Amendments Nos. 1 to 6, inclusive, are being discussed together.
Children Bill, 1999: Report State (Resumed) and Final Stage.
I continue my comments on the amendment and the contributions of the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue. In a nutshell, the concern of the Fine Gael Party is that this vital measure be brought into force without undue delay. We would have been satisfied had the Minister assured the House that, were the Bill passed today, it was the Government's intention to complete its passage in the Seanad before the summer vacation and implement the measure in full by 1 October next. We would have been satisfied bearing in mind the time it has taken to get to this point. The Minister is unable to give the House any guarantee as to the date by which any part of the Bill will be brought into force or the date by which the provisions of the Bill will be operational. He is not even willing to agree to the inclusion in the Bill of a framework requiring him to submit to the House, at a later date, a proposal for the bringing into force of the Bill over a period of time and having it brought back to the Houses should it require adjustment. In the circumstances I am formally putting the amendment.
Barnes, Monica.Bell, Michael.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Farrelly, John.Flanagan, Charles.Gilmore, Éamon.Gormley, John.Gregory, Tony.Hayes, Brian.Higgins, Joe.
Higgins, Michael.Hogan, Philip.Howlin, Brendan.McCormack, Pádraic.McDowell, Derek.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Perry, John.Rabbitte, Pat.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Coughlan, Mary.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.
Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John J.Martin, Micheál.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Walsh, Joe.Woods, Michael.
I move amendment No. 3:
In page 15, between lines 22 and 23, to insert the following:
"(2) The Minister shall report at 6 monthly intervals to both Houses of the Oireachtas on progress made in bringing the provisions of this Act into operation.".
I wish to speak for a couple of minutes.
It has already been discussed. The Deputy may formally move the amendment.
I did not come back in on the debate. I contributed once. Am I not allowed to come in at this point?
No, because this has already been discussed.
I move amendment No. 4:
In page 15, line 23, to delete "Parts 2 and 3” and substitute “Part 2”.
I move amendment No. 6:
In page 16, between lines 10 and 11, to insert the following:
"(3) One month after the enactment of this Act, the Minister shall lay before each House of the Oireachtas a timetable detailing when it is proposed to bring into operation each of the provisions of this Act and the reason or reasons for the timetable detailed and the said timetable shall be considered by each House within one month of being laid before it.
(4) Should the Minister propose to amend the timetable required bysubsection (3) of this section, the Minister shall lay an amended timetable before each House detailing the reason or reasons for the amendments specified which shall be considered by each House within one month of being laid before it.
(5) Any provision of this Act not brought into operation by an order made as provided for in this section within 12 months of the enactment of this Act shall, unless it involves a charge on public funds, automatically come into operation upon the expiration of 12 months from the date of its enactment.".
I move amendment No. 7:
In page 17, to delete lines 32 and 33 and substitute the following:
"(a) in case one parent cannot be located after reasonable inquiry, the other parent,”.
My concern here is that in situations where one parent has sole custody, the other parent may be very involved in the child's life and involved in some of the reasons the child is in difficulties. It seems wrong that there is only a requirement to contact one parent. The duty to attend and the liability to be arrested under section 91 would only apply to one parent, in most cases, mothers. I propose that we amend this so that in case one parent cannot be located after reasonable inquiry, the other parent would be.
This does not impose an undue requirement on the authorities as the Minister suggested on Committee Stage. We are talking about a reasonable inquiry to locate the other parent. In fairness to the other parent and the child, and considering the important role of both parents in a child's life, an effort should be made to contact the other parent.
I support Deputy Shortall and wish to point out an anomaly that arises. If we do not address it today, it may be addressed in the other House. The definition of "parents" contained in this measure says that parents in relation to a child means, as Deputy Shortall addressed the matter in subsection (a), “in case one parent has the sole custody, charge or control of the child, that parent.” However, subsection (b) reads “in case the child has been adopted, the adopter or adopters, or the surviving adopter.”
This seems to suggest that where a child has been adopted, both parents need to be notified of matters that arise under the Bill by virtue of the fact that they are adopters. They cannot be excluded from notification if one of them has sole custody. It seems to be an anomaly that where a married couple have adopted a child both have to be notified, but a married couple to whom a child is born – where one has sole custody although both are joint guardians because the child is a natural child – will not both be notified.
Deputy Shortall's amendment is a reasonable proposal in the context in which it is framed. I add one comment which is that where one parent has sole custody of a child this does not mean both parents may under law be joint guardians of the child. If the couple are married, both are automatically guardians but this may not be the case for unmarried couples. Where one parent has sole custody, the other parent may be very actively involved in the child's life, with regular contact and access. The child may stay with that parent on different occasions, or may holiday with that parent.
Will the Minister have another look at the definition of "parents" and the manner in which it will apply and will be relevant in the operation of this legislation? There is a false assumption that many fathers who find themselves in a situation where the mother is the custodian parent are seen as largely irrelevant to a child. What we know of family difficulties indicates that, provided the parents pose no risk or danger to a child, by and large it is normally in the interests of a child to maintain relationships with both parents. We should not ignore this in the context of this definition.
The word "parent" is not defined as it obviously means the father or the mother of the child. The word "parents" is defined not so much to indicate what it means, because again that is obvious, but to indicate when it can be taken to mean "one parent". The definition used in the Bill makes it clear that "parent" is the one who has sole custody, charge or care of the child. That provides a clear and unambiguous meaning of the word "parent" in this context. It would be very much a matter of fact which parent has the custody, charge or care of the child although in some cases a court order could be involved.
I undertook on Committee Stage to take a further look at this amendment before Report Stage. It is possibly the only issue on which I gave such an undertaking where I am not proposing an official response. The reason is that I am not convinced the amendment is an improvement on the wording and definition in the Bill. It could lead to some confusion as to what length is a reasonable time on occasions when time is important. It also raises questions as to what would happen if the missing parent is located. It cannot be assumed that the missing parent abandoned his or her family. It also cannot be assumed that the family want the missing parent back in their lives. Family distress and dissension would follow.
In other words, the amendment would replace a straightforward provision with a complicated proposal that could have many different outcomes. It will also be noted that paragraph (c) provides for both parents in every case except where one parent has the sole custody, charge or care of the child. This means that in a wide variety of circumstances, where custody is not an issue or where there is joint custody, both parents would have equal responsibilities and duties under the relevant provisions of this legislation. I am not prepared to accept the amendment as it could bring some confusion and dissension into a situation where clarity is essential. Even though it may entail some parents being able to avoid their responsibilities, the greater good is served by acknowledging that may happen.
I am disappointed the Minister has not given greater consideration to this issue. A very common situation is where one parent has sole custody. However, that does not mean the other parent is not involved in the child's life and does not have a right to be consulted and informed, and a right to be considered as a parent. In most cases, the person who has sole custody is the mother. The Bill as currently worded, excludes fathers from the definition of parent in situations where the mother has sole custody andvice versa where the father has sole custody. The former is the more common situation. It indicates a certain mind-set on the part of the drafters of the Bill that simply because one parent has sole custody, the other parent forfeits all his or her rights. It is misguided thinking and I intend to press the amendment.
There are two things I urge the Minister to consider before the debate takes place in the Seanad. First, as Deputy Shortall says, if one parent gains custody after a marriage breakdown or family dysfunction, it is usually the mother, not the father. What I have to say applies equally in the reverse circumstances. Given that, in most instances, it is the mother and not the father who gains custody, this could lead to difficulties with the European Convention on Human Rights and Fundamental Freedoms. This provision in the Bill should be proofed in the context of a check being made as to its impact in terms of the Keegan judgment in the European Court. Second, in the context of married couples being joint guardians of their children, this provision could lead to constitutional difficulties.
I remind Deputy Shatter that we are not talking about rights but parents' responsibilities, which is an altogether different matter. Deputy Shortall should be aware that there is no question of there being an exclusion. I am not preventing the other parent from appealing a custody decision in court, quite the contrary.
According to the present wording, only the parent who has the sole custody, charge or care of the child is covered in the definition. I agree with the point made by Deputy Shatter and remind the Minister of the provision of the UN Convention on the Rights of the Child stipulating that children have a right to know and be cared for by both parents. In instances where there is sole custody, the Minister is seeking to exclude the other parent in terms of rights and responsibilities.
Amendment No. 8 is in the name of the Minister. Amendment No. 9 is an alternative to No. 8 and they are to be discussed together, by agreement.
I move amendment No. 8:
In page 20, to delete lines 1 to 5 and substitute the following:
"(2) Any recommendations made by a family welfare conference shall be agreed unanimously by those present at the con ference, unless the disagreement of any person present is regarded by the coordinator as unreasonable, in which case the coordinator may dispense with that person's agreement.
(3) Where any such recommendations are not agreed unanimously (disregarding any disagreement mentioned insubsection (2)), the matter shall be referred to the health board for determination.”.
The purpose of the family welfare conference, as established in the Bill, is to empower families to find solutions to the problems that have led to the child's being vulnerable. The emphasis is on agencies and the families working collaboratively. This emphasis on partnership signals a change from the traditional practice of State intervention in the lives of families experiencing difficulties to an approach that is consensus-based. The evaluation of the family group conference pilot project conducted in the East Coast Area Health Board highlighted that the principle of partnership and the value of collaboration were indispensable elements to the conference on good practice.
Research on the evaluation has shown that, given the mechanisms, extended families are capable of making effective decisions about their children's lives. In over 90% of conferences, agreement was reached on the family plans. For these plans to be viable, they need to be based on a consensus view of those attending the conference, including the professionals, on what is in the best interest of the child. It is one of the fundamental principles of the family welfare conferences that, in so far as is possible, agreement should be unanimous. However, it was suggested on Committee Stage that the existing provision was too restrictive and that it could give rise to deliberately obstructive persons undermining the conference. Therefore, amendment No. 8 states that the agreements should be unanimous in so far as this is possible, and where a person is being unreasonable, the co-ordinator may dispense with that person's views. The amendment is similar to the provisions governing conferences in Part 4 of the Bill. This is a better approach to the one advocated by Deputy Shatter because it makes clear that it is the responsibility of the co-ordinator to determine whether a person's views should be dispensed with. Therefore, amendment No. 8 is to be recommended and amendment No. 9 rejected.
