officials and expertise available to me.
I do not want excuses.
I gave a commitment earlier that when the Bill is passed we will consider the legal, financial and other implications of it. We will be as flexible as possible and we will have the broadest consultation possible. We will agree the best regulations possible and will circulate them before they are finally agreed. Therefore the Deputies need have no worries.
Amendment No. 147 is very specific. Will a foster-parent have a civil right to a court decision on the matter, yes or no?
No.
The Minister has said he would let us have the draft regulations before he brings them before the House.
Yes, they will be available.
Can we consult with the Minister on them?
Yes.
Amendment agreed to.
Amendments Nos. 144 and 145 not moved.
Is amendment No. 146 withdrawn?
No, amendments Nos. 146 and 147 are being pressed. They have been discussed together but I am entitled to press them. I move amendment No. 146:
In page 18, between lines 25 and 26, to insert the following:
"(3) Where a child is removed from foster care without the agreement of the foster parents, they may appeal to the health board to have the decision reconsidered.".
Amendment put and declared lost.
I move amendment No. 147:
In page 18, to delete lines 26 to 31, and substitute the following:
"(3) Where a foster parent disputes the health board's wish to end its foster care, the foster parent shall have a civil right to a court decision on the matter.".
Amendment put and declared lost.
I move amendment No. 148:
In page 18, line 26, to delete "or required by or".
Amendment agreed to.
I move amendment No. 149:
In page 18, line 33, to delete "subsection (3)" and substitute "regulations made under subsection (1)".
Amendment agreed to.
I move amendment No. 150:
In page 18, line 43, to delete "emergency care order" and substitute "an order under Part III or IV".
Amendment agreed to.
Acting Chairman
Before we move to the next amendment, my predecessor in the Chair indicated that there is a formal agreement to dispose of all amendments, up to and including amendment No. 159, by 1.30 p.m. I wish to remind Deputies of that.
I move amendment No. 151:
In page 18, line 46, to delete "placed" and substitute "being maintained".
This is a minor technical adjustment. The phrase "being maintained" is more appropriate than the world "placed" as the child would have been living with the foster-parents for some time.
Amendment agreed to.
Acting Chairman
Amendments Nos. 152 and 153 have been ruled out of order.
On a point of order, I am very disappointed that the Chair should seek to shield the Government in this matter——
(Interruptions.)
That is uncalled for.
This is a vital matter of resources for after-care for children——
Acting Chairman
Will Deputy Yates resume his seat? The Deputy is well aware of the fact that he is not in order in challenging something which has been deemed out of order.
On a point of order, we had a very orderly and constructive debate on this Bill over many months and there is great disappointment on the Opposition benches that the Minister could not take this very important provision on board, particularly as he has been accommodating in relation to so many other issues.
I have a point of order——
Acting Chairman
I allowed some leeway to Deputy Howlin but——
It is more than you allowed me.
Acting Chairman
I ask the Deputy to resume his seat. When a matter has been ruled out of order it is disorderly for Deputies to challenge it.
I have a different point of order. I am entitled to make a point of order.
Acting Chairman
You are.
This is a separate point of order. I reluctantly accept your ruling on the matter but I wish to make it clear that it was of such gravity that we will be calling a division on a separate section because these amendments were ruled out of order.
I seek your guidance. In other sections when an amendment was ruled out of order a debate was allowed on it although we were refused permission to call a vote on it.
The amendments involved a charge on the Exchequer.
The basis generally on which an amendment is ruled out of order is that it imposes a charge on the Exchequer. In this case, the health board are being asked to pay.
Who pays the health boards?
In those amendments the world "shall" was being substituted for "may" and the health boards would be responsible.
Amendments Nos. 152 and 153 not moved.
I move amendment No. 154:
In page 19, between lines 26 and 27, to insert the following:
"(e) by co-operating with local authorities in planning accommodation where persons over 18 years of age are leaving residential care facilities due to age.".
