The amendment to section 4 is a Government amendment, and I call on the Minister and welcome him to the House.
Child Care Bill, 1988: Committee Stage.
Tá áthas orm bheith ar ais anseo arís don Bhille tábhachtach seo, agus tá mé ag súil le bhur gcomhoibriú.
This is a minor grammatical correction. It simply involves the removal of the word "and" and the substitution of a comma. It is a minute, technical amendment and I would be grateful for agreement on it.
Níl mé ag seasamh ach chun fáilte a chur roimh an Aire agus a rá go bhfuil a fhios agam go mbeidh díospóireacht réasúnta maith againn. Tá sé sásúil dúinne a fheiceáil go bhfuil cuid mhaith leasuithe ón Rialtas ar an liosta agus, mar sin, go mbeidh an tAire ábalta éisteacht leis na hargóintí faoi na leasuithe eile gan eagla a bheith air faoi mhoill a chur ar an reachtaíocht. Os rud é go bhfuil air dul ar ais go dtí an Dáil, is féidir leis plé leis na ceisteanna sna leasuithe eile, agus dá bhrí sin tá mé thar a bheith sásta.
I would like to say, I very much welcome any grammatical emendations or ameliorations which the Minister feels impelled to make. It is particularly appropriate that it should be done in this House. I would like to say also how very beneficial I have found my occasional sojourns in Seomra na Gaeilge. As a result I was able to understand what Senator Ryan was saying without using the mechanical appliances for the purpose. Had the Senator not made the point I would have done so, but perhaps I will mention it in English for my colleagues in Fianna Fáil so that they will understand what is going on. I agree with Senator Ryan that it is very welcome that these amendments are down in the Government's name. It indicates very clearly that there will be no difficulty about sending the Bill back to the Dáil and that the Minister will listen positively to the amendments from Members on this side of the House.
Amendments Nos. 2, 3, 4, 5, 6 and 7 are related to amendment No. 4, consequential on amendment No. 3, and all may be discussed together.
I move amendment No. 2:
In page 7, line 20, after "shall" to insert "as soon as possible".
This section is very welcome. I want to be totally non-confrontational about all these amendments. They are a genuine endeavour to deal with the objectives everybody has in mind. It is to be welcomed that a specific reference to homeless children should be in this legislation. I want to compliment the Minister and the Government. This amendment was introduced to the original Bill as published and it is very welcome. Each of my amendments has arationale to it. The first of my amendments is simply to ensure that the sort of lethargy and inertia that can often characterise large organisations should not become the norm for dealing with the problems of homeless children. My first amendment simply wants the words “as soon as possible” inserted into the amendment after the words “the board shall inquire into the child's circumstances”. I would not even argue with the precise phraseology. We need to get a sense of urgency into this legislation, a sense which many of us feel about the scandal of homeless children. We all agree that there should not be homeless children in our society. Therefore, we all agree that all State agencies and all voluntary bodies should be given both the powers and the resources to deal with the matter. We must also ensure that those who have the powers exercise them with the sense of urgency which the rest of us have. That is why I think the phrase “as soon as possible” should be inserted.
I am never too happy with the phrase "if the Board is satisfied that...". The basis for a judgment about the matters referred to in subsections (1) and (2) to section 5 is the provision that the health board shall decide all these things. My feeling is that it simply should be so if the objective circumstances are such. I do not like the idea of the board having to be satisfied. It should simply be if the child has no accommodation available to him. I do not know why this phrase "if the board is satisfied" has to be inserted. I think it should be taken out.
The other amendments are consequential on it. What I want taken out of this — and I doubt if it was the intention of the original draftsmen — is a suggestion that a child, and I will not argue about the age, can provide accommodation for himself. If there is a homeless ten year old child there should be no investigation as to whether that child is able to provide or arrange accommodation for himself. I am not going to argue about a 16 year old because we can talk about that later. In relation to a ten year old child there should be no question of somebody saying: "We have to investigate whether you can provide or arrange accommodation for yourself before we decide whether to provide accommodation for you." Ten year old children cannot provide accommodation for themselves. If the logic is that the parents should do it, then that gets away from the principle — which I know the Minister shares — that no child should ever, for whatever reason, have to live on the streets. If we accept this, we cannot simply look at the parents' income or the domestic situation. Therefore, we cannot put into legislation a requirement that a small child of ten or 11 should have an obligation to prove to a health board — or that a health board should need to find out — that the child "is unable to provide or arrange accommodation for himself".
I want to know how a ten year old child could be required to provide or arrange accommodation for himself? My amendment says that for children under 16 years of age this provision to provide or arrange accommodation should not apply. I am not hung up on the age. If the Minister care. The school leaving age might be more logical. Homeless children should not have to go through the hoop of an effective means test as to whether they can provide or arrange accommodation for themselves. It is a mistake to put it in. I doubt if it conforms to the intentions of those who drafted the legislation.
The last two amendments are simply to ensure that we do not get into the awful cheap hotels-bed-and-breakfast syndrome that characterised the operation of the Homeless Persons Act in Britain. The health board should be required to take steps to make suitable accommodation available — and that means accommodation suitable for a child. It is not just to get them off the streets so that they are invisible. It is accommodation that is suitable in terms of the child's age, sex and other needs. That is why my final amendment suggests that the obligation should be to provide suitable accommodation and proper care. The problem of homeless children is not just a problem of shelter. It is a problem of abandonment, isolation and emotional deprivation. You cannot deal with the problem of homeless children simply by putting them where there is a roof over their heads and they can have a bed for the night. That is, of course, a necessary precondition, but it is not sufficient to deal with the problem of homeless children.
I would like to support Senator Ryan's amendments. They seem to me to be not only reasonable but valuable, if not essential, to the proper and effective functioning of the Bill. I would like to mention the question of adding in the phrase "and is more than 16 years of age". Senator Ryan produced a series of cogent arguments. I would like to add another. I do not believe, for example, that a building society would lend money to a ten or 11 year old child in order to acquire a house. The situation is nonsensical. It does not exist in the real world. A child of ten or 11 years of age could, in almost no circumstances, be capable of providing accommodation for himself or herself. I would like to strongly support Senator Ryan's amendments Nos. 6 and 7 to ensure that there is an obligation on the authorities to ensure that the accommodation is suitable and, perhaps even more importantly, to add the phrase "proper care".
We all recall with regret the kind of incidents which took place, for example, in the North of Ireland in the Kincora House affair where young children were placed by a local authority in situations where there was not proper care and where children were abused. Many people are aware of situations in which children have been regularly abused while in institutional care. I am not making any attack on institutions in this country. I am not aware of such incidents, although they may well occur, but there are a number of precedents in the North of Ireland and England which should give us cause for concern. Senator Ryan's amendment which inserts the words "and proper care" is a valuable and important one.
On Second Stage we discussed the point that "a child" means a person under 18 years. In the case of this amendment a child can provide accommodation for himself or herself at 17 years of age. I am not too clear that the amendment achieves its aim.
That is precisely the point. The Bill quite rightly applies to every child under 18 years of age. It also applies to children as young as five or six. It is meaningless to have a requirement, however it is going to be applied, that a health board have to go through the ritual of saying, "Can this ten year old child arrange or provide accommodation for himself?" The point I am making is that what applies to a 16 or 17 year old cannot apply to a ten year old and different provisions should apply. The objective, and I am sure it is everybody's objective, should be that if a child of those sort of ages is on the street he or she should be taken off the street immediately and put into suitable accommodation with proper care. I am sure that is what everybody wants.
It seems to me to be obscuring that issue to put in a phrase about being unable to provide or arrange accommodation for himself. This brings us back to an argument we had here on the homeless of few years ago, about the possibility of people making themselves deliberately homeless. Whatever the arguments about adults it is no argument about children. I am not entirely clear what is Senator Keogh's problem. I do not see why the provision of being able to provide or arrange accommodation should apply to young children. That was why I put in 16 years of age. I will not argue about the age but it is quite ridiculous that in the case of children below school leaving age the care agencies should have any obligation to find out whether they can provide accommodation for themselves. That is simply what I am trying to do.
I would like to thank Senators for their contributions. If we could just look at section 5 in its totality for a moment. The form of words we are proposing here: "that there is no accommodation available to him which he can reasonably occupy" is wide enough to include children who have a family home but whose circumstances there are intolerable. I am leaving open the type of accommodation which health boards may make available so as to ensure sufficient flexibility to deal with every contingency. That is the whole thrust of this section.
In relation to amendment No. 2, I have some sympathy with what Senator Ryan is trying to achieve in this amendment. I would expect that where it is reported to a health board that the child appears to be homeless, the board would investigate the matter as soon as possible to establish the facts and to make services available if this is necessary. Indeed, even before this legislation is enacted the health boards have been instructed by the Department of Health to step up their efforts to provide accommodation for the young homeless.
