As the House is undoubtedly aware, the Children Acts make provision for the protection of children and young persons, for the regulation, recognition and assistance by the State of industrial and reformatory schools and for legal proceedings in relation to young offenders. The principal Act is that of 1908 which amended previous legislation dating from 1858. The 1908 Act has since been amended by subsequent legislation.
The main purposes of the present Bill are to amend the Children Acts in order (a) to provide for children under detention in reformatory and industrial schools living outside these schools in certain circumstances and for the payment of the capitation grants for maintenance to the school managers for the period of absence out of school; (b) to bring existing legislation relating to the discharge of children from industrial schools into conformity with the provisions of the Constitution in the matter of parental rights; (c) to make suitable provision for the determination of disputes between the Minister for Education and parents in relation to such discharge; (d) to amend certain provisions of the Acts relating to the nursing and maintenance of children for reward; and (e) to provide for the protection by the local authorities of children, who, while in the custody of persons other than relatives or guardians, are placed in employment in circumstances requiring them to reside away from the home in which they were residing before entering such employment.
These latter provisions apply to children up to the age of 18 years. The amendments dealing with leave of absence, payment of maintenance capitation grants and for the provisions for the discharge of children from industrial schools are sponsored by my Department, and others are sponsored by the Department of Health and the Department of Justice. I will take the provisions which are sponsored by my Department first.
Since 1924, when the industrial schools system came to be administered by the Department of Education, it has been the practice to grant "home leave" to children detained in these industrial schools. Children are allowed a period of leave or vacation every year, provided the homes to which they are sent are suitable and the parents, relatives or friends, to whom they will be entrusted, are willing to take them, and are considered suitable to be entrusted with the care of these children. The maximum amount of home leave allowed each year was seven days originally, but in 1935 it was extended to 14 days. Following the Report of the Commission of Inquiry into the Reformatory and Industrial Schools System, 1934 to 1936, the period of home leave was extended to 21 days. In 1948, it was further extended to 31 days as it is at the moment.
At the present time, about one-third of the children in industrial schools avail of home leave during the ordinary vacation period and the average number of days they are out was, for example, in 1956, 20 days. In addition to the ordinary home leave, school managers may allow children special leave under certain necessary circumstances and may give them casual leave and in some cases, also, it may be desirable to permit children to leave the industrial schools for the purpose of undertaking a course of instruction that would benefit them in a school other than an industrial school, that is, where such instruction is not available in the industrial school itself.
While the practice of home leave has been in existence since 1924, as I have said, there is strictly speaking, no legal authority under the Act for it, that is, there is no legal authority for allowing children or young persons, committed to a certified school, to live elsewhere than in that school before their period of detention is completed except under a supervision certificate granted under Section 67 of the Act of 1908. The purpose of the supervision certificate is to enable a child to be given over by the school, on certain conditions, to the charge of a trustworthy person who undertakes to care for him, while, at the same time, the school continues to retain its right to recall the child from the school in case these conditions are not being fulfilled.
Prior to 1950, it was not the custom to issue supervision certificates to cover home leave, but about that time it was discovered, in the case of a parent who refused to permit the child who was allowed out on home leave to return to the industrial school, there was no power to require that parent to return the child to the school, that is, there was no legal power. Since then, therefore, children are sent on home leave under a supervision certificate.
What applies to home leave applies also to the case of a child who is permitted a course of instruction in another school or to be absent on casual leave for any special purpose. Hitherto, unless a supervision certificate were issued to cover the absence, a child who refused to return to school after such absence, could not legally be brought back to school. This difficulty is now being met in Section 6 of the Bill before the House. Children who are, in future, allowed home leave, casual leave or leave to attend courses of instruction outside the school will be deemed to be under detention in the school and, accordingly, can be brought back to the school in the event of their exceeding that leave or refusing to return on its exhaustion.
I should, perhaps, mention here that home leave extends also to the case of a child taken by a friend or trustworthy person for a period of holidays. As members of the House will no doubt be aware, many homes in the vicinity of industrial schools apply to the managers of the schools for a child or a particular child to be permitted to spend a holiday with them. Oftentimes the child is allowed to work under proper circumstances—perhaps in a shop, a business or on the farm of that person, not necessarily being a parent or a relative.
In relation to this matter of home leave, the Bill is designed to meet a further difficulty which arose some time ago. As the House is aware, local authorities, as well as the State, are required to contribute towards the maintenance of children detained in certified schools. Some time ago, however, a local authority raised a question in regard to its liability for the payment of maintenance grants in respect of such children for periods spent by them on home leave. Sections 7 and 8 of the present Bill are intended to validate the payment by the State and the local authorities of capitation grants for maintenance in respect of youthful offenders or children detained in certified schools, for the period of their absence from school on home leave, casual leave or leave to attend instruction outside the school. These grants have always been paid for the period of such absences and the provisions now being made are merely to place the question beyond doubt and to regularise the payment of maintenance grants made heretofore in these cases.
Another important purpose of the Bill is, as I have already stated, to bring existing legislation relating to the discharge of children from industrial schools into conformity with the provisions of the Constitution in the matter of parental rights. In December, 1955, the Supreme Court declared that part of Section 10 of the Children Act, 1941, which amended Section 58 of the 1908 Act, to be repugnant to the Constitution in so far as it deprived a parent, with whose consent a child has been sent to a certified industrial school, of the right to resume control of the child so as to provide for its education when that parent was willing and able to do so.
