Dáil Éireann debate -
Wednesday, 2 Jun 1999

Vol. 505 No. 7

Protection of Children (Hague Convention) Bill, 1998: Second Stage.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to give the force of law in the State to the Hague Convention of 1996 on the Protection of Children. The Bill provides a framework within which effect is given to the provisions of the convention in their application to the State. The convention, when in force, will determine what civil law should apply in cases of guardianship, custody of, and access to, children who have links with the jurisdiction of two or more contracting states. The convention will also determine what court should exercise jurisdiction in such cases. The convention results from the work of the Hague Conference on Private International Law. Many Deputies will be aware of the work of that conference which has led to, for example, the Hague convention on the private international law aspects of child abduction.

Since ratification of that convention in 1991 by the State, my Department has operated a central authority for the purpose of applications for the return of children who are abducted into or out of the State by a parent. The convention of 1996 will, in some respects, supplement the convention on child abductions but its scope is a good deal wider because it deals generally with co-operation in respect of matters of parental responsibility and measures for the protection of children and it deals in those areas with jurisdiction, applicable law and recognition and enforcement of judgments. We live in a world of increasing mobility. The custodial and other interests of children need to be protected in an environment where children, for one reason or other, are moved by a parent or parents from one jurisdiction to another.

There is increasing awareness of the international aspects of the law as it relates to children and a recognition that conflicts of jurisdiction between the authorities of different states may not be in the best interests of children. The best examples are custody disputes where parents are residing in different jurisdictions and apply separately to the courts in those jurisdictions for a determination on the matter. As a result, conflicting judgments may emanate from each court on the issues involved. The convention addresses this long-standing problem by setting out clear and uniform rules to be applied in such cases in all contracting states and it provides for the speedy and effective recognition and enforcement of judgments in those states.

Since some understanding of the provisions in the convention is a prerequisite to an understanding of the provisions in the Bill, I propose to outline the main provisions of the convention before dealing with the Bill. The full text of the convention is scheduled, for ease of reference, to the Bill. I might also mention that there exists an explanatory report on the convention as published by the Hague Conference. Copies of that report, known as the Lagarde report, have been made available in the Oireachtas Library.

Chapters I to V contain the main provisions of the convention. Chapter I sets out its general scope. The convention applies to children up to the age of 18 years and is concerned with "measures directed to the protection of the person or property of a child". The view of the Hague Conference was that, since measures of protection vary with each legal system, any enumeration of those measures could only be in terms of examples. Consequently, the convention gives a non-exhaustive list of the measures to which it relates. In general terms, it applies to measures related to guardianship, custody and child care. It does not apply to matters such as determination of parentage, adoption, maintenance, succession, social welfare or health.

Chapter III of the convention deals with jurisdiction and lays down a basic rule, namely, that the authorities in the contracting state where the child habitually resides should exercise jurisdiction in matters of guardianship, custody and child care. This was regarded during negotiations on the convention as providing the most realistic basis for determining jurisdiction taking into account the child's interests and the availability of relevant evidence. In the event, for example, of the unlawful removal of a child, the convention ensures that the first state retains jurisdiction over the child and it restricts the means by which the second state can acquire such a jurisdiction. This is particularly important by reference to the Hague Convention on Child Abduction and ensures that that convention can continue to operate as successfully as it has done up to now.

Special provision is made in the convention in relation to courts which have competence to determine an application for divorce, annulment or judicial separation and where one of the parents and his or her child does not have habitual residence in the jurisdiction. This might arise, for example, where an Irish court was seized of a divorce application in a case where the applicant is habitually resident in the State but the respondent and a child are resident in another contracting state. The view taken by the Hague Conference was that it ought to be possible, from the point of view of convenience and cost for both parents, where they both accept the jurisdiction of the divorce court, for issues concerning the welfare of the child to be dealt with by the one court. Jurisdiction to take such measures may, under the convention, only be exercised where it is in the best interests of the child and it ceases as soon as the divorce proceedings have been finalised.

The potential role of other states with which the child may have a substantial connection is also recognised, but in a subsidiary capacity. Thus, for example, the authorities of a state of which the child is a national, if they believe that in a particular case they are better placed to assess the child's best interests, may request the authorities of the child's habitual residence to authorise them to take appropriate measures of protection. Indeed, the authorities of the habitual residence of the child may themselves initiate the transfer mechanism if they think it appropriate. The convention also allows the authorities of any state in whose territory the child, or property belonging to the child, is present to take measures in cases of urgency or to take provisional measures of protection, subject to the competence thereafter of the authorities who would normally have jurisdiction.

Chapter III of the convention sets out the law to be applied by courts when taking measures of protection. The basic rule is that the relevant judicial or administrative authorities should apply their own law but with sufficient flexibility to allow such authorities to take account of other relevant laws where the protection of the child or his or her property so requires. The convention provides that the law of the child's habitual residence be applied to the question of whether parental responsibility has arisen by operation of law or by agreement. If there is a change in the child's habitual residence, any such existing parental responsibility continues to be effective, but the law of the new habitual residence will determine whether any additional parental responsibility is attributed.

The thrust of Chapter IV of the convention is that measures taken in one contracting state for the protection of a child or a child's property must, subject to conditions, be recognised in all other contracting states. Those measures will become enforceable as if they had been taken by the authorities of the state in which enforcement is sought. The basic principle here is that a measure relating to the protection of a child should not cease to have effect merely because a border between contracting states has been crossed. The guardian of a child whose parents are deceased, for example, should not have to go to the expense and trouble of obtaining a new order in the second state to satisfy the authorities there. Recognition and enforcement may be refused, however, in certain circumstances. These include lack of jurisdiction in the state of origin, breaches of considerations of natural justice or grounds of public policy and any interested party may apply to the court for a decision on the recognition, non-recognition or enforcement of a measure where difficulties arise.

Chapter V requires contracting states to designate a central authority to co-operate with other central authorities for the purposes of the convention. A central authority's functions will include facilitating communications and offers of assistance between courts and administrative authorities in different contracting states, facilitating agreed solutions for the protection of a child's person or property in cases to which the Convention applies and, at the request of a competent authority, providing assistance in discovering the whereabouts of a child who may be present in its territory and in need of protection. Such co-operation has been singularly successful in the context of the Hague Convention on International Child Abduction. Some 53 countries have acceded to that convention.

I now turn to the main provisions of the Bill. Section 1 contains some standard definitions. Deputies should note that particular definitions are given to the words "decision", "judgment" and "measure". These are necessary because the convention will apply to court judgments and to decisions made, for example, by health boards under the provisions of the Child Care Act, 1991.

The main provision is section 2, which gives the force of law to the convention and provides that judicial notice shall be taken of it. These are standard provisions in Bills of this kind.