My successor as Minister of State in the Department of Health, Deputy Flood, is co-ordinating these efforts and has announced a number of initiatives to increase the number of places available for the young homeless in Dublin and in other major towns and cities. Additional places for the young homeless will begin to come onstream during the summer and further places will be provided later this year and early next year. These developments are being funded from the special funds provided under theProgramme for Economic and Social Progress, for the special implementation of this Bill. I mention this in order to underline the Government's concern for the young homeless and to demonstrate our commitment to bring an end to the plight of youngsters sleeping rough on the streets in our cities and towns to whom Senator Ryan referred. I want to reassure Senator Ryan and the House that the provisions of this section will be closely monitored by Minister Flood and by the Department of Health to ensure that it is fully operated by all the health boards.
Unfortunately, I have a slight difficulty about accepting this amendment. This arises from the fact that there are many sections of the Bill which provide that health boards "shall" do certain things. Nowhere is the word "shall" qualified by the phrase "as soon as possible". For example, I would refer the House to section 16 which requires a health board to apply for a care order or a supervision order in respect of a child where this appears necessary. It will be noted that the phrase "as soon as possible" does not appear here though quite clearly that is what is intended.
I am advised that from the point of view of good drafting and consistency it would be better not to introduce "as soon as possible" in some sections while not having it elsewhere. This would only lead to doubt and ambiguity as to what is intended where "shall" is used without the phrase "as soon as possible". In the light of all I have said and to ensure that there is no grey area, no doubt and no ambiguity, I would ask Senator Ryan to reconsider his amendment.
Is amendment No. 2 being pressed?
Let me get the procedure sorted out. We are discussing amendments Nos. 2 to 7 together. I have so far heard from the Minister only on amendment No. 2. Does he propose to comment on the others or how are we doing it procedurally?
The extent and range of his comment is a matter for the Minister.
Knowing the Minister, I am sure he was not going to remain silent on the other amendments. I want to talk a little more about this. If the problem is consistency throughout the legislation, then the Minister and his Department and the ubiquitous parliamentary drafts-people could deal with that. The Minister seems to accept that the phrase "as soon as possible" would make the legislation more precise and give the sense of urgency to it. What he is worried about appears to me to be that it would give a lesser sense of urgency to other imperatives in later parts of the legislaation. The solution to that is to put in "as soon as possible" everywhere, if the Minister accepts that it is necessary and there is no problem about it.
I listened to the Minister's advice carefully on this because I do not want to make this in the least bit confrontational — we are all on the one side on this — but he seems to accept that the phrase "as soon as possible" would actually state the sort of urgency he believes should apply. If he does and there are other areas where an equal urgency is required, and I would accept his point about the care proceedings, then the solution seems to me to be to insert "as soon as possible" in the other sections of the Bill, not to simply drop my amendment.
On amendment No. 2, I would differ with Senator Ryan on this point. What the Minister has said quite clearly indicates that adding in the words "as soon as possible" would create interpretative difficulties with the whole situation. If it is included in one section and excluded in another problems may arise under the old rule of interpretation which says:inclusio unino exclusio altenius. Under that rule of thumb, if you include these words in certain sections, you are going to create problems unless they are throughout the Bill. I agree with the Minister that putting in these words would slow down the procedure rather than make it more expeditious. In this respect I would ask my colleague, Senator Ryan, to reconsider his amendment. I believe it would create interpretative difficulties but also it would actually defeat his purpose. It would slow down procedures rather than speed them up.
Perhaps Senator Ryan wishes to dispose of amendment No. 2.
So long as we are not disposing of all of them at the one time, I am quite happy. It seems to me that the Minister has a valid point. Senator O'Donovan's learned exposé of the principles of interpretation have left me with no option but to accept that the only alternative available to me is to withdraw the amendment and go through the Bill, in time for Report Stage, and insert "as soon as possible" in all the sections where the words should be included. I was hoping the Minister might facilitate me by doing it himself. But since he will not, it looks as if I have no option but to withdraw the amendment with a view, perhaps, to redrafting a similar amendment for a considerable number of the sections. I believe it is important to tell large bodies that they have to move at a pace which is related to the needs of the individual, not to the organisational structure of the large body. I propose to withdraw amendment No. 2.
I would like to thank Senator Ryan for his generosity in saying he will withdraw the amendment. The whole purpose of this Bill and the type of legislation we are trying to achieve here is that there would be instant action. We believe and Senator Ryan, as an experienced parliamentarian, understands that is you are dealing with a large organisation or even ourselves as individuals, if we respond to something and we say we are going to do it as soon as possible, that does not mandate us to do it immediately. We do not want to create a situation where there will not be instant action to serious situations. This Bill is dealing with very serious problems pertaining to child care throughout the country and we want to make sure that there can be an immediate response, whether from the health boards, the staff of the health boards, the Department of Health, the Minister for Health or whoever. That is the kind of action we want operated as a result of this legislation being passed. I am sure once we have dealt with all the amendments Senator Ryan will be happy that it will not be necessary to insert "as soon as possible" throughout the Bill.
On amendments Nos. 3 and 4, I think Senator Ryan is reading far too much into this phrase and he seems to be operating on an assumption that health boards will attempt to evade their responsibilities under this section. I do not accept this. On the contrary, I believe that the boards will avail of their new powers to take a more active role in relation to the young homeless. As Senator Ryan is aware, the major difficulty at present is the lack of any clear statutory basis for such intervention by the health boards but now that we are rectifying that legislative loophole I am confident the health boards will not be found wanting in implementing this new provision.
I think the criteria set out in paragraphs (i) and (ii) are a reasonable test of whether a child is homeless. It is the health board that will have to inquire into the case and to establish whether these conditions exist. That is all that is intended. There is no sinister motive or attempt to undermine the thrust of the provision. I ask Senator Ryan to accept my assurance on this and to reconsider these amendments.
I move amendment No. 5:
In page 7, line 25, after "self" to insert "and is more than 16 years of age".
It goes without saying that young homeless people are in general unable to provide or arrange accommodation for themselves. The reason paragraph (ii) appears here is because the Bill defines a "child" as a person of up to 18 years and because some, and I emphasise some, older children may be working and able to provide their own accommodation or they may be able to make suitable arrangements with families and friends. I am advised, however, that the amendment is badly drafted and that the effect of it would be to limit the provisions of this section to children over 16 years of age. Clearly this is not what Senator Ryan intended but it would be the effect of his proposal. I ask Senator Ryan to consider withdrawing this amendment.
On amendment No. 6, I accept that some of the accommodation in which homeless young people have been placed has not been entirely suitable. This has been due to the shortage of places available for the young homeless. I expect this problem to diminish as the new places I mentioned earlier begins to come on stream. I have no difficulty with this amendment and I am happy to accept it.
In considering amendment No. 7 it must be borne in mind that when we are talking about children here we are dealing with people who are single up to the age of 18 years of age. While most homeless children are likely to be confused and upset and in need of care as well as accommodation, this may not always be so, particularly in the case of older children. If the child needs continuous care, then it is open to the board to take the child into its care either on a voluntary basis under section 4 or to seek a care order under section 18. If, however, the childs' needs are not such as to require that he be in care, the board can provide accommodation under this section. All of these provisions taken together provide sufficient flexibility to enable the boards to provide the level and type of service that best meets the needs of the individual child. I suggest that this amendment is not necessary and its only effect might be to require health boards to impose their care on older children who do not need or desire it.
May I thank the Minister for accepting one of my amendments. I am happy to withdraw the other amendments for a variety of reasons. I agree with him about the proper care. I take his point fully that it would be incorrect to impose an obligation to provide proper care as in the phrase contained in this legislation. I think it would be wrong and I accept that. Therefore, I am quite happy to withdraw that amendment accepting that there are other provisions to provide care. That is valid and reasonable.
I accept, unfortunately, that the Ministers' advice is probably correct about the way in which I have drafted the amendment about the age limit. It has never been of particular concern to me to get involved in the niceties of drafting. I am far more interested in discussing with Ministers the principle of an amendment and leaving it to the considerable resources available to the Minister to deal with the niceties. I think that is one of the advantages the Minister has over individual Members of the Oireachtas. He has the awesome resources of the parliamentary draftsman to deal with the technicalities but the problem still is, and we can talk about it again when we talk on the section, that there is now a legal obligation on a health board to go through the ritual of assuring itself that a ten year old child is unable to arrange or provide accommodation for himself.