This deals with the problem of homelessness among young people. Anyone who has received submissions from Focus Point and other organisations dealing with accommodation issues for people over 18, will be aware of the problem. The legal situation is that all the provisions of residential care extend until a child reaches 18 years of age. After that they are not entitled to any protection that this legislation affords them. These are invariably single people, unmarried mothers or young men of 19 years of age.
I have received — as I am sure other Deputies have — submissions stating that there is an urgent need for shelter and accommodation for these young people who have no proper after-care facilities. Accommodation is a vital element of after-care and there is no liaison between the health boards and local authorities to ensure that these people are properly accommodated. Indeed, the letting priority points system operated by local authorities means that single people would never have enough points to get a small three bedroomed house. They are basically left to the mercy of the four winds.
My proposal is not unreasonable: it seeks to include that the health board may assist a person under this section. We should include a new paragraph (e), which is not very different from paragraph (d), by arranging hostel or other forms of accommodation for them and to extend it by co-operating with local authorities in planning accommodation where persons over 18 years of age are leaving residential care facilities due to age.
There is a special liaison between the health board and local authorities in regard to the elderly and handicapped, and special provision is made for them. I strongly believe there is a gap in the legislation in this regard which should be filled. There is a lack of consultation, co-operation and planning. Will the Minister state what proportion of the public capital programme in relation to housing accommodation is provided in terms of these young people? I venture to suggest that it is minimal.
In Dublin city children who are homeless are taken into care but, when they reach 18 years of age, they are let out because health boards are not legally entitled to keep them. These young people are then homeless and beg for a living or turn to crime. All the work previously done is wasted, they are adolescents and they cannot cope because they probably do not have a job. This is a very serious matter and it relates to my amendment which you ruled out of order. The House should support it.
Acting Chairman
I wish to remind the Deputy that I did not rule anything out of order. That matter was decided before I came into the Chamber.
I am sympathetic to this amendment. Many people leave residential care and may never know what a normal home is like. The spirit of the amendment, in social justice, must be accepted. However, I wonder about its efficacy. The allocation of local authority houses is a reserve function of management and, therefore, it is hard to know if the amendment has any teeth.
Under the recent Housing Act, there is already an obligation to draw up a priority list in relation to those who should obtain local authority houses, which is a vast improvement. I cannot deny the spirit of the amendment because when people come out of residential care they have, in a sense, been institutionalised. It is extremely important to give them priority in relation to housing so that they will reintegrate into society and take their place in it. Of course the foundation stone is a normal home.
This is a very important amendment to an important section. I appreciate the way we are trying to deal with the problem of children at risk who are abused or badly treated at home.
Our responsibility does not end when these people reach the age of 18. During long debates on Committee Stage we sought to have an after care programme. It would be a dreadful flaw in the Bill if we left this section out. Deputy Yates's amendment strengthens the section considerably. In our experience in our constituencies we know of individuals who have fallen into the category envisaged by Deputy Yates. There are young people who simply do not have a prospect of being accommodated. When we were drawing up our last priority list on Wexford Corporation we decided to draw up a separate list for young single people. It is commonly referred to as the "no-hope" list. There is a priority list for families, for single parents and the elderly and then there is a limbo list for no-hopers who under present conditions will never be accommodated.
To overcome that problem, many voluntary organisations are being established. They work in conjunction with local authorities to provide special purpose-built accommodation. Thankfully that has started in my constituency of Wexford. There is an extremely good and effective group working in Waterford and neighbouring counties. What is envisaged is that we should not depend on a patchy service around the country, but that there should be co-operation between the local authorities and the health boards in planning structured sheltered accommodation. It might not be completely independent. It might be based on a unit where people can have facilities and then independent living accommodation. All sorts of models could be devised to accommodate these young people but it would be dreadfully remiss of us as legislators not to put into this Bill a requirement that that co-operation should occur.
I hope the Minister will reflect on the case made on Committee Stage and again today and realise that this extra provision does not detract from what this Bill is about and that it strengthens and broadens the scope of the after care provision which we all recognise we need.