Section 3 is a technical provision dealing with the application of the convention in the State. The terms "authority" and "authorities" are used throughout the convention. In some contexts they mean courts in the State, whereas in other contexts they mean administrative agencies concerned with the protection of children. Subsection (2)(a) transposes such references in various articles of the convention, in so far as they apply to courts, into references to the appropriate court in the State. Paragraphs (b) to (d) provide for the manner in which the District Court is to exercise jurisdiction in certain matters in respect of which it did not previously exercise jurisdiction. Paragraph (b) provides for the manner in which the District Court is to exercise jurisdiction in the recognition or enforcement of a measure taken in another contracting state, and paragraph (c) provides that a measure in respect of which an order has been made shall, to the extent to which recognition or enforcement is authorised, be of the same force and effect as if the measure was an order of the District Court. Paragraph (d) is also of interest because it provides for the manner in which the District Court is to give its opinion on the suitability of a parent to exercise access to a child who does not habitually reside in the State, on the application of a parent who resides in the State. This is provided for in article 35.2 of the convention. That article reflects the view that it is the authorities in the state where the parent resides who are in the best position to gather information on the suitability of a parent to exercise access rights.

Section 3 (2)(e) makes clear that the definition of "father" in section 2 of the Guardianship of Infants Act, 1964, includes the father of a child who has, by virtue of article 16 of the convention, acquired parental responsibility by operation of the law of another state. Article 16 provides that where a person has acquired parental responsibility by operation of law in the state of the child's habitual residence, without the intervention of the relevant judicial or administrative authority, it subsists after a change in the child's habitual residence. The maintenance of some continuity and certainty in this area is regarded, under the convention, as being in the interests of the child.

Subsection (2) paragraphs (f) and (g) allow for the fact that the State may reserve to the jurisdiction of its authorities the power to take measures directed to the protection of the property of a child in the State and not to recognise any measure taken abroad that is incompatible with any measure taken by authorities in the State. These reservations are permissible under article 55 of the convention.

In keeping with the principle that the law which should apply to measures for the protection of a child should be the law of the country in which a child habitually resides, paragraph (h) provides that, subject to Article 52 which relates to agreements between contracting states on matters governed by the convention, any enactment or rule of law which confers jurisdiction on a court otherwise than in accordance with the convention shall cease to have effect.

Sections 4 to 8 provide for standard matters of jurisdiction in the Circuit Court and the District Court for the purposes of applications under the convention in the State. Section 5 provides that judicial notice shall be taken of the relevant judgments of courts of other contracting states concerning the provisions of the convention.

Where cases having an international dimension are concerned, it will be of importance that a court is seized of all relevant material relating to a child who is the subject of proceedings in that court. Accordingly, sections 6 and 7 deal with the provision of documents and evidence in court proceedings for the purposes of the convention.

A court in the State may, by virtue of section 8, address letters of request for the purposes of articles 8 and 9 of the convention to courts or similar authorities in other contracting states. The court may do so either directly or with the assistance of the central authority that is proposed to be established in the State for the purpose of the convention.

Section 9 implements that part of the convention which requires contracting states to designate a central authority to promote co-operation among competent authorities to achieve the purposes of the convention. That section, which authorises the Minister for Justice, Equality and Law Reform, by order, to appoint a central authority, is based on provisions which already apply to the Central Authority for International Child Abduction and the Central Authority for Maintenance Recovery which are operating successfully in my Department.

By virtue of section 10, the central authority under the 1996 convention will have authority, if requested, to provide information to the competent authority of another contracting state under articles 31, 32 or 34. It may require a probation and welfare officer, a health board or the registrar or clerk of any court to which a written report relating to a child has been sent to provide information on the child. It will also have authority to require any public office holder or body to provide it with any information which would assist in discovering the whereabouts of a child. A corresponding power is proposed in section 17 for the Central Authority for Child Abductions.

Article 26 of the convention requires states to apply a simple and rapid procedure to applications for enforcement of orders under the convention and, accordingly, section 11 provides for the making of rules of court to provide for the expeditious hearing of proceedings under the convention.

Section 12 is a saving provision which makes clear that nothing in the Bill shall affect the application in the State of the Child Abduction and Enforcement of Custody Orders Act, 1991, which gives the force of law in the State to the Hague and Council of Europe conventions on child abduction. When a child has been wrongfully removed from one jurisdiction to another, the priority will remain that of ensuring his or her immediate return, and it will only be after this return that other measures of protection may be pursued. Section 12 also makes clear that nothing in the Act shall affect the existing jurisdiction of the Irish courts to take measures directed to the protection of the person or property of a child, who is not habitually resident in a contracting state, except where the convention specifically governs the taking of such measures, for example, in cases of urgency. The jurisdiction of the courts in the recognition, enforcement or non-recognition of measures taken in non-contracting states will remain similarly unaffected.

These are the main provisions of a Bill which is, at its heart, child centred and reflects international concern at the increasing incidence of parental conflict relating to children who may be the subject of decisions or proceedings in different jurisdictions. Lengthy and protracted court hearings as to forum and jurisdiction are not in the best interests of children and the convention attempts to minimise those problems. The con vention is of recent origin and states are in the process of preparing for membership of it. The House will agree that we should be to the forefront in this matter. The Bill will enable the State to ratify the convention. I commend the Bill to the House.

Mr. Neville

I welcome the Bill which enables the State to ratify the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures of protection for children.

The Bill will give the convention the force of law in this State. The convention and the Bill will give effect to the treaty on the subject of custody jurisdiction while masquerading as a general welfare statute. The Bill and the convention do not apply to persons over 18 years of age, nor do they apply to paternity or to decisions on adoption, social security, general public welfare measures, criminal matters or asylum and emigration. It may deal with it but it does not state exclusively that it will deal with attribution, exercise, determination or restriction of parental responsibility. The convention states that it will deal with the rights of custody, relocation and visitation in so far as they are international. It does not deal with guardianship, foster replacement and matters relating to children's property.

The treaty gives jurisdiction over custody to the country of the child's "habitual residence". If the habitual residence changes, jurisdiction changes and for those children such as refugees, who have no habitual residence, the country in which they are located will have jurisdiction. The treaty allows countries to defer jurisdiction exercised and transfer jurisdiction to other signatory countries. It suggests that such countries might be those where the child has nationality, those in which there is a divorce case pending between the child's parents, or those in which the child has a "substantial connection". Before accepting jurisdiction, the new country is required to consider whether accepting the child would be in its best interests.

The country in which the child is present is allowed to take the necessary measures in urgent cases. Those measures would be of a provisional character and have a territorial effect limited to the countries making the decision. These temporary measures must lapse as soon as the habitual residence country has taken its own necessary measures. A country is supposed to apply its own laws but may, in exceptional cases, apply the laws of another country which has a substantial connection with the child.

Recognition of other countries' decrees is required and may be refused only if they are not based on jurisdiction or concepts similar to those of the treaty or if the prior proceedings gave no opportunity for the child to be heard in violation of the fundamental principle of procedures of the requested state.

The rights of parents are outlined. There is provision for refusing recognition on the request of any person claiming a measure infringed his or her parental responsibility, if that measure was taken without that parent being given an opportunity to be heard. Recognition can also be refused if it is manifestly contrary to public policy of the former country, taking the best interests of the child into account.