I knew the minute I read it that it was there because there are obviously homeless children who could well be working. Unfortunately, they cannot be on the dole because they do not qualify for it and that is an issue that perhaps could be talked about some time in terms of child poverty and child deprivation. The child could be working or could have an income and I accept that but that is not an excuse for putting a phrase into the legislation that effectively requires all children's means to be investigated. The Minister accepts what I am saying.
I am very grateful to Senator Ryan for his co-operation. In view of what he said I will, with my officials, have another look at this section. We will take into account what has been said and if we feel we need to strengthen it up for Report Stage we will put something forward.
I am very grateful for the opportunity to clarify one point in what I was saying because it is a very sensitive issue. I mentioned the question of Kincora. The Minister may have been surprised that somebody such as myself would specifically raise that issue and I would like to put on the record of the House what presumably the Minister knows that the principal aggressors in that case were heterosexual married men with several children. The statistics available in the past week from England demonstrate that in the United Kingdom 97 per cent of instances of child sexual abuse occur with heterosexual men as the agent. I say that because I expressed my concern about these situations. I am very grateful to the Minister for accepting Senator Ryan's amendment to include the word "suitable" but I felt that perhaps my mentioning of Kincora might be subject subsequently to misinterpretation. I wish to place that on the record.
I am very grateful to Senator Norris for his clarification. I can assure him I was not surprised.
I move amendment No. 6:
In page 7, line 28, after "available" to insert "suitable".
I only regret that our general housing legislation does not contain an obligation similar to that in the amendment to deal with homeless adults because I believe that the obligation however carefully qualified it has to be — and it is obviously a very carefully qualified obligation — is a necessary part of the provision. The section is still bothering me because of this and I am glad the Minister is going to have another look at it. However, I am not as happy as he is about the capacity of health boards to respond quickly. I hope his successor will remind health boards that these things have to be done, they have to be done on Saturdays and they have to be done on Sundays and they cannot just be operating from 9 a.m. to 5 p.m. on a five day week. That is one of the problems with large bodies and as a longstanding trade unionist I have every sympathy with people's rights to a reasonable working week.
If we are to deal with the problem of homeless children the way the Minister wants to deal with it then first of all one could raise questions about resources. That is one of the matters we could spend the whole year talking about here and I am not sure we would achieve any satisfactory results. The Minister might like to tell us what resources he or his successor are providing for the health boards to meet this obligation or will they have to do it out of their current budget?
Secondly, is he aware of plans to ensure that this obligation can be met in the way in which I think he intends, which is on a 24 hour basis, seven days a week? You cannot switch off the service for homeless children at 5 o'clock in the afternoon. It has to be available all day, every day and at weekends also. The two questions are essentially about resources and staffing and the accessibility of the health board service to young people and to homeless young people and, incidentally, the process of making contact through voluntary organisations, through people in them who would be able to help. What is necessary here is that the voluntary organisations — or anybody who meets a homeless child — ought to be able to get in touch with a contact point and say, "This child is homeless. What are you going to do about it?" and get, as the Minister said, and he was very emphatic about it, an immediate response — not tomorrow, not the next day — but immediately. That should be the objective of all of us, that no child should spend one night on the street. There should be no need for a child to spend a night on the street. That is what we all agree on.
I would like to know what plans are in train to ensure, first of all, that the resources are there to do it and, secondly, the resources are there to ensure that there will be an immediate reponse available, the way it should be, seven days a week for 24 hours a day.
May I thank Senator Ryan for his very warm comments about section 5? We are very committed to this whole Bill and section 5 is a series of important amendments that we brought forward during the debate on the Bill. This section and the Bill will have an effect on the situation pertaining to adult homeless. As we debate the Bill, it will become obvious that we are also concerned about people who may be homeless or who may be in care up to the age of 18 years. Under this legislation these people will not be the responsibility of the health boards, of the Department of Health, after the age of 18 years. However, we have put in a sort of a linkage with local authorities where we will be in a position to exert certain pressures on them to ensure that they take up where we leave off in situations where over 18 year olds would be homeless as a result of going out of care under the Child Care Bill.
We are totally committed to providing sufficient resources. It is not normal that before you pass a Bill funds are made available in any budget or provision made in the Book of Estimates. However, the Government were so committed to providing resources in this situation that we did include £1 million in the Book of Estimates and subsequently in the budget in anticipation that the Bill would be passed during 1991. I am very confident that with the co-operation we have here we will have the Bill passed in this session and it will be operative immediately thereafter. The resources will be available and thereafter we will be reappraising the whole situation and seeking further resources in the Book of Estimates later this year and into the 1991 budget.
I had better not make a habit of this but I want to thank the Minister for what he said. I am glad that there are provisions available but is he happy that the organisational arrangements are going to be made too? I am a little bit wary of health boards, they are under enormous pressure. A number of them, for instance, have attempted — and in some cases I think have succeeded — in reducing their funding to voluntary organisations dealing with the adult homeless on the grounds that that was now a matter for the local authority. It was never the intention of the Housing Act that the responsibilities of health boards in supporting voluntary organisations dealing with the homeless would be lessened. In fact, section 65 grants have been reduced in many cases — I know of some specific cases — on what I think are the spurious grounds that this is now a matter for the local authority.
It is that sort of organisational or managerial attitude in health boards that bothers me. I wonder, as well as making the money available, is the Minister making any effort, or is he aware of any efforts being made, to provide the structure on the ground which will make the service accessible. It is no good having wonderful accommodation for homeless children if most people in the voluntary organisations or in any groups who come into contact with homeless children, can only make contact at normal office hours.
The realities are that you will often only identify the existence of homeless children late on in the day, in the evening. That is when they become visible. In a crowded street in the middle of the day you would not be able to identify them. Is there a structure being developed within the health board service which will work in tandem with everybody else and which will accept the fact that children's homelessness becomes visible at inconvenient times in terms of large organisations? That is as important as the resources are, to actually change the mentality so that the service becomes available when people need it.
I want to assure Senator Ryan that I have the utmost confidence in the ability of the health boards to deliver the necessary services. We have been in constant communication with the health boards. From my personal involvement and experience with the health board over the years I am confident that there is no better structure to respond to the challenges that will arise as a result of this legislation being passed. We have had various sub-committees working with health board staff involved, particularly senior social workers and various other administrative officers. We are guided by those people and we are at present in negotiation to ensure that there will be 24-hour cover available, seven days per week. We are working on that at the moment in anticipation of the Bill being passed.
As regards the provision of accommodation by the health boards, we are confident that they will be able to respond as a result of the various discussions we have had. We have full confidence in that. Voluntary agencies also operate for the health boards and for the State in providing accommodation. We have no doubt that seven day cover and availability of both services and accommodation will be available as a result of the Bill being passed.
I move amendment No. 8:
In page 8, subsection (7) (c), line 34, before "when" to insert "either on its own initiative or".
Section 7 deals with the child care advisory committee and subsection (7) deals with the things that a child care advisory committee should do. Subsection (7) (c) states that the advisory committee shall report on child care and family support services in its area when so requested to do so by the health board. My view is that such a body should be allowed to take some initiative of its own. My amendment would say "either on its own initiative or when so requested". If we are going to set up child care advisory committees in each health board area then they should not be, if you like, beholden to the health board. They should be allowed to act on their own to study the child care and support services in the area and to do it not only when the health board want it but also when they believe it is necessary. It is a very stunted existence to give a body like that, if one of its major functions, which is to report on the quality of the services, can only be exercised when the Health Board Act asks it to. We have had considerable discussion about similar bodies in recent months here, when we were going through the Environmental Protection Agency Bill which states that the agency has a number of functions which it shall exercise when asked by the Minister or on its own initiative. In my opinion each child care advisory committee should be able to report on child care and family support services, but not just when the health board ask them. They should be able to do so when they believe it is necessary. That is the purpose of amendment No. 8.
There is much sense in what Senator Ryan said and it is very much in keeping with my own thinking. Obviously, he has thought out this amendment and there is much merit in it. I believe the inclusion of such an amendment would enhance the Bill.
I support the amendment. It can only, as Senator Finneran said, enhance the Bill. I am of the view that the child care advisory committees should play as meaningful and creative a role as possible. I see them developing a momentum of their own as time goes on and that would be very worthwhile for child care here. For that reason I urge the acceptance of the amendment as something that will improve the legislation.
I am in full agreement with this amendment because we would expect that the child care advisory committees would be acting on their own initiative in totality. It is very important to keep up the information and be able to link in to the support services. They cannot do that unless they know what the position is. It would be cumbersome to expect that the health board should request that information be made available. It makes great sense to include this amendment.
This subsection was not part of the Bill as introduced by the Government but was inserted by way of an Opposition amendment in the Dáil. Our approach to these committees was spelt out in subsection (1) which clearly envisages the committees being able to take the initiative in deciding what topics and subjects they will address and what advice they will give on them.