I see the need for this amendment. Section 36 (2) (d) acknowledges that there is a need to arrange hostel or other forms of accommodation for persons leaving residential care. Even though such people at that point would have no home they would not be regarded under the Housing Act, 1988, as being homeless persons.
Due to an agreement between the health board and the county council in my area elderly people leaving residential care can be accommodated in little groups of two or three in houses which are being provided by the council in the new housing estates. It would be a sad state of affairs if a person on reaching the age at which they would no longer be provided with residential care had now to go out into the world and find their own way. Provision should be made to complete education and for maintenance during that time and for placing a person in a suitable trade, calling or business. That is very much needed in the circumstances. We should write into the legislation a provision such as that proposed by Deputy Yates for co-operation and co-ordination between the local authorities in planning accommodation for persons who reach the age of 18 years and must leave residential care. I support this amendment.
As a member of two local authorities I am aware of the need for consultation between local authorities, health agencies and so on. Nowadays there is consultation. I am glad to say that Tipperary Urban Council in consultation with the psychiatric hospital provided houses for small groups of people in psychiatric care who were ready to be integrated into the community. This only occurred because of proper consultation and planning between the authorities.
The amendment urges co-operation between the local authority and the health board in planning accommodation for persons who are over 18 and leaving residential care. Deputy Yates has said that it is not legally possible for children of that age to be maintained by an institution unless there is planning and co-operation between all the agencies. I do not see any reason to oppose this amendment. It will not cause any problems. Section 36 (2) says:
A health board may assist a person under this section in one or more of the following ways—
and itemises the ways, including the suggested addition by Deputy Yates, a health board may or may not — and because of restrictions it is likely that a health board will not — assist a person. We should at least include this provision as a desirable aspiration to encourage the health boards. The wording suggested is open and allows the authority discretion in relation to co-operation on planning. I am sure the Minister's colleague in the Department of the Environment would welcome that forward planning when local authorities are submitting applications to the Department for financial resources. We should plan so that people will not be homeless. There should be an obligation on the health board to consult with the local authority. That would be good legislation. The wording in this section is so weak anyway, that the least we can expect is a commendation from the Minister on this amendment, which I support fully.
On Committee Stage I said that the intention of this amendment is very laudable. It certainly deserves support. There are some people out there, whom we all come across, who when they come out of residential care do not have the social skills necessary to enable them to integrate into society without considerable help. One very obvious area of help which would be the foundation to launching them into society is to provide them with secure accommodation. It gives them a sense of security and enables the process of integration into society to be facilitated in a smooth way. In view of that I appeal to the Minister to accept the amendment.
I can see the smoke signals already.
During the debate on this issue on Committee Stage I think every member of the committee agreed in principle, at least, with the idea of having some form of a linkage between the housing authorities and the health boards. Despite what has been said earlier the Housing Act, 1988, contains a number of provisions which are not in conflict with what Deputy Yates is attempting to achieve. Section 9 (1) of the Act states:
A housing authority shall, within one year of the commencement of this section and thereafter not less frequently than every three years and as the Minister may, from time to time, direct, make, in accordance with this section, as assessment of the need for the provision by the authority of adequate and suitable housing accommodation for persons—
Section 9 (2) (f) deals with the type of persons that should be included and states that provision should be made for young persons leaving institutional care or without family accommodation. It is clear from the Housing Act that there is an obligation on housing authorities, rather than health boards, to provide institutional care for young people.
In addition, section 9 (4) (b) states:
any health board established under the Health Act, 1970, whose functional area includes or adjoins the functional area of the authority giving the notice,
In other words that health board must be consulted in relation to housing needs of different categories of people including the people referred to. Under the provisions of the Housing Act there is a provision whereby the housing authority must take young homeless people into consideration, a group about whom we have all expressed concern. I do not see any harm in including a similar provision in this Bill. The only difficulty I see — and it is probably more technical than real in view of some of the cases about which we have heard and known — is that the Bill is catering for those up to the age of 18 whereas Deputy Yates' amendment refers to persons who are over 18. I do not know whether that will present a difficulty but, if so, it is one we should be able to overcome. The important words in the amendment are "co-operating with local authorities" and "in planning accommodation." I do not see any problem in including some form of an amendment to strengthen the Housing Act which would allow for local authorities to come together and to plan for people who are about to leave care.
