Child Care Bill, 1988: Committee Stage (Resumed).
Debate resumed on 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".
—(Senator O'Reilly.)
Amendment, by leave, withdrawn.
Amendments Nos. 35 and 36 not moved.
I move amendment No. 37:
In page 17. subsection (2), Lines 14 and 15, to delete "and give directions as to the performance of his duties".
The purpose of this amendment is to delete the words "and give directions as to the performance of his duties" in that we feel that to leave it as it is is too directive. We feel it would be appropriate that the solicitor would use his discretion in dealing with the case and that he might bring in other child care-workers and experts. It might be appropriate to call on the services of social workers, teachers, child psychologists, etc. We think that to give actual direction to the solicitor in this case is too specific and is narrowing it too much. I would urge the Minister to and not narrow the options of the lawyer in this case. I think it would be a helpful amendment and would improve the Bill. I await with interest the response to it.
This entire section has been very carefully drafted by the Attorney General. I would be reluctant to change it in the way proposed in this amendment. What this subsection provides is that where a child is made a party to court proceedings the court may if it thinks fit appoint a solicitor to represent the child. Where it does so, the court may again if it thinks fit give directions to the solicitor as to the performance of his functions including directions in relation to the instruction of counsel.
The need for this provision stems for the fact that the child himself may be too young or immature to understand fully the nature of legal proceedings, let alone to give instructions to counsel. This provision enables the court to see to it that the interests of the child are properly represented and protected in the course of the proceedings. The focus of this provision is on protecting the child's interests and in view of this I would ask Senator O'Reilly to consider withdrawing this amendment.
I must say I would be reluctant to support Senator O'Reilly on this amendment. I do not have the sufficiently elevated view of the competence and the committment of all members of the legal profession to be happy to leave them dealing with work like this without being under very careful scrutiny from the court to make sure that they carry out those duties with this sort of sensitivity and with the thoroughness, diligence and efficiency that would be required. I would be quite happy to leave it within the power of the court to give directions to the solicitor appointed as to the performance of his duties.
Amendment put and declated lost.
Amendments Nos. 38 to 41, inclusive, not moved.
Government amendment No. 42:
In page 17, subsection (5), line 29, to delete "subsection (3)" and substitute "subsection (4)".
This is purely a technical correction and I am sure the House can agree to it.
Amendment agreed to.
Question proposed: "That section 25, as amended, stand part of the Bill."
Would the Minister agree that there is need for a person other than a solicitor to look after the interests of the child — there is no reference to this in this section — to represent the child's interese vis-á-vis the health boards and in all sorts of other areas in terms of the emotional well-being of the child, in terms of the needs of the child and also in other areas? The phrase that has been used is “a guardian ad litem” and amendments in regard to it, as you know, were ruled out of order, probably quite correctly. It appears to me perfectly reasonable to rule them out of order, but that does not prevent us from raising the issues now. I would like the Minister to explain to us his own thinking on the issue of a guardian ad litem or whatever term he wishes to use. A considerable body of professional opinion has been passed on to a number of us about this issue. I do not think the reason for refusing if, or the reason for it not being here, is financial. I accept that it is not simply a question of resources. I accept that there may well be other arguments and I would like to hear them.
I am very glad that Senator Ryan brought this up. A number of amendments that were ruled out of order were in my name. I think it is appropriate to say a little bit here. The Minister did indicate that he would take a look at this, and perhaps a Government amendment might be forthcoming in this area. There has been universal support of it. I made some considered arguments on Second Stage and it would not be appropriate to repeat them here, but Senator Ryan is quite right when he says that there is room and a necessity for another person and such provision has not been made in this section. After all, the courts system tends to be adversarial and in this adversarial situation the rights and well-being of the child can very often be lost which would be a great pity.
May I also point out that there has been a developing court practice of justices appointing guardians? This creates an anomaly because a person is appointed to a position that does not legally exist. The people appointed normally are psychiatric social workers, or child guidance people and so on, but it is interesting that case law is developing along this area so there is a kind of organic development within the court system although the position of guardian ad litem does not actually exist. I join with Senator Ryan and I would be very interested to hear what the Minister has to say. I hope that having consulted with his advisers and with people involved in this area he will introduce this clause himself as it is clear that an amendment of this kind is not contemplated for introduction in the Seanad.