Subsection 7 (c) adopts a contradictory approach by providing that a committee would only report when requested by the health board. For the sake of consistency what Senator Ryan has proposed, and has been endorsed by other Senators, has much to commend it and I propose to accept the amendment.
I should like to thank the Minister. I think all my birthdays are coming together.
They are not over yet.
I move amendment No. 9:
In page 8, subsection (1), lines 41 and 42, after "prepared" to insert "and published".
The Minister, in a different incarnation, discussed with me freedom of information and freedom of access to information four years ago. Section 8 refers to the requirement of the health boards to have a report prepared on the adequacy of the child care and family support services available. Subsection (4) requires the health board to submit a copy of any report prepared under the section to the Minister. I would like to ensure that any such report does not become a private document but a public document. I do not want to get involved in a discussion about the niceties of drafting. It may well be necessary to amend parts of a report and would be confidential, though I do not think so given the sort of generalities involved in the section.
My amendment seeks to amend subsection (1) to read: "A health board shall, within 12 months of the commencement of this Part and annually thereafter, have a report prepared and published on the adequacy of the child care and family support services available in its area". As an alternative to that, if the Minister is not happy, we could amend subsection (4) so that the copy of the report prepared under this section and given to the Minister could then be published by the Minister.
I am increasingly concerned that large organisations must be publicly accountable, and they cannot be publicly accountable without public access to the information on which they work. Part of this information is a review. I am aware that the argument that often arises is that if this report is to be published the health board would be far more circumspect in their criticisms of the services. I do not think that is a valid argument, because if that argument was to be carried to its conclusion very little would ever be published on the grounds that it would be better to keep it private because people would talk more freely. I believe we would serve the objectives of this legislation in terms of developing public awareness and concern by ensuring that any such report prepared by the health board be published. That is the function of the amendment.
I support the amendment essentially on the grounds that the matters in the report should be of public interest and, in a democratic society, should be available to the public. We probably would need to publish the broad conclusions about the availability of services, buildings and so on. There may be specific detail peculiar to certain institutions that should not be published, or some specific comment that might prejudice good work. But the general conclusions, and the general state of affairs in relation to child care in a health board area, would be a matter of public interest and should be treated as such.
There may be a misconception to some extent here that such a report would not be published. I would not read it in that way. My interpretation is that to insert "and published" there would be usurping the powers of a health board. As a member of a health board I would feel aggrieved if it was not within my power to have whatever annual reports the board prepared brought before and discussed at public meetings of the board. People will appreciate that the monthly meetings of the board are public and that the press are present. Therefore, I do not support this amendment. It is interfering with to some extent, undermining or usurping my membership of a health board. It is the duty of members of the board and the chief executive officer to discuss annual reports. We are all aware of the annual reports before us on the ambulance service, the psychiatric service, care for the elderly, or whatever. They are discussed by the board at a public meeting. Interpretations are given by board members. I consider that they have the right to make those interpretations as members of that board. If the matter is to be taken further it can be done on a public basis. I do not think there is any intention not to publish. In fact, there is every intention to publish, but through the channel I have outlined.
The purpose of this section is to require each health board to prepare an annual report on the adequacy of the child care and family support services available in their area. Under section 33 the health board are under a statutory duty to provide such services, so this report will serve as a useful yardstick by which the board and their members can judge their success in achieving the objectives of the legislation. The intention is that the report will be submitted to and considered by the members of the various health boards.
As Senator Ryan is aware, and Senator Finneran has already alluded to this, meetings of health boards are held in public and there is usually a good attendance from the press. Thus, while the reports will not be formally published, I would expect that their contents would be widely publicised. I also believe that it would be useful if the board were to make copies of the report available to any of the bodies referred to in subsection (3) (b), whom it had consulted in preparing the report.
We would see this amendment as making it mandatory on the board to publish reports and we would see this as an unnecessary duplication of effort and wastage of resources. We believe that the reports should be put together. The health boards have a statutory duty to provide the services. They must report on those services. They are obliged to present their reports to the board members and the board members then can decide what action to takevis-à-vis the report; and as the meetings are always public meetings and the press would be available, the reports would get publicity. If we were to publish them, the situation could be that perhaps before the board members had an opportunity to consider they might find themselves in a straitjacket as a result of some misinterpretation of what is in an already published report. I would suggest therefore that on the basis of what I have said this amendment is not necessary.
Unless I am entirely wrong — which, of course, is remotely possible but not likely — in regard to the requirement that a health board will have a report prepared, that report will not be formally prepared by the health board until the health board have adopted it. Therefore, it cannot be published until it is prepared. The report becomes the health board report after the health board have accepted it, not while it is an internal document circulating through the bureaucracy. The board are the board; the entity is the health board, not the management nor anybody else. The section says that the health board shall have a report prepared. That action of having the report prepared will not be completed until the board have accepted that report; otherwise, it is only a draft report. I am not talking about publishing a draft; I am talking about publishing the prepared report. It should not be leaked until after it has been accepted by the members.
I would accept, incidentally, that if incomplete draft reports were to be published it would be both wrong in principle and wrong from the point of view of the members of the health board. I accept that fully. I know that there have been problems from time to time with sub-committees of local authorities where half reports, or incomplete reports, or drafts which have not been amended are leaked. It causes considerable controversy. Sometimes it is clearly an abuse of position by people to leak incomplete reports that are often inadequate or simply early drafts.
I am not talking about publishing drafts. I am simply ensuring what the Minister and Senator Finneran assure me is the case anyway, which is that these reports which come to the board will be published after the board has agreed them. I could understand if there was a possibility of incomplete reports being published before the board had approved them. It is not the chief executive officers who prepared this report, it is not the child care workers, it is the board who must prepare this report. Once it is prepared it should be published. I am not going to push this because the Members assure me that it will be published, but I am intrigued why people would resist specifically saying it should be published if they all accept that it is going to be published anyway.
I think there is a difference between a report becoming public and being published. We would have no difficulty with information becoming public. The board will consider the reports. The reports will be available to the board and their professional staff. The reports will be available to the Department of Health and their professional staff. If we are to put very scarce resources into publishing reports I do not see that this would be giving priority to what our desires are, and that is ensuring that there is an adequate level of child care services throughout the country. It is unnecessary to put the onus on the boards and these reports should be published. They are not the type of resources to be providing reports that are going to be made availablead lib to the public. The fact that the report is prepared by the board, discussed by the board, is available through the board to the public press, to the public at large and is available to the Department of Health is more than sufficient.
I did not realise it was the word "publish". I am not suggesting that health boards have to compete with Darton, Longman and Todd as publishers. I am simply saying that we should ensure that the report is available to the public. The sort of normal phrase that is used would be that copies of the report shall be made available to the public at a charge which shall not exceed the cost of copying the report. That is precisely what I mean by "publish"— that copies of the report should be available to the public and the normal wording is that the charge for making the report available shall not exceed the cost of copying it. That is the way to do it. I do not think that if someone wanted a large report from a health board the health board should have to publish limitless numbers of free copies.
If you want to, we can talk about publish and make available for sale at an economic price. I really think we are getting into the realms of the ludicrous here. I am inclined to withdraw the amendment on the grounds that I am not sure that the Minister is right in talking about the difference between "publish" and "making available to the public". But on the grounds that he has the expertise of the parliamentary draftsman behind him I will withdraw the amendment and perhaps have a different one for Report Stage.
It seems to me very clear that what the Minister is talking about is in fact a form of publication. You do not have to produce an unlimited edition in order for the thing to constitute publication. Publication can be done cheaply and effectively — the desk top publishing. You do not have to engage in the kind of exercise that Senator Ryan was describing. He instanced Darton, Longman and Todd — a reference no doubt to what he refers to repeatedly as his Church. I am very glad the Minister has the attitude that he has with regard to conserving the paper resources of the country and not causing excess cost to the Exchequer. May I say, for the record of the House, I greatly wish that this was an attitude shared by some of his Cabinet colleagues, because I receive endless copies of the speeches of the Minister for Foreign Affairs, done up in the most elaborate style, despite the fact that these things are already available on the record of the other House, which I receive automatically.
I welcome the parsimonious attitude of the Minister. I wish it was extended to his colleagues. But I would maintain what the Minister is talking about already constitutes publication. I think what Senator Ryan is interested in, and what I believe is appropriate, is the making of information available to the public in this area. If the Minister is satisfied that this is so done under the conditions he is talking about, which in my view constitute publication but not the kind of expensive publication he is talking about, then I think the situation is already met.
I move amendment No. 10:
In page 9, subsection (2), between lines 6 and 7, to insert the following new paragraph:
"(f) children who are homeless under the terms of section 5.".
