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Seanad Éireann debate -
Wednesday, 8 Nov 1989

Vol. 123 No. 2

Children Bill, 1989: Second Stage.

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

Is cúis an-áthais dom bheith arais arís mar Aire Stáit i Seanad Éireann. Ba mhaith liom cómhgháirdeas a ghabháil do gach aon duine atá toghtha don Teach, seo ath-toghtha nó ainmnithe. Go háirithe leis ba mhaith liom comhgháirdeas a ghabháil don Cathaoirleach nua, an Seanadóir O Dochartaigh, an Leas-Chathaoirleach, an Seanadóir Naughten agus an ceanadóir, an Seanadóir Lanigan. Gúim gach rath ar gach aon Seanadóir agus ar obair an tSeanaid.

The purpose of this Bill is to deal with the situation that has arisen following a judgment of the Supreme Court on 2 November in which the court ruled that a health board does not have the necessary statutory authority to act as a "fit person" within the meaning of the Children Act, 1908. The effect of this is that the health boards are no longer able to take into their care children who have been neglected, ill treated or abused or who are otherwise at risk.

When the Government became aware of the Supreme Court judgment they considered whether the Child Care Bill, 1988 which is before the Dáil should be rushed through as a matter of urgency. In view of the many complex and sensitive issues dealt with in the 1988 Bill, the Government decided that this would be the wrong approach and that it would be better to introduce a short amending Bill to deal with the key point of the Supreme Court's ruling that is that health boards do not have statutory authority to act as fit persons within the meaning of the Children Act, 1908. The Government believe that this approach offers the best prospect of urgently protecting the interests of a very vulnerable group of several hundred children who are in care under fit person orders.

The Supreme Court judgment and the earlier judgment of the court in the same case last July raise a number of important and complex issues which impact on the whole issue of child care proceedings. It is, of course, crucial that the right balance be struck in these proceedings between the rights of parents and the rights of children. The issues raised require detailed and meticulous consideration and the Government feel that this can best be done in the context of the Child Care Bill, 1988.

In regard to the Child Care Bill, 1988 I would like to take this opportunity to correct a number of inaccuracies in the leading article in today's Irish Times. The clear impression is given that the Government decided only recently to revive this Bill which had lapsed with the dissolution of the last Dáil. This is not correct. One of the first actions of the new Government was to have a motion passed in the Dáil on 20 July last restoring the Bill to the Dáil Order Paper at the stage it had reached prior to the dissolution that is the Committee Stage. Furthermore, the new Government gave a firm commitment that the Bill was one of their top legislative priorities. To this end, the Dáil Committee Stage debate on the Bill commenced last week, before the Supreme Court judgment, when some four hours was spend discussing a number of the 200 amendments which have put down to the Bill.

The leading article also states that the Dáil voted last week to "postpone consideration of the Bill for another year". This is also incorrect. What was defeated by the Dáil last week was an Opposition amendment to section 1 of the Child Care Bill, the effect of which, if it had been passed, would have been to place completely unreasonable restrictions on the Government by requiring all sections of this long and complex Bill to be brought into effect within 12 months. This had to be rejected as it would have seriously affected the orderly implementation of the Bill once enacted by the Oireachtas and similar to all Bills being taken by the Oireachtas.

The Government's commitment to ensuring the earliest possible passage of the Child Care Bill has never been in doubt and has been reiterated publicly on a number of occasions. Only yesterday the Government had a motion carried in the Dáil with the agreement of all parties referring the Bill to a Special Committee of the Dáil to process the Committee Stage of the remaining sections of the Bill at the request of the Opposition.

I might also point out that a large number of amendments which the Minister, Deputy O'Hanlon, had circulated in advance of the Supreme Court judgment last week deal with many of the issues raised in that judgment including the whole question of access by parents to children when they are in care. There are no simple answers to some of these issues, impinging as they do on very fundamental human and constitutional rights. However, I am confident that the Child Care Bill, 1988 when enacted will lead to an enlightened and balanced legislative framework.

The existing law in relation to child care is contained primarily in the Children Act, 1908. Briefly, that Act allows any person who believes that the health, safety or welfare of a child is in jeopardy to bring the matter before the District Court. If, having considered the evidence, the justice is satisfied that it is necessary in the child's interests to do so, he may order that the child is removed from the custody of his parents or guardians and be committed to the care of a relative or other "fit person".

The expression "fit person" is defined in section 38 of the 1908 Act:

In this Part of this Act unless the context otherwise requires, the expression "fit person" in relation to the care of any child or young person includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children.

Senators will note that this definition is not exclusive. It does not spell out who may and who may not act as a "fit person". The only thing it does is to indicate that the expression "fit person" includes certain societies and other bodies involved in the area of child welfare.

Following the establishment of the health boards in 1970, my Department obtained legal advice to the effect that health boards could act as fit persons for the purpose of taking deprived children into care. It was considered that such work formed an integral part of the community care and social work services that were beginning to be built up under the health boards. Increasingly, health boards got involved in dealing with child abuse and neglect, bringing cases before the court and offering themselves as fit persons. This practice has been endorsed by successive Governments to the extent that the health boards are now recognised, in fact, if not in law, as the State's child care and child protection agencies.

From time to time, doubts were expressed by some lawyers and other about the legal authority of health boards to involve themselves in child care. However, the general view was, and is, that this is essential work which must be done in the interests of the children concerned and that the most appropriate agencies to perform it are the health boards.

The question of the legal authority of health boards eventually came up for judicial consideration in the High Court in earlier proceedings in relation to the same case that was the subject of last weeks Supreme Court judgment.

In order to explain matters further, it is necessary for me to give some brief details of that case without, of course, revealing the identities of those involved. Briefly, the facts are that in November 1986 a child was placed in the care of a health board as a fit person following allegations that she had been sexually abused by her father. Some months later the parents made a habeas corpus application in the High Court challenging the validity of the detention of their child on a number of grounds, including a claim that the health board's statutory powers did not include a power to act as a fit person.

The High Court delivered its judgment on 15 July 1988 and in relation to that aspect of the application the High Court held as follows:

As to whether the (named) Health Board possesses the necessary statutory powers to act as a fit person, Section 6 (1) of the Health Act 1970 (the 1970 Act) provides that a health board shall perform the functions conferred on it under the Act, and any other functions which immediately before its establishment, were performed by a local authority (other than as a sanitary authority) in the functional area of the health board in relation to the operation of services provided under or in connection with the administration of the enactments specified in subsection (2). Among the functions which were performed by the local authority were functions in connection with the administration of Part I of the 1908 Act (concerning infant life protection) and Sections 2 and 3 of the Children (Amendment) Act 1957. These enactments are specified in Section 6 (2) at paragraph (g). This however, does not prevent the health board from carrying out other functions conferred on it under the 1970 Act connected with other parts of the 1908 Act which were not carried out by the local authority.

Under Section 66 (2) of the 1970 Act, a health board shall make available without charge a health examination and treatment service for pupils attending a national school.

It is under this section that the (named) Health Board claims to derive its power to take the child into care under the Section 24 Order. In my opinion, if a child has suffered sexual abuse, her health is endangered and she is in need of treatment. The provision of care is therefore within the broad description of a treatment service. If the health board is to provide an adequate service it is essential that it be involved either directly as a fit person or indirectly with the fit person nominated. There is no reason why a suitable employee of the health board should not be named as a fit person but if for any reason that person ceased to be employed by the health board or become incapacitated, another application would have to be made to the District Court for another person to be appointed. There are therefore, good reasons why the board itself should be appointed. It would not seem wise that one of the actual foster parents should be named as this would identify the whereabouts of the child in a case where secrecy is deemed essential.

For the above reasons I am satisfied that the District Justice had power to make the Order which he did make committing the child to the care of the (named) Health Board as a fit person until she is sixteen unless the Order is sooner revoked or varied.

The essential point here is that as recently as 16 months ago the activities of health boards in acting as fit persons was specifically upheld by the High Court.

The parents appealed the case to the Supreme Court. In a preliminary judgment on 27 July last, the Supreme Court ruled that the fit person order was unsafe because the procedures in the original trial in the District Court had not been in accordance with the necessary requirements of natural justice. The child returned to her parents shortly afterwards.

The Supreme Court said that it would give its decision at a later date on other issues raised on behalf of the parents. This was the judgment delivered last Thursday, 2 November. While the court found in favour of the health board on four of the five grounds, it found against the health board in the final point when it decided that health boards do not have the necessary legal authority to act as fit persons. In doing so, the Supreme Court reversed the decision given by the High Court just 16 months previously.

I now wish to briefly explain the provisions of the Bill before the House. Section 1 provides for two matters. First, that the expression "fit person" in the Children Act, 1908 includes and shall be deemed always to have included a reference to a health board; secondly, that the functions of a health board include and shall be deemed always to have included the power to act as a "fit person" within the meaning of the 1908 Act.

Section 2 provides that every fit person order made before the passing of this Act shall be read and have effect as if this Act were in force when the order was made. This means that the order is to be read as if at the time it was made the definition "fit person" included a reference to health board, the health board concerned had at the time the necessary legal authority to act as a "fit person" and the health board had the power to make suitable arrangements for the care of the child.