Child abduction is a growing problem in Europe. Increased mobility has resulted in more transnational marriages, more transnational marriage breakdown and more transnational child custody disputes. Faced with complex and lengthy court proceedings, or with the prospect of losing a custody battle in another country, some parents simply abduct children of broken marriages. In 1997, there were 123 abductions, 50 per cent were into this State and 50 per cent out of the State. The majority of children abducted from the State were taken to England or Wales. Intermarriages between Irish and UK citizens account for the majority of cases. Most abducted children of separated parents are taken out of the country by one parent without the consent of the other.

Unfortunately, the abduction of children is a growing problem and one which has been, perhaps, made easier by the removal of travel restrictions between the 15 member states of the EU. The main difficulty is the delay in dealing with cases in courts outside this jurisdiction. The longer the delay the more difficult the situation. If a case takes more than nine months to come to court and the child is very young, it will be argued that the child has lived for as long in the country to which it has been abducted as it did in the country in which custody is being sought. The basic principle of the Hague Convention is that the residence of the child is decided in the country in which the child habitually resides. However, cases are purposely delayed until an argument is created that the child resides in the country into which it has been abducted.

The problem in most countries is that many judges are not informed in the area of child abduction and may come across only one such case in their professional lives. This is not the case in Ireland and Britain where High Court judges are familiar with the issues and how these cases should be dealt with.

Another problem arises when a parent from another country, bringing a case in our courts to return a child to its homeland, gives a commitment which he or she has no intention of living up to. People often fail to live up to undertakings to properly cater for children and many judicial systems in the country of origin do not have the rule of law to enforce these undertakings. In a case before Ms Justice Catherine McGuinness in November 1998 an Italian father sued for the return of his daughter. On their return to Italy the child was immediately placed in an orphanage because of its circumstances and was left there for a year.

While I welcome the Bill, Europe has experienced problems in applying the Hague Convention. The main problems are the slowness of procedures, the lack of free legal aid in some countries, and the use of exceptional clauses. The implementation of appeals procedures should be fast and almost automatic. Lawyers and judges are often unfamiliar with procedures as they rarely deal with cases of child abduction.

Interpol figures for 1996 showed that 60 children reported missing in the EU had not been traced. The development and enlargement of the Union will require that member states co-operate on family issues. The Interpol figures greatly understate the scale of the problem. They cover only criminal abductions while abductions by parents are excluded. US figures indicate that in 1995, 367,000 children under 16 years of age were missing. Many of these children are abducted by a parent, others run away or live with another family member, and some are injured and die. A small number are taken by paedophiles and are never found.

I pay tribute to Mary Banotti, MEP, the European mediator on the abduction of children, for her excellent work in this area. The number of children missing in the EU is unknown. At one point, Interpol said the figure was 60, at another it claimed it was 200. The truth is that it does not have a clue of the number. The Marc Detroux case in Belgium shows that an abducted child can be taken out of a country in ten minutes, thus highlighting the need for co-operation. The European agency that deals with the trafficking of drugs and people should be given responsibility for missing children.

There are many examples of abduction. For instance, a couple who lived in Cork went to Spain on holidays with their children, including two from the woman's previous marriage. The man suggested that his partner stay in Spain for an extra week with the children from her previous marriage while he returned to Cork with their four year old twins. When the mother returned to Ireland she found that her partner had left for the south of France with the children.

It is clear from the presentation by the Irish delegation to the UN Committee on the Rights of the Child in Geneva this year, that the Government has no co-ordinated policy on children and child care. On taking office, the Taoiseach fragmented responsibility for a variety of children's services among a retinue of Ministers and Ministers of State and re-erected the political and bureaucratic obstacles to reform removed by the previous Government.

When appointed Minister of State with responsibility for child care services and children's legislation in 1994, Deputy Currie took full responsibility for all legislation dealing with children. It is ironic that, under pressure at the hearing in Geneva, the Minister of State, Deputy O'Donnell, announced that the Government would once again appoint a Minister with sole responsibility for children's affairs. She also stated, under pressure, that the issue of an ombudsman for children would be reconsidered.

Over the past seven years a plethora of reports have recommended the implementation of the proposals, including the appointment of an ombudsman, yet the Government procrastinates. Our children are the most precious part of our society. The motto of the Childrens' Rights Alliance states: "A country is judged on how it treats its children". Our children are the future leaders, educators, carers, providers and princes of industry and commerce. The State stands indicted in its attitude to them. The Government reacts to specific situations rather than viewing children as people with rights, including the right to a safe childhood. The recent response to the "States of Fear" documentary was a reaction rather than a planned approach to dealing with children's issues.

Children are not being consulted. In the report of the UN committee on the rights of the child it was pointed out that the welfare policies and practices in Ireland do not adequately reflect the child's rights as enshrined in the convention on children. In addition, the committee was concerned that enough emphasis was not placed on measures of a preventative nature. Can the Minister say if work has now been completed on the outcome of this section of the report?

There has been much social change in the past 20 years. We have seen the greater involvement of women in employment, which is welcome. There is no doubt that the growth of the Celtic tiger economy is in no small way due to the involvement of women in employment outside the home. This has changed and affected the family and family life. The old community and family support which existed in the past has disappeared in both urban and rural areas. There is not the same support for the family in society.

There is also a disappearance of support from the extended family. In previous times, a member of a family had access not only to his parents and siblings but also to his grandparents, uncles, aunts and first cousins. They were regarded as part of the family. A society has now evolved in which the nuclear family proliferates. Most children are reared with little access to close relatives other than their parents. This has led to fewer facilities for children to communicate their difficulties, stresses and concerns outside their immediate family circle.

That change has resulted in a growing awareness of the need to reconcile family life with work opportunities. The State has a duty to reconcile the competing demands of work and family. The rearing conditions and education of children is vital for future generations and parents must always have a key role in that.

Irish society has changed immensely. One in five children is now born to a single mother. We must urgently examine and legislate for the role of the father in a changing society. The State does not facilitate single fathers who wish to fulfil their role, obligations and responsibilities as parents. Single parents, as of right, should have an entitlement to a relationship with their child or children. To date, the presumption in law is that single fathers do not have a right and must seek agreement to obtain that right. The law facilitates the rights of the mother to access to and rearing of the children but hinders the role of the single father in fulfilling his rights and obligations.

Custody or guardianship cannot be arranged without it first being agreed by the mother. The State does not facilitate a single father in establishing guardianship or joint guardianship without the mother's agreement. Under the law at present, children of single parents are discriminated against in their relationship with their fathers compared with children of married parents, the relationship having an inferior status in the eyes of the law and of society.

There must be a comprehensive examination of the role of the father in a changing society. It is important that a child has knowledge of and the influence of a father and the acquaintance and friendship of his or her father's family. That is a right the State should uphold.

While progress has been made with regard to the recognition of children who are not born within marriage, through the abolition of the concept of illegitimacy, we must continue to recognise that families are now very different from those of the past. If we continue to promote the principle that parentage is, in effect, solely tied up with marriage, particularly in the case of fathers, we are not recognising the needs of the child or children, those of the parents or the manner in which society is reshaping itself.

The law must reflect the reality of life today. Traditionally, fathers had enormous control in families and mothers were, in effect, dependent on them. This principle has long been changed to good effect. It has now been turned on its head whereby fathers are now dependent on mothers for access and to have a relationship with their children. It is not acceptable that it is solely in the gift of the mother to grant guardianship to the father of her child.