This amendment has to do with the topics that will be discussed or will be reported on in this report that we were talking about a month ago. With the usual phrase "without prejudice to generality," it lists five different categories of children: children whose parents are dead or missing; children whose parents have deserted or abandoned them; children who are in the care of the board; children who are at risk of being neglected or ill-treated; or children whose parents are unable to care for them due to ill-health or for any other reason. My amendment would add to that list what I know we all accept to be an extreme category of need among children, that is, children who are homeless under the terms of section 5.
It seems to me that, as part of the ongoing commitment to deal with the problem, the Oireachtas has to ensure that we do not have homeless children in the future. It is important that we have an annual review of the numbers thereof under this review of services. It is an important service in the area of child care and child welfare that the health board would provide accommodation for children who would otherwise be homeless. It terms of the annual review it would be appropriate, and necessary that a specific sub-category be inserted into the categories on which they must report to identify the children who are homeless.
I would like to support what Senator Ryan had said. It seems to me to be important that we should deal in this list with children who are homeless under the terms of section 5. I would also have liked to see some provision made for children who are in a situation of sexual abuse. The Minister in the explanatory memorandum also very specifically lists these. He says:
... revised provisions to enable the courts to place children who have been assaulted, ill treated, neglected or sexually abused or who are at risk in the care of or under the supervision of health boards.
I suppose you cannot have an endless proliferation of categories, but it seems to me this is one the general public are very concerned about. In a sense I am straying a little because I am not speaking exclusively to Senator Ryan's amendment, which I think is a very important one. Perhaps the Minister might consider on Report Stage also including a category of people who are being sexually abused, in or are at risk of being sexually abused, in addition to Senator Ryan's amendment about children who are homeless, which seem to me again to be a major vulnerable category of people.
I accept the points made by Senators Ryan and Norris that it would be desirable to specifically refer to the young homeless here. However, I am advised that the amendment itself is somewhat defective. If Senator Ryan is prepared to withdraw his amendment I will have a suitable amendment prepared for Report Stage.
Will the Minister consider also the category of person I mentioned?
Yes, Senator Norris, we will certainly consider that.
I am quite happy to defer to the parliamentary draftsmen on the drafting of amendments. As a Department of Education inspector said to me one time, "The Department's view is... mind you, I have never met the Department." I hope some day in my parliamentary career to meet the parliamentary draftspeople. I have an image of them in my mind which I am sure is different from what they really are like, but they obviously are wonderous people with a wonderful sense of the niceties of the English language.
I have met them and they are delightful people.
Senator Norris meets people I do not often meet. I am quite happy to withdraw the amendment on the assurance given by the Minister.
This is a very familiar section in terms of its phraseology. It says:
A health board may, subject to any general directions given by the Minister and on such terms and conditions as it sees fit, make arrangements with voluntary bodies or other persons for the provision by those bodies or other persons on behalf of the health board of child care or family support services...
That sounds fine. What it has meant in other areas of which I have some knowledge is that it results in minuscule grants being given to voluntary organisations, that the arrangement that is made is a grant equivalent of perhaps 10 per cent or 15 per cent of the budget of an organisation. There is an identical phrase, for instance, in the Housing Act of 1988 whereby local authorities may, on such terms and conditions as they see fit, make arrangements with other voluntary bodies to deal with homeless people. In most cases that ends up with a contribution towards the running costs of whatever unit it is, which is minuscule in terms of the actual costs.
I would like to get some assurance that we are not going to have health boards, for reasons of severe financial constraint, able to walk off from their responsibilities by saying they have made an arrangement with a voluntary organisation when, in fact, that means a £10,000, £15,000, £20,000 or perhaps £30,000 grant which represents no more than 15 per cent or 20 per cent of the budget of the voluntary organisations. That is not the sort of partnership between the State and the voluntary sector that everybody talks about and everybody, including myself, makes fine speeches about. Partnership means some sort of relationship of equality. Part of that equality must be that where a voluntary organisation — and many of them can do the job extremely well and with considerable efficiency — enters into an arrangement it must be at a level of funding which is significant in terms of the cost of running the service. It cannot be a shoestring way of doing something; it must be real, substantial funding. I do not expect the Minister to say he will fund them all 100 per cent but I am unhappy with the way that sort of phraseology in other legislation has actually been applied by the local authorities in the case of housing. I am just worried that the health boards will do something similar.
I accept a lot of what Senator Ryan says. I can assure him I do not propose to fund these bodies 100 per cent, and I do not think they would want us to do that. It would be unfair to them, because we must respect the existence of many of these bodies for many years and the tremendous work they do. It would be unfair if the State was to impede the flexibility, the level of service and the type of structures and systems of funding within which they operate. However, we must also ensure that flexibility is available to the State through the health boards to assist these bodies. Perhaps some may be under financial pressure for one reason or another and it may be in the interests of the State, through the health boards, to come to their rescue rather than have some of the services they provide go out of existence. It certainly would be in the interests of the State that they would assist with funding, give additional funding, recognise the role being played and have a reasonably balanced structure whereby these organisations would know they were entitled to a specific amount of funding or a standard amount of funding; or in cases where they were being asked to provide a new service on behalf of the State, which they had the expertise to do and which the State may not be able to provide at a particular time, that the State, through the health boards, could provide funding.
I would like to pay tribute to all of these bodies for the wonderful work they do. I hope the necessary resources will be available to ensure that they will be able to expand and continue the level of service they are giving right across the board. The State in itself could not afford to fulfil its social and statutory role without bodies and organisations like these. It is good that we would have this type of public/private voluntary mix in the interests of the best level of care and human service for people.
This applies to a considerable part of Part III as well and we can discuss it on section 13 also. What steps are in train or what currently is available to provide training for the Garda in this difficult area? As one who frequently has become involved in wrangles about criticising the Garda, I have to say that my experience of the Garda in dealing with areas of social distress is that in many cases they can often be a lot more committed to the people involved than some of those in the caring services. I know this from my involvement with homeless people. The Garda can show a degree of sensitivity and flexibility that is a great credit to them in the way they deal with often difficult people.
This is a very difficult area for the Garda and I would like to know what training will be available to them. It could be a problem for any garda in a particular situation where something had to be done quickly. We should ensure that they are actually trained in terms of what they will be doing.
The second issue that arises is the question of the expertise of the Judiciary, particularly district justices. It is a very delicate matter and one could get into hot water dealing with the Judiciary. It is a specific area and one which I would like to have some feeling that there will be people on the benches of the district courts who have some training. I am not casting any aspersions or making any comments. It is a demanding and distressing area, and people are needed to deal with at the judicial level who have proper training.
Finally, we must remember that there are in many of these cases quite distressed parents who will often feel that they have been hard done by. What is their position in terms of legal aid if they want — and they have a right — to contest the various orders? Do they have to fund it out of their own resources? This would concern me because it would be much earier, for instance, to take all the various actions involving children of parents who are poor than to take similar actions involving children of parents who are very well off. In the case of poor parents you could have a fairly smooth ride through the courts because they would not be able to afford to take legal advice, to get legal aid, or get a solicitor or barrister. Will legal aid be available or how will the parents be legally represented if they cannot afford a solicitor? There are three questions there concerning the Garda, the parents, the Judiciary and legal aid.
This is a very important section. I want to assure Senator Ryan that the Government have looked at every aspect of Garda training. As the Senator knows, we have changed the whole system from a six months crash training course to a very detailed academic and practical course of two years' duration. I visited the Garda Training College and had discussions with the Garda authorities and I am absolutely certain that the modern training being given to all gardaí is equal to anything in the world.
We can be absolutely certain, with the environment in which they operate, the technology and the aids available to them, the structures, the system, the excellent training they undergo in regard to real life situations, in all types of crime and other problems, that the modern garda is one of the best trained people of any profession in the world at this time. I am pleased to be able to say that here. From my knowledge I have no doubt that they are being well trained in the child situation, in handling all kinds of human situations and I do not visualise any difficulties in this area.
On the legal side, as the Senator knows we have brought for the first time into a Bill like this a right for legal representation for the child in particular. It will be a matter for the court to decide who pays for that legal representation. There is great flexibility and that is something everybody welcomes.
I know how dramatically improved the Garda training is, but I am concerned that, of necessity, a significant number of the Garda Síochána will not have had the opportunity to go through this sort of very good training system that is now available but will have gone through an older system which was far less developed and which everybody, including the Garda's own representation association recognise to be inadequate. It will not just be the new gardaí who are coming out of the new training courses who will have to deal with child care problems. It will be all of the Garda Síochána. I would like to know if there will be any provision to make sure that all the people who missed out on the excellent training will at least in this difficult area be given some training so as to understand and be able to deal with the problems.