Section 3 also contains two elements. First, it provides that where on the passing of this Act a child or young person is in the actual possession or control of any person, for example, a social worker, a foster parent, or the manager of a children's home and he is in that person's care as a result of a fit person order committing him to a health board, he shall be deemed to be lawfully in the possession or control of that person that is the social worker, the foster parent or the manager of the children's home, as the case may be.

Secondly, this section provides that any person, which would include a health board, may apply to the court for a new fit person order or may apply for the renewal, variation or revocation of an existing fit person order.

Section 4 provides that where a child or young person has been placed in the care of a health board under a fit person order the health board shall provide such care in one of a number of ways. It may place the child in foster care or in residential care or where the child may be eligible for adoption it may place him with a suitable person or persons with a view to his adoption. Subsection (3) gives statutory backing to the practice of health boards in allowing children in care to go home for weekends or for holidays so as to maintain links with their families in the hope that they may be able to go home permanently. The main purpose of subsection (4) is to apply the Boarding Out of Children Regulations, 1983 to children placed in foster care under this Act.

Section 5 assigns responsibility for the functions of a health board under this Bill to the staff of the health board rather than to the members of the board. It is, of course, not intended that the functions will be performed by the CEO personally. The CEO will be able to avail of his powers under the Health Act, 1970 to delegate these functions to other officers of the board.

Section 6 sets out the options available to a court where it finds or declares that a fit person order is invalid, whether by reason of the recent Supreme Court judgment or for any other reason.

First, it provides that in such a case the court, either of its own motion or on the application of any interested person, may refuse to order the delivery or return of the child or young person to its parents of any other person if the court is of opinion that this would not be in the best interests of the child.

Instead the court may do any of the following:

(a) make a fit person order in the respect of the child or young person as if he had been brought before the Court in accordance with the relevant provisions of the 1908 Act,

(b) make an order referring the matter to the justice of the relevant District Court and in such case the justice may deal with the matter as if an application for a fit person order had been made to him in accordance with the relevant provisions of the 1908 Act,

(c) where a person having custody, charge or care of a child or young person has been convicted of commiting certain offences or has been committed for trial for such an offence or has been bound over to keep the peace towards the child or young person, the court may make a fit person order under section 21 of the 1908 Act or refer the matter to the court by which the person was so convicted, committed or bound over so that it can consider the need to make an order under section 21,

(d) where an order under paragraph (a) or (c) has been made by the court it may be deemed to have been made by the District Court. This is a technical device so that any subsequent proceedings can be dealt with in the District Court rather than in a higher court.

(e) Where a higher court makes an order under paragraph (b) or (c) returning the case to a District Court the higher court may make a temporary fit person order pending the determination of the matter by the District Court.

Section 7 provides that nothing in this Act shall affect any order of a court made before the passing of the Act in which a fit person order was found or declared to be invalid.

Section 8 provides that the Bill is to be known as the Children Act, 1989 and that the Children Acts 1908 to 1957 and this Act shall be read together as if they formed one Act. This means that the various definitions contained in the Children Acts 1908 to 1957 automatically apply to this Act. The most important are those of "child" and "young person" which are defined as follows: "Child" means a person under the age of 15 years and "young person" means a person who is 15 years of age or upwards and under the age of 17 years.

Before I conclude I would like to assure the House that this Bill has been very carefully drafted in the Attorney General's Office to take account of the Supreme Court judgment and other recent judicial pronouncements. I am satisfied that it deals with the immediate difficulty that has arisen. The more detailed consideration and clarification of our child care legislation can best be done in the context of the debate on the Child Care Bill, 1988 in the Special Committee. I appeal to all sides of the House to support this Bill so that we can regularise the position of the large number of children who are in care. I am appealing, therefore, for the co-operation of all Senators in processing this Bill as quickly as possible.

It is not the ambition of my party to obstruct this Bill. We will not attempt to obstruct the quick enactment of the Bill because of the significance of this legislation for the 900 children who are in involuntary care. I might mention that there are in fact 2,500 children in care altogether and indeed many children in our country are marginalised and in a very questionable position. However, while we will not obstruct the Bill, we will positively and constructively seek to amend the legislation and, just as we are co-operating with the Government in the quick enactment of the Bill, we are expecting equal co-operation from the Minister in the acceptance of suitable amendments.

It is very sad that the Minister and the Government did not hear the alarm bells ringing over the last 12 months on this legislation. It has been the opinion of leading family lawyers and, indeed, of Oireachtas Members that there were significant legal pitfalls in the initial legislation and that in fact amendment was needed. Nothing was done in this regard. The emergency legislation brought before us today is in the fine Irish tradition of closing the door when the horse has bolted. To avoid further problematic court rulings my party are specifically asking the Minister to have the constitutionality of this Bill tested. This should be done to reassure the foster parents, the child care workers, the extended families of affected children and, obviously, for the sake ultimately of the children themselves. We believe, on very good advice, that it is necessary to have the constitutionality of this legislation tested before it receives its final signature.

The Minister referred to the Supreme Court ruling having upset the High Court decision of 16 months ago. I hope and I certainly would like to believe that there is no implied criticism of the Supreme Court of our land in this. The High Court ruling was found by our Supreme Court to not be in order and it is perfectly in order that they should so over-rule it.

There has been a general tardiness in enacting legislation in relation to child care. In 1974 the then Government started the process of setting up a task force. In 1977 the task force on child care was in fact set up. There was a clear belief at that stage for the task force to draft legislation. In 1980 the task force reported that child care was in a general mess. What has happened since has been very little. What, in effect, we have had in the child care area I respectfully submit is crisis management.

I want to proceed now to some of our concerns in relation to this legislation. The first concern that my party have in relation to the legislation, and I would appeal to the Minister, given our constructive attitude, to address this tonight by accepting an amendment on it, is that the legislation does not ensure access to the child for the parents and I am talking particularly here about the non-offending parent. I would be extremely concerned that the non-offending parent and, indeed, the extended family of the child, would not have access to the child and would not have access to evidence, both written and video evidence, being used in relation to the child.

Under this Bill the courts cannot make an order for access. We are now proposing an amendment to cover that. I believe all Members of the House would see that it is very important that the parents have access to the child, that the extended family have access to the child and I would cite in this case the many parents who are not the sexual offenders, who are not the child abusers, who are not the child-beaters. I would earnestly request the Minister to show concern for those parents and to amend the legislation immediately to allow them access.

We are concerned also that there be a right to independent assessment. We believe it is the right of parents who are in the dock on the issue of sexual abuse, child molesting, neglect of child, child beating, whatever, to have an independent assessment carried out and that right must be clearly in the legislation. It is implicit in the Supreme Court ruling — and I have a copy of that ruling for any Members of the House who wish to have a look at it — that the court is concerned that there be more rigorous assessments of children in the case of sexual abuse. The time honoured method that has been used to establish sexual abuse is the anatomical doll device. That method has come under major question. In recent times considerable evidence has come up to suggest that the method is questionable. What my party are saying is that there is a need for more rigorous assessment methods and that it is in the interest of the parent and the child that it be clearly established in the most objective possible fashion and in the most thorough fashion that there is abuse and in fact very recent court cases would substantiate that need.

I will be putting it to the House on behalf of my party tonight that we need as well a Bill of Rights for children. Just as we have correctly stated clearly in recent times that the rights of women should be clearly delineated the time has come when we must clearly delineate the rights of children and there should be a Bill of Rights for children. That is a contention that my party are putting before the House tonight. We believe that what must be achieved in all child care legislation is a balance between the rights of the parents and the rights of the child and that ultimately that balance will create a favourable environment for the child. Because we submit that there should be such balance not only are my party seeking a Bill of Rights for children but we are also suggesting that a supervision order be put within the terms of the Bill. We believe that in cases where it is not deemed appropriate to take a child into care and where there is a significant question mark over the welfare of the child a supervision order should be made in that case. We will be proposing an amendment to that effect.

The final point I would make on this legislation is that if we are to give any meaning to this legislation, if this legislation is to be anything more than empty rhetoric, further pompous and pious cant, then to give effect to it there is a need to channel greater staffing and greater resources into the child care area and also into the assessment area. We must renew our entire approach to child care; we must revise our attitudes and we must match that revision of attitude, that renewal of approach, that change of direction with adequate funding. I would submit to the Minister on behalf of my party that just as we need immediate legislation, and unquestionably we do, we also need adequate staffing, adequate resources and a complete change of direction in our approach to child care.

An Leas-Chathaoirleach

I would like to congratulate Senator O'Reilly on his maiden speech. Senator Willie Farrell.

Mr. Farrell

Ba mhaith liom fáilte a chur roimh an Aire go dtí an Teach seo agus comhghairdeas a dhéanamh leat féin as an phost mar Leas-Chathaoirleach a fháil. I certainly welcome this Bill. I think it is very appropriate and I would like to congratulate and pay tribute to the Minister and to his Department for the speedy way he acted on foot of the Supreme Court ruling. The 800 or so children who were in care were adequately looked after and nobody had any need to fear. I would like, too, to congratulate the health boards and all the various organisations who had been dealing with the care of deprived children and children in care. Over the years they have done a marvellous job and our congratulations to them.