At present, the right of the mother is absolute with regard to guardianship issues. She can agree to the unmarried father being the guardian and, if she does so, the procedure can be completed easily. However, the role of the father is not sufficiently developed and recognised. I am not happy with a society where so many women are rearing children on their own and where the fathers of those children are missing, either because they do not want to know their children or because they have been prevented from knowing them. This is an issue that must be addressed by society and its legislators.

It takes two people to have a baby and rear a child. The responsibilities and rights of fatherhood have not been addressed where the parents of the child are single. We must include fathers in such a way that they are established as having rights and are challenged to take responsibility. If we fail to do this, we will simply reinforce a pattern that will not be good for society or for individuals who have the rights and responsibilities of parents regardless of whether they are married.

It is not in a child's best interest, unless there is a compelling reason otherwise, not to know and have a relationship with his father. The father should recognise the relationship and be involved in the parenting of a child. The overriding consideration in any marriage breakdown appears to be the convenience of the parents rather than the best interests of the children.

We cannot overestimate the importance of a father figure in a child's life. There is a void in the lives of children who do not have a father figure. More than 80 per cent of primary school teachers are female. This means that children who are being brought up by single mothers do not have any influential male figure in their lives. This will have consequences for them in later years.

We must face reality. Given that 2,500 children were born in Ireland to unmarried parents in 1997 and 700 applications were made by unmarried fathers for guardianship of their children, we must seriously examine what it is in our culture that determines that the majority of fathers of children born outside marriage do not have a relationship with them. We must consider how to ensure that children of unmarried parents or children of marriages which break down have the most stable relationship possible with both their parents.

Society and the State must recognise that a family is automatically created when a child is born, regardless of whether the parents are in a relationship. Both parents have an obligation to take an active part in the upbringing of the children and the law should facilitate, not inhibit, this. Children have a right to the protection of both parents although there will always be exceptional circumstances. Children have a right to access to their extended families. They have the right to know both their parents' names and to have those names on their birth certificates. Children should have a right of access to both parents. They should have access to all elements of their family trees, including genealogy and medical information.

Society and the State should support mothers and fathers equally, for the benefit of the community, in seeking to be equally involved in the shared parenting of their children both within relationships and marriage and through the promotion of the concept of joint custody of the children as a normal expectation in the cases of separation and relationship breakdown.

The State should establish the quality and dignity of both mothers and fathers in the parenting of their children. It should also promote and emphasise the awareness and importance of both mother and father as parents, guardians, carers and custodians of their children, and it should reflect this position in every aspect of parental and child legislation and its practice. This approach will at all times place the welfare of children in the position of paramount importance.

In the event of marital or relationship breakdown, joint custody and continued shared parenting should be the norm. The State should support the promotion and research into the effects on children and their parents of shared parenting, marriage/relationship breakdown, joint custody, absent parents, and so on, and provide funding for the co-operation of support groups. We must recognise the damaging effect to all parents and their children, in terms of future animosity and mutual mistrust of each other, of the practice of adversarial family law courts. The State must advance the increased involvement of trained personnel with appropriate education and training in psychology and social and negotiating skills and in the process of mediation and consensus building towards agreed solutions in the event of marriage breakdown. The well being and rights of children deserve this.

In a contribution in November last year to The Irish Times, Ms Mary Banotti, MEP, outlined that, in her work as a European Parliament mediator for transnationally abducted children, she observed some extremely traumatic cases where parents were prepared to go to extreme lengths in the context of the break-up of a relationship. Increasingly in the United States, courts are holding the conduct by one parent which tends to alienate the child's affection from the other as so inimical to the child's welfare as to be grounds for a denial of custody or a change of custody from the parent guilty of such conduct. In some US states, parental alienation syndrome is now a criminal offence for which a parent could be jailed.

All issues relating to child custody should have the best interests of the child as their base. Children are not responsible for the poor conduct of their parents towards each other and should not be uprooted from their home merely to punish a wayward parent. Attention should be directed to the needs of the child rather than to the actions of the parents as the basis for all child welfare legislation. Nevertheless, a child's best interests are plainly furthered by nurturing his or her relationship with both parents, and a sustained course of conduct by one parent designed to interfere with the child's relationship with the other parent casts serious doubts about the fitness of the offending party to be the custodial parent.

A growing body of case law in the US has probed the issue of what is now known as parental alienation syndrome. One court declared that the desires of young children subjected to distorted manipulation by a bitter or even well meaning parent do not always reflect their long-term best interests. Although stability is important, the short-term disruption caused by a change of custody may be more than compensated for by the long-term benefits of a healthy relationship with both parents. However, courts should be wary of an over-reliance on the child's emotional attachment to or expressed preference for the offending parent. Where the evidence discloses a continuous course of conduct by a parent designed to poison a child's relationship with the other parent, a change of custody from the offending parent may well be in the child's best interest in the long-term.

Another phenomenon in contentious custody cases is persistent alienation by alleging physical or sexual abuse. A US court reversed an award of custody to a mother where the trial court had inexplicably ignored uncontradicted evidence that she had filed numerous false accusations of sexual abuse by the father. As the court observed:

. . .these repeated uncorroborated and unfounded allegations of sexual abuse, brought by the mother against the father, cast serious doubt about her fitness to be the custodial parent.

Other courts have made similar observations where mothers had made numerous, bizarre, outrageous and unfounded accusations of child abuse against fathers.

Letters produced in evidence from children have also given considerable cause for concern. A letter received from a young boy expressing a preference to live with his father was not the product of a child of his age. The court found the boy's recriminations against his mother:

. . .clearly reflected discussions with his father and further persuaded the court of the father's non-constructive role in corroding the boy's relationship with his mother.

The court concluded that, while several factors had contributed to the estrangement between mother and son, ". . .the single most significant factor had been a constant poisoning of the relationship by the father".

International child abduction frequently includes dramatic elements of parental alienation syndrome. Extremely painful accusations by one or both parents are almost routine. As a result, what should be a relatively simple law produced under the Hague Convention for returning children to the countries of habitual residence for decisions on their custody becomes a bitter and heartbreaking war of allegations of misconduct. One woman said:

. . .we started out as two parents who loved their children. Now, because of alienation made by both sides, we are two criminals fighting while our teenage children bear the obvious scars of this process.

The Government has failed to honour its commitment to establish a children's ombudsman. We urgently need such an office to promote children's rights. It is necessary because a significant number of children in Ireland are in situations of considerable disadvantage. They include children in care, children in legal custody, children who are subject to abuse or neglect, homeless children and children with disabilities. In addition, households with children, especially lone parent families and families with three or more children, are subject to a greater risk of living in poverty.

Stress affects both young men and women, although males may be proving less adaptable to change. Education which protects against both suicide and attempted suicide must be broadened, especially in the case of boys, to encompass the varying modern social and domestic conditions. The Minister should examine the situation and involve the Department of Health and Children in ensuring proper suicide protection programmes, especially for young men, are put in place. Perhaps the Minister would respond to the sections in the report of the task force on suicide which specifically deal with those under 18 years of age.