Thank you for allowing me to contribute. I cannot see any problem with this amendment.
That is what we want to hear.
The sentiment is one I would back but I hope it is not like many pious sentiments which fall by the wayside. There is no doubt that the people we are talking about are damaged by their experiences and by their background. More than likely they will need continuing care, advice, assessment and help for the rest of their lives. I cannot see any problem. There should be co-operation between health authorities, housing authorities, voluntary agencies and any agency that can help these people. Something I find — and I am sure this is something every Deputy finds — is that Government Departments, housing authorities, etc. often operated in hermetically sealed watertight compartments and people at risk can fall between them. In my own constitutency the officials in Dublin Corporation, the Eastern Health Board and the social workers make great efforts to provide a continuity of care for these people. I hope Deputy Yates' amendment will be accepted.
(Wexford): I support Deputy Yates' amendment. It would be a very important amendment to have in the Bill. From time to time we all meet the particular problems which Deputy Yates refers to. Like Deputy Fitzpatrick I hope it would not be put into the Bill for the sake of having it there. There is a need for co-operation between the health boards and the local authorities and that down the road something concrete should be done to provide facilities for such people. As Deputy Howlin pointed out we have major problems in the area of homeless single people. It is important that we recognise on all sides of the House that something should be done to tackle the problem. While we cannot possibly give them three bedroomed houses there may be a possibility of providing flatlets or other type accommodation for those people I would ask the Minister to include this amendment as part of the Bill and that down the road we should have another look at the scene to see how the problem might be resolved.
First, I welcome my colleague, the Minister for Health, Dr. O'Hanlon, who is with us. I have observed two things from this amendment. First, that my backing group is very strong and, second, that Wexford appears to be at one.
Housing authorities have the primary responsibilty for providing accommodation for persons over the age of 18 years. The law in this area has been updated recently in the Housing Act, 1988, which requires housing authorities to undertake periodic assessments of housing needs in their areas. The needs of young persons leaving care would fall to be addressed in that context. The 1988 Act requires the housing authorities to consult with the health boards in conducting these periodic assessments. Therefore, the type of linkage between housing authorities and health boards envisaged in the amendment is already legally in place. I have every sympathy with the amendment and I would love to be able to accept it in its entirety. However, it has three defects, first, the words "local authorities" is incorrect — it should be "housing authorities" because some local authorities do not have housing responsibilities; second, persons over 18 are excluded in this Bill as it deals only with children under 18 years of age; third, the amendment refers to children "leaving residential care". What about children leaving foster care? They would be excluded?
I am prepared to accept the collective wisdom and the consensus of the House and, with the permission of the Chair and the co-operation of the House, to propose an alternative amendment which would read:
(e) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years.
That is acceptable but there is a problem with people who are over 18 years of age when they leave residential homes, but perhaps that cannot be dealt with. I am prepared, then, to withdraw amendment No. 154. We had an earlier agreement that we would reach amendment No. 159 before 1.30 p.m. and as we have received a submission on the matter concerned regarding a children's complaints procedure, I would like to have some discussion on the amendment while we have the opportunity.
Amendment, by leave, withdrawn.
I move amendment No. 154a:
(e) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years.
Amendment agreed to.
I move amendment No. 155.
In page 20, lines 6 and 7, to delete "specified in the warrant".
Amendment agreed to.
Amendment No. 156 not moved.
Acting Chairman
May I remind Deputies that, by formal agreement, we are to dispose of all amendments up to amendment No. 159 by 1.30 p.m.
I move amendment No. 157:
In page 20, line 26, after "motion", to insert "following consultation with the Health Board concerned".