I am glad that the Minister corrected some of the points that were made in the papers today. Early on many people who are fostering children and have children in care were very worried because the media did say that under the Supreme Court decision parents would have access to children in care. Those people are very worried because, as we know, many of the children in care are from broken families where alcohol, or drugs of a harder nature, are the source of the problem. If the whereabouts of the child was known to the parents they could hold those people up to ransom or, indeed, could call on them in one of their frenzies when they would not be capable as a result of drugs or drink and could cause grave problems for people who were doing a good job looking after those children. I want to assure those people that there is no worry in that regard, that that was not correct. What the Supreme Court did say was:

In this context submissions were made on behalf of the respondent Health Board to the effect that there could be exceptional circumstances under which it would be detrimental to the welfare of a child for the identity of the "fit person" and the location of the home to be known to a person in whose custody that child had previously been. In such exceptional cases, the fact that the application does relate to the welfare of the child and is not a lis inter paites would, in my view, justify the court in being made aware of the identity and location of the fit person who is willing to undertake the care of the child in a manner which would exclude that knowledge from one or both of the parents or persons who had previously had custody of the child. Such as exclusion of knowledge should not, however, be lightly undertaken, having particular regard for the fact that questions of proper access and communication between such parents and the child may in some instances still be a very necessary ingredient in the welfare of the child.

That clearly states that in this type of situation there are three parties involved — the person who makes the order, the child and the person who is looking after that child. We must at all times think of what is in the best interests of the child and that is what this Bill is all about. I am sure the Minister will reassure people who are playing a very important part in the welfare of children. If we had a perfect society there would be no need for this or many other Bills but unfortunately we have not a perfect society. If after careful consideration it is decided that it is in the best interests of the child that the parent does not know of its whereabouts then the parents will not know so those people have no need to worry. I am sure the Minister will clarify that later on.

I am amazed at talk about alarm bells and that the Government did not act more quickly. I do not think it was possible for them to act more quickly because, first of all, the High Court ruled that the law as it was, was perfect so therefore until that High Court decision was overturned by the Supreme Court there was no necessity to bring in another Bill. Indeed, Deputy Alan Shatter, who is an expert on child care, said and I quote him:

Nowadays the overwhelming majority of such proceedings are brought by health boards and in practice a health board is usually named as a fit person. Although no express authority is conferred on health boards by the Health Acts to so act section 51 of the Health Act, 170 does, however, provide that the health board is a body corporate and as undoubtedly part of the health boards' function is to provide for the reception and protection of poor children ...

The most expert people in our country felt there was no need for this Bill until the Supreme Court overruled, which indeed it has a right to do. Again, it clearly illustrates that while politicians are very often blamed for not doing the right thing we see here too that the most eminent lawyers in our land who become judges, and High Court Judges, can disagree on the interpretation. Therefore, the Supreme Court in their wisdom upturned the decision of the High Court and until that was done there was no way that anything could be done to bring in legislation.

The Government were working on the Child Care Bill, 1988 and, indeed, as the Minister said today, they acted immediately they came to power and took off from where they left off.

I am pleased and I congratulate the Government and the Opposition and all in the Dáil for tackling this with the care, determination and sincerity that it needs because it is very complicated legislation. I am delighted that an all-party committee has been set up to discuss this legislation and I know that when it comes before this House we will have an absolutely perfect Bill. It is not something that can be rushed through and I know that the committee that has been set up are all very deligent, industrious people who have the welfare of the children at heart and, indeed, of the parents because, God knows, parents too, who find themselves in this situation are to be as much pitied as are the people they abuse, whether physically or sexually, or neglect them in any way. There is really some want in the parents and that want is created by outside influences such as drink and drugs. I have said on many occasions that if we could cure that curse in our society we would need fewer Bills and, we would have a lot more happy homes. Unfortunately, that is the problem but how we cure it is another matter. I am very very pleased that the all-party committee will deal with this. I know they will deal with it expeditiously and it will be back in the Houses of the Oireachtas as soon as possible. Possibly all the amendments the previous speaker spoke about will be embodied in that Bill.

It is important that we get this Bill through the House as soon as possible to allay any fears or any doubts that are in people's minds. I wish the Bill well and I sincerely hope that we can get it through the House in a short time because it is very necessary legislation. It will be superseded by the new Child Care Bill, 1988. It is a great thing that we will have an all-party Bill coming before us and it must be perfect. Until then, we should move as quickly as we can and get this Bill through the House. I thank the Minister and all concerned for the speed with which they are operating.

I would like to congratulate Senator Naughten on his election to the post of Leas-Chathaoirleach and wish him every success and a pleasant experience in his duties.

The Labour Party accept that this Bill is necessary and we do not propose to impede its passage through this House. It is a pity that it arises from the fact that once again the courts are setting the pace for the Oireachtas. I would have hoped that some of the problems which this Bill seeks to resolve might have been anticipated. While Senator Farrell very well expressed the judgments of the High Court, I understand that in the last Oireachtas a distinguished lawyer forecast that this problem would arise. Now it seems that it has become a reality.

It is also in many ways a pity that the Bill is so restrictive. We have to accept that the restrictive nature is partly determined by the anxiety to get it through the Oireachtas rapidly. We are concerned that the Children's Bill has taken so long to find its way into law. The matter was considered by a task force in 1974 and it is now 15 years on. However, I am reassured to hear the Minister say that this Bill is an urgent matter in relation to the legislation programme.

Many lawyers have expressed concern about the constitutionality of this Bill. Our advice is that it may in some aspects be unconstitutional. It is for this reason that I am very anxious that the Government would test the constitutionality of the Bill before it finally becomes law. It is very desirable that we would avoid a repetition of the sort of procedure we are seeing being enacted in the Dáil and in the Seanad these last few days.

We would also be concerned that parents of these unfortunate children would have as much access to them as possible. That should be spelled out as specifically and as clearly as possible in the legislation. We accept that in some cases it may not be possible to provide access for parents. We would certainly be very anxious that, where it is not clearly undesirable, parents and relatives would be assured of access to these children.

We are also concerned about the position of what are called the innocent parents in this regard. We are very anxious that these parents' rights should be assured and that they be afforded every protection and encouragement by the law.

Of course, there is the thorny question of evidence of sexual abuse. It now seems to be quite clear that there are very great difficulties in determining what is clear evidence of sexual abuse. It is a matter, as it were, for debate. People have revised former positions, and so on. We would, in this regard, be very anxious that independent third party views should be taken into account. There is difficulty in establishing evidence of sexual abuse. We have to accept that this is a difficult matter. It is very important that every protection should be afforded and, as far as possible, that that evidence should be beyond reasonable doubt. I accept that there are these technical difficulties but we are going to have to live with them. In that context every effort should be made to avoid mistakes.

We will, in the course of the next Stages, be introducing some amendments.

An Leas-Chathaoirleach

I would like to congratulate Senator Upton on his maiden speech.

On behalf of the Progressive Democrats we are pleased that this legislation has been introduced so speedily in response to the ruling of the Supreme Court last week. We will support it. However, it would be very remiss of me not to point out that this legislation is a fire brigade reaction to a situation which should not have arisen in the first place. What we are doing is to a great extent papering over cracks even though there was an awareness since at least the initial ruling of the Supreme Court last July that we would arrive at this predicament.

As already referred to by Senator Upton in passing, the Progressive Democrats flagged this decision as early as 14 July 1988 when Deputy Michael McDowell spoke on the Second Stage debate of the Child Care Bill, 1988 in Dáil Éireann. We warned then of the urgency of passing the Child Care Bill particularly in respect of the rulings in the High Court which raised serious questions on the legality of health boards invoking the powers on the District Court to have a fit persons order made in respect of a child or to have children detained against the wishes of their parents. In addition, we warned that there could be some parents who would go to the High Court and have a District Justice order quashed under the 1908 Act. Instead of heeding that warning we are now responding to it with an emergency measure.

This illustrates only too well the neglect of child care legislation, particularly the Child Care Bill. It seems incredible that we are still in the process of updating the 1908 Act some 81 years later. However, I welcome the fact that a special committee has been established for the Committee Stage of the Bill and I hope and expect that the legislation will be completed as soon as possible and enacted without delay.

There must have been a sigh of relief by those involved in the social services when this Bill came before the House, not least because up to 800 children were in what could have been termed a state of limbo since the Supreme Court ruling last week. The implications for those children in care were enormous and, therefore, this Bill alleviates enormous concerns.

Issues such as the suitability of District Courts to deal with these matters should be faced. We in the Progressive Democrats look forward to a situation where a scheme of family courts are available nationwide as promised in the agreed Programme for Government. Nevertheless, we must now look forward to the introduction of the Child Care Bill to this House.

An Leas-Chathaoirleach

Again, I have to congratulate the Senator on her maiden speech.

It would be remiss of me not to compliment the Senator on his election as Leas-Chathaoirleach. Without any irony I welcome him back to this House. I know he was a former Member. Some of my colleagues are misinformed on that issue.

