Dáil Éireann debate -
Tuesday, 18 Feb 1997

Vol. 475 No. 1

Children Bill, 1996: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Miss Flaherty

During my opening remarks on the last occasion, I reminded the House that the 1980 task force report on child care anticipated major children's legislation which would fill a legislative vacuum of 80 years in one enactment. However, there have been four pieces of legislation and this Children Bill is, in the context of issues raised in that report, the last piece of a jigsaw, which I welcome. Last week I considered sections 1 to 7 briefly and I also made some remarks on child detention schools. This section is welcome because we have finally clarified the areas of responsibility between the various Departments in terms of age groups, children who come before the courts in need of care and custodial care. A reasonably broad and sophisticated range of options is provided for in the legislation to ensure a better response. That response will only be possible if the Departments responsible are to the fore in providing sufficient places. We have been appalled by the number of times responsible health boards have been forced by the courts to provide care. It is important to be vigilant to ensure resources are provided and that Departments are proactive in using the legislation to ensure the youngsters coming into care through the legal or care process get opportunities and that we use this time to rehabilitate, develop and improve and not worsen their situation.

A section of the Bill which received little attention but which is of great interest to me and to the Select Committee on Social Affairs is the one on the protection of children. Important and welcome changes have been made in modernising and updating the 1908 Children Act. The Minister of State will be aware that the Select Committee has been looking at this area for some time. A number of Members of the committee are committed to the ISPCC campaign on banning the physical punishment of children as soon as is legislatively or socially possible. One of the major and welcome changes in this Bill is the removal from the Children's Act, 1908 of the section dealing with the right of chastisement. The right of parents to chastise children is still covered by common law. I hope we come back to that issue in the future. However, this is a significant improvement. There is also much to be welcomed in the improved definitions in the sections on cruelty.

Our committee looked at a number of matters which are not covered in the Bill. We will correspond in some detail with the Minister and propose amendments. The Minister has indicated he will deal with some areas but he has not mentioned sexual assault. He said there may be additional sections on sexual exploitation so perhaps our concerns will be met but the Bill as drafted does not include sexual assault in the list of actions which constitutes cruelty and this is a significant omission.

Our committee received advice on the area of mental health, which is more difficult to define and deal with in law but if the Bill is to be comprehensive it should be included. Children have a right under the UN Convention to be free from both emotional and mental abuse.

We are also concerned that ill-treatment is not defined and we hope that it can include bullying, which is a frightening and damaging problem for many children and regularly hits the headlines. Almost no laws can be applied in such cases except the law of assault. Our committee will correspond with the Minister and propose a definition which will include actions which are likely to cause suffering or injury — not trivial incidents but significant sustained campaigns which are all too common in school yards. This legislation could be usefully amended to deal with this problem, which many young people face. Those are the major areas covered by the Bill.

While it may be covered in other legislation, the committee believes that the Bill, in changing the right of chastisement, does not deal with the rights of teachers, child care workers, nannies and babysitters. Many parents would be surprised to find that those groups have the right under law to physically punish children. Most jurisdictions which have not limited parents' right of chastisement have restricted that right for teachers and others. We have banned its practice by teachers under regulations made by the Department of Education but the defence would still exist in common law even after the changes proposed in this Bill. Most people would be happy to see a change in this area and our committee will return to this point. In the future, the quality of our society will be judged by the way we treat children.

The adoption of the UN Convention on the Rights of the Child and the world summit in 1990 focused attention on the condition of children. The reality of life for children in the Third World is well-known; millions of them die or are caught in circumstances beyond their control. The key to greater and faster action worldwide is to make children a high political priority, by dramatically improving their status as people. The degree to which we respect their civil rights, including their physical integrity and their protection from all forms of interpersonal violence, is a testament to our view on the status of children and people in general.

This Bill is an important piece of the legislative jigsaw but the Minister has indicated in recent months that he plans to do something more. When a substantive Bill is passed, there is always a danger that we think the work is done for ten years. However, we will always have to return to the issue of physical violence against children, the quality, nature and extent of our child care and the constitutional position of children in our society. The rights of families are much stronger than the rights of children, which poses difficulties in legislating adequately to protect them in families and other areas.