I am very anxious that we abide by the agreement. I am also very anxious that this amendment be accepted. This important amendment seeks to insert after the word "motion" in section 38 (1) the words "following consultation with the health board concerned". This might not seem necessary but it is. Where there is an appliction before the District Court it should be incumbent on the justice to have consultation with the health board concerned.
There could be circumstances where an application would be made and a decision taken without the full circumstances being brought before the court. It is important that there would be a requirement although what I suggest may happen as a matter of routine. It has become clear to us again and again that we should not assume anything. We should require consultation to be made where necessary. This amendment would strengthen section 38 (i) by providing for consultation before a direction is given by a district justice.
Deputy Howlin has made the case for this amendment so I will not delay the House. I know the Minister is going to agree to the amendment so I do not want to delay hearing the Minister's good news again.
If I read this correctly, this amendment suggests that on an application for a direction the district justice would consult with the health board. I do not think this would do anything to enhance the judicial process.
The Deputy has been arguing both ways for the past three days.
I have not. We cannot allow judges go around having consultations behind people's backs with anonymous people. I do not regard this amendment as a runner and I do not agree with it.
We have included the word "may" in the amendment.
I have to say that Attorney O'Donoghue is correct.
Lord Justice.
It would not be appropriate to restrict the power of the court to give directions by requiring that it would have to consult with the health board. Consequently, I regret I will not be able to accept the amendment.
I regret it also and I will withdraw my amendment.
Thank you, Deputy.
Amendment, by leave, withdrawn.
I move amendment No. 158:
In page 20, lines 35 and 36, to delete "for as long as he remains a child".
Amendment agreed to.
I move amendment No. 159:
In page 21, between lines 23 and 24, to insert the following:
"40.—(1) Children who are subject to the provisions of this Act or parents of such children, may appeal decisions of Health Boards or voluntary organisations to the Minister where they are dissatisfied or where they feel injustice or ill treatment has taken place.
(2) On the investigation of an appeal under subsection (1) the Minister may issue such directions to the Health Board concerned as he deems appropriate in the circumstances of the case.".
No amendment has been put forward by the Minister on this issue. I will refer later to the proceedings of the Special Committee of Tuesday, 1 May. My amendment proposes that a complaints procedure should be put in place whereby children who are dissatisfied with the care they are getting or who believe an injustice has been done to them would have a mechanism to have it reviewed or appealed.
The Minister has already accepted a proposal he would not accept on Committee Stage, that is, a statutory review procedure. This procedure will look at the long term placement plan for the child. What I am proposing here has been lobbied for by the CARE organisation in the campaign for deprived children. They recommend that an independent review committee be appointed by the Minister for Health consisting of five people, three professionals and two members with appropriate training. They also recommend that it should not be a judicial body but should seek to investigate complaints and make recommendations in relation to the care being provided where a complaint is made. It would not be an alternative to court proceedings but in very many cases it would avoid costly, adversarial and, at times, potentially traumatic court proceedings.
This is a vital opportunity to deal with this issue. I very much regret that the Minister has not kept his commitment to bring forward an amendment on this issue. At the Special Committee on 1 May, the Minister said:
As regards the substitute amendment, the first thing I would have to say is that I have considerable sympathy with the contention that parents whose children are in care should be able to have any complaints or grievances they might have considered and any necessary remedial action taken. Indeed, my Department have been having discussions with the health boards and the organisation called Parents with Children in Care with a view to developing such arrangements. If the Deputy is prepared to withdraw the amendment I will be happy to look at the whole question of a complaints procedure on Report Stage.
I dutifully withdrew the amendment.
The difficulty is that I am trying to establish the difference between having a review carried out by a health board under a statutory review mechanism — we referred earlier to amendment No. 134, which is an entirely different animal — and children asking for a review to be carried out. I believe very strongly that an aggrieved child should have the opportunity to complain to somebody and that that complaint should be listened to and skilfully assessed. I do not agree with Deputy Fitzgerald that children of five, six and seven years do not have a clue and do not know what is in their best interests.