I support this suggestion. Court cases may involve children of a very tender age who often display suprising maturity under difficult circumstances and it is essential that child care professionals be available to explain the situation to the child rather than a legal professional who would not have the same child care qualifications or professional understanding of the difficulties experienced by a child in these circumstances.
I support this also. It would be helpful to the child to have specialised child care workers or specifically trained social workers involved who would have the necessary understanding and complete facility to deal with the child. This is important and could only be a helpful addition.
My colleagues' worries are unfounded since the protection of the child is guaranteed in section 24 which we have just cleared:
... requires the court having regard to the rights and duties of parents to regard the welfare of the child as the first and paramount consideration in any proceedings in relation to the case and protection of a child.
I thank Senators for their contributions on this section. We cannot look at any section of the Bill in isolation; we must look at it in its totality. The thrust of the Bill is directed towards establishing a complete child care structure once the Bill is passed. Section 3 (b) (i) says that "in the performance of its function the health board shall regard the welfare of the child as the first and paramount consideration." Again, when we come to the courts in Part V, as Senator Honan pointed out, "the courts are obliged to regard the welfare of the child as the first and paramount consideration." We have discussed and given consideration to the guardian ad litem situation.
Section 26 empowers the courts to bring forward any person it regards as having a contribution to make, involvement with, information relating to or any involvement of any type pertaining to any particular case or any individual child. We are fulfilling the recommendation of the Law Reform Commission that the child shall have a right to Be heard by the court. That right is included in the Bill. The Commission also requested provision to be made for the appointment, by the justice, of an independent legal representative for the child where the justice is of the opinion that this is necessary and in the interests of the child and we are also fulfilling that request in a totally new departure.
Where other professionals are involved the court will have the right to call them or any other person. In order to be absolutely certain that the child's welfare is safeguarded and in view of what has been said here, I am prepared to have a further look at this situation and if appropriate I will bring in an amendment for Report Stage but I do not give any commitment that I will be able to do so.
Could I welcome what the Minister has said displaying his usual open-mindedness? In order to help him, might I indicate the kind of situation not covered by section 26 which allows for the procuring of reports and so on, and for the summoning of witnesses, but it does not provide for the presence of somebody in the court all the time to represent the interests of the child, which is a developing and invaluable practice, particularly with our nearest neighbour. While the Minister was speaking, one of the possible contradictions came to my mind where there could be a conflict of interest between the interests of the child as perceived by the child or the guardian on the one hand, and by the health board on the other. Then the person appointed to adjudicate is a health board employee; a guardian ad litem would not be a health board employee. I am not casting any aspersions on the professional capacities of health board employees but there are circumstances where a totally independent person to determine, to understand and the not articulate the point of view of the child has been found, in other jurisdictions, to be essential. There has been a growing court practice of establishing such persons although without any legal role and I am very glad the Minister is looking at this again.
There has been total support for this Bill from this side of the House — I will not call it the Opposition side because I do not feel that I am necessarily in opposition to the Government; last week on a number of occasions I had the pleasure of voting with the Government on a matter of conscience and I do not wish to be taken as automatic knee-jerk opposition. The last time we spoke on this matter there was also noticeable support from the Government benches. Virtually all the professional bodies engaged in this area - I am not going to read out the list of about a dozen, the Minister is aware of them — have urged that a determined effort be made to have this guardianship ad litem provision implemented in our law. I am grateful that the Minister is going to look at it and I hope there will be a positive outcome; it will only serve to strengthen the Bill which we all believe is a good Bill if the Minister finds himself able to introduce this amendment from the Government.
I know how helpful the Minister is determined to be on this Bill and I do not want to waste any time on it but I would appeal to him when he looks again at this to remember that children need somebody to identify with. They cannot identify with systems or with institutions; children identify with people. There is a considerable case for having somebody in court with the skills and commitment to build up a trust with a child; no solicitor could seriously be asked to do that given the nature of the task and the professional pressures they would be under. There is a considerable case for the employment of another person who would not have the solicitor's burden of other work and who could win the trust of the child and become the person with whom the child would identify. I hope the Minister will think about this when he carries out his review. I am very glad he is continuing to be as constructive and helpful as he was last week.