I will be brief. The issue I was concerned about in this section was that, as the Bill stood, any recommendation made by a family welfare conference had to be agreed unanimously by those present for progress to be made. Cases could arise in which someone might be behaving so unreasonably that his or her objections should not be regarded as vetoing progress being made on the child's welfare. The Minister is addressing the issue slightly differently to the amendment that I proposed. The Minister's amendment improves the Bill but addresses it in a way that causes concern. I will not press amendment No. 9.
Amendment No. 10 in the name of Deputy Shatter is related to amendment No. 11 and they may be discussed together, by agreement.
I move amendment No. 10:
In page 20, between lines 11 and 12, to insert the following:
"(d) the legal representatives, if any, of the child,
(e) the legal representative, if any, of the parents or guardian of the child,”.
Amendment No. 10 relates to the persons entitled to attend a family welfare conference. This was discussed on Committee Stage, but it is sufficiently important to discuss in this House on Report Stage. Under the terms of section 9, a variety of different people are entitled to attend a family welfare conference. Under subsection (f), the co-ordinator can allow other persons to attend whom he believes, after consultation with child and the parents or guardians, might make a positive contribution to the conference, either because of the person's knowledge of the child or its family or because of the person's expertise.
The intention of a family welfare conference is to design, by agreement, a family plan for dealing with problems relating to an individual child. If it does not work out, the case may go to court. I am concerned that matters could arise that would require that the legal representatives of the child or parents be available to furnish legal advice concerning issues under discussion and proposals that are being made. A lawyer with expertise in the law on children and child care services would have something positive to contribute. He or she, with the trust of the family, parents, child, or both, might be able to point out what might pertain if what was proposed in the family welfare conference was not advanced and what the alternatives are. This could be done in a manner that others in the family welfare conference might be able to achieve. I am concerned that if parents or a child do not have a legal right to have a legal representative present, it will rarely take place arising from discretion. Again, we could find ourselves in constitutional difficulties or in difficulties with the Convention of Human Rights.
These amendments are replicas of the amendments tabled by Deputy Shatter on Committee Stage. The Minister for Health and Children opposed them then and I cannot recommend them now. They are at odds with the purpose and ethos to the family welfare con ference. As I have pointed out in respect of the Deputy's previous amendment, the purpose of the family welfare conference is to produce a plan for the future care, protection and development of the child. A vital aspect of the process is that the family takes responsibility for the child and comes up with proposals for the plan with whatever assistance they need from the professionals attending the conference. The experience gained in the pilot project in the East Coast Area Health Board would suggest that, with the procedures followed for all family conferences, it is important to have as informal an atmosphere as is reasonably possible. This is to give the family the opportunity to discuss and develop a plan to which they can commit themselves and which is in the interest of the child. This objective cannot be served by introducing the formality of having legal representatives there as of right.
In convening a conference a co-ordinator will, in accordance with good practice, discuss with all the parties the persons it would be most appropriate to invite to participate. If the child or the family insist that their legal representative be present, it will be open to the co-ordinator to invite that representative under section 9(1)(f) on the basis that they would make a positive contribution because of their expertise. However, a conference held under these circumstances is unlikely to be very successful. In relation to the proposed amendment to section 12, the same principle applies.
On Committee Stage, Deputy Shatter indicated there might be reasons under the Constitution and the European Convention on Human Rights which would make it necessary to provide for the statutory right of the legal representative of a child and his or her family to attend a family conference and he expressed the same view today. In the light of the Deputy's concerns, the Minister of State with responsibility for children checked the position with the Attorney General's office, particularly in view of the proposals to assimilate the European convention into Irish law. In the view of that office, any question of a child's constitutional rights or his or her rights under the European convention does not arise. Article 6(1) of the convention provides that in the determination of civil rights and obligations on any criminal charge, every person is entitled to a fair and public hearing. As regards a criminal charge, if a charge is in any way serious, this undoubtedly includes the right to legal representation. As regards a civil claim, Article 6 clearly guarantees the right of access to the courts which may well include the right to legal representation and, in certain circumstances, the right to legal aid.
Article 38 of the Constitution provides that no person can be tried on a criminal charge, save in the due course of law. The courts have interpreted this in a manner which is similar to the interpretations put by the European Court on Article 6 of the convention, that is, in any criminal charge where the accused faces the possibility of serious penalty, the Constitution requires that the person be informed of his or her right to legal representation.
As regards civil cases, although there is an automatic right of access to the courts, the Irish courts so far have not found there is any automatic right to legal representation or legal aid. However, the Attorney General's office has indicated that in its view a family welfare conference is not analogous to either a civil or a criminal trial as it is explicitly intended to be a non-judicial process for children in need of care and protection. The Attorney General's office concurs with the view expressed on Committee Stage that if legal representation was considered necessary or desirable, section 9(1) is sufficient to deal with the matter. The question of accepting or rejecting Deputy Shatter's amendment is therefore a policy issue. I have already stated policy reasons for not accepting the amendments and, therefore, recommend to the House that they be rejected.
I will not delay the House on this important issue. I do not agree with the advice the Minister has placed on the record. We can anticipate that the courts may well tease out this issue in the future and, at that stage, we will obtain a clearer view of it.
I move amendment No. 11:
In page 21, between lines 6 and 7, to insert the following:
"(f2>d) the legal representative, if any, of the child,
(f2>e) the legal representative, if any, of the parents or guardian of the child,".
We come to amendment No. 12 in the name of Deputy Shatter. Amendment No. 13 is consequential and amendment No. 16 is related. The three amendments may be discussed together.
I move amendment No. 12:
"(4) Where a health board decides not to apply for an order under this Part following receipt by it of a request from a child's parent or guardian that it does so, or unreasonably delays in making such application, the parent or guardian may make application to the court under this Part.".
This amendment proposes the insertion of a new subsection in section 16 of the Bill and what will be the new section 23A to be inserted in the Child Care Act, 1991. As the Ceann Comhairle stated, amendments Nos. 13 and 16 are consequential on this amendment.
Amendment No. 12 is one of the more important amendments tabled in the context of the Bill. Part 3, to which I referred earlier, seeks to put in place a new tranche of provisions in the Child Care Act, 1991, to deal with children in need of special care or protection. It provides, under the new section 23A to be inserted in the 1991 Act, that where it appears to a health board with respect to a child who resides or is found in its area that the child requires special care or protection which he or she is unlikely to receive unless a court makes an order under this Part in respect of the child, it shall be the duty of the health board to apply for whichever of the various orders this new Part prescribes as appropriate in the particular circumstances.
The new section also contains other provisions relating to the convening of family welfare conferences and deals with whether, at the conclusion of a conference, a health board proposes to apply for a special care order in respect of a child. Subsection (3) states that where a parent or guardian of a child requests a health board to apply for a special care order in respect of a child and the board decides not to do so, it shall inform the parents in writing of the reasons for this.
It is important to summarise the matters with which this provision is concerned because the amendment I have tabled would otherwise not make sense. Where parents believe there is a need for a special care order in relation to their child – even if the health board has not taken initial action – they can ask the health board to take action. The health board must then consider whether to apply for a special care order and, thereafter, will decide either to do so and initiate court proceedings or will not do so and inform the parents of that fact. The legislation is defective in this context because it does not envisage that where a health board decides not to apply for a special care order, the parents can apply for such an order. It also fails to envisage that where parents ask a health board to make an application and, following the passage of many months, no such application is made, the parents can then make the application.
Deputy Shortall quite correctly referred, in the context of children at risk, to the huge backlog of cases involving children within one health board area, approximately 200 of whom have been designated as being at genuine risk and needing assessment and, possibly, intervention under the 1991 Act. These children's cases have not been comprehensively examined. There are hundreds of other children about whom concerns have been notified to the health board, but who are not on the so-called priority list and whose cases are not being investigated as a result.
I can envisage teenage children, whose parents find themselves incapable of dealing with, creating mayhem at home because they suffer from particular personality or other disorders or difficulties. I foresee instances where those parents will approach their health board and state that they require a special care order to be made for the protection not only of themselves, but also of the other children in the family home. The health board will then place their application on a list and perhaps two years later making a decision either to apply or not to do so. In the meantime, the legislation does not envisage a situation where parents, either singly or together, can make an application. The health board may decide, for budgetary reasons, not to make an application. It may do so because the decision is correct or, alternatively, because someone has made a wrong judgment in relation to the problems that arise in respect of a particular child or the difficulties from which that child suffers.
I do not understand the reason the legislation does not envisage the health boards making an application, other than there being budgetary considerations involved. This is designed to ensure health boards are not compelled, within a particular period, to make a decision on a parent's application for a special care order and that health boards control the number of such applications made, regardless of the circumstances in which children find themselves. The only reason Part 3 is included in the Bill is because of the law case in which a decision was made by Mr. Justice Geoghegan in 1995 about a child in need of special care and also on foot of the series of cases, to which I referred earlier and which were dealt with by Mr. Justice Peter Kelly and other High Court judges, that illustrate the existence of a lacuna, a huge gap, in child care legislation. A substantial number of these court applications are made by parents on behalf of their children with difficulties and for whom the parents are incapable of caring. The courts have decided they have a constitutional jurisdiction to deal with these applications. The Minister in the legislation is trying to ensure these applications are made at District Court level and only by health boards. He is making a huge mistake and not dealing with the issue in a manner which protects the welfare of children.
If Part 3 is enacted in its current form, what will be the consequences? I know what they will be. While Part 3 will be invoked occasionally by health boards in District Court proceedings, putting the Part in place will not deprive the High Court of the constitutional jurisdiction it has exercised and developed in this area since 1995. Parents may not bother asking health boards to initiate this type of application. The procedure we see on a daily basis in the High Court in front of Mr. Justice Peter Kelly will continue because we cannot legislatively curtail the constitutional obligations imposed on the courts to protect the welfare of children and the constitutional rights of the courts to deal with the type of circumstances that have arisen. Where parents apply to health boards and there is an undue delay on the part of the boards, the parents will go back to the courts.