Ms Shortall

I welcome the opportunity to contribute to the debate. The Labour Party welcomes the Bill because it is, in effect, a Labour Party Bill. Its heads were agreed over two years ago in the then Department of Equality and Law Reform. It is difficult to understand why it has taken so long to publish the Bill. The Minister's predecessor, Mr. Mervyn Taylor, was very involved in its groundwork and preparation. It is difficult to understand why it has taken such an inordinate length of time for it to come to fruition.

It is a fact of modern life that parental conflict over custody and access orders for children is becoming increasingly difficult and that children frequently find themselves caught in the middle of the battle. I endorse many of Deputy Neville's comments that children are often the last to be considered in custody battles. With greater mobility and access to travel, the implementation of custody and access orders becomes more difficult when one parent lives in another jurisdiction.

The Labour Party supports the general thrust of the Bill, though we intend to table a number of amendments on Committee Stage. In the event, however, of a decision arising out of an order being found to be fundamentally contrary to this jurisdiction's view on the rights of the child, assurances will be required that those rights remain paramount and retain precedence over any such order.

The provisions of the convention indicate increasing co-operation between different states in respect of children's issues. This was shown clearly in the deliberations on the child abduction convention. Such close co-operation in the implementation of the law relating to children is a welcome development. I hope many other states sign up to this convention and introduce the necessary legislation to bring its provisions into force in their jurisdictions. It is important to recognise the excellent work carried out by Professor William Duncan at the Hague Conference and to applaud his contribution to the development of this convention.

I wish to return to the issue of the delay in publishing the Bill, the heads of which were agreed more than two years ago. In my opinion this delay is due largely to the fact that the Government abolished the Department of Equality and Law Reform. When that Department existed in its own right under the then Minister, Mervyn Taylor, a clear focus was given to equality and law reform issues. He drew up an ambitious programme of family law reform which was largely delivered on.

The Department of Equality and Law Reform had an extremely good record in terms of the provision of free legal aid centres. For example, the number of these centres doubled during the term of office of the former Minister, Mervyn Taylor, and every county now has a legal aid centre. In addition, a number of centres have been provided in larger urban areas. Great progress was also made in tackling the waiting lists. The Department's greatest contribution came when it delivered the legislation necessary to give effect to the result of the referendum on divorce.

Combining the Department with the already busy Department of Justice means the area of equality and law reform has been seriously downgraded. I accept the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, has a wide agenda in respect of justice which takes up a huge amount of his time and energy. The merger of the two Departments has meant many outstanding equality and law reform issues have been placed on the back burner and have not received the attention they require. The figures bear this out.

The waiting lists relating to free legal aid centres are disgraceful. Recent figures disclosed in the course of a reply to a parliamentary question are an indictment of the current Minister. For example, people seeking legal aid from the centre at Pope's Quay are obliged to wait 17 months, at South Mall in Cork they must wait almost 23 months, at the Tallaght centre the wait is 14 months, at the Galway centre it is 18 months, at the Newbridge centre it is almost two years and at the centre in Wicklow it is more than 18 months. It is important to realise what such long waiting periods mean to the individuals concerned.

The figures are alarming. There is a huge strain on legal aid centres because they do not have the resources to deal effectively with the demands placed on them. I am concerned that cases involving acts of violence could be left on hold for unacceptably long periods and that the victims would be obliged to continue to endure suffering. That the Minister for Justice, Equality and Law Reform has allowed the waiting lists to get so out of hand is a further indication of his inability to marry the functions of the former Department of Justice and the former Department of Equality and Law Reform which operated under the previous Government.

Although the Minister has indicated he is in the process of increasing staff, it is clear his efforts in that regard are completely insufficient. Legal aid should be made available to everyone who needs it, in a speedy and efficient manner. Those people who cannot afford to pay for legal representation should not be treated unjustly by having to wait for unacceptably long periods. As the demand for legal representation increases, our system of legal aid should be vastly expanded. A few extra appointments represent a mere drop in the ocean when compared with people's real needs and the kind of action required from the Minister.

It is a contradiction in terms that at a time when our economic surplus has never been greater, people on low incomes are forced to wait for increasingly lengthy periods for basic services such as legal aid. Everyone accepts that justice delayed is justice denied and there are increasing numbers of people who are not in a position to pay expensive legal bills. For those who must rely on legal aid, the inaction of the Minister has meant they are being denied the justice to which they are entitled.

I am also concerned about the lack of priority the Government has given to issues that relate to children. The previous speaker referred to how it downgraded the post of Minister of State with responsibility for children. The Government did not seem to understand the need for the Minister of State who occupied that post having a remit within the Departments of Health and Children, Justice, Equality and Law Reform and Education and Science – the three Departments most concerned with children's issues – so that he or she could co-ordinate their efforts and provide for co-operation and a sharing of information between them.

It was not until the Government became answerable to the UN Committee on the Rights of the Child that consideration was given to this matter. A quick U-turn was performed on the eve of its appearance before that committee when the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, through embarrassment at the performance of the Government, hastily reported that the Minister of State with responsibility would be given a remit in each of the three Departments.

Appointing a Minister of State with responsibility for an area as important and as wide-ranging as this is simply missing the point in respect of the importance of children and the pressing issues that relate to them which must be dealt with as a matter of urgency. I have no doubt the only way children's issues will be properly addressed and services relating to children will be properly resourced is by appointing a senior Minister with the clout to ensure adequate resources are made available, proper prevention systems are put in place and our fire brigade systems operate adequately to meet the demand.

There has been a great deal of reaction to the "States of Fear" television programme and indignation about the appalling abuse which took place in the past. Unless the Government and its successors have the political will to provide the kind of resources that are needed to protect children and to give them an adequate and safe opportunity to realise their potential, I have no doubt that in ten years' time someone will make a television programme about the neglect which took place in 1999.

An independent review on the social services in the Eastern Health Board area was carried out recently. The report, which was damning, found that the services are operating at crisis level and that only the fire brigade cases are being dealt with. There is virtually no prevention work being done and there is great dissatisfaction and stress among social workers in the Eastern Health Board area because they are in the unenviable position of having to prioritise cases of child abuse and deal with them urgently. Many hundreds of cases are put on waiting lists to receive attention. That causes great stress among social workers because there is the uncertainty they may leave children in dangerous circumstances.

Many social workers know children are left in dangerous circumstances at home or with relations or neighbours because the resources do not exist to provide the necessary services to protect them. Unless the political will is found to provide the type of resources required, I have no doubt we will look back in ten years' time and see we had no excuse for neglecting children. We will realise that money was available but the political will to ensure proper services were put in place was lacking.

The Government has been seriously remiss in producing modern juvenile justice legislation. We are still operating on the basis of the Children Act, 1908, which underpins the reform and industrial schools of which we have heard so much recently. Many of those institutions have been closed, but that does not mean children are out of danger. We need modern legislation to deal with juvenile crime, children who come in contact with the law and children who are taken into custodial care because the legislation in this area is archaic.