Question put and agreed to.
SECTION 26.
Government amendment No. 43:
In page 17, subsection (1), line 30, to delete "Part IV or section 41, 44 or 45" and to substitute "part IV and VI".
Amendment agreed to.
I move amendment No. 44:
In page 17: subsection (1): line 30, after "section" to insert "25,".
This amendment was part of this guardianship ad litem question, or it certainly was related to it; it may be gone.
On a point of order, since we have amended that line——
It had not been related for discussion purposes.
If the Minister's amendment has been agreed——
May I clarify the situation by withdrawing the amendment? That would be the most charitable thing to do and would save time. I would be grateful for the Minister's response.
Senator Nonis's amendment was addressed to the Bill rather than to the Minister's amendment.
I agree with Senator Norris that we are not here in opposition; we are all members of the Legislature and I do not feel above or beyond, before or behind any other Member; we are all here with the common interest of achieving the best possible legislation. I am confident that with the Senators' assistance we can achieve that consistently in the years ahead.
With regard to amendment No. 44, there is a slight misunderstanding about sections 25 and 26. No court proceedings will arise directly under either sections 25 or 26. What these sections do is give the courts certain powers to assist them in dealing with proceedings arising under other sections of the Bill, for example, section 18 which deals with care orders and section 36 which deals with access to children in care. As a result of amendments No. 32 and No. 43 the provisions of these sections will apply to proceedings arising under any section in Part IV or Part VI of the Bill. I trust that this will clarify the position beyond any doubt and perhaps in view of that Senator Norris may wish to withdraw his amendment.
Amendment, by leave, withdrawn.
Section 26, as amended, agreed to.
SECTION 27.
Government amendment No. 45:
In page 17, subsection (1), line 50, to delete "Part III or IV" and substitute "Part III, IV or VI".
Government amendment No. 46:
In page 18, subsection (2), line 1, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28.
Government amendment No. 47:
In page 18, subsection (1), Line 5, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Amendments Nos. 48 and 50 are related and may be discussed together.
Government amendment No. 48:
In page 18, subsection (2), line 7, to delete "section" and substitute "sections,".
These amendments are moved in the interest of ensuring that no doubt exists and that everything is perfect. Senator Norris will be pleased to see that these are purely grammatical corrections. We want to ensure that everything is proper and correct.
The Minister's commitment to the precision of the English language is to be commended. I wish the parliamentary draftsman would take a lesson from the Minister.
Draftsperson. Could I suggest that since the Minister has become so fluent in grammer, with his advisers, he might pass some of his wisdom on to the Minister for the Environment and ask him to stop calling these thing `interpretive centres? They should be called interpretative centres.
It certainly has nothing to do with the Bill.
I would like to see a little spread of this grammatical fluency and the avoidance of Americanisms.
Amendment agreed to.
Government amendment No. 49:
In page 18, subsection (2), line 9, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Government amendment No. 50:
In page 18, subsection (2), line 10, to delete "these" and substitute "those".
Amendment agreed to.
Government amendment No. 51:
In page 18, subsection (3), lines 12 and 13, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Government amendment No. 52:
In page 18, subsection (4), line 16, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30.
Government amendment No. 53:
In page 18, subsection (1), lines 30 and 31, to delete "Part III or IV or under section 44 or 45" and substitute "Part III, IV or VI".
Amendment agreed to.
I move amendment No. 54:
In page 18, subsection 3 (c), line 44, to delete "transmits" and substitute "is responsible for the transmission of".