The further and ultimate difficulty which will arise is that, if and when the Government finally brings Part 3 into force and if a parent, instead of asking the health board to make such an order, goes straight to the High Court, instead of the High Court dealing with the specific needs of the child in question, we will end up with a technical set of High Court and Supreme Court proceedings which will be concerned with whether the High Court should still exercise this constitutional jurisdiction in circumstances where the Oireachtas has filled the gap by putting in place statutory provisions. This will result in a plethora of complex cases with unnecessarily large amounts of legal costs incurred dealing with issues of a technical and legal nature which do not address the specific circumstances of the individual children about whom we should have concern.
If we are interested in protecting the welfare of children, if there is a child in need of special care or protection whose parents will go the High Court route and if the Minister wants Part 3 to replace the High Court and put in place a coherent body of law to be administered at District Court level to fill the gap, it is essential the amendments I have tabled to Part 3 are taken on board. I urge the Minister to do so.
As all these amendments address the same issue and are identical to ones tabled by the Deputy on Committee Stage, I cannot recommend to the House that they be accepted.
It is proposed under this Part that the courts will be able to grant health boards the power to detain a child in a special care unit where his or her behaviour is such that it poses a real and substantial threat to his or her health, safety, development or welfare and he or she is in need of special care and protection. These children by definition will not be the subject of criminal proceedings and, therefore, not have the same protection as children before the courts on criminal charges.
It is a serious decision to detain a child and the philosophy of the Bill is that the application for a special care order and the detention of children in special care units should only be used as a last resort when all other options have been explored and found not feasible. For this reason, the Government has built in a number of checks and balances to the system to ensure this will be the case.
A health board, before applying for an order, must arrange for the convening of a family welfare conference. When the conference has completed its deliberations and it is still proposed to apply for a special care order, the views of the Special Residential Services Board, established in Part 11, must be sought. Where a health board seeks an interim care order, it must be about to arrange a family welfare conference, one must be in place or the board must be in the process of seeking the views of the Special Residential Services Board.
These checks and balances are critically important, not only to ensure the appropriate services are provided for the child, but also to protect his or her civil rights. If the amendments pro posed by the Deputy were accepted, the checks and balances it is proposed to put in place could be bypassed by the parents or guardians applying for a special care order or interim special care order. The application for such an order is such a serious step that it is appropriate that only health boards, the statutory bodies with responsibility for promoting the welfare of children at risk, should make the final decision as to whether such an application should be made.
Will the Minister explain to the House what he believes will happen to the current jurisdiction operated by the High Court should Part 3 become operational?
I cannot explain the position any further for the Deputy. We cannot have parents running off to the courts seeking orders of this type which are of a serious nature when the statutory responsibility for seeking such an order in what is a serious matter rests with the health boards.
Not when they do not meet that responsibility.
The Minister's last comment discloses the extent to which he does not understand the difficulty in this area. The way he phrased it is disparaging of parents. The idea is that parents who have problems with a child would take the liberty of going to the courts to ask them to find adequate facilities in which their children would be cared for in circumstances where the parents are at the end of their tether and the statutory bodies are not doing the job. That is an extraordinary attitude.
It is clear from what the Minister said that no serious consideration has been given to what will happen in the context of the current jurisdiction exercised by the High Court. It is also clear the Minister has not addressed what the position might be of either a child in serious difficulty or parents having serious difficulties with such a child where a health board does not respond or fails to respond within a reasonable time.
The Minister has not only missed the point, but is putting in place an entirely new section in the Child Care Act, 1991, which does not address fully the area he said he intended to address. He is leaving a huge gap in the legal procedures available. Two jurisdictions will operate concurrently. One will be a High Court constitutional jurisdiction and the other will be a District Court jurisdiction. The Minister does not pay any heed to the fact that, on occasions, health boards do not respond in time. In the context of the Government's term in office, health boards have not been equipped to respond in sufficient time to concerns about children at risk. This is an ongoing problem and difficulty, of which the Minister is aware.
The Minister cannot stop parents making applications to courts in the interests of their children. He seems to think that hundreds of parents want to rush to the courts simply to get rid of their children and place them in some form of residential care. It is a serious issue and I have never met a parent who wanted to have his or her child placed in care in circumstances where there are not huge family problems and difficulties. The High Court cases we have witnessed have related to children whose parents have found themselves incapable of caring for them or to children with major personal difficulties who are at serious risk of living very short lives if their difficulties are not addressed.
I regret that the Minister is not accepting this amendment. He will live to rue this day. In the context of the Minister's responses to amendments to this Bill, this is one of the biggest mistakes he has made. I say this with no sense of satisfaction because I am concerned about the welfare of children and with addressing the issues which have been exposed through the courts for six years.
Deputy Shatter is missing the point.
Barnes, Monica.Bell, Michael.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Farrelly, John.Fitzgerald, Frances.Gilmore, Éamon.Gormley, John.Hayes, Brian.Higgins, Joe.Hogan, Philip.
Howlin, Brendan.McCormack, Pádraic.McDowell, Derek.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Penrose, William.Perry, John.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Ellis, John.Fahey, Frank.Fleming, Seán.
Flood, Chris.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John J.Martin, Micheál.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon. O'Donnell, Liz.
O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.
Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Walsh, Joe.Woods, Michael.
I move amendment No. 14:
In page 23, line 51, after "concerned" to insert "or to a parent or guardian of a child".
I await the Minister's response.
Section 23B(5) imposes on health boards the obligation to go back to the court and seek a discharge of the special care order in respect of a child where the circumstances which led to the making of the order no longer obtain. Under the amendment a parent or guardian would also be able to apply for a discharge of the order. It would be inappropriate to include the amendment in this subsection.
The subsection clearly relates the obligations of the health boards in the context of their powers and obligations in regard to special care orders as set out in the section. It is the responsibility of the health board to provide or to arrange to provide the appropriate services and necessary special care and protection for children in special care units. The health boards, therefore, are the bodies which are in the best position to determine if the circumstances which gave rise to the order in the first place have ceased to exist.
It is appropriate that it should remain the obligation of the health boards to seek a discharge under these circumstances and that the obligation should not be imposed on parents or guardians. Deputies may be concerned about the rights of parents or guardians in these circumstances. These are properly addressed in section 23F which allows a court on its own motion or the application of any person to vary or discharge a special care order. This will allow a parent or guardian to seek a discharge of a special care order. These points were made by the Minister of State, Deputy Hanafin, on Committee Stage and Deputy Shatter was happy that the issue was addressed by section 23F and withdrew his amendments. I, therefore, recommend to the House that the amendments be rejected.
I move amendment No. 16:
In page 24, line 28, after "health board" to insert "or a parent or guardian of a child or a person acting in loco parentis”.
I move amendment No. 17:
In page 25, lines 26 and 27, to delete "the interests of justice or".
This amendment was originally proposed by the Opposition on Committee Stage and my colleague, the Minister of State, Deputy Hanafin, agreed to examine it before Report Stage. Having considered the matter, we agreed the welfare of the child should be the consideration of the court and the proceedings envisaged under the section and, therefore, recommend the amendment to the House.
I originally proposed the amendment which provides that an application for an interim special care order or an extension of the period mentioned in section 23B(2) should be made on notice to a parent having custody of the child or a person actingin loco parentis who was appropriate to the health board concerned, except where, having regard to the interests of justice or the welfare of the children, the judge otherwise directs. I made the case on Committee Stage that the legislation should be child-centred and, therefore, the words “the interests of justice” should be deleted because I found it difficult to understand how the interests of justice could be served if they did not coincide with the welfare of the child . I welcome the fact that the Minister is taking on board my original amendment.
Amendment No. 21 is related to amendment No. 18 and amendments Nos. 19 and 20 are consequential on amendment No. 21. We will take amendments Nos. 18 to 21, inclusive, together by agreement.
I move amendment No. 18:
In page 29, line 39, to delete "or otherwise".
These amendments have been tabled to address private foster care in circumstances where the child is place, for example, with relations for a period, the placement is not for reward and there is no need to involve a health board. The Minister may have some relevant amendments.
The Deputy tabled the same amendment on Committee Stage and I cannot recommend it to the House. As my colleague, the Minister of State, Deputy Hanafin, pointed out at the time, the provisions of the Bill in regard to private foster care are intended to update the legislation on this matter. It is intended to ensure, whether there is a reward, the health board should be notified of a private foster care arrangement. The effect of the Deputy's amendment would be that only arrangements made for reward would be governed by the legislation. On Committee Stage it was pointed out that there would be considerable difficulty in defining whether the arrangement was for reward where payments of any sort, for instance, expenses, were made. The Deputy pointed out that there are circumstances in which children are placed with friends of the family and the definition might encompass them.
The Minister of State, Deputy Hanafin, agreed to examine the matter again and arising from her review I have tabled amendments Nos. 19, 20 and 21 to deal with the point raised by Deputy Shatter, as his amendment would make the exclusions from the definition of a "private foster care arrangement" too wide. I recommend to the House that amendment No. 18 be rejected and the Government amendments be accepted.
I move amendment No. 19:
In page 30, line 19, to delete "or".
I move amendment No. 20:
In page 30, line 21, to delete "purposes;" and substitute "purpose, or".
I move amendment No. 21:
In page 30, between lines 21 and 22, to insert the following:
"(k) is placed with a friend of the child's parent or guardian for a period not exceeding 42 days, while the parent or guardian is on holidays;”.
I move amendment No. 22:
In page 30, line 39, to delete "working".
This is a technical amendment. Originally the provisions of the Bill provided that where a foster care arrangement was undertaken in an emergency those making and undertaking it would have to notify the health board within two working days. It was agreed on Committee Stage to amend this as it was considered not to be workable. This amendment has been tabled to bring the provisions regarding emergency private foster care into line with the definition of a "private foster care arrangement" subject to the exclusions listed as being where a child is placed with a person other than his or her parent or guardian for full-time care for 14 days or more.
Amendment No. 24 is an alternative to amendment No. 23 and amendment No. 30 is consequential. All may be discussed together.