I would be happy if, in the remaining months of this Dáil, the Minister was able to deliver on his other public commitment to establish an ombudsman for children. There is a substantial body of legislation and the Minister can be proud of bringing this significant Bill before the House and finally putting it into law. If an office of ombudsman for children was established, he would have set up not only a legal framework but a passionate champion of children's rights who would ensure it would not be another 80 years before we reconsidered the rights of children. By virtue of the office, we would review these matters on an ongoing basis and individual and general issues relating to children would be properly and adequately advanced. The Minister stated his intention to do this in the policy document, Putting Children First. When replying to Second Stage, perhaps he would update the House on his plans. If he establishes that office as well as introducing this legislation, he will have done remarkable work for our children during his period in office.

Mr. Flood

I welcome the opportunity to participate in this debate. It has taken a long time to bring forward this legislation, which was previously referred to as the Juvenile Justice Bill; its preparation was signalled over 20 years ago. Drafting the Bill became the subject of serious differences between three Departments as to which would take on the responsibility, because it was intended to address the main issues regarding child care, including juvenile justice and adoption.

In the late 1960s and early 1970s, greater public awareness of child care and of the neglect of much needed support services which lacked resources and investment became apparent. At that time the problem of deprived children and the great deficiencies in child care services was the subject of much public comment and media interest. Health authorities had little involvement in child care and few social workers were employed. Over 2,000 children were living in institutions, many of which were old and unsuitable buildings.

The treatment of young offenders came in for particular public criticism. They were still being sent to old, Victorian-style reformatories and industrial schools such as Artane, Daingean and Letterfrack. The regime in those institutions was harsh and more concerned with punishment than rehabilitation. Recent information from former residents indicates and confirms the view which was widely held in the 1960s and 1970s.

With the establishment of the health boards in 1970 the position began to change, however slowly at first. In response to the Kennedy report the Department of Education began to provide family-style children's group homes and new purpose-built facilities for young male offenders.

In October 1974 the then Minister for Health, Mr. Brendan Corish, established a task force on child care services, which had the following terms of reference: first, to make recommendations on the extension and improvement of services for deprived children and children at risk; second, to prepare a new children Bill, updating and modernising the law in relation to children; third, to make recommendations on the administrative reform which would be necessary to give effect to the first two terms. This is where the children Bill began to emerge as a proposal to deal with child care in general.

The task force quickly reached broad agreement on the changes and improvements needed in the child care area. However, there was a problem because the members were unable to agree on two key issues: the changes to be made in the way the law deals with young offenders and the important issue of the age of criminal responsibility.

The matter did not progress until 1980 when the then Taoiseach, Mr. Haughey, directed the task force to submit its final report without proceeding to prepare a children Bill, as it had been directed to do by its original terms of reference. By 1983 the idea of a comprehensive children Bill to deal with all matters relating to children was effectively dropped. Instead, it was decided to introduce three Bills to tackle the three main areas, namely child care, adoption and juvenile justice.

The then Government adopted this approach in its national plan, Building on Reality. The plan announced the intention to introduce the three Bills. However, there was once again a fatal flaw in the announcement, in that it did not name the Department which would introduce the third Bill, namely the juvenile justice Bill. I understand the Department of Health was under the impression that the Bill would be produced by the Department of Justice, while — surprise, surprise — the Department of Justice believed that the Department of Health would draft the Bill.

The matter of which Department would draft the Bill was resolved in 1990 when, as Minister for State with responsibility for child care, I made a recommendation to the then Taoiseach, Mr. Haughey, that the Bill should be prepared by the Department of Justice. The then Minister for Justice, Deputy Ray Burke, took on the task. That is why this Bill has emerged from the Department of Justice.

I felt at that time that the Department of Justice should prepare the juvenile justice Bill because the legislation would essentially be a matter of refining and modernising criminal law and procedure as it affected children, and bringing about change in the method and approach of the Garda and courts in relation to young offenders. The original concept devised by the task force of one comprehensive Bill to tackle all aspects of child care, including adoption and juvenile justice, was an enlightened one. I regret that procedure was not followed but got derailed for the reasons which I indicated.