Nobody would dispute or disagree with the provisions of section 30. Penalties are necessary because there are, unfortunately, considerable sections of the media, both nationally and internationally, who would take great delight in publicising what they would see as the juicy details of some of these issues. My amendment concerns a difference in emphasis between penalties for the written word and penalties for broadcasters. Subsection (3) provides that in the case of publication in a newspaper or periodical, the person liable for penalty will be the proprietor, editor or publisher. In the case of the broadcasting, the penalty applies to any person who transmits the programme, which is the broadcasting equivalent of penalising a printer, a person not in any way responsible for the publication, or for any of the words used. This goes back to a problem with the libel laws but we need not go into that now. I do not want to argue about the wording of my amendment but a technician working up on top of Kippure or Mount Leinster or Mullaghanish and responsible for transmitting something that is in breach of section 30 should not be culpable under the law any more than a printer could be culpable and I would ask the Minister to accept either my amendment or one that is perhaps better drafted.
I support Senator Ryan in this. His case is very well made and could even be stronger because the wording is "anyone who tramits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper". The final section already takes in an area analogous to the proprietor, editor and any publisher of the newspaper. When it says "any person who transmits or provides", it covers not only the people Senator Ryan mentioned, such as technicians an so on, but also presumably people who relay programmes such as cable link companies and the various RTE services who relay these programmes by cable to the subscriber. I do not imagine that is what the Bill intends. The Minister may wish to come up with his own wording but Senator Ryan's case is well made because you may be making people liable for the content of a programme when they merely service its, transmission without any moral or editorial responsibility which divorces this situation from other cases such as newspapers.
I support the amendment. The case is well made. We have our learned Senators on the Independent benches informing and educating us on nuances of the English language but this is a straight forward case in that a person who transmits or provides a programme is usually the technician rather than the person responsible for the station or for the programme.
The purpose of this provision is to protect the good name and reputation of children who through no fault of their own are involved in child care proceedings. It seeks to achieve this by prohibiting the publication or broadcasting of any matter that would serve to identify such a child. It would be an offence to act in contravention of this prohbition. I am advised that an offence would be committed only by the person or body having charge of the radio or television station that wishes to do such a broadcast. There is no question of a technician who physically causes the transmission to occur being held criminally liable. I am impressed by the case that is being made and Senator Ryan, with the support of the other Senators, may have touched on a grey area and in view of that situation it might be appropriate for me to consider this further. If I feel we should make any further improvement on it I will come back on Report Stage with an amendment.
That is a more than reasonable response and I do not wish to delay the House.
Amendment, by leave, withdrawn.
Question proposed: "That section 30, as amended, stand part of the Bill".
An issue which may arise when children are involved in court proceedings is the use of closed circuit television which has been employed in cases of sexual abuse and so on to protect the child. I am worried that the term "broadcast" as defined here could in future, without a little more subtlety on our part, be used to prevent the use of closed circuit television because broadcasting means the transmission or relaying of any sound system intended for direct reception by the general public.
We went through the question of cable before with this Minister, and is he sure that transmission by cable is covered by that definition of broadcasting? We had a long argument with some Minister here before about the term "broadcasting", which is defined as "relaying or distribution by wireless telegraphy." I am not trying to be troublesome but in other countries cable television has been used in ways in which main stream non-cable television could not be used, particularly for the broadcasting of pornography as has happened in the United States. As a caveat rather than as an argument I ask if we are satisfied that the transmission of material by cable is covered by the definition of "broadcasting". I wish we could be a little less confused with the English language: for instance, "written publication" is defined as including a film, sound track or any other record. I am never happy when the English language begins to be redefined for legal purposes in terms of anything other than its own reasonable meaning and would have been perfectly reasonable to use a different term there. Is the Minister sure that computer-based records or computer-transmitted data are covered by his definitions? These are not argumentative questions but bona fide questions that deserve addressing.
Again I support Senator Ryan. The commonsense meaning of "wireless" is clear and derives from the fact that it involved broadcasting without the use of cable. Now we have a different system where limited mass communication by cable is possible. That area has been properly developed by Senator Ryan and I am not going to go into it. I would like to raise something quite different. The maximum fine of £1,000 seems quite small when one considers that obnoxious rags like the Sun would be delighted to pay £1,000 for a juicy story; it would not cost them a thought. They frequently engage in slandering public figures knowing the price tag, which is sometimes a couple of hundred thousand pounds, so a £1,000 fine will not frighten them off particularly if the victim is a vulnerable child. For that reason, I would like also to ask the precise import of section 30 (4) where it states:
Nothing in this section shall affect the law as to contempt of court.