I move amendment No. 23:
In page 31, to delete lines 22 to 26 and substitute the following:
"23R. (1) Any person arranging or undertaking a private foster care arrangement in respect of a child shall regard the child's welfare as the first and paramount consideration.
(2) Any person undertaking such an arrangement shall take all reasonable measures to safeguard the health, safety and welfare of the child concerned.
(3) Any person arranging such an arrangement shall make all reasonable enquiries to ensure that the person undertaking it is in a position to comply with subsection (2).".
The Government amendments are in response to the proposal to amend section 23R whereby an additional duty to regard the welfare of the child as the first and paramount consideration was imposed on those involved in private foster care arrangements. Under section 23R it was the duty of any person arranging or undertaking a private foster care arrangement in respect of a child to take all reasonable measures to safeguard the child's health, safety and welfare. The difficulty with accepting that amendment, which has been tabled again, was that under section 23W(1)(b) it was an offence to contravene section 23R.
Legal advice indicated that the existing provision provided reasonably objective criteria on which to initiate a prosecution. If the amendment were accepted and the prosecution was initiated, it would require establishing that the accused did not regard the welfare of the child as the first and paramount consideration. It has been suggested that it would be difficult to establish such a case and also that the original wording was flawed as it would not be reasonable to impose an obligation on a person arranging a foster care arrangement to take all reasonable measures to safeguard the child's health, safety and welfare as they would not have day to day care of the child.
It is proposed, therefore, to impose an obligation on them to make all reasonable inquiries to ensure the person undertaking the arrangement is capable of meeting this obligation. Amendment No. 30 is a technical amendment following on from amendment No. 23. These amendments are designed to accommodate the Opposition proposal while ensuring it does not weaken the section regarding offences. I, therefore, commend to the House that amendments No. 23 and 30 be accepted and amendment No. 24 be rejected.
It is unfortunate that the Minister cannot, when moving an amendment, detail the positive reasons for it without feeling the need to prematurely repeat what is supposed to be wrong with the Opposition amendments. I am pleased that as a result of the discussion we had on Committee Stage the difficulty with the Bill, as drafted, in this area has been addressed by the Minister with an appropriate amendment and I am happy to accept it and not press mine.
I move amendment No. 25:
In page 32, between lines 29 and 30, to insert the following:
"(i) that the person or persons who arranged the foster care arrangement and the person or persons undertaking such arrangement co-operate with the health board in assessing whether it is in the interests of the child's welfare that the arrangement continue or be terminated,".
This provision deals with the institution of proceedings by health boards where the health board believes that a person arranging or undertaking a private care arrangement has not notified it or the person is not taking all reasonable measures to safeguard the health and welfare of the child concerned. It goes on to provide that application may be made to the District Court for a number of orders. The amendment is designed to ensure the person or persons who make the foster care arrangement and the persons undertaking such an arrangement would co-operate in carrying out an assessment of whether it is in the interests of a child that the arrangement should continue or be terminated. I hope the Minister will indicate his views on the amendment.
I cannot recommend that this amendment be accepted. The purpose of section 23U(b) is to allow the health boards to apply to the court for any one of a number of remedies where the health board is of the opinion that a person has made or undertaken a private foster care arrangement without notifying the board or is not taking all reasonable steps to ensure the child's health, safety and welfare are taken care of. These remedies are that the board may obtain from the District Court under the Child Care Act, 1991, a supervision order, an emergency care order, an interim care order or a care order. Alternatively, the board can apply to have the arrangement terminated and the child returned to his or her parents or guardian.
Under the Deputy's amendment it is proposed to add a further option for a health board to apply for an order obliging the persons concerned and the health boards to co-operate in assessing whether it is in the interests of the child to continue or to terminate the arrangement. It seems impossible to have a court order making someone co-operate on a matter. As I have already indicated, the amendment has been inserted in the Child Care Act, 1991, and is therefore governed by the principles set out in section 3 of that Act. It would, therefore, always be an obligation on the health board to act in a manner that regards the welfare of the child as the first and paramount consideration, having regard to the rights and duties of parents, whether under the Constitution or otherwise. If a health board considers it appropriate to monitor and supervise the situation voluntarily, in co-operation with the private foster carers, it is open to it to make that arrangement without recourse to the courts. This, as the Deputy is aware, is the situation in relation to many vulnerable children where the health board works with the families to ensure their protection without taking the child into care.
The essential purpose of this provision is to deal with a situation where a foster care arrangement has been undertaken which has not been notified under the Act. This is not to deal with a situation where a person is not taking all reasonable measures to safeguard the health of a child. Under section 23U, if a health board believes that a person who is arranging or undertaking a private foster care arrangement has not made the appropriate notifications, there is an obligation imposed on the health board to make a District Court application. The District Court can do only one of three things. It can make a supervision order, an order that the child be taken into care or an order that the arrangement be terminated.
There is a possibility that a child could be placed with a couple or an individual by way of a private foster care arrangement without the persons concerned realising the legal provisions and obligations to notify. Where notification does not take place, it seems that even where the child is getting on well with the foster parents and its welfare indicates that it should stay with the foster parents, the options available to the health board relate to the making of supervision orders or the child being taken into care or returned to its original home. This provision, as proposed, is designed to ensure that where a foster care arrangement is in place which has not been notified, the persons who made the foster care arrangement and the persons undertaking it would co-operate with the health board in carrying out an assessment of whether it is in the interests of the child's welfare that the arrangement continues. This is to ensure they would both be compelled to co-operate. If the health board reaches a conclusion that it is in the interests of the child's welfare that the arrangement con tinues, there would be no need for it to go to court, to make a supervision order, to take the child into care or to terminate the arrangement.
The amendment is designed to do what the Minister said, namely, to protect the welfare of the child. It would provide an additional alternative in the context of those who may inadvertently fail to notify because they are not aware of what the law states. Many people in the future will have children placed with them by neighbours, friends or relations and they will not know the legal position. The children may stay with them for a longer period than was originally anticipated. There is no reason people in such circumstances should find themselves caught up in District Court proceedings where a child's welfare indicates that the arrangements informally put in place should continue.
This is an enabling section which does not oblige the board to apply for these orders if the arrangement is satisfactory. There is no obligation placed on the board under the section as it stands.
I am concerned that because the section appears to envisage the three types of interventions listed, to which I have already referred, health boards, as a matter of practice, will operate those interventions and take the view that where there is such a private arrangement which has not been notified to them within the timeframe in which it should be notified and where assessments have not been carried out, they should automatically move to look for a supervision order, to take the child into care or to terminate an arrangement. This is designed to ensure the health boards would not fall into the trap of dealing with this type of problem in this way. In that context, I fail to understand the reason the Minister will not take on board my amendment.
Amendment No. 26 is consequential on amendment No. 27 and amendments Nos. 28 and 29 are alternatives to amendment No. 27. Amendments Nos. 26 to 29, inclusive, may be discussed together.
I move amendment No. 26:
In page 32, line 50, to delete "and".
This amendment is important. Unfortunately, we are coming back to issues we dealt with on Committee Stage and which I hoped the Minister would be willing to address. It relates to circumstances where people are acting as foster parents. The legislation provides that a person shall not arrange or undertake a private foster care arrangement for the purpose of adopting a child under the Adoption Acts, 1952 to 1998. It also states that any person "undertaking a private foster care arrangement in respect of a child shall not apply under those Acts to adopt the child unless the child is eligible for adoption under the Adoption Acts, 1952 to 1998, and the relevant health board has consented to the continuance of the arrangement pending the completion of an assessment of that person under those Acts".
I made the case on Committee Stage that, as matters stand, if a child has been in the care of foster parents for a period in excess of 12 months, under the Adoption Act, 1988, they can make application for an adoption order under the procedures prescribed by that Act. In practice, foster parents have rarely, if ever, done this after a child has been in their care for only 12 months. What usually happens is that if a child has been in the care of foster parents for six, seven or eight years and there is no realistic possibility of the child resuming a relationship with its natural parents and living at home with them, foster parents seek to invoke the provisions of the 1988 Act. I am not aware of any difficulty in the context of foster parents invoking the provisions of the 1988 Act prematurely in circumstances which are contrary to the welfare of the child. I am aware of many situations which arise where a child may be better off with an adoption order being made to secure their position with the foster parents after being in the foster parents' care for many years and of the problems that arise because of the restrictive nature of current legislation in this area.
It is extraordinary that the Bill seeks to diminish the current entitlements of foster parents to make application under the 1988 Act. It provides that if a foster parent wishes to apply for adoption, he or she cannot do so without getting prior consent from the health board. I do not know the reason the Minister is introducing this restriction in the legislation.
If a health board does not co-operate and tells a foster parent that it will not consent to the fostering arrangement continuing if he or she applies to adopt, it will place some foster parents in great difficulty. On occasions health boards and social workers reach conclusions about child welfare that appear odd to those of us who have received the training of a social worker. There may well be occasions where foster parents wish to adopt a child and the health board is not willing to consent to the fostering arrangement continuing for a variety of reasons.
The key amendment that I propose, amendment No. 28, which we are discussing in conjunction with the earlier amendment No. 26, reads as follows:
In page 33, between lines 5 and 6, to insert the following:
"(3) A health board shall not unreasonably withhold its consent to the continuation of a private foster care arrangement as referred to in paragraph (f2>b) of subsection (2) and, in particular, such consent shall not be withheld solely because a foster parent applies under the Adoption Acts, 1952 to 1998, to adopt a child in his or her care.".
I draw the attention of the House to the report published yesterday by the working group on foster care which contains a broad range of recommendations. In the context of adoption options for children in care, the report states on page 42:
The working group is very concerned about the very high proportion of children in care for a period of two years or more and a number of submissions to the working group identified the issue of allowing for adoption of children in long-term foster care. Adoption of children in care is a very complicated issue involving complex legal and constitutional issues regarding the rights of parents and children. These issues must be considered in the context of protections afforded to the family in the Constitution.
It goes on deal with the law as currently framed and states:
The working group is concerned that some children remain in long-term foster care when adoption may in fact be in their best interests. The working group recommends that health boards actively consider the option of adoption in the best interests of the individual child for all children in long-term foster care.