The most pressing issue in my Dublin constituency is juvenile crime, some of which is not too serious and some of which involves children staying out at night, drinking in open spaces and misusing drugs. Their parents do not seem to be interested in what they are doing. This is a common problem and a cause for complaint by other people. Large numbers of children are involved in serious anti-social activities and lawlessness. I am talking about the prevalence of joyriding, the ownership and lack of control of horses, motorbike riding, teenagers intimidating older citizens and children and teenagers involved in theft, causing trouble in their local community and being a nuisance and a threat to people who are trying to live their lives peacefully.

This area is unregulated at present. The gardaí are not sure how to react to this growing problem because the political will is not there. Ancient legislation covers this area and the Government seems completely disinterested in updating it. In 1996 the Minister for Justice, Deputy Owen, introduced the Children Bill. That was introduced after widespread consultation with a number of different agencies and it passed Second Stage in the House. Since then it has languished awaiting consideration on Committee Stage. The Government has failed to produce amendments to it and it seems to be at sixes and sevens on what should be done. It does not know if it will introduce a new Bill or if it will table amendments to the existing one.

I have asked the Taoiseach about this Bill on a regular basis but he seems to be confused. Priority is not being given to producing this legislation. We are getting waffle from the Minister and from the Taoiseach about what will happen to the Bill. I ask the Minister to make a clear and unequivocal statement about juvenile justice legislation. Will we get a new Bill or will the existing Bill be amended? Perhaps he could let us know when we can expect action on this important area.

The Government has also been seriously remiss in relation to the UN Convention on the Rights of the Child. Ireland signed that convention in 1991 and the following year we ratified it without reservation. However, since then there has been no action by the Government to incorporate it in legislation. More than two years ago the Constitution review group examined the issue and produced a draft constitutional amendment to provide for the rights of children. The all-party committee on the Constitution seems to be working at a slow pace and in chronological order so it will be some time before Article 41 on the family is reached and recommendations made. I strongly urge the Government to deal with the UN Convention on the Rights of the Child as a separate issue and to show it is committed to incorporating it in legislation.

There was a great flurry of activity after the "States of Fear" programme was shown on television. While it might have been well meant – I welcomed the apology to the victims on behalf of the State – much of it was ill-thought out and did not have regard to the fact that children are still abused and neglected. The best way the Government can show it is serious about children's rights is by providing for a constitutional amendment to incorporate the provisions of the UN Convention on the Rights of the Child in our Constitution. I urge the Government to do that as a matter of urgency.

Among the issues mentioned by Deputy Neville which show the Government is not serious about tackling the issue of children is the rowing back of the commitment to establish an ombudsman for children. Many problems would not exist or continue to exist if an independent statutory office was established with the role of fighting for children, carrying out inspections, asking questions of Government, taking up com plaints from children and parents and ensuring children's rights are protected. If that were set up, we would get our act together and put in place the type of services required. I urge the Government to give this matter priority.

Many important issues arise as a result of the prevalence of family breakdown which we all witness in our constituencies. Our treatment of non-marital couples and the fact there is no incentive or encouragement given to lone parents to play an active role in the parenting of their children are fundamental issues which need to be addressed at a political level.

Our tax, welfare and housing systems actively discourage single fathers from playing a role in their children's lives. This was evident a couple of years ago when the Committee on the Family commissioned Colm Rapple to do research on this issue. I requested it because I come across it on a regular basis in my constituency. Couples who are thinking about getting married or living together sometimes ask me how their tax and social welfare entitlements will be affected. My response, which was borne out by Colm Rapple's research, is that couples stand to lose between 30 to 40 per cent of their income if they live together or get married. It is a serious indictment of our systems that we penalise parents who want to live together as a family unit in marriage or by co-habiting. That is an extremely dangerous and wrong message to send to people. We should encourage both parents to play an active role in the rearing of their children. The point has been reached where people simply cannot afford to do that and there are many unofficial and irregular arrangements to get around our very restrictive social welfare and tax systems. When parents live apart, both can get double tax free allowances, whereas if they live together they can get only one. The financial incentive is for parents to live apart and that must be ended quickly. It is one of the most significant factors in our high number of lone parents.

A public debate is needed on parenting and the responsibilities attaching to it. An increasingly prevalent feature of society is that children, sometimes as young as seven and eight, are out on the streets until 11 p.m or midnight. One wonders whether those children have parents, what their parents are doing and if they care about their children. The role and responsibility of parents need to be covered in juvenile justice legislation so that it is made clear that the State expects them to play a full and responsible role in the rearing of their children and that it is not suggesting they can have as many children as they like and not be called to account. Currently, too many parents opt out of their responsibilities and children are completely unattached. Many have no attachment to home and are allowed to run wild. Increasingly, they lose interest in school and drop out, and it is only a matter of time before they end up in trouble with the law. The emphasis needs to be returned to the role of parents in rearing their children; the State cannot do it. The State can and should encourage and support parents in a much stronger way but, clearly, responsibility for looking after their children must rest with the parents.

I welcome the general thrust of the Bill, which is long overdue. We will table amendments on Committee Stage. However, I urge the Government to pay serious attention to law reform because it has been neglected over the past two years. In particular, I ask it to take much more seriously issues that relate to children. Let us have action because there has been enough debate. Let us put in place the resources needed for proper child welfare and protection services.

Mr. Collins

I also welcome the Bill. The protection of children's rights is one of the most important social objectives any Government could have. Children are our future but they are also vulnerable to falling victim to malicious forces in society. The abduction of a child from his or her home country and removal to another country, normally in an underhand and malevolent manner, is an appalling state of affairs that cannot be allowed to go unpunished.

A legal framework must be put in place which affords an easy option to an aggrieved parent to be able to allow a court hearing to take place which would resolve wrangles over where a child should reside. This is where the convention comes into play. It has secured the support of all EU member states, Canada and the US. Basically, under the convention if an alleged abduction takes place a court action can be taken by an aggrieved party which will ensure an abducted child must return to the country from which he or she left.

For example, if an Irish parent left Shannon Airport for America with a child without the permission or knowledge of the other parent, that parent could file a case in America invoking the provisions of the Hague Convention. This means a judge in America would be obliged to send the child back to Ireland and have a court hearing here if a dispute arose as to where the child should live. It is only right and proper that such a court hearing should take place in Ireland because it would be in the best interests of the child that it be heard in his or her host country.

If a child is abducted – the word "abduction" is given a very broad definition – it is clear that terrible psychological damage can be done to him or her which can have far-reaching consequences. Chapter II deals with this matter. It espouses the principle that, in general, jurisdiction in proceedings that relate to the protection of the person or property of a child – custody access, etc. – is best exercised by the contracting state where the child is habitually resident.

Measures taken in one contracting state for the protection of a child or its property must be enforced and recognised in all contracting states under the convention. Recognition may be refused, for example, on the basis that it would be manifestly contrary to public policy or that the measure was taken by an authority which jurisdiction was not based on one of the grounds of jurisdiction provided for in the convention.

Contracting states to the convention are required to designate a central authority to co-operate with other central authorities. A central authority's functions include facilitating agreed solutions for the protection of a child's person or property in cases to which the convention applies and at the request of another competent authority providing assistance in discovering the whereabouts of a child who may be present in its territory and in need of protection.