Nobody in this House, or the other House, could be other than happy that this legislation is being moved through both Houses of the Oireachtas with the maximum speed. There is nobody either, looking at our record on social legislation over the past number of years, who could not be taken with the fact that it is either the courts or international conventions who seem to drag us, albeit apparently reluctantly, into reforming legislation. The Data Protection Act for instance was passed because we had to do it to meet certain international conventions. The Incitement to Hatred Bill, which is before the other House, was passed or is going through because of international conventions.

The Status of Children Act, is one of the pieces of legislation which I for one am most happy to have been associated with as a participant in the debates in this House during the period when Deputy Nuala Fennell was Minister of State in the Department of Justice. It largely came about because we were not in a position to ratify certain international conventions and because of certain decisions that were taken in the European Court of Human Rights.

It is not the way to do our business. We are either in a position where our Government are under-advised or poorly advised or profoundly conservative, if every piece of social legislation of significance can only be taken seriously when somebody outside the country or somebody separate from the political process forces us to confront it. This is another regrettable issue. Without trying to pronounce on things on which I do not have a particular degree of expertise there are many who would say that since last July the Government have been on notice that they were going to have a problem. There were many eminent lawyers of varying political allegiances who identified that there would be a problem. Yet, when we finally got the decision of the Supreme Court it appears that there was almost a state of surprise and shock.

This failure to understand and to anticipate the general view of the courts and the advice the Ministers receive to perhaps anticipate what will be the view of the courts, is nothing less than a failure, and a failure which must be rectified and dealt with. We cannot continuously have to be redirected by the courts because we fail to understand our Constitution or our international obligations.

The Minister in his introduction was very spirited in his refutation of The Irish Times editorial. I think he was quite right; obviously there was a misunderstanding. We have all got considerable reason to be very wary of the Department of Health's record on legislation. The 1981 Mental Health Act has not yet been brought into force. Eight years later no section of the 1981 Mental Health Act has been brought into force. What is any independent citizen looking at our legislative process supposed to think? After eight years a major piece of legislation to do with the rights, services and the protection of a particularly vulnerable section of our society has not been brought into force. We are still working with legislation which, in greater part, is 40 years old. That does not reassure me. That is why the debate in the other House about the substantive Children's Bill took place.

Many of us have a considerable worry about when large sections of that legislation will be passed. Large sections of the Tobacco Bill that went through the Houses of the Oireachtas have still not been implemented. Large sections of the Clinical Trials legislation are still far from operating satisfactorily. It is because of that record of the Department of Health that many of us have substantial doubts about leaving anything to discretion and because of their apparent ability to ignore the decisions and the will of the Houses of the Oireachtas.

We need to remind ourselves again and again that it is not the Government which actually decides legislation: it is the Oireachtas. The Government can only propose legislation. It is the Oireachtas which passes the legislation that it sees fit to pass, in the form that it sees fit to pass it. We would need a considerable readjustment to the constitutional realities in this country. We elect an Oireachtas. We do not elect a Government. The Oireachtas then picks a Government whose duty it is to propose legislation to the Oireachtas. It is the obligation of the Oireachtas to respond to that legislation as it sees fit.

The development of party whips, etc., has clouded the fundamental constitutional realities. That is why it is with considerable reservations that one looks at the Department of Health in this area. I have no reason to be other than at one on this issue with the Minister of State and Minister O'Hanlon. Both of them, I know, are committed people and take their responsibilities very seriously, but I will remind the Minister of State that we are still waiting for a substantial Adoption Bill. We had a minor Bill to deal with one specific problem. There is a massive amount of concern in the country about aspects of adoption that have not yet been addressed, such as adoption agencies. All of this was well reported on and the report is now some years old. One would wish that we did not just have small pieces of legislation. Whoever was responsible for it, the substantive Children's Bill has been floating around these Houses for more years than was proper or correct.

I continue to be amazed at the difference between our procedures and those of the Houses of Parliament in Westminister where, apparently, Government can announce a programme of legislation at one period of the year and be certain that all of that legislation will be published, dealt with, proceeded with, amended, and finally passed into law within virtually one parliamentary session. It is because of that that we run into the situations we are now in, where emergency legislation has to be rushed through. It is emergency legislation that we all agree with.

On the Bill itself, without wanting to pre-empt or to go into Committee Stage arguments, there are a number of questions that the Minister can answer. Will the legislation make a distinction between a family and a household in terms of the rights of parents to their children or vice versa? There are an increasing number of households in this country that are not families under the definition of the Constitution. The second question I would be interested in is what precisely constitutes an "interested person" as referred to in section 6 of the Bill? It is an interesting phrase. I would welcome some elaboration on it particularly since I understand section 6 was not debated in any length in the other House.

On Committee Stage I hope to come back to a more detailed discussion of what precisely section 6 means. At this stage I would like, for my own clarification, to get a definition. I would like the Minister to indicate, if he can, whether, in the course of the legal advice that is being presented about this legislation, we are talking about direct rights for children. Are we talking about derived rights of children? Do children under our Constitution have any direct rights, or are all their rights derived from and related to their position as members of a family or of children of parents? Do we recognise that children have rights?

Many constitutions, and many United Nations declarations, have considerable detail about the rights of children. Do our children have any rights because they are children, because they are persons in their own right, or are all their rights effectively related in a greater or lesser way to a relationship between themselves and their parents? It is an extremely important question in terms of the whole philosophy of child care. We have an extraordinarily primeval concept of juvenile justice where, after years and years, the age of criminal responsibility is still seven, where our children really have no justice and where there is considerable doubt as to whether our children have rights.

There is even more doubt about whether our children have any real guarantees, as distinct from an enormous amount of rhetoric about our children. Without wanting to broaden the scope of the debate, in order to understand what the legislation is about we need to have some sort of background about where our children fit into our constitutional and legislative processes.

There are other concerns that have been raised quite legitimately. I would like the Minister to elaborate, as far as possible, on why he is so sure, given the apparent inadequacy of his advice on previous occasions, that it is possible to give retrospective effect to this legislation. It would be useful to have some more detail on the precedents on which that advice was based. I know the Attorney General's advice to the Government is confidential, but I am sure the Minister can give us some information to justify the retrospective provisions of this legislation. Many people working in the child care area are deeply concerned. I wonder has the Government given any thought to the apparent insistence of the Supreme Court that the natural parents must have some sort of guaranteed right of information about the names, addresses, etc., of foster parents.

That is a problem which I know many people working in the area of child care have adverted to. It raises serious problems about the whole question of foster care. If it turns out to be a serious obstacle to the proper care of our most vulnerable children, and if we need a constitutional amendment to protect the children — not to protect the foster parents, but to protect the security and the future of the children — then it should be done.

I am glad Senator Upton mentioned child sexual abuse. I would like to put on the record of the House a comment that was made to a meeting I attended by a superintendent of the Garda Síochána who said that the gardaí were, in his opinion, convinced that the vast majority of offences of a sexual nature against children were carried out by homosexuals. That suggests to me that we have a long way to go before we get a proper national consensus on the issue of child sexual abuse when that level of authority in our society can express an opinion of that kind at a public meeting and remain in office.

That does not mean that we should be deterred from the issue. It is time we got away from the conspiracy theory about child sexual abuse, suggesting that somebody is trying to undermine the family. What we are all trying to do is to protect our children. That is what this legislation attempts to do. If our Constitution, because of the period in which it was written or because of a fear of the totalitarian State or whatever, is inadequate in its capacity to allow us to protect our children, then we have a simple solution at our disposal which I am quite sure would be acceptable to the Irish people, and that is to amend our Constitution in such a way as to make perfectly clear that the primary concern of our Constitution and our laws must be the welfare of the child and that no other rights can be used or claimed to interfere with that fundamental concern.

We may wish to balance those rights. We may wish to ensure that there is a proper and fair hearing for people who are concerned but we cannot get away from the fact that at the centre of our legislation must be the rights of children, not the rights of those of us who have children and not some sort of proprietorial rights, but the rights of children to the best we can offer them, whether it be in terms of financial support, family support, income support or security.

At the outset I would like to welcome the Minister, Deputy Treacy, to the House. He has been a regular visitor to us over the years. We are always glad to have him back with us in a new portfolio, one that I know that he will excel in. I also welcome yourself, a Leas-Chathaoirligh, and congratulate you on your appointment. I congratulate also the two Senators who have made their maiden speeches, Senator O'Reilly and Senator Keogh.

This is a short Bill. We would also agree that the measures that are with us today are vitally important. What we are doing is bridging a gap in the law which has been brought to our attention in a judgment of the Supreme Court which was handed down last Thursday. We all know that there are over 800 children in the care of the various health boards as a result of decisions taken by various district justices to place children whom they decided needed care in the custody of the health boards. In making those decisions, we all accept the fact that the district justices believed that the existing law enabled them to deem the health boards to be fit persons. It now transpires that the law does not enable district justices to deem the health board to be fit persons.

Indeed, as a health board member — and I am sure I speak on behalf of many of the health board members around the country — we would see the position as being a little disappointing. I want to make it quite clear that I am not querying in any way the judgment of the Supreme Court. The Supreme Court and, indeed, the earlier judgment of the court raise many complex issues which would have an impact on the whole area of child care proceedings. In any debate of this kind, it is crucial that the right approach and the right balance be struck as between the rights of the parents and the rights of the children.