A serious issue of concern at that time was the age of criminal responsibility. Section 40 of this Bill deals with the age of criminal responsibility, which is a crucial issue. There have been frequent calls in recent years for the raising of the age of criminal responsibility. However, there has been little real discussion of the implications of such a move for the administration of justice and the treatment of young offenders.

We need to first clarify what is meant by the expression "the age of criminal responsibility". There are at least two possible meanings. The first is the age below which a child is regarded in law as incapable of distinguishing right from wrong and is, therefore, regarded as incapable of committing a crime. This is the basis for the age being set at seven years under current law because seven years has traditionally been accepted as the age of reason, that is, the age at which children first learn to distinguish between right and wrong.

The second possible meaning of the expression is that it is the age below which a child will not be dealt with under the criminal law in respect of offences which he or she has committed. This meaning applies in some European countries where the age of criminal responsibility is fixed at ten, 12, 14 or 15 years of age. Children below the relevant age are not regarded as incapable of committing crimes, rather the law provides they are not dealt with under the criminal code in respect of such crimes.

I believe that the public would be very concerned at the prospect of youngsters under the age of 12 years committing anti-social acts and other crimes without being subject to any form of sanction. While most offences committed by children are petty in nature, the sad fact is that a minority of youngsters are increasingly getting involved in very serious offences. Regrettably, in recent years boys aged between 12 and 15 years have been involved in cases of murder, rape, arson and armed robbery. If we were not to deal with such youngsters under the criminal law, the alternative methods would have to be spelled out in detail. It would also be important to clarify the respective roles of the Garda, courts and health boards in relation to such children.

We have to plan carefully for the future treatment of young offenders because, as I think the Minister of State would agree, the whole area is operating at present on a fairly unplanned basis. Perhaps he is trying in this legislation to achieve a co-ordinated approach to dealing with the issue, which I would welcome. We must accept, without any prevarication, that serious efforts must be made in regard to planning, prevention and the provision of therapy for young offenders.

The Departments of Health, Education and Justice have a thoroughly important role to play in this area. Many of us are experienced enough to know that such a desirable scenario of co-operation between the three Departments concerned will not be easy to achieve. Consequently, we must ensure there is a co-ordinated approach to dealing with young offenders, providing for them and doing all in our power to rehabilitate them. Of course, that will require funding and long-term planning.

Part II of the Bill deals with the diversion programme, formerly the juvenile liaison scheme. This has been a very good scheme which has generally worked very well. As part of my constituency work, I have seen the very positive effect this scheme has had on many youngsters, many of whom did not come to the attention of the Garda again. It is good that the scheme is being put on a statutory basis; if it is provided with the additional resources which it requires it will make a considerable contribution to steering youngsters away from a life of crime.

Obviously, the intent of the diversion scheme is to divert youngsters from contact with the judicial system. Therefore, the expansion of the probation and welfare services is extremely important and that is where some of those extra resources will be required. The establishment of the Garda schools programme was a positive decision and needs to be further developed. Some 1,000 gardaí have been trained in this scheme and 2,800 are now involved in it. It is a good contribution to this area.

Education is crucial in diverting young people from becoming involved in offending against the law. It is obvious there is a direct connection between youngsters who leave school early or attend school on an irregular basis and the development towards participating in crime. Consequently, the home/school liaison scheme needs to be resourced, expanded and targeted. It is already making a considerable contribution to these areas.

Another area which needs to be investigated and helped is that of disruptive or disturbed children in school, particularly in primary schools. Many teachers and principals speak of the havoc which is caused in classrooms by individual children who, for whatever reason, seem unable to conform to the normal requirements of a classroom setting. Efforts must be made, possibly with the assistance of the health boards, to deal with such children and to provide help and guidance for them so that they can conform or be dealt with in another way.

I thought that the Minister of State might have tackled the truancy Bill, which he has promised the House, since it is his intention to tackle the problem of begging on our streets. I was pleasantly surprised to see that included in this legislation. A relatively small number of children find themselves put on the streets to beg. It is an industry in itself, generated by a small number of uncaring parents or guardians. Had the Minister of State incorporated all the relevant provisions of the proposed truancy legislation, the Bill would have made a great contribution to child care.