The Bill provides that, as in the case of the Child Abduction and Enforcement of Custody Orders Act, 1991 and the Maintenance Act, 1994, the Minister for Justice, Equality and Law Reform will appoint a neutral authority for the State. I am aware of the child abduction centre which operates within his Department. It plays a helpful role in advising parents on how they can invoke the provisions of the Hague Convention if a particular problem arises. It also ensures a counterpart central authority, whether in America or elsewhere, is notified that an alleged abduction has taken place. This ensures the appropriate agencies in a third country are aware of the background to a particular case and can play an important role when legal action is initiated under the convention. The convention provides that the rules of jurisdiction will apply in a state only after it has entered into force there and the provisions, recognition and enforcement contained in it will apply to measures after the enactment of the convention both in the state of origin of the measures and in the requested state.

Who are the relevant authorities that will be capable of invoking the provisions of the convention? The terms "authority" and "authorities" are used throughout the convention. In some contexts, they mean courts in the state, whereas in others they mean administrative agencies concerned with the protection of children. The District Court is also empowered to exercise jurisdiction in regard to the recognition and enforcement of a measure taken in another contracting state.

Chapter IV contains the rules under which measures in regard to children will be recognised and enforced between contracting states. This provides for requests from authorities in other contracting states to Irish courts to take measures to protect a child who habitually resides in this jurisdiction; provide information where necessary; and assist in the implementation of measures already taken by those authorities, especially in regard to access to the child. In urgent cases jurisdiction may be exercised by any judge of the Circuit or District Court if he or she is of the opinion that the best interests of the child requires it. Section 5 provides that judicial notice shall be taken of the relevant judgments of courts of other contracting States concerning the provision of the convention and obliges courts in the State to take account of the principles laid down by those judgments.

Section 6 requires the registrar or clerk of a court in this State to give certain documents to a person who wishes to make an application under the convention in another contracting State. The documents which are specified in this section are by reference to the requirements of the convention or are matters which a foreign court would require to be informed of for the purposes of recognition or enforcement of a measure in another contracting State. Section 7 deals with the admissibility in evidence in court proceedings of documents forwarded or delivered under the convention. It provides for the admissibility or translation of such document, provided it is certified as correct by a person competent to do so.

It is also clear that under sections 8 and 9 the central authorities must co-operate fully with each other in abduction cases. This is very important if there are to be expeditious hearings of cases at any particular time. For example, if a child has been abducted from Ireland and brought to America it is only right that there is maximum co-operation between the Central Authority for International Child Abduction in Ireland and its counterpart in America.

The bottom line with the Hague Convention is that the welfare of the child is paramount at all times and that justice must be administered in a speedy manner so that the trauma of the incident is overcome. While the staffing and financial implications are difficult to assess until such time as the convention comes into force, it is not expected the implications will be significant. The convention will entail an increased and more formalised co-operation between the courts and agencies in contracting states dealing with child protection. Article 38 of the convention provides that without prejudice to the possibility of imposing charges for the provision of services, central authorities and other public authorities shall bear their own costs in the key provisions of the convention.

I know the Government will continue to help the Central Authority for International Child Abduction in Ireland to exercise its duties in a professional and caring manner. Proper funding must also be made available to guarantee effective service in child abduction cases. The children in our society are our future. We must at all times ensure maximum assistance is given to children from all walks of life so that they can fully integrate into working society as they get older. Primary school education is very important in this regard and particular emphasis must also be given to increasing the number of remedial teachers in schools in urban and rural Ireland. Assistance must also be given to early school leavers The full legal recognition of the Hague Convention is simply another example of how Ireland is doing all it can to help the children of the nation. I support the Government on this and related matters as it seeks to give children real protection against harm and injustice.

Mr. Higgins

(Mayo): Like Deputies Neville, Shortall and Collins, I welcome the ratification of the Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. Like Deputies Neville and Shortall, I am at a loss to know why we have had a four year delay in ratifying this convention. We stand indicted for the way in which we sign up to all sorts of international conventions and protocols willy-nilly, yet we are extremely tardy when it comes to giving them practical legislative effect so that they have the full force of law. We have commented on this time and again and I am not blaming any particular Government. However, if we sign up to a convention we should be part and parcel of that convention and enter into the spirit of it so that it is given practical legislative effect at the first available opportunity. We have been found wanting in this regard in relation to this convention.

The protection of children must be put at the top of the agenda as this is an extremely difficult world for children to grow up in. It is difficult enough for children from what might be termed normal or stable backgrounds, but it is particularly difficult for children from deprived or dysfunctional backgrounds. We are encouraged by pundits and politicians to bask in the remorseless triumph and surge of the tiger economy but life is becoming much worse for a growing number of vulnerable children.

The system of child care is in crisis. It is unplanned, inadequate, under-resourced and overwhelmed. The majority of the growing number of damaged children are not getting the urgent services they need and which they would get in almost any other western society. As has been said before, the current situation is a shambles. Dozens of children roam our city streets every night carrying a blanket and a small bundle of possessions while they look for a sheltered doorway in which to spend the night or beg city garda stations to take them in. This is because society, for all its excess and pretentiousness, has failed them.

We have no appropriate child residential facilities. Children who commit crimes are sent to adult detention centres because there are insufficient places for young offenders. Children who have committed no offence can be held in St. Patrick's Institution because they can be held nowhere else. Each year the Eastern Health Board spends many thousands of pounds defending court cases as it cannot provide the care deemed necessary for young people at risk. Adult psychiatric hospitals are regularly asked to provide accommodation for young people and adolescents with mental problems and psychiatric illnesses as there is virtually no residential accommodation available.

Let us not blame the health boards, as they can only work with the resources assigned to them. On an almost daily basis they face new duties and responsibilities heaped on those with which they are already trying to cope. The Minister for Finance proudly proclaimed his lifelong devotion to the Gaelic Athletic Association by allocating a grossly excessive sum of £20 million of taxpayers' money to a commercially successful Croke Park. However, some weeks afterwards his colleague, the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, faced the wrath of the United Nations Committee on the Rights of the Child. The Minister of State is a compassionate person, as we have seen in her insistence that refugees and asylum seekers should be permitted to work in Ireland pending the determination of their applications for asylum. We also saw that in her determination to ensure we do not confine ourselves to accepting a mere 1,000 Kosovan refugees, in her visit to refugee camps in Macedonia and in her visit to the Coombe Hospital where she was photographed with the young Kosovan mother who had just given birth.

However, the Minister of State will no doubt long remember how she was left squirming with embarrassment as she felt the full wrath of the UN committee's assessment of Ireland's less than acceptable performance in the child care area. She was asked by the committee whether Ireland "has adopted or is planning to adopt a comprehensive national strategy for children." Her reply on behalf of Ireland was a revelation. She stated:

To date, our concentration has been on individual issues. Eventually it would be our intention to draw a wide range of individual developments together in the context of a national strategy.

Members should note the word "eventually", as there is a complete absence of any sense of urgency. Here we are on the world stage, before a UN committee, having our performance and track record on the provision of services for vulnerable children scrutinised. It was merely the eventual intention of one of the top economic performers of Europe and the world to put together a national child care strategy. Many of our children will become drug, alcohol and suicide statistics, even before they grow up.

Our performance in relation to childcare has been abysmal and continues to be so. It took 22 years to bring the Child Care Act from its inception to full implementation. When the Act finally passed the Oireachtas it was enacted only piecemeal and by instalment. Planning for the new juvenile justice Bill to replace the Children Act of 1908 began 25 years ago and the Bill has not yet been published.

Our mental health legislation, which covers the provision of mental health services for children as well as adults, is more than 50 years old. It is outdated and has been rightly condemned but we still await a modern law to replace it. The Children Bill was published in 1996 and has still not passed Committee Stage. We have no strategic plan for child care. We still await the long promised social services inspectorate. It surfaces regularly in the midst or in the wake of some high profile controversy or crisis but recedes when things blow over, only to re-emerge when the Minister is summoned to Geneva to account for Ireland's performance at a UN committee.

More children remain in care, and for longer, in Ireland than in any other country because our support services are inadequate. The State intervenes and takes difficult, demoralised and disturbed children from parents who cannot cope yet the State is unable to say how many children are in State care. The latest figures available are for 1992. The Minister of State, Deputy O'Donnell, told the UN in Geneva 18 months ago that we may get an up to date figure eventually.

I sympathise with the health boards and particularly with the Eastern Health Board which must deal with the highest concentration of problems. The Eastern Health Board copes with inadequate resources and without a coherent national strategy and bears the brunt of political and public criticism when controversy arises. The board continues to struggle, employing a strategy of crisis management with an overriding emphasis on containment, detention and security. We have failed our children. Our capital city is littered with children begging, sleeping rough and consuming drugs and drink. Our newspapers daily contain court reports of physical and sexual abuse of children. We must tackle the blight of homeless children and the physical, psychological and emotional deprivation which accompanies that blight and which scars our society.

The purpose of the Bill is to protect the physical, emotional and property rights of children. Rights and welfare are inextricably bound together. Many children who find themselves in crisis deserve tremendous credit for surviving their parents. Many parents do not understand that parenting involves more than the provision of food and clothing. It involves caring, listening, talking and emotionally supporting. It also involves setting standards to be emulated. If parents set an example of social and domestic disruption, violence, drunkenness and crime, there is little hope for their children. If parents place no emphasis on discipline and self-control and give no support to schooling, what hope is there for their children? I agree, to some extent, with those who say that blaming the parents of juvenile delinquents solves nothing. Many such parents were brought up in equally dysfunctional families and in the same disruptive environment in which they are bringing up their own children. However, if children cannot be controlled in their homes, the State must be empowered to intervene. The school is a very potent social instrument.

We fail our children in numerous ways, not least by providing inadequate facilities. If children have no outlet for their energy, who can blame them if they fall foul of the law? There is a great onus on society to invest in the provision of off-street recreational and sporting facilities for children whose energies and talents will otherwise be channelled into mischief and crime.

I agree with Deputy Shortall that the integration of the Departments of Justice and Equality and Law Reform was a retrograde step. Justice is a challenging and demanding portfolio and is more than sufficient responsibility for one Minister. In the eyes of the public, the Justice portfolio carries more weight than that of Equality and Law Reform. The former Minister for Equality and Law Reform, Mr. Mervyn Taylor, brought equality and law reform out of the shadows and won a new respect for these areas of Government. It is regrettable that equality and law reform have receded into the shadows again. The two Departments should be separated once again so that the rights of children are given the priority they deserve. Otherwise, we will continue to lurch from crisis to crisis with no coherent strategy.

Mr. C. Lenihan

I compliment Deputy Higgins on his contribution. I understand that it is the prerogative of Opposition Members to criticise the Government but one must admit that the Government is committed to the protection of children's rights. This Bill is indicative of that commitment. It takes a step towards honouring our international obligations by implementing the Hague Convention on the Protection of Children, the purpose of which is to prevent the horrible phenomenon of child abduction across international frontiers. Life has become complicated. Parents are under enormous pressure with their finances stretched to breaking point. Sometimes a parent will abduct a child and bring him or her across a frontier. This convention is being implemented to ensure greater co-ordination in dealing with this phenomenon. Every Deputy has encountered at least one case.

I know of a woman living in Australia whose relatives are constituents of mine. They are being intimidated by criminal elements connected with her estranged husband. She has been visited by his family. The situation is difficult. Her relatives have asked me to obtain documentation from the courts or the Minister for Justice, Equality and Law Reform that the individual concerned has a criminal record and comes from a notorious criminal background. She will have to fight a custody battle in the Australian courts which will remain ignorant of this essential fact. This highlights the lack of international co-operation in the area. The matter needs to be addressed urgently. Often the persons involved are torn apart and vulnerable.

The Bill deals with the enforcement of judgments. There is a need to modernise the courts system. There are many recent examples where basic information was not available. This is also a feature of the British system.

On the position of children in society, Deputy Higgins painted a dismal picture. It is not as bad as he makes out. World Health Organisation figures show a definite decline in infant mortality. While one could not base one's policies on children and the family on such statistics alone, they are a good benchmark of prosperity and advancement, although much remains to be done.

I contributed last week to the debate on industrial schools. It has to be recognised that enormous mistakes were made in the past. Children in the custody of religious orders – I use the word advisedly – were abused and are psychologically and emotionally scarred as a result. We have read about their experiences in the media. I met an individual recently who has an extreme view about the Church and its role in society. He believes its property should be taken from it and that it should be removed from the education system. All classes and sections of society, which did not have the elaborate social welfare support system now in place, colluded in the abuse and in sweeping the problem under the carpet. The Government and the Opposition have expressed their regret and offered a proper apology. We must now focus on the future and ensure the rights of young people are protected.

In the 1970s and 1980s there was an ongoing debate about corporal punishment, to which I was subject in secondary school between 1975 and 1980, which was inflicted with varying degrees of severity and which is now accepted as being deplorable and wrong. I cannot say I suffered psychologically as a result, although a great many others did, not because they were weak but because they were unable to deal with that kind of physical abuse psychologically.

It must be emphasised, if necessary in our constitutional framework, that children come first and must be protected. It is important, however, that the legal structure put in place to defend them is not over elaborate. There is a need to adopt a wider focus and to concentrate on parents. Because of economic disadvantage parents in the suburban ghettos which have been created simply cannot cope. There is a need to involve them to a far greater degree in the education system. Teachers often complain that the problems of society are being dumped on them but the local school, which is at the centre of most communities, is the ideal place in which to develop child-focused policies and to deal with the psychological and other difficulties that arise in the family setting, principally because of economic disadvantage and poverty.

I recall reading the famous Angela's Ashes by Frank McCourt on a recent summer holiday. It is a remarkable book in many respects. I do not know how accurate it is – I am aware that people from Limerick react sourly to it – but I suspect the lifestyle painted was not confined to Mr. McCourt, that it was reflected in society at large. It is the first book to deal with the matter in detail and is a good emotional account of what life was like at the time. Angela's Ashes is a great book which tells us a little about where we went wrong as a society. It also teaches us much about keeping our sense of perspective in that somebody can come through that, although it is not right they should have to do so in the first place.

Debate adjourned.