I am unaware of any difficulty arising from the operation of the 1988 Act in the context of foster parents using it to seek an adoption order. Why should we introduce in this Bill an additional veto that the health board can exercise if there is not a single example of a case which indicates a need for this type of veto?
These amendments were already tabled by the Deputy on Committee Stage and rejected by vote of the committee. I cannot, therefore, recommend to the House that any of them should be adopted. Amendment No. 26 is a technical amendment depending on the acceptance of amendment No. 27. The purpose of section 23V is to inhibit people from using the mechanism of private foster care to circumvent adoption procedures under the Adoption Acts, 1952 to 1998. Under section 23V(1) arranging or undertaking a private foster care arrangement for the purpose of adopting a child is prohibited.
Subsection (2) is designed to accommodate bona fide circumstances where the child is in private foster care and a genuine relationship has developed between the foster carers and the child. It allows carers to apply to adopt the child subject to the condition that the child is eligible. Under the Adoption Acts, 1952 to 1998, the prospective carers will also have to undergo an assessment. Subsection (2)(b) allows the private foster care arrangement to continue pending the completion of the assessment if the health board consents. This is an important protection for the child and if this section was deleted it would undermine that protection and the intent of subsections (1) and (2).
Deputies raised a number of issues concerning this section on Committee Stage. There were some views expressed that health boards would use this provision as a veto against the processing of adoption applications under the Adoption Acts, 1952 to 1998. As my colleague indicated on Committee Stage, this part is an amendment to the Child Care Act, 1991. The provisions are, therefore, governed by section 3 of that Act which obliges the health boards, having regard to the rights and duties of parents, whether under the Constitution or otherwise, to regard the welfare of the child as the first and paramount consideration. The boards will, therefore, have to act in the best interests of the child at all times when making any decisions as to whether to leave the child with the foster carers.
It was also pointed out that inter-country adoptions, the main issue affected by this section, are now operated in accordance with the standardised framework for inter-country adoption assessment. Some Deputies also raised the question of the implications for relatives intending to adopt. The definition in section 23O excludes relatives from the scope of these provisions. Given these checks and balances in relation to the health boards and their dealings with this matter, I consider the amendment totally unnecessary.
Amendment No. 29 is a further amendment to section 23D. The purpose of that section and subsection (3) is to allow the health boards to apply to the court for any one of a number of remedies where the health board is of the opinion that a person has contravened subsections (1) or (2) of this section. These remedies are that the board obtain, under the Child Care Act, 1991, either an emergency care order, an interim care order or a care order. Alternatively the health board can apply to have the arrangement terminated and the child returned to his or her parents or guardian.
As I pointed out before, this part has been deliberately incorporated into the 1991 Act so as to ensure all the legal protections for children apply to this part. This part is, therefore, not designed to reinvent the child care legislation. As the entire part is built on the existing legislation, no new procedures are being proposed in relation to the provisions governing taking children into care.
The effect of the proposed amendment would be that in all cases under section 23B where a health board sought a District Court order under this subsection, the person arranging or undertaking the private foster care arrangement must be notified and given an opportunity to give evidence. This would mean that in the circumstances that a health board applied for an emergency care order, the court's power to grant such an order would be constricted by the need to hear the evidence of the party who may potentially be the person who created the circumstances in which the order is being sought in the first place. This could have the effect of prejudicing the use of section 13 of the principal Act in the circumstances envisaged in the section.
Any issues of natural justice in relation to cir cumstances envisaged in the section can be dealt with by the provisions in section 14 which determines the notification to be given by health boards when a child is placed in care under an emergency care order and section 17(3) which addresses the issue in relation to interim care orders and the current provision in relation to care orders. It should be noted that under section 22 of the Child Care Act a court may, on its own motion or on the application of any person, vary or discharge a carer supervision order or condition attached to it.
For the reasons outlined, I recommend that the House rejects amendments Nos. 26 to 29, inclusive.
I do not wish to delay the House. I am conscious that there are many amendments. I see no need to change the current position with regard to adoption in respect of foster parents in the manner in which the Bill proposes to change it. I have made a number of alternative proposals for dealing with the matter. The Minister clearly does not intend to take them on board. I will formally put the proposals.
I move amendment No. 28:
In page 33, between lines 5 and 6, to insert the following:
"(3) A health board shall not unreasonably withhold its consent to the continuation of a private foster care arrangement as referred to in paragraph (f2>b) of subsection (2) and, in particular, such consent shall not be withheld solely because a foster parent applies under the Adoption Acts, 1952 to 1998, to adopt a child in his or her care.".
I move amendment No. 29:
In page 33, between lines 17 and 18, to insert the following:
"(4) No order shall be made by the District Court pursuant to subsection (3) of this section without the person who is arranging and/or undertaking a private foster care arrangement being notified of the application being made to the District Court and being given a reasonable opportunity to give evidence to the Court.".
I move amendment No. 30:
In page 33, line 23, after "contravenes" to insert "subsection (2) or (3) of".
Amendment No. 31 in the name of Deputy Shatter arises out of Committee Stage proceedings. Amendment No. 32 is an alternative and amendment No. 49 is related. All three may be discussed together.
I move amendment No. 31:
In page 35, line 28, before "accepts" to insert "having first had a reasonable opportunity to consult with his or her parents or guardians, and where sought, having obtained legal advice,".
I note the Minister has tabled an amendment, No. 32, which is on similar lines to mine and it equally addresses the issue about which I am concerned. I am pleased the Minister has taken on board this concern as expressed on Committee Stage, and I do not want to unduly delay the House in speaking to it.
The first of these amendments in my name, No. 32, arises from an amendment put down by Deputy Shatter on Committee Stage and again submitted today as amendment No. 31. It ensures that before a child admits to an offence as a condition to being considered for admission to the diversion programme, the child must have had reasonable opportunity to talk to his or her parents or guardian and to have obtained legal advice, where sought.
Deputy Shatter's amendment did not conflict with the policy underpinning the Bill, in particular the consideration that would apply before a child is admitted to the diversion programme. I promised to consult the Parliamentary Counsel about the wording. The outcome of those consultations is the two amendments I am now happy to propose which fully meet the objectives of the Committee Stage amendment.
The second amendment, No. 49, is proposed for consistency. It deals with the situation where a child is before the court charged with an offence and the court is considering whether to direct the probation service to convene a family conference. In such cases, the child would also have had to admit to the offence. I thank Deputy Shatter for raising the matter in the first place during Committee Stage and I recommend amendments Nos. 32 and 49 to the House.
I withdraw my amendment in light of the Minister's amendment.
I move amendment No. 32:
In page 35, line 28, after "behaviour," to insert "having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her,".
Amendment No. 33 is in the name of Deputy Shatter. Amendment No. 34 is related so it is proposed to discuss Nos. 33 and 34 together, by agreement.
I move amendment No. 33:
In page 35, between lines 32 and 33, to insert the following:
"(d) admission to the Programme is in the best interests of the child,”.
Amendment No. 33 relates to admission to the diversion programme, to which the Minister referred. Section 23(1) provides that the child may be admitted to the programme if he or she (a) accepts responsibility for his or her criminal behaviour; (b) consents to be cautioned and, where appropriate, to be supervised by a juvenile liaison officer; and (c) is of or over the age of criminal responsibility and under 18 years of age. I propose that there should be an additional provision (d) which states: “admission to the programme is in the best interests of the child”.
In previous comments the Minister indicated that the concern in this legislation relates to protecting, in so far as they can be protected, the best interests of the child. I presume he is not suggesting that a child should be admitted to a programme in circumstances where it is not in the best interests of the child. I hope this amendment, which is relatively simple but consistent with what I understand to be the philosophy behind this legislation, is one the Minister can take on board.
Amendment No. 34 arises out of an amendment put down by Deputy Shatter on Committee Stage and resubmitted today. I had reservations on the Committee Stage amendment as it did not seem to adequately recognise the complex interaction of the interests of young offenders and the interests of society, and any victims of offences committed by young persons. However, I undertook to examine section 23 to see if the point raised on Committee Stage could be accommodated in the section, and the amendment I am now happy to propose represents the outcome of that examination.
Section 23(2) will now place an onus on the director of the diversion programme to be satisfied that admission to the programme would be in the best interests of the child as long as those interests did not conflict with the interests of society and any victim. This formula meets the point made by Deputy Shatter and protects the interests of society and any victim. I commend amendment No. 34 to the House and thank Deputy Shatter for raising it on Committee Stage.
In the circumstances I will not press amendment No. 33.
I move amendment No. 34:
In page 35, to delete lines 38 to 41 and substitute the following:
"(2) The Director shall be satisfied that the admission of the child to the Programme would be appropriate, in the best interests of the child and not inconsistent with the interests of society and any victim.".
I move amendment No. 35:
In page 37, line 24, to delete "12 months" and substitute "not less than 6 months and not more than 24 months".
This amendment relates to the supervision of children admitted to the programme as dealt with under section 27.
Section 27 specifies the length of the supervisory periods associated with the different types of caution. A formal caution entails a 12 months supervisory period. The amendment seeks to change that to between six and 24 months.
In preparing this section, we decided to follow the 1996 Bill in that respect by giving effect to present administrative practice. We did this in the knowledge that the Garda national juvenile office considers it to be the appropriate period of supervision and, as with other aspects of the diversion programme, it works and has been seen to work.
I have been careful with the Bill not to be over-prescriptive. Accordingly, it will be noted that the 12 months period can be varied by the director in accordance with any ministerial regulations made under section 47. Also, a family conference can recommend a variation of the period of supervision. Section 38 so provides.
That brings me to another valid reason for keeping the provision as it is. Section 34 sets a time limit for the holding of a conference under Part IV. It must be held during the period of supervision. That is a sensible provision as once the supervision is finished, the child will no longer be in the diversion programme.
While I would expect that the majority of conferences would be convened within a few months of the admission to the programme, in some cases a delay might be unavoidable and it would be a pity if in any such case time ran out on the holding of a conference. The 12 months period gives that extra bit of leeway if such an avoidable delay arises.