Sections 20 to 35 deal with family conferences. Why are there no provisions for the inclusion of community leaders? Such a measure would follow the lines of the Scottish juvenile system. Areas experiencing problems from small groups of out of control youngsters can be easily targeted. The youngsters involved are often known. It may be that they needed help in the past which they did not get, thus placing them in conflict with the law. The Minister of State should look at this again to see if it would be practicable and reasonable to involve teachers, respected community leaders or some such people who may be able to help the individuals and families concerned.

The power of the courts to impose fines on children and the corresponding onus on parents to pay compensation is an issue that has been frequently raised at public meetings. The measures proposed in the Bill have been called for and will be popular. They may be difficult to impose and must take account of the resources of the parent, guardian and child.

Section 91 gives the courts power to order the parent or guardian of a child offender to enter a recognisance to exercise proper and adequate control over the child. This is an important area of complaint. Parents and guardians have a contribution to make in this area. However, there is a problem regarding the make-up of families today. In some cases parents may find it impossible to control an unruly youngster. To suggest in such circumstances that the parent is failing in his or her duty will not always be the correct approach to take. What provisions are made to ensure that parents or guardians are not unfairly blamed for failing to control children who may be 13, 14 or 15 years of age and are running wild? Children find themselves in that position in many areas I represent.

The Department of Education will be responsible for the operation of child detention schools, while the Department of Justice will be responsible for 16 and 17 year olds and the health boards will be responsible for out of control children. This will be a major problem, and the legislation may fall down in this area. The Minister of State will be aware that frequently the courts send children to specific institutions, only for the institutions concerned to refuse to accept them because of overcrowding. The gardaí then have nowhere to put them and they are released. Will sufficient facilities be provided in time to meet the needs that will arise? The problem could become acute given that three Departments are involved. It would be better to incorporate under one authority the services now divided between these Departments. Otherwise, and despite the Minister of State's best efforts, responsibility will be passed from one Department to the other. This happened when I was Minister of State and when co-ordination between the three Departments was at an early stage of development. It will be a test of the legislation as to whether the proper resources will be made available in this area.

According to the explanatory memorandum to the Bill on sections 166 and 175, a school cannot refuse to accept a child offender referred to it by a court. What happens if the school is full? This will have to be addressed.

Section 205 tackles the issue of begging by children. It is a positive inclusion in the Bill. Only a small number of people make children behave in this manner. I am glad to see that action will finally be taken to address this problem.

With regard to health boards and the question of special care orders for the small number of children who are out of control, some such children are probably in the Minister of State's constituency; they are certainly in mine. No agency is prepared to take them on. I am glad that the Bill makes provision for identifying the children involved. We know that there is a specific responsibility on the relevant health boards to take action. Will they have the services available, such as therapeutic facilities, to deal with such youngsters? If so, they will make a considerable contribution to weaning them away from progressing into a life of crime.

The Bill was a long time in preparation. It could have been more radical in some areas. It is very dependent on the commitment of the Government to planning for the provision of facilities, to co-ordination between the relevant Government Departments and to making available the necessary resources to meet the objectives of the legislation. If resources are not made available to implement this legislation it will fail and result in youngsters running wild being turned away from institutions to which they have been sent by the courts. I look forward to the enactment of the legislation and its implementation, especially in the areas of resources, co-ordination and future planning.

Mr. Bree

This Bill is important and complex and credit is due to the Minister and to his Department for the work that has gone into its preparation. Last week Deputy O'Donnell correctly pointed out that work and discussion on this legislation has been taking place for some time and that many of the contributors to the debate are no longer Members of this House. Her point is well made and I congratulate her for raising the matter.

The provisions of the Bill will finally replace the remaining operable provisions of the 1908 legislation. It is unacceptable that such an important area of law should be almost 90 years old. One contributor to last week's debate referred to the reforming liberal Government of the first decade of this century. That was a good Government which put in place the first building blocks of the welfare state. However, it would be completely unacceptable to me and to many of the most right wing Members of the House if the basic welfare and employment insurance systems that that Government put in place were still in operation. What is it about children that has made it acceptable for us to continue to operate legislation designed for another era?