On a point of order, I never said that.
The Deputy has consistently stated this view——
If Deputy Yates wants this debate to turn into a battle between the two sides of the House so be it, but it has not been so up to now. I am trying to defend myself. The Deputy is totally out of order. He is misrepresenting the position in an opportunistic way and I ask him to withdraw his remark.
(Interruptions.)
We have only four minutes left.
We have very little time left and Deputy Fitzgerald will have an opportunity to speak later this evening.
(Interruptions.)
Acting Chairman
Deputy Yates to continue.
The Minister saw fit to accept the other proposals made by the CARE group and I believe he should accept this amendment. I ask the House to support it.
Acting Chairman
We have only four minutes left.
I will be very brief because I do not believe we should be wasting the time left. I strongly support the amendment. The procedure referred to by Deputy Yates is not necessarily the only one we can take into account. A commitment was given by the Minister, which I think is on record, that he would take account of the case made on Committee Stage and would come back with an amendment on Report Stage. I regret that that is not the case. There is no alternative but to accept the amendment before us and I strongly urge the House to support it.
I support the amendment. It is important that there would be a mechanism, such as the one proposed in the amendment, whereby children could make such an appeal.
There should be some mechanism whereby a child could complain to somebody but I am not convinced that the proposal in the amendment is the right way to go about it.
Acting Chairman
I want to remind the Deputy that we have only two minutes left.
The amendment would allow a child who is dissatisfied with the decision of a health board or voluntary organisation to appeal. What decisions are we talking about? Is it the decision of a health board to issue care proceedings in the first place or to issue proceedings for a supervision order?
This proposal was discussed at the Special Committee when I indicated that I had considerable sympathy with the idea of giving parents whose children are in care, and the children, some procedure or system which would enable them to air their grievances or complaints. I indicated that my Department were engaged in discussions with a new group known as Parents with Children in Care with a view to developing suitable arrangements.
I am sure Deputies will be pleased to know that this process is well under way and that within the last week my Department arranged a seminar to discuss the development of complaints procedures for children in care and their parents. The seminar was attended by representatives of the health boards, the resident managers of children's homes, the Irish Foster Care Association, the Irish Care Workers' Association and other interested parties. There was broad agreement on the need for a complaints procedure and the various groups are now examining how this can be set in place. The way forward is to gain the agreement of all the parties concerned rather than imposing from above a complaints system that might be resented and misunderstood. The House should give its backing to the efforts of my Department to arrive at an agreed procedure, in consultation with all the relevant parties.
In discussing the amendment we should not lose sight of what we have already agreed to insert in the Bill under amendments Nos. 119 and 142. Amendment No. 119 will allow for the first time a child involved in care proceedings to be joined as a party to the proceedings and to be granted legal representation. While I would hope that a child in care would not have to go to law to air his complaints or grievances we have given the child or young person the option and the wherewithal to do so if necessary. This should not be overlooked in the context of the present amendment.
I should also like to remind the House that amendment No. 142 will require the Minister for Health to introduce regulations providing for reviews of children in care. In earlier discussions I gave a commitment that the question of giving the child himself a right to initiate such a review will be sympathetically considered. I am prepared to go further now by giving a commitment that we will also consider the question of giving parents of children in care a right to initiate reviews.
It is clear that we have gone a long way towards providing complaints procedures and I hope that in view of all I have said Deputy Yates will consider withdrawing his amendment.
If the Minister had put down an amendment on this issue I would have supported it. There is a difference between a review committee and my proposal. Therefore I will be pressing my amendment.
Amendment put.
The Dáil divided: Tá, 61; Níl, 66.
Tá
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Bell, Michael.
- Belton, Louis J.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Dukes, Alan.
- Durkan, Bernard.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flaherty, Mary.
- Flanagan, Charles.
- Garland, Roger.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Rabbitte, Pat.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- O'Connell, John.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McDaid, Jim.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies J. Higgins and Belton; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.