Am I to understand that a parallel conviction could be incurred under the laws of contempt? A more appropriate measure should be dealt out to people who violate the rights of children in this matter; I usually argue for the reduction of penalties in law but on this occasion I think a £1,000 maximum fine is not enough.
I support Senator Ryan's view on this section. In his contribution he stated that he thought he and the Minister had an argument on another piece of legislation but with this Minister I am sure he had a discussion rather than an argument which I cannot say about other Ministers.
I had neither a discussion nor an argument with Senator Ryan on similar legislation pertaining to telecommunications or anything like that. Perhaps it was my senior Minister; I am not sure. On section 30 (5) the definition of "broadcast" is the most up-to-date definition available as amended, updated and clarified in a recent Bill in the Dáil.
It covers cable and all other methods of broadcasting but closed circuit television is not involved. Line 12, page 19, states: "reception by the general public", so closed circuit television is not involved.
Proceedings will generally be heard in the District Court and this refers to the point made by Senator Norris about a fine not exceeding £1,000. I agree with the Senator that there are organs who might like to pay a lot of money for certain stories but our laws cover only our own jurisdiction. More importantly, these are the maximum fines that the District Court can impose. However, if cases did go to a higher court, they would be able by summary jurisdiction, by the rights and powers vested in them to impose higher fines and penalties. There is no doubt about that. As most of these cases would be heard in the District Court the Bill must cover that, and if a case goes to a higher court on any particular issue, the higher court has the right to impose——
There can be a parallel contempt case.
I would have sworn that the maximum penalty in the District Court was two years imprisonment but I could be wrong. I thought we passed an amending Act which increased the maximum penalty in the District Court to two years.
The Senator is partially correct in that the District Court can impose a two year sentence for an offence committed while on bail.
On the question of written publication I am not sure that the Minister addressed himself to electronic data transmission and so on or to the electronic recording of data. I do not wish to delay the House but it is important.
I think it is covered and I will have it clarified for Report Stage. There is an Act which covers that.
Question put and agreed to.
SECTION 31.
Government amendment No. 55:
In page 19, line 18, to delete "Part III or IV" and substitute "Part III, IV or VI".
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Government amendment No. 56:
In page 19, subsection (1), line 24, to delete "Part III or IV or under section 41 (3), 44 or 45" and substitute "Part III, IV or VI".
Amendment agreed to.
Government amendment No. 57:
In page 19, subsection (2), lines 30 and 31, to delete "Part III or IV or under section 41 (3), 44 or 45" and substitute "Part III, IV or VI".
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
Question proposed "That section 33 stand part of the Bill."
The Minister very gently mentioned to us the need to be consistent last week. The penalties for failure or refusal to give up a child shall be a fine not exceeding £500 or a term of imprisonment not exceeding six months or both. Amendments Nos. 63 and 64, which we will be dealing with later, change provisions later on to make the penalty £500 and the term of imprisonment for a term not exceeding six months. I remind the Minister that we had a discussion on section 19 the last day which still provides for a penalty which does not exceed £250 for people who fail to comply with the supervision order. Perhaps I can return the compliment about consistency.
I accept Senator Ryan's very shrewed observance and the need for consistency. However, in this situation we are dealing with a child and the people involved with that child. We want it to be seen in the Bill that it is the human element we are attaching importance to. The other situation involves commercial companies who would break the law and the penalty is a fine of £1,000 or imprisonment for 12 months. I hope we would not have a situation too often where people would not accept the will of the court and return the child. We hope to get co-operation through negotiation and the production of various documents.
I was not talking about the previous section. I was talking about section 19 which deals with supervision orders and the fact that for a person who fails to comply with the terms of a supervision order the maximum penalty is a fine of £250. The point I am making — and I think most people would agree with this — is that the first attempt always should be to try to keep the child within his or her own home. The penalty in that instance is less than the penalty for somebody who would refuse to deliver up a child. Supervision orders are a major instrument in trying to ensure that a child remains within their own home, for instance the possible victim of sexual abuse. There is a case for supervision of an intensive kind which protects the child from sexual abuse but keeps him within his own home. Therefore, there is a case to be made for having at least the same penalty for somebody who fails to comply with a supervision order as somebody who fails to deliver up a child.