Following this judgement, the Minister for Education was advised that Section 58 of the Children Act, 1908, was open to successful challenge under the Constitution, unless amending legislation was introduced to provide machinery for the parent who is anxious, able and prepared to exercise guardianship, recovering a child committed to an industrial school under that section.
The legal advisers were of opinion that legislation authorising the State to undertake the care and training of children, if it is to stand against the constitutional rights of the parent, should be justified under Article 42 (5) of the Constitution and that such legislation should make provision by which the State's intervention be limited in time to the duration of the parental need or parental default. Section 5 of the Bill before the House is intended to meet this position. It seeks to provide ordered machinery to deal with any dispute which may arise between the Minister for Education and the parent in regard to the discharge of a child committed to an industrial school under Section 58 of the Principal Act.
Thus, under Section 5 of the Bill, where a parent or guardian makes application to the Minister for the release of such a child and the Minister is satisfied that the home or other circumstances which led to the child's committal no longer exist and are not likely to recur if the child is released, and also that the parent or guardian is able to support the child, then the Minister must order the discharge of the child. If, however, the Minister is in any doubt in regard to the case, he may refer the application to a District Court for decision. If, on the other hand, the Minister comes to the conclusion, on the evidence and information available to him, that the child should not be discharged, he may refuse the parent's application, but, in that case, the parent may refer the matter to the District Court and, in the case of an adverse decision in that court, the parent may appeal to the Circuit Court. The section also makes provision for the award of costs to a successful applicant.
I may say that any Minister for Education, operating the provisions of this section, will, naturally, have regard to the conviction which influences social considerations in this country, particularly in relation to parental rights and certainly leaning always, in exercising his discretion under the section, in favour of the parents.
As I mentioned earlier, certain sections of the Bill deal with matters for which the Minister for Health is the appropriate Minister. The first of these, Section 2, deals with the obligations of persons who receive children for nursing and maintenance under arrangements providing for the payment of reward, except in the case of illegitimate children when the obligations apply even where the nursing or maintenance is not for reward. While it does not introduce any new principles, except in the case of illegitimate children to which I have just referred, it effects certain modifications which experience has shown to be desirable.
Thus, for example, it provides for the giving of seven days' notice, in lieu of 48 hours' notice as at present, to the health authority by the person receiving such children. It also requires, for the first time, that the person or body making arrangements for the placing of a child in a foster home will give similar notice to the health authority. A 48 hours' notice has been found to be too short to enable the local authority to satisfy itself as to the suitability of the proposed foster home. On the other hand, experience has shown that a prospective foster parent is likely to be unaware of the legal requirements in regard to notification, or he may assume, especially where fosterage is arranged by a voluntary organisation, that all legal requirements have been attended to by the organisation.
At present, a foster home and a child placed in it for reward are subject to local authority supervision only until the child reaches the age of nine years. It is the opinion of persons interested in the welfare of such children that supervision should continue beyond that age. It is accordingly provided that the age limit will be raised to 16 years, which is the age up to which supervision continues for children boarded out in foster homes by health authorities under the provisions of the Health Act, 1953.
So far, I have been referring only to children placed in foster homes for reward. This section applies to illegitimate children even where the fosterage is not for reward. This provision was introduced as a result of an Opposition amendment in the Dáil and as a result of a joint deputation of organisations who had responsibility for the care and welfare of children. It was pointed out to me that, even in the case of illegitimate children who might appear to be sent to good homes, they would often require the necessary supervision by a local authority to ensure that they are maintained in proper conditions and circumstances. The effect will be that any illegitimate child taken into a household other than the household of a grandparent, brother, sister, uncle or aunt, will come under Part I of the Principle Act, that is, the part which deals with supervision by local authorities in so far as notification of the arrangement to the health authority and supervision of the child and the home by that authority are concerned.
I might say that, in relation to cases where it would merit it, the health authority can make an exemption order in the case of a home in which the authority is satisfied that such illegitimate child is being cared for by responsible persons. The Minister for Health, in this case, can revoke that exemption order, if the circumstances later so warrant it. I should say, too, that under the operation of Section 32 of the Adoption Act, 1952, illegitimate children placed for adoption under an interim adoption order or a final adoption order are exempt from the provisions of this section.
Section 3 refers to foster children who take up employment in circumstances which require them to reside in their employer's house or in accommodation provided by him. The Minister for Health is satisfied that the interest of such children requires that the health authority be empowered to supervise their accommodation and conditions of employment. It could be held that a child without a normal home or the protection of his parents who is taken into employment and accommodated in his employer's premises may be exposed to greater risks than a child in the usual type of foster home. The section provides that where an arrangement of this kind is made by any person who is not a relative of the child, the health authority shall be notified seven days in advance of commencement of the employment. The duty of notification will rest on the person or body making the arrangement, unless they are outside the State, in which case the obligation to notify will rest on the prospective employer.
Senators will note that the age provided for in this section is in respect of children under 18 years of age. The original section provided for children under 16 years of age and the extension by two years was again as a result of an amendment from the Opposition which I accepted.
Minor amendments of the Children Acts are contained in Sections 4, 9 and 10 of the Bill, the first—that is, Section 4—removing the anomaly of a person of 16 years being responsible for the custody of a person up to the age of 17 years. The second—that is, Section 9—regulates the maximum amount of parental contribution in respect of children detained in certified schools, that is, that contribution cannot exceed the amount of contribution made by the local authority and the State. Section 10 brings the Act into conformity with the School Attendance Act, 1926, in relation to the minimum age for compulsory school attendance.
The Bill, as Senators know, was prepared before the change of Government. It appears now substantially as the draft was presented to me.