More than 800 children are in the case of health boards on foot of court orders. This highlights the need for State agencies to be given the responsibility of caring for children whom the courts consider to be in need of care and protection. We cannot ignore the fact that the health boards have had for 18 years the experience of undertaking that particular role of the satisfaction of the courts and the Irish people. Clearly they are the appropriate agency to be given that task of continuing to perform this vital work.

The judgment that was handed down by the Supreme Court last week identified a gap in our existing law and did not make any judgment on the way the health boards, as child care agencies, have carried out their responsibilities. What we are being asked to do now here this evening in this legislation is to give to the court and to the health boards the powers they have been exercising, in my opinion with great care and with great sensitivity for the past 18 years. What we are doing is bridging a gap until the passing of the Children Bill of 1988.

The Government have acted wisely and understandably in this issue. When they became aware of the Supreme Court judgment, they obviously thought about whether they should rush through the Child Care Bill of 1988 or wait and deal with it differently. Because of the many complex and sensitive issues that are being dealt with in the 1988 Bill, they were wise to stop and to bring forward a short amending Bill to deal with the key point of the Supreme Court's ruling, that is, that the health boards do not have statutory authority to act as fit persons within the meaning of the Children's Act of 1908.

The Government acted correctly. In my opinion this Bill is certainly appropriate for the action that was necessary. It will bridge that gap until the passing of the important Child Care Bill of 1988. I wish this Bill a short life, as it were, until such time as it will be brought under the umbrella of the Child Care Bill of 1988.

Congratulations to you, a Leas-Chathaoirligh, on your election and the ease with which you have taken up your position.

I would like to respond to Senator Farrell. I am surprised he has not heard the alarm bells ringing which enabled this legislation to be rushed through so quickly. I am increasingly disturbed that we are seeing the courts having to push the Oireachtas into legislation.

In relation to the emergency Children Bill, I have a question to the Minister of State and it concerns section 4(3). I will read the bit that causes confusion with me.

Without prejudice to subsection (1) a health board may either in a fixed period or until the health board otherwise determines, allow a child or young person who has been committed to its care under an order made pursuant to Part II or IV of the Children Act, 1908 to be under the care and control of a parent or other suitable person.

That reference to "a parent or other suitable person" is loosely worded from my viewpoint and to the non-trained legal eye. It gives the impression that perhaps the child may be allowed to go back to the home from which the court order decided in the first place to take the child away. I would like a comment on that.

I welcome the commitment given by the Government to revive the 1988 Child Care Bill at Committee Stage and to appoint an all-party select committee to facilitate its quick passage through both Houses of the Oireachtas. I would like to draw attention to the area of resources. Like everything else, emergency focuses the mind of the general public and it is just now that the general public are taking into account the importance of children in relation to this area. Obviously we are talking about under-resources, both financial and personnel, and support facilities for families. The implications for the social workers in the child care area are great because now places of safety orders must be brought before the court within eight days rather than the three to four weeks previously allowed and that will put a burden on the existing few social workers.

I will give an example of how hard pressed our social workers are. If you take a community care area like north Tipperary, and it is typical of many community care areas in the country, in a population of 100,000 people they are serviced by five social workers, which is one to 20,000. In that area there are 100 children in care of whom 40 were in care for whom a fit person court order had to be obtained. My investigations have shown that a new case comes up every two weeks so what are social workers to do?

First, they must have time for the investigation of the case, they must have time to recruit foster parents. There is absolutely no weekend availability of social workers and at a time when a child is placed in a foster home with parents who do not know this child you could imagine the tension that child will place on a family if the child happens to be in his or her teenage years. There is no weekend help for emergency action if the foster parents need help at that particular time.

There is not enough staff to bring the children to see their families once a month. When one thinks in terms of the pressure on the existing social workers, at the end of the day no matter what legislation we put into place we are only covering over the cracks. In Ireland, we are supposed to be fanatical about our children, and I say supposed because here we find that the children most at risk are being starved of the resources necessary to integrate them into what I hope would eventually be full family life.

There is one area that worries me, the limbo area within the age group 16 to 18. As a parent of a 20-year old and knowing the traumas of teenage years, the years from 16 to 18 are certainly a time when children are most at risk. They are in a limbo area.

I referred a moment ago to a case every two weeks in the north Tipperary area of sexual abuse where a child will have to be taken from its home and placed in fosterage or elsewhere. International research has now shown that 95 per cent of women in prostitution had been sexually abused. We are talking about something that has just come into public focus in this country in the past few years. As a teacher I am very much aware of the rate of sexual abuse of the children I teach. Social workers cannot possibly look after those cases already known to them, let alone those that they do not even know about.

In relation to the Child Care Bill, 1988, I understand there are at least 64 sections with possibly 200 or more amendments. Obviously this will take considerable time to be debated, plus the fact that more time has to be made available until the final ministerial order is actually going through. My point here is that while we are actually debating the emergency Bill it is important to realise the consequences of this emergency Bill if it goes through. For me and the Fine Gael Party the priority area is to ensure a reduction in the number of children being taken into care in the first place. I would be looking for preventive action not remedial action.

I agree with Senator O'Reilly that I would like the Fine Gael Party to have the constitutionality of this Bill tested before it becomes law. Technicalities, plugging loopholes is important but in the context of the importance of children in this nation everything must be in order before we go forward to working towards the implementation of the Bill in 1989.

An Leas-Chathaoirleach

I wish to compliment Senator Jackman on her maiden speech.

First, I would like to join in congratulations and best wishes to yourself for taking the Chair so very promptly and for your courtesy. On this Bill, we should recollect why we have not only this Bill but the many other Bills which preceeded either in this Legislature or in the United Kingdom. Basically what we are talking about is cruelty to children and trying to prevent or obviate that cruelty.

It is as one of the other speakers has suggested very much an international problem. We may not have in this country the horrific tens of thousands, some have estimated millions, of children who at this time are regarded by international organisations as being in a state of slavery. It seems an old-fashioned world but it still happens today to small children. We are fortunate in this country in these days that we do not have cruelty to children as a result of starvation. We have seen that recently on our television screens. We are fortunate also that we do not have that most appalling cruelty of all to children, torture of children, which still happens unfortunately in certain régimes where children are tortured either individualy or even in front of their parents. Cruelty to children is widespread. It is appalling and something which we thank God do not have in this country in that sense.

That does not mean that we can pat ourselves on the back. We have 800 children in care, four to five children every week going into care. Listening to the last speaker the implication would be that the numbers should be increased. I agree wholeheartedly with the speaker's suggestion of prevention rather than treatment or custody. The situation is not just one of simply sexual abuse. That may be very fashionable to talk about at present, it may be very appalling, but there are many other circumstances and reasons. Parents are unable to look after their children for one reason, bereavement, leaving small children literally with nobody to look after them. There are many reasons why children are taken into care. Drug abuse, unfortunately, is going to mean that more Irish children are going to have to be taken into care either because their parents are drug addicts or because the children themselves at an early age have become drug addicts. We may be thankful that we do not have the appalling cruelty which exists elsewhere but we have not all that much to thank ourselves for.

I would like to suggest that in addition to the care of the children we should also not forget the rights of parents — although I do not like that word — the concerns of a mother who finds she just cannot look after her child. Is she to be deprived of the opportunity of seeing that child because she has had to go through the agony of giving it up, of having to give it out to foster parents? There are certain aspects there which need to be examined and not just assume that they are totally there.

What about the child itself? We have had too many cases in the past of broken up families, of small children being separated from the few friends they had, their little sisters and brothers and, perhaps, not meeting them again until many years afterwards or, maybe, never being able to meet them again despite what agonies they may go through looking for them and, equally, of their parents perhaps never seeing them again. Let us not talk as though there is just an isolated child or an isolated parent. Very often there is a much deeper and complicated story.

This Bill arises from a Supreme Court decision; it is very necessary and expeditious and I am glad to see the Minister and Minister of State showing this degree of expedition and urgency. I have sympathy with the view that has been expressed about testing its constitutionality but we are not really in a situation where one could allow any time to go by. This Bill is necessary, it is urgent. It appears to have been thought out very carefully and that is appropriate and necessary. As we all know, it is accompanied with and has been preceded by a very detailed Bill, the Child Care Bill of 1988, and we will be looking forward in this House to seeing this Bill and debating it in detail. It is one of the most complicated Bills which has come before these Houses of Parliament.

There have been a number of references to the Children's Act of 1908 and it is true that the Bill we are referring to relates very much to the 1908 Act.

I am sorry to have to interrupt you, but there is a division in the other House which the Minister has to attend. We will have a sos now until the Dáil division is over.

Sitting suspended at 6.15 p.m. and resumed at 6.30 p.m.

Perhaps at some stage we will again have a situation when, from time to time, the Dáil will be kind enough to extend to us the same courtesy and adjourn when we are having a vote here. Continuing with the Bill, we are looking at, a Leas-Chathaoirleach, we are really basically talking about a Bill in relation to cruelty, or preventing cruelty to children. That is the basic purpose, the avoidance or cessation of it and, indeed, the Act that is being referred to here so often — the 1908 Children Act of the United Kingdom Parliament — is very largely a follow-on of the Cruelty to Children Act, 1904 of the United Kingdom Parliament.