I applaud the Minister's humanitarian bias and it is appropriate in many ways. However, I share his concern that there should be humane values implemented in this Bill and a distinction drawn between a newspaper or commercial enterprise on one hand and the human individual on the other. However, the damage that can be inflicted by a newspaper is limited to psychological damage, the kind of public image of the child and the distress that is caused. In certain extreme cases like the Maria Cauldwell case, for example, if a child is not surrendered the result can be death. That is an extreme case but what we are talking about here is not the mandatory imposition of a fine but about the maximum, and a variation of gradation is possible within that maximum. It is horrible to contemplate that parents would actually be responsible for the death of their own children but we know that this has happened. If there is a situation in which on the one hand the result to the child can be deprivation of life and, on the other hand, simply the impact on the reputation and feeling of self-worth of the child, then the maximum fine of £1,000 is justified, taking into account the fact that the justice has discretion. I am obviously making a substantially different point from the one made by Senator Ryan although I thought I was making the same point.
We must consider the case of a person being guilty of very violent conduct against a child and the same person also being guilty of not accepting the decision of a court. They could be guilty on two different counts and liable to two different penalties. Likewise, two people could be guilty of two different offences, one against a child and one against the decision of the court. Senator Ryan has been consistent in pointing out that I am in favour of being consistent rather than inconsistent. I want to be consistent again and will consider any inconsistencies that there are between the various penalties proposed in different sections. In view of that I will consider the matter for Report Stage.
Question put and agreed to.
Section 34 agreed to.
SECTION 35.
I move amendment No. 58:
In page 20, subsection (2), lines 29 and 30, to delete "other than a relative of a child".
The definition of a foster parent as it stands excludes a person who is a relative from the definition of a foster parent. However, the Minister has introduced an amendment to deal with placement with relatives. Unless I am wrong, it is almost identical in its wording to the section to deal with the regulations about foster parents. I assume that the question of payment to relatives where they agree to take a child arises because it is not excluded. Therefore, as a result my amendment is no longer necessary and I shall withdraw it. We can perhaps leave it until the Minister deals with his own amendment.
There has been a certain amount of misunderstanding about this definition since it was inserted in the Bill on Report Stage in the Dáil. I emphasise that it is not intended that the option of placing a child who is in care with a relative should be removed from health boards. On the contrary, paragraph (d) of subsection (1) makes specific provision for the placement of a child with a relative where the health board consider that it is in the child's best interests. I might add that this is the first time that specific statutory provision for placement with relatives has appeared in our legislation.
It is obvious that different considerations apply to the placement of a child with a relative than with a non-related foster parent. That is why we have drawn a distinction between the two forms of care in drafting this section. I reject, however, any suggestion that this distinction will extend to denying payments to relatives looking after children on behalf of health boards. On the contrary, the next amendment, No. 59, proposes the insertion of a new section enabling the Minister for Health to regulate placement of children with relatives. One of the reasons for this new section is to ensure that relatives who are caring for children on behalf of health boards will receive appropriate payments from the board. I think the Senator understands the position which is covered in the next amendment.
Amendment, by leave, withdrawn.
Section 35 agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
I am not trying to play tricks but I have tried to understand the connection between section 36 (4) and section 4 (2). Section 4 (2) states that without prejudice to the provisions of Parts III, IV and VI nothing in this section shall authorise a health board to take a child into care against the wishes of a parent having custody of him or any person acting in loco parentis. Section 36 (4) states this section is without prejudice to section 4 (2). Can the Minister explain this?