In making the case for the current policy on supervision, as reflected in section 27, I am not saying Deputy Shatter does not have an arguable case with his amendment. On balance, however, I would prefer to stay with the current successful practice and, unfortunately, I will not accept his amendment.
The amendment was intended to provide a greater degree of flexibility than is provided for under the Bill as currently drafted. I regret that the Minister is not willing to take the amendment on board. In the circumstances, I do not intend to press it.
Amendment No. 36 is in the name of the Minister. Amendment No. 37 is an alternative, amendment No. 38 is related and amendment No. 39 is an alternative to No. 38, so it is proposed to discuss amendments Nos. 36 to 39, inclusive, together, by agreement.
I move amendment No. 36:
In page 39, to delete lines 2 to 5 and substitute "shall have regard to his or her best interests and shall also, where practicable, ascertain whether his or her parents or guardian would be agreeable that a conference be held and would attend it.".
The two amendments in my name arise from amendments proposed by Deputy Shatter on Committee Stage and which are resubmitted today. They are aimed at ensuring that the best interests of child victims are taken into account when the question of their attendance at a family conference arises. I said on Committee Stage that I had no problem with the amendments but that I would like to discuss them from a purely drafting point of view with the Parliamentary Counsel. The outcome is amendments Nos. 36 and 38, which I am happy to commend to the House. I thank Deputy Shatter for bringing the issue to my attention in the first instance.
The amendments tabled by the Minister are broadly similar to the amendments originally tabled by me and to those now tabled by me for Report Stage. I am pleased the Minister is taking on board the amendments and I am happy to withdraw my amendments.
I move amendment No. 38:
In page 39, line 23, after "conference" to insert "and, where the victim is a child, whether such attendance would be in his or her best interests".
I move amendment No. 40:
In page 42, between lines 14 and 15, to insert the following:
"(e) the undertaking by the child of community services as defined by the Criminal Justice (Community Service) Act, 1983, for a specified number of days over a specified number of weeks for a period of time not exceeding 24 hours in total.”.
This amendment is designed to deal with the action plan that is put in place in relation to a particular child to provide an additional option of what a child can be required to do. There is a whole series of matters detailed in Section 39 (3). This is an amendment in identical terms to an amendment tabled by me on Committee Stage. It was my hope that by tabling it again, I might stimulate the Minister into agreeing to what is contained in it and bringing forward any more detailed amendment that may be required to render it effective.
The amendment seeks to propose that among the various options available should include the undertaking by the child of community services as defined by the Criminal Justice (Community Service) Act, 1983, for a specified number of days over a specified number of weeks for a period of time not exceeding 24 hours in total. It was intended that where children commit anti-social acts and they are being dealt with under this Part of the Bill, there would be an additional possibility to require a child to engage in community service where it is appropriate that the child do so. Currently, community service options are confined to persons over 18 years of age and the time has come for us to revise our approach in that regard, and this amendment seeks to do so.
This amendment is impossible to accept for technical reasons. The Community Service Act provides for the imposition of community service by the courts, and only by the courts. Community service can only be imposed as an alternative to a custodial sentence on persons who are 16 years of age or over, and a minimum of 40 hours community service is provided for by the 1983 Act.
In contrast, the amendment envisages community service arising out of an action plan formulated at a Garda conference being imposed on any child from 12 years upwards, and having a minimum number of 24 hours service. In other words, the amendment is in conflict with existing legislation from which it seeks to derive its meaning.
In pointing out the weaknesses in the amendment I do not wish to prejudice or anticipate the outcome of the examination of the final report of the expert group on the Probation and Welfare Service. I am not arguing against the terms of the amendment, but its conflict with existing legislation.
I am happy to admit that what the amendment seeks to achieve is, in one respect, worth following up. In situations where the court orders the Probation and Welfare Service to convene a family conference and to formulate an action plan, community service could form part of that plan. Accordingly, in accordance with an undertaking I gave on Committee Stage, I have referred the amendment to the officials examining the final report of the expert group. I regret that I cannot accept the amendment, but I am having it followed up in the context of the examination of the final report of the expert group on the Probation and Welfare Service.
In light of the fact that the Minister is following up this proposal, I will not press the amendment.
Amendments Nos. 41 and 42 are related and these amendments may be taken together.
I move amendment No. 41:
In page 44, line 7, after "Garda Síochána" to insert "and the remaining two shall not be members of the Garda Síochána".
This amendment is in response to an amendment tabled by Deputy Shortall on Committee Stage which sought to include one non-Garda person on the committee which will monitor the effectiveness of the diversion programme. The Deputy's amendment, which arose out of a misreading of section 44, would have provided for one person who will not be a garda to be on the committee. The section provides for two members who will not be gardaí, but I admit that this may not have been clear from the original drafting. My amendment will make my intentions in this regard clear and I commend it to the House.
Deputy Shortall has resubmitted her amendment, presumably because it specified that the member of the committee who will not be a garda shall have a background in child welfare. This would be inappropriate. The committee members will monitor the effectiveness of the diversion programme, probably with an emphasis on the new aspects, such as restorative conferencing and restorative cautioning. They will review all aspects of its operation and monitor the ongoing training needs of facilitators.
The skills required for these purposes are not necessarily a background in child welfare, at least not in any narrow meaning of that expression. Instead, a background in juvenile justice, a knowledge of criminology or child psychology or an expertise in mediation or other forms of training could be more appropriate. The programme, after all, is an integral part of the juvenile system and not the child welfare system.
In the circumstances it is deemed appropriate not to be specific about the qualifications of the members of the committee who are not gardaí, but to let time and experience determine the expertise required. Therefore, I cannot accept Deputy Shortall's amendment, but I hope she will accept that I have come a long way.
I welcome the Minister's clarification as the original wording was not clear and allowed for all four members of the committee to be gardaí. The Minister makes the point that my amendment could exclude people who would have much to contribute to the monitoring group. He listed a number of people and there is no doubt that such people would make a contribution. However, the Minister has left the wording so loose that there is no requirement for the additional members to have any expertise regarding children or juvenile justice. That is a mistake. Many people with expertise in a wide range of areas know nothing about children or the welfare of children. It is important that the best people sit on the committee. Such people should have relevant experience and expertise. This is a missed opportunity.
I move amendment No. 42:
In page 44, line 10, after "committee" to insert "and of whom one shall be a non-Garda person with a background in child welfare".
I move amendment No. 43:
In page 51, line 12, after "station" to insert ", but where the child nominates a particular adult, the member in charge shall have regard to that nomination in exercising his or her functions under this subsection".
This amendment concerns the interviewing of children in Garda stations and provides for a situation in which a parent or guardian is not in a position to attend. I am proposing that, where a child nominates a particular adult, the garda in charge in the station shall have regard to that nomination in exercising his or her functions under this subsection.
In the case of many children likely to come before the courts, or to be in trouble with the law, there may be an unusual situation at home where the parents may not be on the scene and there may not be any legal guardian. A child in such circumstances may have a relationship or rapport with a particular significant adult in his or her life, such as a teacher, neighbour or relative. It is in the child's interest that this person should attend when the child is being interviewed in a Garda station.
I am not suggesting that the child should have a veto over who would be selected, but that in deciding who should be present while the child is being interviewed, the garda should have regard to the child's request. This is a reasonable proposal if we are to consider the provisions of the UN convention on the rights of the child and the right of the child to be heard. The Minister of State talks much about this issue and the need to listen to children and their needs and desires. In light of this fact, the garda in charge should have regard to the child's wishes.
This amendment is unnecessary as it assumes the garda in charge of a Garda station has discretion over whether an adult, reasonably named by the child to attend at the station, is acceptable to that member. Section 58 sets out the circumstances under which the member in charge is obliged to inform the child of his or her right to have an adult advised of the arrest and to have that adult requested to attend at the station. Those circumstances are that the parents or guardian could not be found, or if found, would not, or could not, go to the station.
Section 61 deals with the interviewing of the child. If a parent or guardian is present, they have a right to attend, subject to subsections (2) and (3). Subsection (7) defines parent or guardian for the purposes of section 61 as including the adult reasonably named by the child, pursuant to section 58. In the absence of the parent or guardian, or the other adult named by the child, the member in charge can nominate another adult.
This amendment concerns the adult named by the child in the absence of the parent or guardian. The position of that adult would be little different from that of a parent or guardian. This is one of the reasons for section 61(7) which defines parent or guardian as including an adult reasonably named by the child.
What does "reasonably named" mean? There is little difference from section 58(2)(f2>a)(ii) which deals with the situation in which a parent or guardian will not, or cannot, attend at a station within a reasonable time. If, for example, the adult named by the child lives 100 miles away or cannot be contacted, he or she has not been reasonably named. If the adult is suspected of complicity in the offence, or is deemed likely to obstruct the course of justice, he or she can be excluded in the same way as a parent or a guardian.
The wording of this amendment appears to presume that the member in charge has wide discretion in deciding whether to allow the adult named by the child to attend the interview. There is no such wide discretion. The position of the adult is little different from that of a parent or guardian, if present. The amendment is unnecessary and could give a misleading impression. It could be argued that the wording of the amendment where it states that the member in charge shall have regard to the nomination of a particular adult by the child, provides less of a protection for the child than the obligation on that member already included in the Bill which treats the request for an adult to be present in the same way as the request for a parent or guardian.
Whether the parent or the other adult arrives at the station, they have the same rights and responsibilities. This is one reason it has been possible to provide the definition in section 61(7). For these reasons, the amendment would be unwise and unnecessary and I am not, therefore, in a position to accept it.
I move amendment No. 44:
In page 51, between lines 12 and 13, to insert the following:
"(2) The Minister shall by regulations make provision for the manner in which panels of persons shall be drawn up for the purposes ofsubsection (1), and for the functions of such persons.”.
I am dissatisfied with the proposal to guillotine this Bill at 7 p.m. This is a complex and lengthy Bill which required seven sessions on Committee Stage. It is unfair and inappropriate to rush the Bill through in four hours. We will not be able to vote on a number of amendments, let alone debate them. I am particularly concerned about a later amendment.