It is interesting — section 38 is the quoted section — that this Part of the Act, 38 (1) "and this Part of this Act unless the context otherwise requires, the expression ‘fit person' in relation to the care of any child or young person includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children". Obviously the Supreme Coourt has taken a view and I think it is very appropriate.

May I welcome the Cathaoirleach to his new post at this time?

There has been suggestion that we did not see the warnings and so on. I think in this country it is very appropriate and excellent that we have a Supreme Court, and that the legislation that we are putting through this House, and the other House of Parliament, should be subject to query and review in the Supreme Court. May it always be so, however inconvenient or awkward it may be at times. Again, I think the Government have very rightly responded in an appropriate manner, very rapidly and expeditiously, but not prematurely, to the requirements of the Supreme Court judgment. Looking at the 1908 Act, Parts I and IV are quoted in that Act. Part III is not, but there has been a good deal of mention here, in one sense or another, of children's abuse. I wonder is Part III still valid today, is whereby anybody who sells to a person apparently under the age of 16 years any cigarettes, whether for his own or use or not, shall be liable on summary conviction in the case of a first offence to a fine. It would be not inappropriate if that section is, in fact, still law.

May I make one plea to the Minister? There is reference to industrial schools. This is an appalling archaic term which in itself carries overtones of cruelty and lack of true concern or compassion for children. May I make the plea, a Chathaoirligh, to the Minister that in the full legislation which he is considering this archaic and inappropriate term be removed from each and every section of the Bill which is to come before us.

Finally, there has been mention here of legislation and the time taken for legislation to go through and how in the United Kingdom Parliament it is possible to have a list of legislation, including such Acts as, for example, the corresponding Act of the Child Care Bill, and that that is duly passed and it is known that it will be passed by the end of a given session. The Senator who raised the matter, and I myself — and maybe that would be a good thing, at any rate as regards myself — under the United Kingdom system would probably not have the opportunity to speak to a Bill such as this because the guillotine is brought down so frequently and so early in order to ensure that that legislation passes. It would be a great pity if we followed that sort of authoritarian, bureaucratic regime which pertains there.

Firstly, I would like to offer my congratulations to yourself on your election to your present high office. I have no doubt that you will follow in the tradition of many distinguished predecessors in exercising your duties expeditiously and fairly and also in relation to how you treat all the Members of this House. Secondly, I would like to welcome the Minister here and congratulate him on his appointment to his new office.

In dealing with this Bill it is probably useful, first of all, to mention why we have this Bill before us. It is because a section of the 1908 Act was struck down as unconstitutional by the Supreme Court last week. In mentioning that, it might be useful to consider that an Act 81 years old is still the Act governing one of the most important areas of legislation because of the fact that it governs how our children are looked after. As a result of that decision and various other decisions that have been handed down by the courts over the last number of years in relation to changing EC legislation and changing constitutional interpretations, one should be considering for the future that legislation should, as a matter of course, be looked at after a certain period so that we would have the situation that very important legislation passed many years ago in very different circumstances should come up for some sort of review, although in many cases it may not need change. Acts which were passed before the previous two wars and which are still the law of the country should, as a matter of course, come before parliament or before reviewers, whether it is lawyers or the draftsman's office, to look at what the present day situation is and to look at where changes can possibly take place. It is a practice that should take place after a certain period of time, whether it be five, ten or 20 years. I say that because more and more bits of law are at times being struck down and we are ending up having to rush in. We are all guilty of that process, that we are inclined to react after the event. It might be appropriate, therefore, that legislation for the future should be reviewed on an ongoing basis.

I welcome the fact that the Government have reacted quickly and speedily in the light of last Thursday's decision because I think it would be a totally unacceptable situation if for any reason laws, decisions or orders affecting the most vulnerable and most important members of our society could in any way be possibly struck down and children who have been looked after or taken into care could suddenly find themselves in difficulty or under further threat or re-threatened in some way. It is good that we are dealing with this as quickly as possible.

It was the right decision to go along with, just bringing in one small piece of enabling legislation to get over the matter raised in the Supreme Court judgment, because it would have been wrong if one were to have it included in the major Child Care Bill which has been sent to a special committee. If that had been rushed through that would have been compounding an error. It would have been very wrong to rush through legislation which we have all looked forward to, legislation which is very important. We hope that the committee will look at it as soon as possible. There are many complex areas here and to rush it through or guillotine it would have been the wrong approach.

The urgent action which was required has brought the Bill before us. Most of us would agree with its contents. If we have suggestions, particularly in relation to its constitutionality, I personally would favour referring it to the Supreme Court. It is a matter that could be dealt with relatively quickly. I know the Minister has given his views on why he is quite happy with it, and obviously he is getting the best advice available. But other legislation has been struck down. I presume the Supreme Court could, in the light of the urgency of the legislation, consider it quickly and give a quick judgment. It would be a further catastrophe if we were back here in six months, or in 18 months, with some other change having been made necessary, perhaps as a result of a court decision. Perhaps the Minister could consider that option. I would also ask him, when replying, to say what opinion was given in relation to the fact that it is retrospective legislation and that previous Acts and previous orders made are in fact being rubber-stamped under the new Bill. Is the Minister quite satisfied that it is not going to be overturned? One would hope that, if there was any doubt in relation to it, a court, even if they questioned it, would not release a child or put a child into any difficult situation.

The whole area of child care and child abuse and the various forms it takes is a very complex and delicate area. In any legislation you obviously want to have sufficient powers available so that matters can be moved on quickly if a dangerous or difficult situation for a child is developing. One also has to consider very carefully the rights and concerns of parents, who for one reason or another may find themselves in difficulty. There are many situations in which parents may find themselves in difficulties. It may be a minor case of neglect owing to financial circumstances. We would be aware of the present situation in which some parents, or even single breadwinners in a family where there is only one parent, are just making ends meet and trying to bring up a large family often on a very low income and basically a grossly inadequate income. We have to look at various situations. We also have to consider that at times there can be possible vindictive actions where one parent or both parents can be blamed, perhaps in the wrong, or where reports can be put through to a health board or to a social worker which in fact may be malicious. There are all these areas where we have to be very careful when we are bringing forward such legislation as this.

As we are aware, there are about 900 children in certain care and there are many more children in other types of care. It is important that as far as possible information be made available to the parents, if that is the right course of action in certain cases. We have to remember what has happened in England and what went on in Cleveland. I would suggest to the Minister that, when he is looking at the boards and the people who are going to deal with these cases, he would ensure that sufficient funding is made available and that the properly qualified people be appointed. He should also ensure that there is sufficient right of appeal in cases where social workers or doctors may be starting off from a wrong point of view, which remains throughout a case, when, in fact, they may have either been misled or misinformed. All of these matters have to be looked at in relation to examining cases that come before the board.

I would suggest — I think the Minister referred to this last night in the other House — that the term "industrial school" should be dropped as soon as possible. It is archaic and I would hope that when the substantive Bill comes forward some of these archaic references will be struck out.

Finally, I would like to say that we welcome this Bill. I would ask the Minister to reply in relation to the constitutionality aspect. It is often a safety first procedure to refer legislation and I would hope that if this were to be referred to the Supreme Court they would not unduly delay it. It is amazing what can happen when all minds are alike. We often have complaints about understaffed draftsman's office in relation to getting legislation. This just goes to show that when the will is there legislation can be produced quickly. Obviously, it has to be considered whether it should be referred. If the Supreme Court were to give a judgment within a week or two, it might copperfasten the situation rather than having a doubt hanging over decisions made and whether a health board, through its officers, was deemed a "fit person" as is in this Bill.

I would also like the Minister to consider, when he is replying, the retrospective element and whether proper advice is being taken in relation to that. I know that in some aspects, such as crime, changes in certain legislation, cannot be made retrospective. I would hope that any orders made by the health boards, who in many places have been doing great work in this area, will be proper and valid.

I would like to take this opportunity to compliment the Minister and the Government for the speedy manner in which they acted to redress a situation that has resulted from the Supreme Court ruling in relation to the health boards. I would also like to compliment Minister Treacy on what he said about the articles in the newspapers and to concur with him in stating that the suggestion that the Government were not concerned or were not anxious to bring forward the Children Bill was just not true. I think the media regularly give bland headlines and give a slanted view which in many cases, while there may be facts interspersed, is very much not the case.

I was interested to hear Senator Jackman referring to north Tipperary in relation to a particular study that was done on child care and child abuse and the problems in that area. I think that this particular problem is not peculiar to north Tipperary; it is a problem that is quite indigenous to and indicative of society throughout the country and, indeed, of many other countries. One would have to agree with her when she mentioned the difficulties that are experienced by health boards in dealing with the child care problem. As I understand it, one of the reasons she has given for, to an extent, not agreeing with this legislation was the fact that the resources were not available. One could argue at length about what adequate resources are in relation to particular situations; but, as I see it, if the legislation is not in place, then whatever resources were available could not be used to put the operation in place.