The Garda Síochána authorities have done a tremendous job in providing constant regular in-service training courses for all members of the force from the rank of chief superintendent downwards. They hold regular in-service training courses, and conferences, and all situations are taken in a modern context. The most up-to-date information is made available. Where gardaí have a particular function, like juvenile liaison officers, community policy and various other responsibilities in Garda stations, they are constantly involved now in new in-service training.
What about the Judiciary? I say this very tentatively because I am treading on dangerous constitutional ground now. District justices are only human beings, I am sure I am allowed to say that without being disrespectful. Is there any way in which the increasing skills of the Garda, the increasing commitment of the health boards and all other things that are implied or contained in this legislation, can be utilised so that the other side of the equation will become equally skilful, trained and knowledgeable? Can we do anything to ensure that those who deal with these cases on a day-to-day basis will be operating at the same level of perception, knowledge, information and understanding as everybody else? There have been problems from time to time with district justices dealing with areas like child care, custody and all those issues. There can be considerable unevenness, to say the least, in the decision-making at that level. Is there any way steps can be taken to ensure that those who deal with these cases are people who from the point of view of personality, background and training are suitable for the job.
Personally, I believe that we are all equal, that we are all doing the same job in different ways. However, we will have various levels of expertise, given the background we come from, the training we have, the opportunities that are presented to us. The Judiciary are in a very particular position. The Constitution places a particular responsibility on them. It also gives a particular role to us as legislators. As regards the various cases of child sexual abuse and other child problems that have come before the Judiciary over the last number of years, it can be said that they have handled them with great skill and expertise. I am quite confident that, given the demands on the Judiciary, they, at any particular time, will make their own decisions, their own arrangements,vis-à-vis any particular situation.
Amendment Nos. 11, 15 and 16 are related and may be discussed together.
The purpose of these amendments is to insert references to assessment in section 13 and 18 of the Bill. This is required in order to place beyond doubt the right to undertake a medical or psychiatric assessment of a child placed in care by the courts whether under an emergency care order, an interim care order or a care order. The Bill already provides for medical and psychiatric examination or treatment of children in such cases. For the sake of completeness this has been changed to medical or psychiatric examination, treatment or assessment.
I move amendment No. 12:
In page 11, subsection (7) (a), between lines 40 and 41, to insert the following new subparagraph:
"(iv) the educational needs of the child."
This amendment refers to subsection (7) of section 13 which lists the directions a district justice may give. Subsection (7) (a) states:
Where a justice makes an emergency care order, he may, of his own motion or on the application of any person, give such directions (if any) as he thinks proper with respect to...
The section lists a number of things, (1), the address or location of the place, (2), the access of parents (3), the medical or psychiatric examination, assessment or treatment I believe of equal importance should be the educational needs of the child. After all, the right of every child to primary education is guaranteed under the Constitution. It is as important a part of a child's development as medical or psychiatric help. It seems to me that it would be not just appropriate but necessary that a district justice should be entitled, where he sees fit, to make a direction so that the educational needs of the child are met.
The decision about the emergency care order and the details of how it is to be implemented cannot be separated from the fact that the child's educational needs must in terms of access to a decent school so that whatever schooling the child is receiving and be continued while the emergency care order is in operation. Therefore, it seems to me that it would be appropriate to have the amendment inserted.
This section deals with emergency care orders. I stress the word "emergency" because it should be noted that this type of order expires after a maximum of eight days. It is, therefore, a short term order and responds to an emergency. Subsection (7) must be viewed in the light of this. It sets out what directions may be given by a district justice while an emergency care order is in force, that is during a maximum period of eight days. It is difficult to envisage what directions would have to be given during such a short period of time in relation to the educational needs of a child. If, for example, the child had been sexually abused or physically assaulted the primary concern would be to ensure that he or she received appropriate medical examination and treatment and any necessary psychological support. In such a case, there would probably be a temporary interruption of the child's schooling but in the circumstances I think we would all agree that this is reasonable.
It may be, however, that what Senator Ryan has in mind is enabling a justice to give directions as to the educational needs of a child on a longer term basis. If that is the case I would make a number of points. First, this is not the appropriate section to insert such a provision dealing, as it does, with the short term eight day order. The appropriate place for such a provision would probably be section 18 which deals with full care order. Second, under section 10 (2) responsibility for the care of the child is vested in the health board. This would include responsibility for ensuring that the child receives a proper education. In the light of the provisions of that section, I would suggest that there is no need to insert a provision empowering the justice to give directions as to the child's education. In all the circumstances I would ask Senator Ryan to consider withdrawing this amendment.
I am overwhelmed by the Minister's logic and I withdraw the amendment.
Subsection (2) reads:
For the purposes of this section, a person shall be deemed to have been informed of the placing of a child in the custody of a health board under section 13 if he is given or shown a copy of the emergency care order made under that section or if that person was present at the sitting of the court at which such order was made.
The point has been made to me that there ought to be some obligation to explain verbally, particularly to parents, what has happened and tell them they have rights under this legislation and under the Constitution. I do not think putting the needs of the child first, which is what we all accept, should mean ignoring the rights of parents. It is a difficult and stressful time for everybody involved. Anybody who works in the area will tell you that separating parents from their children or children from their parents is very traumatic.
The section as it stands is a little bland in that it says showing people a copy of the emergency order or giving it to them is sufficient. I can understand why we do not want a complicated set of legal obligations which could be used to hinder the implementation of an emergency care order. I have no problems about that, but in terms of the guidelines the Minister issues, the guidance that is given or in some other way, we should ensure that parents have it explained to them in simple language what has happened and what their rights are. It is not in any way against the objective of the legislation to make sure that the care order, or whatever procedure is being taken, is explained to the parents in simple English or to whoever should be told, and they should be made aware of their rights. They should not have to go through a complicated search to find out what their rights are. That serves no purpose and makes a difficult situation even more difficult for everybody.
What Senator Ryan is saying is very reasonable. We have taken cognisance of that in the Department of Health. We have had discussions with the health boards. Guidelines are being drawn up and already some boards are making special leaflets available to parents outlining what their position would be, what services are available, what their rights are and where they can go to get free legal aid and so on. We have had discussions and the attitude we will be adopting will be the most open, informative, and human possible to ensure that in this traumatic situation the parents are fully alerted to what happened, and we will ease their burden as best we can.
This amendment is grouped with amendments Nos. 25 and 26. The amendment to section 18 is a technical one which has been recommended by the parliamentary draftsman. It deals with cases where a court decides not to make a care order until the child reaches 18 years but instead makes a care order for a shorter period of time. Where the court makes a short-term care order it is important that it should have the ability to extend the order later if that proves necessary. At present section 22 (a) provides that the court may renew a care order. I am advised that the provision of section 22 is too vague and that some criteria need to be laid down as to the circumstances on which are orders may be renewed or extended.
The amendment to section 18 deals with this by providing that a court may extend the care order if grounds for the making of a care order continue to exist with respect to the child. I believe that this formula provides better safeguards for the child and its parents against unnecessary or excessive extensions of care orders. If this amendment is accepted it is proposed to delete the reference to "renew" at section 22.
This amendment is a technical adjustment to bring the wording in subsection (2) into line with that used in subsection (1). At subsection (1), lines 12 and 14, reference is made to the child's health, development or welfare whereas, in subsection (2), line 28, the reference is merely to the child's welfare. For the sake of consistency and completeness the reference should be "to the child's health, development and welfare" in both subsections.
Amendments Nos. 17 and 18 are related and may be discussed together.
I move amendment No. 17:
In page 13, lines 43 to 46 and in page 14, lines 1 to 3, to delete subsection (4) and substitute the following new subsection:
"(4) Where, on an application for a care order, the court refuses to make the order sought, a separate application can be made to court for a supervision order.".
I contacted the Labour Party this morning. Unfortunately they are not able to be present and I am happy to move these amendments on their behalf. I know the Minister will give a considered response to this amendment. Perhaps he will agree with it because it allows for a situation where, if there is an application for a care order and the court refuses it, this does not close off the possibility of a supervision order being made. This could be quite important because if the court decides to reject an application for a care order it still leaves open the possibility that if the situation is viewed as being less serious or in some other way different, then a supervision order could be applied by the court. I am happy to move this. Even if it is not agreed I can leave it on the record so that the Labour Party, if they have returned to favour by the time Report Stage comes, can make their own arguments. The same goes for the related amendment, amendment No. 20.
I am not sure I am at one with my colleague, Senator Norris, on this. This is a slightly complicated area about which I am not too knowlegable. The point has been made to me that it would be preferable to deal with care orders and supervision orders at separate hearings. The point was made by a number of people working in the field that it would be better in terms of dealing with the problems to have care orders and supervision orders dealt with separately. That is the purpose of may amendment. I will be interested in the Minister's reply.