Amendment No. 44 seeks that the Minister shall by regulations make provision for the manner in which panels of persons shall be drawn up for the purposes of subsection (1) and the functions of such persons. In a particular case related to me recently, a taxi driver who vaguely knew the child in question was called in to the Garda station. It is important that we are clear about the type of people we want to accompany children in interview situations and about their functions. A panel should be created for this purpose. People should not merely be called in to Garda stations to get gardaí out of particular predicaments. The Minister should make regulations to address this matter.
This amendment is concerned with the drawing up of panels of persons to attend interviews with children in Garda stations when the parent, guardian or another adult is not available. Technically, I do not believe the amendment achieves its aim in that it presupposes panels will be created; the amendment would only provide for how the panels would be drawn up and what would be their functions. The amendment is also too wide in scope in that in referring to subsection (1) it includes parents or guardians and other adults named by the child who would obviously not be part of any previously drawn up panel.
I refer the Deputy to section 70, in particular paragraphs (b) and (c) of subsection (1). Paragraph (b) allows the Minister for Justice, Equality and Law Reform to make regulations governing the role of any of the adults present at the interviewing of children in Garda stations. This important issue equates to the second part of the amendment. Is the adult present to ensure the child is well treated, to ensure procedures are complied with, to offer support or to play a more active role? These are important questions which would have to be teased out in regulations.
Paragraph (c) of section 70(1) would allow the Minister to make regulations concerning any other matter as may be necessary or expedient for the purposes of allowing Part 6 to have full effect and its due administration. Thus, for example, if the drawing up of panels were considered necessary or expedient for Part 6 to have full effect, this could be achieved in regulations made under section 70.
At present, where a parent, guardian or other adult named by the child is not available, the Garda will contact a local peace commissioner or other person of stature in the community. In effect, there are informal panels and the system works well. In normal circumstances, no child is questioned in the absence of an adult. As long as I continue to be satisfied that the system works, I would not be in favour of establishing statutory panels. However, if at any time I were to become aware of any shortcomings in the informal system, I would consider using my powers under section 70. Accordingly, I do not intend to accept the amendment.
I do not accept the Bill has not been given due attention by the Houses of the Oireachtas. Seven long meetings were held on Committee Stage on this legislation and no amendment has been tabled on Report Stage which has not already been debated on Committee Stage. The Bill is not being rushed through the House as the Deputy alleges.
Although the Deputy is entitled to raise matters in the House, if she wishes to make statements in the House on the plight of a certain child or certain children, I would urge her in the first instance to take up the matter with the appropriate authorities to allow them to pursue it. She referred to a particular case in the House this morning which it appears she did not bring to the health board's attention. In fairness to the relevant people in the health board and other statutory agencies, I recommend that in future the Deputy should raise particular cases with them to allow them to follow them up rather than raising them in the House in the first instance.
I am glad the Minister accepts that Members are entitled to raise matters in the House as I did earlier. The case to which I referred was very relevant to the business in hand where the Minister sought to convey the impression that we have a very good child welfare protection service. I outlined a number of examples, including that to which the Minister referred, to show that our child welfare protection services are actually in chaos and I stand over that completely.
The Minister stated that the Bill, as it stands, allows the Minister to make regulations which I recognise. However, my amendment, if accepted, would require the Minister to make regulations.
I move amendment No. 45:
In page 51, between lines 12 and 13, to insert the following:
"and no questioning of such child shall take place nor written statement be sought in the absence of video recording of what occurs.
(2) Any information obtained by An Garda Síochána pursuant tosubsection (1) shall be inadmissible as evidence in the absence of a video recording of the obtaining of such information.”.
Section 61 deals with the interviewing of children. Subsection (1) provides that:
Subject to subsections (2) to (4), a child who has been detained in a Garda Síochána station pursuant to any enactment shall not be questioned, or asked to make a written statement, in relation to an offence in respect of which he or she has been arrested unless in the present of–
(a) a parent or guardian, or
(b) in his or her absence, another adult (not being a member of the Garda Síochána) nominated by the member in charge of the station.
My amendment proposes to add the following to subsection (1): "and no questioning of such child shall take place nor written statement be sought in the absence of video recording of what occurs.". It further seeks the inclusion of an additional subsection (2) which would read: "Any information obtained by An Garda Síochána pursuant tosubsection (1) shall be inadmissible as evidence in the absence of a video recording of the obtaining of such information.”
The purpose of my amendment is to ensure a policy announced by the Minister some years ago in regard to the installation of video recording in Garda stations is actually implemented and applied to children who may make self-incriminatory statements. In the context of such statements being made, it is widely recognised that the availability of video recording would be in the interest of the Garda Síochána to protect it from false allegations of mistreatment or pressure. Such recordings could, if necessary, be furnished to the courts should prosecutions ensue. Video recordings would also serve the interests of and protect those making statements. It would ensure nobody would be subjected to ill treatment of any kind.
I note that the Association of Garda Sergeants and Inspectors was recently critical of the Minister in regard to the delays experienced in implementing a programme to provide for video recording. At the very least, when dealing with children who do not necessarily understand the law or who may be vulnerable to pressures – which may not come from the Garda at all, but from parents or guardians who may exert pressure on a distraught child to admit to something he or she did not do – it is important that an objective record of the exchanges leading to statements being made would be available, particularly where those statements contain admissions. I urge the Minister to accept the amendment.
The amendment implies that every Garda station in the country would at all times have available in it the equipment and facilities to enable the video recording of all interviews with children. The following is the present position with regard to video recording statements made in Garda stations. Statements made in the course of Garda interviews with suspects are being video recorded in a limited number of stations refurbished and equipped for this purpose. Work is also well advanced in terms of a nationwide scheme which will cover approximately 150 stations and is expected to be completed by the end of this year.
Garda video recording is carried out under the Criminal Justice Act, 1984, and the Electronic Recording of Interviews Regulations, 1997. These regulations provide for the recording of interviews in respect of detained persons, but this is subject to the availability of the equipment and other circumstances. Accordingly, it is the case that not all the relevant interviews are recorded, even in the stations in which cameras have been installed. The 1997 regulations do not make specific provision for the situation in which the person being interviewed is a child, but they were drafted to operate in conjunction with the 1987 custody regulations which cater for interviews with persons under 17 years.
The 1997 regulations are in the course of being revised in the light of experience and to take on board certain points raised by the steering committee overseeing the recording project. In essence, however, it is envisaged that the existing model would remain largely intact. This would mean, in particular, that recording would be the general rule, but would not apply if, for example, the equipment was not available or not operating properly.
The purpose of the amendment appears to be to require that all interviews involving the questioning of children as suspects should be recorded on video. Quite frankly, this would be impracticable as recording equipment is not available in every Garda station. There are also substantial costs involved; apart from the equipment itself, each interview room must be specially fitted out for lighting and other purposes. The estimated cost of providing the appropriate facilities, including training and storage, for approximately 150 Garda stations is in the region of £10 million.
The amendment does not make any distinction in terms of the offences it is intended to cover and it is inevitable that the number of recording units will be limited. It would be unrealistic to expect an interview with an adult in a very serious case to be brought to an end to make equipment available for a minor offence involving a child. Interviews in serious cases involving children should be recorded which is the general position in the current and proposed regulations. The Deputy is aware that section 61 provides for the interviewing of children in the presence of a parent or other adult. This should provide a substantial degree of protection for both the child and the interviewing process. In the circumstances, certainly for lesser offences, the necessity of having child interviews video recorded should be reduced. For the reasons outlined, I cannot accept the amendment. Regarding any criticism in relation to installing the relevant equipment, all I can say is that I am always happy to be criticised for doing positive things.
The Minister is being criticised for the lethargic manner in which he has implemented what he announced to be Government policy. Some four years into the life of the Government most of the designated Garda stations have not had video recording equipment installed. In this modern age every Garda station should be so equipped and there is no particular reason this should not be the case. These amendments would be an important protection, for the Garda and children, and would provide the means to maintain an objective record of what occurs when a statement is made. This record could be viewed by a court should disputes arise about the credibility of a statement and the circumstances in which it was taken. In the circumstances I am pressing the amendment.
The reality is that no previous Minister provided the necessary resources to have rooms fitted out and the equipment installed.
I move amendment No. 46:
In page 51, after line 47, to insert the following:
"(8) For the purposes of this section a parent or guardian shall not be regarded as obstructing the course of justice where he or she advises a child of his or her right to remain silent.".
This amendment, again, relates to section 61 which deals with the interviewing of children. Subsection (3) provides that:
The member in charge of the station may authorise the exclusion of a parent or guardian during the questioning of a child or the taking of a written statement where–
(a) the parent or guardian is the victim of or has been arrested in respect of the offence being investigated,
(b) the member has reasonable grounds for suspecting the parent or guardian of complicity in the offence, or
(c) the member has reasonable grounds for believing that the parent or guardian would, if present during questioning or the taking of a written statement, be likely to obstruct the course of justice.
I ask Minister to take my amendment on board in the context of it ensuring, where a parent is present and furnishes advice to a child of a legal nature, there would be no possibility of the parent being excluded from remaining in the room for this reason.
Section 61(4) authorises the member in charge of the station to remove an adult from where a child is being questioned or a written statement is being taken where the member has reasonable grounds for believing that the conduct of the adult amounts to an obstruction of the course of justice. The amendment seeks to offer a partial guideline to the meaning of obstruction by excluding from it advice given by the adult of the child's right to remain silent. I have given considerable thought to this amendment before Committee Stage and, on balance, my conclusion remains that neither the interests of the child nor of the parents or other adult would be served by its acceptance.
I have come to this conclusion for the following reasons. With regard to the question of whether giving legal advice could be regarded as an obstruction, it would seem that such could never be caused by a person taking reasonable precautions to safeguard the rights of his or her child. If anything, it could be regarded as furthering the course of justice. Advising a person of a legal right is not an obstruction, no matter what the circumstances. My problem with the amendment is that parents should not, by means of a legislative provision, be perceived as encouraged to offer legal advice which they are singularly unqualified to give. Therefore, no reference should be made to their giving such advice, no matter what the context. Obstruction is not defined, neither here nor in comparable legislation, and giving a partial meaning or providing a guideline towards its meaning could do more harm than good by introducing uncertainty. Advising a child of his or her right to remain silent amounts to legal advice.