We are talking about section 36 (4) which states: "This section is without prejudice to section 4 (2)". Section 36 states that where a child is in the care of a health board, whether by virtue of an order or otherwise, the board shall do certain things and facilitate reasonable access to the child by the parents or any person acting in loco parentis or any other person who in the opinion of the board has a bona fide or genuine interest in the child, and such access may include allowing the child to reside temporarily with any such person. It allows a person who is dissatisfied to apply to the court and the court may make various orders and may discharge those orders. The court on the application of the health board, if it considers that it is necessary to do so in order to safeguard the child's welfare, may make further decisions authorising the board to refuse to allow persons named access and may do various other things.
Section 4 (2) states, without prejudice to the provisions of Parts III, VI and VI, nothing in this section shall authorise a health board to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him. Basically, what we are saying there is that if the parents of the child or the people who are acting in place of the parents want to maintain that child in their care, the board are obliged to leave the child with them unless they make an application to the court to have a clear decision taken.
Question put and agreed to.
Sections 37 to 39, inclusive, agreed to.
NEW SECTION.
Amendment No. 61 is out of order as it involves a potential charge upon the Revenue.
I wish to put on record that as late as this morning I received no formal notification of that. I anticipated that it would be out of order but it is regrettable that these decisions cannot be communicated properly to us.
I support that because the list of amendments I have here is one I had last week when we were discussing this. There was clearly time to make a decision. There may have been an excuse last week when it was claimed by the Chair that amendments had been received the previous afternoon and, indeed, the previous evening. A week has now elapsed so it is not in my opinion tolerable that this kind of ruling should simply descend in this manner from the Gods, a kind of deus ex machina.
We have not discussed amendment No. 59.
Amendment No. 59 is a Government amendment.
Acting Chairman
I stated that amendment No. 61 was ruled out of order. I will now proceed to amendment No. 59, which is in order.
Government amendment No. 59:
In page 22, before section 40, to insert the following new section:
40.—(1) The Minister shall make regulations in relation to the making of arrangements by health boards under section 35 (1) (d) for the care of children and for securing generally the welfare of such children.
(2) Without prejudice to the generality of subsection (1), regulations under this section may——
(a) fix the conditions under which children may be placed by health boards with relatives:
(b) prescribe the form of contract to be entered into by a health board with relatives;
(c) provide for the supervision and visiting by a health board of children placed with relatives.".
I regret that Senators did not get notice that these amendments were ruled out of order. I regret that we had to come in here today rather than tomorrow. My difficulty and the Government's difficulty is that I am charged with being in both Houses of the Oireachtas on two days, one after the other, to do Government business. It seems that on account of that they decided I would be in the Seanad today and the Dáil tomorrow. I presume that is the reason for the change and I regret very much if this has created difficulty for any Member of either House. I appreciate the commitment of the Senators present.
The purpose of this amendment is to close off a loophole that arose when section 35 was amended in the Dáil. Section 35 sets out the ways in which a health board may provide accommodation for children in their care. It may place them in foster care, or place them in residential care, or place the child for adoption where he is eligible to be adopted, or make other suitable arrangements which may include placing the child with relatives.
Sections 38 and 39 require the Minister for Health to make regulations in relation to the placing of children in foster care and residential care respectively. The placement of children for adoption is, of course, subject to the various safeguards contained in the Adoption Acts. However, as this Bill now stands there is no provision for the making of regulations in relation to the placement of children with relatives. This amendment proposes to insert a new section to plug that gap and it covers the amendment which Senator Ryan graciously withdrew earlier. It is broadly similar to sections 38 and 39 and I hope we will have the support of the House for it.
Perhaps the Minister would prefer if I agreed to it without saying that I welcome it. I accept that it meets a considerable part — given that one accepts that there is goodwill behind it — of the problem that has arisen about the definition of a foster parent and I am happy to agree to it.
Amendment agreed to.
SECTION 40.
I move amendment No. 60:
In page 22, subsection (1), line 5, after "regulations" to insert "taking into consideration the long term needs of the child".
This is not an amendment on which I would like to delay the House too long. It is simply to reiterate a point that everybody agrees on, which is to take into consideration the long term needs of the child in terms of reviewing the cases of children in care. The section as it stands says that the Minister shall make regulations requiring the case of each child in the care of a health board to be reviewed in accordance with the provisions of the regulations. It seems to me and to a number of other people I have spoken to that it would be useful to reiterate that the review should take into consideration the long term needs of the child, the child's developmental interests and whether he will stay in residential care or foster care. I am sure that is the intention of the section.