Did I hear Senator Norris correctly, that he moved amendment No. 17?
In response to amendments Nos. 17 and 18——
Amendment No. 20 is being taken with it. Is that correct?
That is not correct.
The original version of this provision was the subject of a great deal of discussion in the Dáil and I brought forward amendments on Report Stage to deal with the concerns that had been expressed about it. It now provides that where a health board apply for a care order and the court is satisfied that it is not necessary or appropriate to make a care order but that it is desirable that the child be visited in his home by the health board the court may instead make a supervision order.
This is a sensible provision which ensures that where the evidence or the circumstances of the case are not sufficient to justify the making of a full care order the court will still have the discretion to grant a supervision order. I am sure that some commentators have suggested that this will be used as a safe option by the courts and the result will be that health boards will have to settle for supervision order in certain cases in which a care order is what is required. I do not accept this view. I believe that over the last few years, in particular, the courts have developed a great deal of expertise and skill in dealing with child care matters. We can depend on the experience and expertise of the Judiciary to weigh up the evidence before them and to decide on the type of ward appropriate to each individual case.
In any event, as it becomes clear that the supervision order is not working, that it is insufficient to ensure that the child is properly cared for and protected, there is nothing to prevent the health board returning to the court, within days or weeks if necessary, with a fresh application for a care order. In view of what I have said I appeal to both Senator Norris and Senator Ryan to reconsider their amendments and withdraw them.
An Leas Chathaoirleach
Is amendment No. 17 being pressed?
No. That leaves it open for the Labour Party to introduce it and to make their own arguments on Report Stage and I am happy with that. The Minister has made a very reasonable response.
I believe Senator Norris will be pleased with this because this is purely a grammatical correction.
I am ecstatic. Wonders of the comma never cease to tease and delight my little pedantic soul. I thank the Minister.
I move amendment No. 20:
In page 14, subsection (5), line 7, to delete "or may make a supervision order in respect of,".
Is the amendment being pressed?
No. Could we have a response to it? It would be quite valuable because that would mean that my colleagues in the Labour Party could consider re-entering it for Report Stage.
I agree with Senator Norris that it is better to have it on the record and let the Labour Party decide then what they wish to do for Report Stage. I am surprised at this amendment. I say this because this phrase was inserted in the Bill on Report Stage in the Dáil with the full agreement on all sides. Its purpose is simply to enable the court to make a supervision order during the period when an application for a care order is being considered. As the House is aware, it may take a few weeks before a decision on a care order is reached. This provision enables the court to place the child temporarily under the supervision of the health board in the meantime. It can be seen, therefore, that this is a useful provision which we should retain in the Bill. I regret that I would not be able to accept it because we debated this at length on Committee Stage in the Dáil and the House was unanimous in accepting it. It is a temporary situation that at least the child's needs for special protection are taken care of until there is ade facto decision taken by the courts on the matter.
Again, in order to ensure that everything is in order — I am sure Senator Norris will again be pleased — this is another grammatical correction which simply deletes the word "or" and substitues the comma.
This is not my usual position on these issues. The penalty for a person who fails to comply with the terms of a supervision order, by modern day standards is relatively mild. Subsection (5) states: "shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £250." Given the sort of draconian enthusiasm that many of my colleagues in both Houses of the Oireachtas have for penalties, a fine of £250 seems relatively light. Is there some thinking behind this and how do a Government Department drafting legislation land on a particular figure and decide it is an appropriate penalty?
I agree with Senator Ryan that the amount seems very small by contemporary standards. For that reason I support the amendment.
Basically, I have an open mind on the situation. To be honest, we debated this at some length and we arrived at £250 because we felt we were dealing with people in a traumatic distress situation. In many cases there may be serious social problems in a family and they may be under severe pressure. We felt that putting in a bigger fine, perhaps to £1,000, would be unwarranted and it would not be feasible to be looking for that type of money from people in a situation where they would be seriously distressed, under personal pressure, physical pressure, financial pressure and serious mental and traumatic pressure. We thought that the sum of £250 was striking a fair balance. Perhaps the House might agree with that.
This is to correct a mistake that arose when this section was inserted in the Bill on Report Stage in the Dáil. The word "infant" is incorrect and should be "child".
Amendments Nos. 27 and 28 propose minor technical changes. The word "interested" is not used in other sections of the Bill; for example, section 20 (1) and section 26 (1) refer simply to "any person". I am advised that for the sake of consistency the same format should be used throughout the Bill. Hence it is proposed to delete the word "interested" in this case. It would be for the court to determine in each case whether a person has a sufficient interest in the case.
Having received a reproof from the Minister earlier about the need for consistency in amendments I am glad to see that the Minister is following his own advice.
I would like to hear something on this amendment from the Minister. It is a strange provision. I have pencilled in perhaps offensively and unfairly on the side of my copy of the Bill: "a licence for sloppiness". The Bill states, "Where a court finds and declares in any proceedings that a care order for whatever reason is invalid the court may of its own motion or on the application of any person refuse to exercise any power to order the delivery or return of the child to a parent ...". It would be foolish to insert in all legislation the provision that if a higher court finds that what was done in a lower court is invalid they can still go ahead and do it if they think it necessary. I am unhappy that we would circumvent the judicial process by double-guessing people so that the courts would not be as much of a remedy as they might and people would be subject to something close to double jeopardy in that instead of having the decision of a lower court ruled on by a higher court the case would be adjudicated on for a second time. I am not saying that I oppose it but I would like to hear the basis for its justification. I know of a particular case which produced emergency legislation on child care some years ago and I wonder if it is to avert any such event in future that this section is inserted?
We debated this matter on two occasions at a meeting of the special committee. When the Bill was originally published we proposed that if an order proved to be invalid for a technical reason or otherwise the court had no option, irrespective of whatever environment or circumstances the child found itself in, but to return that child to the same environment even though that could be detrimental to the child. We had discussions with the Attorney General and discussions on Committee Stage and this section was agreed as a result of those proposals and discussions.
This section seeks to get around the original difficulty by providing that where a court finds a care order invalid it may refuse to order the return of the child to its parents if this would not be in the child's best interests. It may either make a fresh care order or remit the matter to the relevant District Justice so that he can consider the need to make a fresh care order. Technically, what that means is that if a child in respect of whom an order was given in a particular district area now found itself in care in another district and that care order was found invalid the District Court in the new area could make a fresh order or taking into account all the circumstances it could refer the child back to the original District Court who could take a fresh look at it and make a final conclusive order. The underlying thrust of this section is to safeguard the well-being of the child. We do not want to leave anything to chance or permit technicalities to take precedence over the well-being of the child. That is the reason for this section.
I appreciate the enthusiasm. This section genuinely bothers me and I am not talking about anyone's good or ill will. Under criminal law, for example, there is a guy walking the streets of Cork who was convicted of murder on a confession signed 48½ hours after he had been detained under the Offences Against the State Act and he was freed by the Supreme Court because he signed the confession half an hour outside the permitted detention period of that Act; his confession was found not admissible as evidence. There was no other evidence against him and, therefore, he was freed and there were other related issues. If we had similar legislation to the proposed section here under criminal law the Supreme Court say: "Even though the lower court's decision was invalid, on the basis of the evidence available we think you are guilty." I know the Supreme Court does not operate like that but I have my doubts about the constitutionality of this section although I appreciate the motivation.
I worry that health boards may consider that as long as they have a plausible case, the legal niceties need not trouble them too much because if somebody contested a case in a higher court the legal niceties would not be at issue. We are a law-making society; the law protects us all from each other and the law must operate properly although it can be a nuisance. One can understand people's concern about the technicalities in the criminal law, in civil law and in this area of child care but at the same time I have my reservations about this provision. There is a slightly Kafkaesque tone about this provision and one could imagine parents in the centre of it all feeling they had got somewhere and then discovering they were actually back where they started. I am not going to make a big issue out of this but I am less than happy about it.
We should ensure that this legislation is not defeated on technical grounds in any court which would not be unprecedented. The case of Duggan v. Evans concerned technical defects in summonses and it was decided that in the court a District Justice, Circuit Court judge or garda had power to amend summonses there and then and not have the cases thrown out on a simple technicality. I accept the trend of Senator Ryan's comments but this legislation is very sensitive and caring. What is being proposed is to ensure that a technicality whether at district or circuit court level should not overturn good work done as a result of a particular order. I cannot accept that it may be deemed unconstitutional because there are precedents. If it is included in this legislation it will be effective. It is a wise provision and it would be a pity to omit it.