In most cases the child will have already received legal advice from his or her solicitor who is the person qualified to give that advice. In the vast majority of cases, the parents or other adults would not be appropriate persons to give legal advice and their amateur advice could conflict with the professional advice already given. It is not just a question of telling a child to remain silent and all will be well. Such a decision could have major implications in any subsequent criminal trial and any advice to this effect could only properly be given by a solicitor armed with the facts of the case. For example, under section 7 of the Criminal Justice (Drug Trafficking) Act, 1996, and section 5 of the Offences Against the State (Amendment) Act, 1998, inferences can be drawn from an accused's decision to remain silent or not mention facts later relied on at trial when being questioned or charged by the Garda in relation to a drug trafficking offence or an offence against the State. I am preparing further legislation which proposes to apply to other serious offences provisions similar to section 7 of the 1996 Act. In such cases advice to remain silent could have implications later on.
The amendment also raises the question of the precise role of parents or other adults when present at the questioning of their children. I referred to this matter in a previous amendment. I will not repeat myself other than to point to the power, under section 70, to make regulations on this role. For the reasons stated, I cannot accept the amendment.
I simply conclude by pointing out to the Minister that a failure to include this amendment, in the context of referring the House to existing legislative provisions which result in presumptions or conclusions being drawn from exercising the right to remain silent, means we will be in conflict with the European convention. I wonder if he is aware of the fact that there was recently a decision relating to the convention affecting Scottish law where it was held that the right to prevent self-incrimination was one which meant one could not by way of legislation have in place provisions in criminal law that place someone under an onus, in the context of a criminal trial, and at risk in a criminal trial of conviction because they failed to offer explanations. Some of the legislation to which the Minister has drawn the attention of the House will no longer be able to operate under the European convention, in the context of the Bill we will be dealing with tomorrow, with which it will be deemed incompatible. I regret that with regard to children the Minister is unwilling to take on board this particular amendment which, as I am conscious of time, I will press.
We now proceed to amendment No. 47 in the name of the Minister. Amendment No. 48 is an alternative and amendment No. 52 is consequential. All three may be discussed together.
I move amendment No. 47:
In page 58, to delete lines 34 to 42.
Section 77 sets out the principles to be observed by the Children's Court when dealing with children charged with offences. An amendment from Deputy Shortall on Committee Stage, which has been resubmitted, sought to extend the requirements of the section to other courts and not confine it to the Children's Court. I had no problem with the aim of the amendment in that respect. However, as section 77 was in Part 8 of the Bill, which deals solely with the procedures of the Children's Court, I was unable to accept the amendment. I undertook to consult the parliamentary counsel to see if it could be accommodated elsewhere in the Bill. The amendments I am now happy to propose transfer the text of section 77, amended, in order that it extends to all courts, to section 97. I am happy to commend the amendments in my name to the House.
The Committee Stage amendment from Deputy Shortall and the resubmitted Report Stage amendment also seek to extend the principles established in section 77 to all children before a court, not just those charged with offences. I could not accept that element of the amendment because section 77 and Parts 5 to 10 are integral parts of the juvenile justice system and have nothing to do with child care or protection. The wording of section 77 clearly relates to child offenders and care and protection issues could not appropriately be applied to it. The rights of children in care and protection proceedings are already well catered for in the Child Care Act, 1991. While I thank the Deputy for bringing the issue to my attention on Committee Stage, I could not accept one aspect of it. Therefore, while recommending the amendments in my name, which will put into effect much of what the Deputy sought to achieve, I cannot accept her amendment.
I welcome the Minister's amendment and withdraw mine.
I move amendment No. 49:
In page 59, line 31, after "behaviour," to insert "having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her,".
I move amendment No. 50:
In page 62, to delete lines 10 to 14.
This amendment relates to remanding young offenders in custody. This is a long-running problem where children on remand have been mixed with children being detained and has given rise to all kinds of difficulties. Often children remanded for assessment can be quite young. It is entirely inappropriate for them to be remanded with children who may have been before the courts on several occasions and may be serving lengthy sentences. The principle of separating those serving sentences and those on remand in relation to adults should also be extended to juveniles.
This section sets out a number of principles relating to the conditions under which children should be remanded in custody. I am concerned that subsection (5) gives the Minister a free hand to designate as a junior remand centre any place, including part of any children's detention school which in his or her opinion is suitable for the custody of children who are remanded in custody pursuant to subsection (2). The free hand that gives the Minister negates much of the rest of the section, which is very welcome, and allows the existing unsatisfactory situation to continue. That would be a retrograde step and I urge the Minister to delete it.
Section 89(5) empowers the Minister for Justice, Equality and Law Reform, with the agreement of the Minister for Education and Science, to designate a junior remand centre, that is, a remand centre for children aged between 12 and 15 years, inclusive, as any place, including part of any children's detention school.
The effect of accepting the amendment would be that we could provide no places for remand in custody for that age group as the power of designation would not be available. While the intention is to keep as many young persons as possible out of custody and on bail, a number of remand places would always be required. It is often in the child's interests because, for example, of home circumstances, to be remanded in custody while awaiting his or her case to be heard. The child may also be remanded for the preparation of a probation and welfare officer's or other report and, again, the emphasis will be on assessment in the community. In this context, the new Finglas facility, which I mentioned on Committee Stage, is relevant.
It is prudent to keep options open by allowing for a situation where a junior remand centre could be part of a children's detention school. The number of children on remand can be small, but a situation could arise where, for example, a 15 year old girl on remand would effectively be held in solitary confinement if not allowed controlled association with selected female detainees in the same age group. Accordingly, I am unable to accept the amendment.
I move amendment No. 51:
In page 63, to delete lines 44 and 45 and in page 64, to delete lines 1 and 2.
We had quite a debate on this matter on Committee Stage which concerns the attendance in court by parents or guardians. There is no doubt that there is a difficulty in a small number of cases where parents refuse, for one reason or another, to attend in court. This is obviously clearly unacceptable. My concern is with the wording of the Bill, as it stands; it states that failure by the parents or guardian, without reasonable excuse, to attend any such proceedings shall, subject to subsection (5), be treated for all purposes as if it were contempt in the face of the court.
This is very strange wording and I am not sure what it means. Either it is contempt or it is not; either it is an offence or it is not. How can it be treated as if it is an offence? This will give rise to a fair amount of confusion. For this reason I propose we delete the subsection.
The amendment seeks to repeal section 92(3) under which parents can be held in contempt of court for failure to obey a court order to attend court with their children. Section 92(1) requires parents to attend court with their children and is subject to subsection (5) to which I will come. Subsection (2) deals with the situation, if it arises, where parents, without reasonable excuse, fail to attend the proceedings. The court will have the power to issue a warrant commanding the parents to be produced before the court. Failure by the parents without reasonable excuse to attend would be a contempt of court. If that provision, which is provided for in subsection (3), were deleted, there would be no mechanism for ensuring their attendance and section 92 would be worthless and toothless.
There is nothing unreasonable about section 92. Parents are not expected to do the impossible. If they have a reasonable excuse, they can be excused from attending. Subsection (5) is very clear in its intent: parents can be excused from attending court if the court is of the opinion that the interests of justice would not be served by such attendance. The Deputy said on Committee Stage that the phrase "treated for all purposes as if it were a contempt in the face of the court" was a legal nonsense. I have had this method of dealing with contempt checked out and I am satisfied on the basis of further advice I have received that it is a perfectly legal and legitimate way of ensuring parents who do not attend court can be treated as if it were a contempt in the face of the court.
This is an important section, the success of which will depend on the ability of the court to ensure parents, where possible, attend with their children. The amendment would remove that ability of the court. For this reason, I cannot accept it.
I move amendment No. 52:
In page 66, line 14, before "(1)", to insert the following:
"(1) Any court when dealing with children charged with offences shall have regard to–
(a) the principle that children have rights and freedom before the law equal to those enjoyed by adults and, in particular, a right to be heard and to participate in any proceedings of the court that can affect them, and
(b) the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child.”.
I move amendment No. 53:
In page 71, line 24, to delete "half".
I am not happy with the idea of setting mandatory fines down in stone. It should be left to the discretion of the court to decide the appropriate amount that should apply.
Section 109 provides that a fine imposed on a child cannot exceed half that which could be imposed on an adult for the same offence. Although section 109 is virtually identical to section 86 of the 1996 Bill, it did give rise to some comment on the basis that children would not have the money to pay fines.
I do not accept the argument. "Children" in the Bill includes persons up to 18 years and even at younger ages many children have part-time or temporary jobs. However, I would not accept the implications of the amendment, that children have the same means to pay as adults. I say this, although section 110 gives clear guidelines concerning present and future means to pay. The question of providing for fines as a penalty had to be faced up to in the legislation as the present law is, to say the least, unsatisfactory, dating back to 1884. For example, a child under 15 years of age can only be fined a maximum of £2 for a summary offence tried summarily. A child tried summarily for an indictable offence can be fined a maximum of £2. A young person aged 15 or 16 years tried summarily for an indictable offence can be fined a maximum of £10. A young person tried summarily for a summary offence can be fined the same as an adult.
The amendment treats children the same as adults with regard to the imposition of fines. There is some logic to the amendment in that other penalties for offences such as detention have, in some circumstances, the same maximum for all persons found guilty or convicted regardless of age. On the other hand, one of the purposes of the Bill is to provide the courts with an intervention and penalty structure suited to children. For example, the restorative conferencing provisions and the community sanctions are designed specifically for children. Similarly, the fines structure is designed specifically for children. Despite their potential earning capacity and the obligation on the court to ascertain ability to pay, children could not be expected to have the same disposable cash as adults. I therefore submit that section 109, in proposing that the maximum fines payable by children should be no more than half those payable by adults in respect of the same offences, should remain part of the Bill and, despite what I referred to as a certain logic in the amendment, I am not prepared to accept it.
As it is now 7 p.m. I am required to put the following question in accordance with an order of the Dáil of this day:
That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed.