I welcome the Bill and the debate. It is an important issue to which we will return as soon as the Government concludes its studies on the matter. I disagree with Deputy Callely that there is an element of politics in it. The Minister of State, Deputy Currie, said it was important and helpful legislation and that Deputy O'Dea has much to contribute in the area of criminal law reform and victim support. Bills on these areas are welcome.
I wish to concentrate on one aspect of victim support which is lacking in the Bill, the position of children in the court system. In comprehensive legislation on victim support, I thought there would be a reference to children. We all agree that children are often the most vulnerable sector of society and most in need of legal protection—victims in the real sense.
The 1991 Child Care Act reformed matters somewhat to include representation on behalf of children in care proceedings but, unfortunately, it is unclear as to the extent of the powers and functions of the representor and how best the position and views of the child might be expressed. The question as to how the views and wishes of children can be represented to courts is a difficult, complex and problematic matter which I hope we can debate with a view to Government and the Legislature formulating a resolution. It is essential where a child is unable because of its age to provide adequate instruction that a device is available to provide for the child's interest. In some recent cases judges have made orders allowing for separate representation for children but unfortunately it is unplanned and haphazard because it depends on the circumstances of each case and on the absolute discretion of the sitting member of the Judiciary. In the area of child representation I regret that we appear to be in breach of the Convention on the Rights of the Child, in particular Article 12 which states that a child shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or appropriate body in a manner consistent with the procedural rules of the national law. Ireland is a signatory to this convention and we are obliged to comply with it, yet we ignore it. That is something we should redress.
Many of our statutes specifically refer to the rights and wishes of the child, for example, guardianship of infants, adoption, child abduction and child care and so on. Yet too often children are unable to become directly involved in proceedings which have huge consequences for their welfare and well-being.
In cases where courts have appointed representatives, the legal profession must address the sad reality that it is not used to this concept, has little training in this area and needs guidance. The best interest of the child must be contrasted with the best wishes of the child. This is complex and difficult at the best of times but it is something which we as legislators have not addressed in the legislation passed in recent years.
Many recent reports have addressed the matter of child representation. Perhaps the most noteworthy was the large report of the Irish Society for the Prevention of Cruelty to Children. An interesting report was presented by Mr. Cormac Corrigan and Ms Catherine Forde of the Coolock Law Centre and another by the Law Reform Commission on consultation, reports, child sex abuse and rape. The Law Reform Commission considered the concept of the guaridanad litem but decided against its introduction in criminal proceedings on behalf of a complainant as “it would tilt the constitutional balance in favour of the prosecution”. While not crossing swords with the Law Reform Commission. I would like to see more research and debate before agreeing with it on that point.
The guardian or child advocate would protect the child from improper cross examination, ease the stress and trauma of courtroom proceedings and ensure greater co-ordination between the civil and criminal arms of our judicial system. The commission acknowledged that the role and function of the guardian are still very much at an infant stage in the United States and in other jurisdictions. It is an area to which I believe we should give greater and ongong consideration.
The child in care proceedings is always a victim and requires victim support as a top priority. The courts under our constitution are the ultimate protector of civil rights and must be given the power to ensure the rights of the citizen are at all times adequately met. In recent years we have heard much about constitutional protection for the unborn. We have seen legal representation for the unborn in the many SPUC cases which have gone through the courts, yet I regret we are unclear as to the role, function and application of legal representation for persons already born, namely our children.
The concept of a child services agency in legal matters, as proposed by the Coolock Community Law Centre in a recent report and by the Irish Society for the Prevention of Cruelty to Children, is worthy of support. There are huge difficulties in a child instructing its legal representative — the basic lack of understanding being the major stumbling block. Despite the Child Care Act's application to children and a number of care cases where children have been represented by being made party to the proceedings, there are no firm guidelines or satisfactory procedures in place. A child does not have an automatic guaranteed constitutional right to legal representation so any application depends on the discretion of the presiding judge. Some have been granted. It is not proper that such fundamental decisions affecting the welfare and wishes of the child should be determined on a case by case or a piecemeal basis. Amending legislation to establish a proper procedure for child representation, in essence child victim support, is necessary in the overall response to this Bill. I would like to hear the Minister for Health or the Minister for Justice comment on this point.
While a huge body of our statute law specifically refers to the rights and interests of children being paramount and receiving primary consideration, there is no proper vehicle to ensure their views and wishes are adequately presented to a court before a decision affecting their future is taken. Time will not permit me to look at the situation in other jurisdictions, but many western countries have established a system where the child is separately represented in court proceedings affecting its welfare.
There is a need for a professional child care agency to be given the task of taking overall responsibility for the provision of independent and separate legal representation for all children. This body would provide a panel of guardiansad litem for the courts. The Government should develop a relationship with an appropriate body, perhaps the Irish Society for the Prevention of Cruelty to Children, to establish proper practice guidelines. That body would also engage in the preparation of court officers and clerks in this new departure in our judicial procedure.
At present, under the Child Care Act, we appear to have the worst of both worlds with provision for representation in our statute but no guidelines or practice, accepted or otherwise. A child care agency would ensure that all involved have a high level of skills and are properly trained, whether they are guardians or legal advocates on behalf of the child.
The agency would supply the guardians for the duration of the legal proceedings. The role of the guardian would not be the same as the State social worker — the difference being that the guardian would appear and act for the child only, whereas the State social worker, as Members will be aware, deals with the extended family. The guardian would represent the child only and would be independent and accessible. To gain the confidence of the public, the agency could be a service attached to the Department of Justice with its own budget and managerial functions. I would see the guardian as someone whose expertise is in the child care area rather than in the legal area and where the interest and welfare of the child would be first and foremost at all times. The guardian would be obliged to inform the court of the child's wishes irrespective of the fact that they might differ from what the best interests of the child may be.
Children are always the victims in care proceedings where decisions are made regarding their future, often without any form of consultation. A child care agency concerned solely with protection and representation of children is essential if adequate and proper protection is to be afforded and if the risk to which children in care disputes are exposed is to be minimised.
I welcome Deputy O'Dea's Bill as an important step in focusing our minds on the area of victim support. I accept what the Minister said last night about waiting and perhaps incorporating points made by Deputy O'Dea into more comprehensive legislation. By focusing on children, I have given the Minister of State, the Minister for Health, Deputy Noonan and the Minister for Justice, Deputy Owen, an opportunity to come to the House to respond to the points I made.