Family and family life is a contributory factor to the delay in producing this legislation. My own party is often accused by other political parties, but more often by self-appointed fundamentalist groups, of being anti-family. It is an accusation which I totally reject. For too long our perception of the family has been traditional, hierarchical and patriarchal. Is it any wonder that the incidents of child abuse, both sexual and otherwise, which have emerged over the past decade were so easily swept under the carpet?

These are difficult times for the family. Marriage breakdown and single parenthood are increasing. However, we should not regard this solely as a threat. We had one family model in Ireland 30 years ago. Now we have a multiplicity of models. The real issue is not the nature of the family unit but the care and attention devoted to the needs of the children. I accept that, by this criteria, two parents are better than one. However, that is more a rule of thumb than anything else. There are many children better looked after by a single parent, male or female, than by a couple. The ultimate advantage of a two parent family is that the quality of childcare can be better simply because the job is a shared one. It is better to recognise changing trends in relation to the family and deal with them realistically than to pretend that they do not exist or reminisce over days when the problems were swept under the carpet.

For that reason I welcome the modernisation of our law in relation to children. This Bill can be seen as the second part of a two-stage process, the first of which is the childcare legislation of 1991. The 1991 legislation deals primarily with issues relating to care and rights while the present legislation deals with juvenile justice issues. While I realise that this demarcation is rough and ready, I cannot but wonder whether this Bill is appropriately titled. What does the term "Children Bill" signify? The Bill is effectively a juvenile justice Bill. However, I recognise the difficulty in using the word "justice" in any Bill dealing with minors, particularly one which raises the age of criminal responsibility from seven to ten years.

The raising of the age of criminal responsibility is welcome and I look forward to seeing it developed further. The existing provision can only be described as ludicrous. How can a child of seven be deemed to be responsible for his or her actions? Deputy O'Donoghue suggested that this provision was merely putting the existing common law provision on a statutory footing. I do not understand his point. This provision should be on a statutory basis, decided upon by the Parliament and not left to the whim of the courts.

It is hardly surprising that Deputy O'Donoghue's contribution to the debate should be laden with such cynicism. He is storing up trouble for himself. Both Opposition parties are engaging in auction politics on the crime issue, juvenile or otherwise. They are deliberately exploiting the unease and concern which exists among the public. They refuse to spell out how they will tackle the problem. It is not unfair to say that by omission if nothing else, Fianna Fáil and the Progressive Democrats Party will tackle crime by legislation in this House. Very little crime takes place on the floor of this Chamber and I suggest to them that they will find the real world outside another kettle of fish.

Funding will be the key issue in determining the speed with which this Bill in implemented once enacted. I welcome the fact that the election contest is shaping up into one in which one side of the House is prepared to recognise that public spending has a role to play in developing a modern and dynamic society. The people will not be able to say that they have no real choice in the election. Deputy McDowell, finance spokes-person for his party, rebuts challenges about how his party will implement their policies by intimating that there is something mean spirited about the Government raising the issue of funding — although I notice it was not a problem at the weekend. It is now a case of "they would say that, wouldn't they". However, if the best the Progressive Democrats Party can do on the issue of financing their economic plans is to suggest that there are millions of pounds to be saved in the real economy by playing with numbers on a balance sheet, then the public will be in for a rude awakening.

Only in the last two years have we seen the necessary funding of the childcare legislation being made available, five years after the legislation was enacted. A repetition with the provisions in this Bill would be completely unacceptable. The Minister, Deputy Currie, has correctly pointed out that the real indication of a commitment to this Bill will be our speed in implementing it. The Opposition's track record in this area is deplorable.

There are other provisions in the Bill which I welcome. The involvement of parents in caring for children in trouble is an important step forward. The Minister has struck a reasonable balance between imposing duties and obligations on parents and in recognising that in some cases parents are not accountable for their children's actions.