Senator Ryan has made me a little worried by his arguments which I think were well founded. I was hoping that we would move on rapidly because I want to get on to the question of the guardianshipad litem. The powers here are very broad and are not, as my learned colleague, Senator Donovan said, just for a technicality. The wording is quite clear here: “for whatever reason is invalid” and it can be on the courts own motion or on the motion or any interested person. I would be very worried if something which is invalid could be retrospectively validated no matter what the reason for its invalidity by a motion of the court or of an interested person or party. I say this because of a long history in England, for example. In a case in Orkney the rights of parents and of children were violated by just such an intervention by a well meaning interested party and there was a refusal by the court to return the children. The children were inteviewed after that and there was no doubt whatever that the rights of the children were violated under those circumstances. I think there was a similar case in Leeds. Before we award these very remarkable powers we need to be quite sure that they are justified.
I am not a lawyer but this is a very important section. We had discussions with the Attorney General as I said and there should be no doubt that the purpose of the Bill is to protect the child at all times. Going back to the point that Senator Ryan made earlier, I do not think one can compare this section to the Offences Against the State Act. While I am not a lawyer I believe that if the person he referred to did commit this murder was detained for 48½ hours and got away in the Supreme Court on a technicality he could be rearrested under the Offences Against the Person Act. That would be my personal view and, perhaps, I am wrong.
The primary purpose of this Bill is the well being of the child. I suggest that: It has been discovered that there is a defective order and there is a case before the court for the second time that court can of its own motion, taking into account all the circumstances, make a new order. If it does not want to do that it can refer the case back to the original court where the first order was made to allow that court make its own decision. In the interests of the child we must allow that flexibility. We cannot have a situation where the well being, future, security and care of a child is to be decided on technical defects. That cannot be allowed to happen because a child is not an adult. An adult is physically and mentally stronger and is better equipped to accept or respond to whatever decision is taken. We must ensure that where there is doubt or defect, the child's vulnerability is not compounded; consequently, this section is of vital importance.
This is my last contribution. I am not going to oppose this provision. It has been discussed in considerable detail. I would have been much happier if it had been drafted in terms which referred to technicalities but, as Senator Norris said, it states: "declares in any proceedings that a care order for whatever reason is invalid", whatever reason it thinks. Even if a court finds profound reasons why it is invalid we are inviting it to adopt a procedure which is somewhat peculiar. I am going to say no more other than put my own reservations about it on record.
I would not like any doubt to linger about the situation because the interest of the child and the liberty of people are at stake. We are saying that the court may, if it feels it to be in the interest of the child; it does not have to. Taking into account all the circumstances, information and professional advice available it may then make a decision; it is not bound to do it but it may make it if it feels it is in the best interests of the child. That is very important.
I move amendment No. 29:
In page 16, line 41, after "shall" to insert "in all such proceedings".
This is an amendment that was made available to me and I am happy to move it. All it seeks to do is to strengthen what is already there. The section would then read: "In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of the parents, whether under the Constitution or otherwise, shall in all such proceedings"——
I welcome the Minister for Justice to the House and it is nice to see him here for this very important Bill. In response to Senator Norris' amendment No. 29 I say that it is not necessary. Line 38 already provides that in any proceedings in relation to the care and protection of children the court shall have regard to certain matters. The phrase that the Senator is suggesting would simply duplicate this and I suggest that perhaps on reflection he may wish to withdraw the amendment.
The Minister has read my mind.
I move amendment No. 30:
In page 16, paragraph (a), line 42, after "child" to insert "and the need to safeguard and promote the child's best interests".
This is inarguable particularly since the Minister said that the paramount issue is the well-being of the child. This directs the Bill back on to the need to safeguard and promote the child's best interests. The section as it reads talks about the welfare of the child but it would make it much stronger if we talked about the need to safeguard and to promote that welfare. It gives far more urgency to the Bill at this point.
I would be very reluctant to change the form of words in section 24. First, I would point out that the formula used here is broadly similar to section 3 (2) (b) on page six of the Bill which we have already agreed. This form of words already appears in the Adoption Acts and in the Guardianship of Infants Act. In our discussions and deliberations on this Bill we have taken great care to ensure that there is a line of consistency between the Adoption Acts which refer to children, the Guardianship of Infants Acts which also refer to children, and this Child Care Bill and the Children Bill, 1989. Because of that, I would be grateful if Senator Norris would consider withdrawing this amendment.
I am happy to withdraw it. I want to get on, if possible, to the questions regardingad litem which is the substance behind this kind of introductory ramble. I am not pressing the amendment.
I move amendment No. 31:
In page 16, paragraph (b), lines 45 and 46, to delete "of the child" and substitute "and feelings of the child and ensure that these wishes and feelings are made known to the court".
Amendment No. 31 provides a kind of ethos for the question of guardianshipad litem, which is what I am really interested in. The Minister will be aware that there is very widespread support in the House and among the caring agencies for this concept of guardian ad litem. As it reads at the moment the section says: “...in so far as is practicable shall give due consideration, having regard to his age and understanding to the wishes of the child”. We wish to insert there not just the wishes but the feelings of the child and to ensure that these wishes and feelings are made known to the court. It is very important that the wishes and feelings of the child should be available and that the court should take them actively into consideration.
The whole purpose of this provision is to require the court to consider the wishes of the child as far as possible. We have clearly listed throughout the Bill that the wishes, the interests, and the position of the child must always be the overriding factor. I would be reluctant to accept this amendment for the same reasons I opposed amendment No. 30, that is, because we do not and should not depart from the formula that is used in the other Acts referred to in relation to children. There has been a line of consistency in these Acts and it is important from a legal interpretation to ensure that the courts can clearly have a consistent trawl of legislation available to them pertaining to child and children matters; that they can interpret this situation from the various Acts and that at the end of the day, taking into account all the information and advice available to them, they are able to make the best decision possible in the interests of the child. On this account, I would be grateful if Senator Norris would withdraw this amendment.
Amendments Nos. 33, 35, 36, 38, 39, 40 and 41 are out of order as they involve a potential charge on the Revenue. Amendment 32 is a Government amendment and may be discussed with amendments——
I accept this ruling but I deplore it and I would like to take this opportunity to appeal to the Minister. The Minister will recall that I made a very detailed submission on the question of guardianad litem on Second Stage and I would hope that on Report Stage the Minister might give an indication that he will introduce something like that.
If the Senator wishes he can deal with that when we are dealing with the section.
It is normal practice that if amendments are ruled out of order some communication is received by the Members. In the past when I have had amendments ruled out of order I received a communication from an Cathaoirleach to inform me that my amendments are being ruled out of order.
I understand a communication is on its way to the Senator.
That is not much consolation——
Could I give to the Senator a chance to respond to——
I am not going to fight about this, but it is not good enough that on the morning of a Bill, I stand up here in the middle of proceedings to be told by the Chair for the first time my amendments have been ruled out of order. That is not good procedure.
I understand that some of those amendments were received as late as 8 p.m. yesterday, which is possibly the reason you have not received a communication.
They were not mine.
I corroborate that because I am aware of amendments being submitted yesterday evening.
The Minister gave an indication that he was going to respond in some way to this.
That will be dealt with on the section. Amendments Nos. 32, 43, 46, 47, 49, 51, 52, 53, 55, 56 and 57 are cognate and all may be discussed together. I call on the Minister to speak to amendment No. 32.
I have considerable respect for this House but I have never had such a list of amendments read out without a sheet of paper in front of me to tell me what we are doing. It is not good enough and it is not your fault.
It is not the Chair's duty——
I do not understand what is going on, but it is not good enough.
This is the first in a series of technical amendments required to update cross-references between Part V and Part VI of this Bill. The need for this arises because of the extensive changes made to these Parts during the debates in the Dáil. We are synchronising the cross-references, making sure that we are consistent throughout the Bill, to ensure that the Bill makes natural and grammatical sense. There is no change in the effect; the amendment includes and improves the wording and cross-references in the Bill. I hope this is to the satisfaction of the House.
Nobody is arguing with the amendments. I am disappointed however as our normal way of dealing with things in this House seems to have fallen apart this morning.
I move amendment No. 34:
In page 17, subsection (2), line 13, to delete "solicitor" and substitute `a named solicitor in the Local Law Centre appropriate to the Court area".
This amendment, put down by Senator Manning, seeks to link up with the free legal aid structures. Senator Manning sees this as the appropriate vehicle in this case and from every point of view I think this is the way we should do it. I urge the Minister to accept this amendment and await his response with interest.
I accept what my colleague says. To my knowledge, local law centres are usually located in large centres of population. In my own constituency the District Courts and health board centres are 80 miles or so from what I would call the local law centre. Even though the concept is good and possibly valid, I do not think it would be appropriate in all cases. Perhaps I misunderstand my colleague about this.