It is very important to understand what we are talking about in this legislation. The opening paragraph of the Minister's speech is very important, and I quote:

The effect of the Supreme Court ruling is that the health boards are no longer able to take into their care children who have been neglected, ill-treated or abused or who are otherwise at risk.

I think that is the kernel of the whole problem. All of us have accepted that since the health boards were established in 1970 they have taken onto themselves the responsibility for dealing with children at risk. One Senator referred to preventive measures rather than remedial measures. The fact that the majority of families would not find themselves in the difficult situation that would result in children being taken into care is proof that the vast majority of people do avail of preventive measures. The difficulty in relation to the whole child care problem is that it involves a huge social area.

We all know that when you are dealing with families you are dealing with a very private unit. Many people will never know at any one time what exactly is the case in relation to the relationship, either between husband and wife or between husband and children or between mother and children at any one time. The only time you get to understand that is when something happens that comes to the notice of either social workers or the Garda or whoever. It would be ludicrous to suggest that there should be people going around to every household to find out exactly how the families are functioning. That is something that none of us would ever wish to become embroiled in. Families are composed of human beings and the best families in the world are going to have their ups and downs at different times.

What we are concerned about here is the situation that develops when, for one reason or another, children must be taken into care. If anything, we have to err on the side of the child. It is extremely important that the rights of the children are borne in mind, because if the child is being abused or misused in any way then somebody else must accept the responsibility of ensuring that that situation is corrected.

I remember speaking at length here last year in relation to the Bill dealing with rape and dealing with the consequences of children being put at risk in that situation. It is absolutely traumatic. It is a most unusual development that the organisations that were playing a major role in relation to this whole childcare situation, and were seen to be the appropriate authorities to do so, are those that are in dispute in relation to the Supreme Court judgment. While the 1908 Act states that a person would be entitled to put a child into care if that child was at risk, we all know that in fact it is the health boards who have assumed that responsibility, and rightly so.

As the Minister states, in a social area like this there are no easy answers. It is a very very complex business. As he said, to wait until the Child Care Bill, 1988, would have been finalised would have been a big mistake. I commend him for bringing forward this legislation, because it is extremely important that someone in authority — in this instance the health boards — would have the power to take children at risk into care.

Access by parents to their children and all that entails is a very difficult situation but, as I said already, it is extremely important that somebody would be responsible for the welfare of the children. I suppose one has to acknowledge that throughout the country, even at present, there are a number of children who are at risk and nobody just knows about it. That is the unfortunate thing about this situation. It is only when it is probably too late that it comes to notice.

I commend the Minister and the Government on bringing forward this Bill in such a speedy manner.

Sitting suspended at 7 p.m. and resumed at 7.15 p.m.

I welcome the opportunity to make a brief comment on this very important Bill. Before doing so, I would like to congratulate yourself on your election as Cathaoirleach. I have no doubt that you will be an excellent and most impartial Cathaoirleach.

I would like to endorse some of the sentiments made by other speakers. As already pointed out, the purpose of this Bill is to deal with the situation that has arisen following a judgment of the Supreme Court on 2 November in which the court ruled that a health board does not have the statutory authority to act as a fit person within the meaning of the Children's Act, 1908. The effect of this is that the health boards are no longer able to take into their care children who have been neglected, ill-treated or abused, or who are otherwise at risk.

Senator Cosgrave made the point that it is of major concern to everybody throughout the length and breadth of the country and the Supreme Court decision caused a storm and was of major concern to many parents. The various health boards were concerned as well, because for the first time their position was jeopardised because it was accepted that when the health boards were set up in 1970 the then Minister made provision under the Child Care Act to protect their interest with regard to child care because it was a part of the social work of the various health boards.

The existing law in relation to child care is contained mainly in the Children Act, 1908. Briefly, that Act allows any person who believes that the health, safety or welfare of a child is in jeopardy to bring the matter before the District Court. If, having considered the evidence, the district justice is satisfied that it is essential in the child's interest to do so, he may order that the child be removed from the custody of his parents or guardians and be committed to the care of a relative or other fit person.

The common denominator here is the description of "fit person". While the decision was given in favour of the health boards on four points out of five, the main point is the reason for this legislation going through here this evening. The expression "fit person" is defined in section 38 of the 1908 Act as follows:

In this part of this Act unless the context otherwise requires the expression "fit person" in relation to the care of a child or young person includes any society or body ...

For that reason it was a disappointment but, of course, the Supreme Court were within their jurisdiction to give that decision. It does not, however, spell out who may or may not act as a fit person. The only thing it does is to indicate that the expression fit person includes certain societies and other bodies involved in child care. This is where the Minister is concerned. I congratulate him and the Government on the way they moved so speedily after that Supreme Court decision.

From time to time doubts were expressed by some prominent legal people about the legal authority of health boards to involve themselves in child care. When a problem arose which eventually resulted in going to the District Court and then to the Supreme Court, where the decision was challenged, it highlighted the inaccuracies in that legislation. The Minister has already given details without naming the particular health board. We have had, and still have, situations in our constituencies where serious problems arose from time to time when children were abused due to various problems within the home. It may be due to financial problems or domestic problems, but the only hope for these children was the safeguard of the health boards.

Section 1 of the Bill provides for two matters, firstly, the expression "fit person" in the Children's Act, 1908 includes and should be deemed always to have included a reference to a health board and, secondly, that the functions of a health board will be covered well within the Act. Section 2 provides that every order made before the passing of this Act shall be construed and have effect as if this Act were in force when the order was first made.

Section 3 states that where on the passing of this Act, a child or young person is in the actual possession or control of any person, that is, a social worker, foster parent or a manager of a children's home and he is in that person's care as a result of a "fit person" order, committing him to a health board, he should be deemed to be lawfully in the possession or control of that person, that is, the social worker or health board.

The whole area of child care and child abuse is very complex. This is of great concern to parents and especially to legislators because we must be sure that in this legislation will stand up to any constitutional challenge, I have no doubt it will. I would like to compliment the Government and the Minister on the speedy way in which they have dealt with this situation.

I would like to welcome this emergency legislation, the purpose of which is to deal with 800 children in care as a result of the unanimous Supreme Court judgment of 2 November 1989, delivered on behalf of a full five member Supreme Court by Chief Justice Finley. The Fine Gael Party are most anxious, as all Members of this House are, to facilitate the early enactment of this emergency legislation because we are concerned to remove any possible anxiety or stress for those 800 children who are in care.

This emergency legislation seeks to deal with the crucial point contained in the Supreme Court ruling, namely, that health boards do not have the statutory authority to act as a fit person within the meaning of the Children's Act, 1908. In spite of the firm assurances from the Minister for Health that this Bill has been carefully drafted in the Attorney General's Office to take account of the Supreme Court decision and other recent judicial pronouncements there is doubt about the legality and constitutionality of certain aspects of the Bill.

This legislation is of such a rushed nature that the Minister had to table three amendments on its passage through the Dáil, one correcting a draftsman's error and two others providing linking clauses. I am particularly concerned that the provisions in this Bill which seek retrospectively to validate court orders for the care of children may not be legally and constitutionally sustainable. In this regard, I must point to the recent High Court judgment which overturned efforts by the Oireachtas to validate retrospectively the appointment and actions of a District Justice. I recall that on that occasion also when that legislation was passing through both Houses of the Oireachtas we were assured by none other than the then Minister for Justice that that particular legislation was legally and constitutionally sound.

In the course of his speech the Minister for Health referred to section 62(2) of the Health Act, 1970 which obliges a health board to make available without charge a health examination and a treatment service for pupils attending national schools. The Minister goes on to indicate that it is under this section, namely section 66 (2) of the 1970 Act, that a health board claims to derive its powers to take a child into care under a section 24 order. Referring to the Supreme Court judgment of 2 November, 1989, the Minister stated:

While the court found in favour of the health board on four of the five grounds, it found against the health board on the final point when it decided that health boards do not have the necessary legal authority to act as a fit person. In doing so the Supreme Court reversed the decision given by the High Court just 16 months previously.

These are the words of the Minister for Health speaking for the Government. Here it seems to me we have obvious annoyance and indeed an implicit criticism on the part of the Government of the unanimous decision of the Supreme Court. I believe the Minister and Members of both Houses would do well to read into the records of these Houses the relevant and pertinent part of the Supreme Court judgment delivered on behalf of a unanimous Supreme Court by Mr. Justice Finlay when he said:

Having regard to the universal nature of the provisions contained in Part II of the Act of 1908 in respect of the protection and welfare of children, and, in particular, in respect of the making of care orders and the designation of fit persons, it would appear to me extraordinary if the health board, by virtue of an obligation to make available to children over the age of six years a health service, provided only that they are attending a national school or a specially designated school, could be construed as making a health board a fit person, presumably in respect of such children only under the Acts of 1908 but having no function of a like kind in regard to other children even of the same age who did not happen to be attending such schools.

The Chief Justice continued:

It would in my view be an unwarranted extension of the obligations imposed on a health board by that subsection to consider that they are a fit person.

Almost 20 years ago the Kennedy report made the case for a new Children's Act. For several years politicians and professionals in the area have known that decisions such as those that were handed down by the Supreme Court on 27 July 1988 and on 2 November 1989 were entirely predictable and, I suggest, virtually inevitable. The present crisis has at least pushed the issue of child care to the head of the political agenda. However, these two rulings of the Supreme Court have raised important issues about how care orders are made and the rights of parents in this matter.