Deputy O'Donnell expressed concern that the Bill may not be fully implemented before the end of this session. I share her concern. The complex nature of the Bill is evident in its 203 sections and it should be thoroughly discussed on Committee Stage. Sufficient time should be allowed for that and I look forward to seeing the Bill enacted as soon as possible.

A number of sections, particularly section 205, deal with children begging. All Members have been approached about this issue. It does not affect many of us in the provinces but it affects Dublin. Many people from the country visit Dublin regularly, witnessing young people begging. For too many years the question of what is being done about this has been asked of the Government. This legislation will end that exploitation.

The Bill proposes to abolish reformatories and industrial schools and to replace them with children's detention schools. That is an issue I have campaigned about for over 20 years. I entered politics through youth politics as a member of the Connolly Youth Movement. As a member of that organisation and the National Youth Council I worked with young people in numerous youth organisations which campaigned about this issue for over 20 years. I am proud to be a member of a party in Government that is introducing this legislation. In Sligo a 15 year old girl was once remanded in custody by the District Court to Mountjoy Prison. It was an outrageous decision that would not be accepted by any civilised society. I remember being assisted by Deputies at the time who told me of members of the legal profession who would assist that young girl. A former Member took a leading role in ensuring the matter was raised in the High Court and the girl was speedily released.

I commend Minister of State, Deputy Currie, and his officials for the tremendous work they have done in drafting this legislation and I look forward to its being enacted.

Mr. Gallagher

(Laoighis-Offaly): My previous post was in youth work and I had much experience in dealing with youngsters who were in trouble with the law and their families. I address this issue from that perspective.

One can analyse this Bill section by section in a legal framework. It is important that that be done with the laws which govern how children are cared for and how those children in various difficulties are dealt with and supported. Those laws should be clearly set down because, as Deputy Bree pointed out, if one does not pay attention to that detail, one will find a youngster before a court on the basis of an Act passed in 1908. While that is post-Dickensian, it does us no credit that the only legislation to deal with children in these difficulties is such an antiquated Act.

I too dealt with children remanded to jails. If it was going on in Turkey or another developing country, Amnesty International would be beating down the door and it would be raised on the Adjournment. From that viewpoint I am glad this legislation has been introduced. It will take time to get through but it will make it to the Statute Book and update matters considerably.

I will approach this from the perspective of the parent or the youngster in difficulty or that of a youth worker or childcare worker trying to support them. What difference will it make to them? A number of principles should underlie any effort to deal with youngsters in trouble with the law. All contributors have correctly pointed out that nothing of use will be achieved by simply passing a law. Resourcing is very important but what is even more important is the use of those resources.

The measures introduced as a result of this legislation should be implemented on a community basis. All Members supported the childcare legislation and the protection of children now coming into effect as a result of the 1991 Act and the subsequent funding. Parents have approached me in dread, saying they have been called to the headquarters of the health board because an anonymous report about them or their children has been made. The impression is given that they are being hauled before a bureaucratic body when all the social worker is trying to do is to find out if something should be dealt with and how to support the family in dealing with that. In as far as is possible, the services to be provided as a result of the implementation of this Bill should be delivered on a community basis by people in whom communities have confidence and to whom parents and children can relate. Then the parents and children can feel they are being supported in dealing with a problem rather than being hauled over the coals when so many of them are under social, economic and family pressures.

Structures should be put in place in every community to support parents in dealing with their children: first, to prevent the children getting into trouble and second, to deal with children who get into trouble. It is right that parents can be required to attend court and to pay fines arising out of a child's misdeed. However, I would prefer to see the provision of family resource centres, local community support operations and individual support for children to prevent them from getting into trouble initially. If resources are being allocated, that support should be given first call on the resources rather than the demands of the court and judicial system.

In my area I am involved in helping problem children through supporting their parents in cooperation with a local voluntary organisation. It is a low-cost scheme that operates through the local vocational education committee. Parents and children are being supported in coping with very difficult problems and issues. The reports coming from schools, youth clubs and other groups are that the approach is working and the children are getting the support they need. They are less likely to drop out of school, end up on the streets or have trouble with the law.

Debate adjourned.