I would be most anxious in the light of the Supreme Court judgments that as many aspects as possible of the Supreme Court judgments should be implemented in this legislation. I believe, in particular that access to children by the natural parents and by those in loco parentis should be provided for in this legislation and that the parents and people in loco parentis should be entitled to know where their children are and to visit them while they are in care. The Supreme Court in their judgment of 2 November, 1989 indicated quite clearly that the taking of a child into care, except in very special circumstances, should not automatically cut off that child from its parents and extended family.

There must be proper arrangements for access and communication. We need to consider the devastating impact on a child, not simply being taken out of contact with an abusing parent but being cut off from the innocent parent and the extended family of aunts, uncles, grandparents and cousins. I believe, also, that it is absolutely necessary for health boards in the light of the facts revealed in this case to furnish the parents in respect of whose child the care order is being sought with any documentary or assessment evidence regarding the child on the pre-trial basis. This would include, I suggest, the video recordings referred to in this case, the assessment and indeed the written submissions by social workers. There is also emerging from the Supreme Court judgment the clear right of parents to have a separate independent assessment of their child.

I am concerned that unless we make the changes in the requirements as outlined in the Supreme Court judgment, the changes dealing with access reports, assessments, video recordings and the right of parents to have an independent assessment, this legislation may also be defective. The crisis precipitated by the Supreme Court decision on 2 November 1989 will have achieved considerable long-term good if it results in the early passage of the Child Care Bill, 1988, a long promised and much delayed Bill. A comprehensive new Children Bill would have obviated the need for action by the courts. This is another example of essential reform taking place only when the Oireachtas has been forced into it by the courts.

I know there are some amendments likely to be tabled and I do not wish to detain the House too long. I hope that the matters I have referred to may prove unfounded. I welcome this enactment and I hope the legislation is legally and constitutionally sound but I would suggest the Minister would be well advised to take on board the additional matters that have been outlined by the Supreme Court.

At the outset I would like to sincerely thank all the Senators who have contributed to the Second Stage debate. Their contributions were very positive. I especially wish to pay tribute to new Senators making their maiden speeches. I hope they all make many more positive and interesting speeches, as we have heard here this evening.

This is a short narrow Bill, which is an immediate response by the Government to deal with the situation which has arisen as a result of the Supreme Court judgment of Thursday, 2 November 1989. I am satisfied that this Bill deals with the technical problem which has been identified by the Supreme Court.

Some of the media coverage and public comments relating to that Supreme Court judgment have suggested that the decision that health boards do not have statutory authority to act as fit person was in some way signalled by the earlier judgment in the same case which was delivered on 27 July 1989. I have studied that judgment in great detail and I have to say that there is no foundation for this assertion. The judgment of 27 July 1989 dealt solely with the pre-trial procedures of a trial itself in the District Court where the fit person order in question was originally made.

The Supreme Court came to the conclusion that these procedures had not been carried in accordance with the necessary standards of natural justice, thus rendering the fit person order unsafe. As a result the court ordered the release of the child and its return to its parents. I want to make it quite clear that the judgment of 27 July did not allude in any way to the question of whether a health board is empowered to act as a fit person or not. This is one of five issues in which the court reserved its judgment and its decision on these points were delivered Thursday, 2 November 1989.

In the judgment last week the Supreme Court upheld the original rulings of the High Court on four of the five issues but allowed the appeal on the question of whether a health board had power to act as a fit person. As this House, is aware, the court held that health boards do not have such a power. This is the factual position and my remarks in my opening address were not, and could not be, construed as an implied criticism of the Supreme Court.

The Supreme Court in making its judgment last Thursday was acting properly in accordance with our Constitution. It is for the Supreme Court to interpret the law of the land. The Government recognise that this is the responsibility of the Supreme Court and completely accept its judgment in relation to the power of health boards to act as fit persons within the meaning of the Children Act, 1908. As I have said, I simply stated the factual position in my opening address namely that the High Court judgment represented the law until last Thursday.

The purpose of this Bill is to deal with the difficulties which have arisen as a result of the Supreme Court decision. The court held that the health boards do not have a power to act as fit persons. It must be said, however, particularly in view of the comments which have appeared in the media, that there were no reasonable grounds for the Government, the Minister for Health, or the Department of Health, to believe before last Thursday that the court would find against the health boards in any way. It is all very well for certain Senators, with the benefit of hindsight, to criticise the Government for not anticipating this ruling. However, the fact is that up to last Thursday the legal position was as laid down by the High Court in July 1988 by Miss Justice Carroll, that is that health boards could act as fit persons.

This Bill is designed to deal with the immediate difficulty which has arisen. The Government are satisfied that the Bill before the House does that. The improvement in clarification of our child care legislation generally can, in the Government's view, best be done in the context of the debate on the Child Care Bill, 1988 which has now been referred to a special committee of Dáil Éireann. I look forward to working with this committee and I am sure we will get the maximum co-operation from the Opposition parties so that a comphehensive and enlightened Child Care Bill can be enacted as quickly as possible.

The issues to be discussed by the all-party committee are extremely complex and involve careful consideration of the correct balance between the rights of parents on the one hand and the rights of children on the other hand. While the State and its agencies must have the authority and the resources to protect children who are being assaulted, ill-treated, seriously neglected, sexually abused or who are at risk it is equally important to protect children and families from unwarranted or excessive interference.

I would see children being taken into care against the wishes of their parents only in exceptional cases. Our child care legislation must pose no threat to family life generally, or to the vast majority of parents who are doing an excellent job, sometimes under very difficult circumstances, to rear and care for their children. Legislative provisions to provide for the correct balance between the rights of parents and the rights of children require very careful consideration. It will be the purpose of the all-party committee to ensure that this balance is correctly struck. It is the Government's desire in relation to the larger and broader child care question to reform the law in this area as quickly as possible. I dealt with this in my opening address but I feel I must emphasise it once more in view of the comments of some of the speakers.

One of the first actions of the new Government was to have a motion passed in the Dáil, on 20 July last, restoring the Bill to the Dáil Order Paper at the Stage it had reached prior to the dissolution of the previous Dáil, the Committee Stage. Furthermore, the new Government gave a firm commitment that the Bill was one of their top legislative priorities. This was confirmed in the Dáil by the Taoiseach. The Government have already taken action in relation to this commitment. The Committee Stage debate commenced last week, before the Supreme Court judgment whose decision has created the necessity for today's Children Bill before the House.

I would like to assure Senators that in drafting this Bill the Government have had the benefit and the advice of the highest law officers in the State. So far as humanly possible every effort has been made to ensure that the legislation does the job it is designed to do, that is to overcome the technical defects identified by the Supreme Court. Similarly, great care has been taken to protect the status of existing "fit persons" orders. I want to assure Senators that the Children Bill, 1989 is not a replacement, nor has it been intended as a replacement for, the Child Care Bill, 1988.

It has been suggested that the Bill should contain a comprehensive statement of children's fundamental rights. This suggestion is based on the frequently repeated but mistaken contention that children have no rights. Nothing could be further from the truth.

The Bill before the House cannot be considered in isolation but must be read in conjunction with the Constitution and the various judicial pronouncements about the rights of children and parents. The Constitution guarantees rights for all the citizens of the nation including children. Article 42.5 refers to the natural and imprescriptible rights of the child. In other words, the Constitution acknowledges that children have natural rights over and above any rights granted to them under the Constitution. In recent years the courts have begun to enumerate these rights. For example, in the case known as G. v. the Adoption Board 1980 the Supreme Court declared:

The child's natural rights spring primarily from the natural rights of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural right and duties in respect of the child, to exercise them in such a way as to intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such.

This judgment makes it clear beyond doubt that children have rights and that these rights are protected by the Constitution. I do not accept, therefore, that there is any need to try to spell out in this Bill the rights of children.

This House now has before it this short, eight section Bill as a direct consequence of and response to the Supreme Court's decision of Thursday last. A number of interesting questions have been raised by several speakers during the course of this debate. I intend to respond to each of these queries during the forthcoming Committee Stage debate. I thank Senators for their generous contributions.

Question put and agreed to.

When is it proposed to take Committee Stage?

Mr. Farrell

At 8.30 p.m.

Sitting suspended at 7.40 p.m. and resumed at 8.30 p.m.

On a point of order before we start, I think — and I am not blaming anybody for this — it is quite outrageous that the House should have been kept waiting for 20 minutes while a vote took place in the other House. It is not the fault of the Minister but at this stage there should be some arrangement between the Whips in the other House that a Minister who is in this House should be given a pair automatically rather than having the Minister rushing down to vote, coming back, and the business of the House held up. I would like if the Leader of the House with the other groups here would try to get agreement on this matter at this early stage in the life of this Seanad.

I wholeheartedly agree.

I have to agree with the sentiments expressed. It is not an orderly way to do business and if there is to be a series of votes in the other House we cannot conduct our business here. I totally concur with what the Leader of the Opposition has said and we will take the matter up at the appropriate time and place.