I have some sympathy with what is contained in this amendment and for what Senator Ryan has said. One of the main purposes of this section and of the regulations to be made by the Minister for Health under the section is to ensure that the long term interests of children in care are safeguarded and promoted. I would envisage the regulations providing for the drawing up of a plan for the future care of each individual child and for the monitoring of his development.
However, it must be borne in mind that children in care have short term needs as well as long term needs. For that reason, I would be reluctant to amend the section in the way proposed. However, I assure the House that the long term interests of the child will be a key consideration in these reviews and on that basis perhaps the amendment might be withdrawn.
Can the Minister explain in a non-confrontational fashion why it is not possible to make reference to what he has just outlined in fairly simple English, that the review should take into consideration both the short term and long term interests of the child. Why is it impossible to insert some reference to that into the section, not necessarily the amendment I put down, but some reference to the long term interests of the child? Is there a drafting or legal problem? I accept that it will be in the regulations. If this Minister or his immediate superior Minister — he will not be the one who will be drafting the regulations because he has now moved on to different things, I think I would prefer child care to prisons myself——
The Senator is not supposed to say things like that.
I often say things I am not supposed to say.
Somebody else may not see this the way this Minister sees it. Large bodies forget their duties. We have unfortunately — I am not suggesting a parallel — recent stories from Britain about activities in child care centres that make it absolutely necessary that we should fasten down the rights of children and their priority in every possible way. If there is a good reason I will listen to it. I am not going to push this to a division because that is not the sort of mood any of us are in at present. I would like to know if there is a particular reason why it cannot be referred to.
Reading Senator Ryan's next amendment——
If amendment No. 61 is ruled out of order maybe the Minister would take a look at amendment No. 60. I support Senator Ryan on this. There is a reason why there should be a check. Those of us dealing with bodies understand what he says.
I am confident that the regulations will be drawn up this year. I am further confident that we have tremendous expertise and commitment in the child care division of the Department of Health to ensure that we bring forward the best and most humane regulations possible. I am very confident that the Minister for Health will study them in detail, improve them and ensure that when they are laid before us they will be proper and adequate and reflect the needs of children in every given situation.
What Senator Ryan desires would normally be contained in those regulations. However, I will certainly reconsider it between now and Report Stage and if what the Senator desires to achieve is feasible we shall incorporate in section 40.
I did not intend to cast any aspersions on the child care section of the Department of Health for a variety of reasons. This Bill and the process of its development, extension and improvement is a tribute to the Department of Health and that section. I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 61 not moved.
Question proposed: "That section 40 stand part of the Bill."
Does the Minister envisage any independent body being involved in these reviews in the light of recent happenings in Britain? We would be well advised to consider somebody having the right to come in from the outside to look professionally but independently at the way in which children's welfare is looked after. Does the Minister have any plans, in terms of this review, for an independent element?
We have an open mind on this. I envisage that reviews would be carried out by health board staff, Department of Health officials and the child care division. Reviews would be carried out at the request of the Minister for Health and he would have the right — and I am sure that will be encompassed in regulations although it is vested in him in some part of the Bill if not in some of the powers that are conferred on him — to have an independent assessment carried out by a group of people or organisation independent of the health services. Section 66 covers the powers of the Minister for Health. In section 66 (2) the Minister may cause to be inspected any service provided or premises maintained by a health board under this Act. The Minister will have discretion to decide the type of inspection to be carried out and who should carry it out. I am sure if the Minister felt that it was necessary to have an independent person or group or a particular group controlled by an independent person, a member of the Judiciary or some professional organisation or whatever, he would have that right. I am quite satisfied that is covered.
Question put and agreed to.
SECTION 41.
Acting Chairman
Amendments Nos. 62 and 63 are related and may be discussed together.
Government amendment No. 62:
In page 22, lines 16 to 21, to delete subsection (2).
The original draft of this section provoked a lot of controversy, particlarly among foster parents, who saw it as a threat to the security of their foster placements. As a result of representations which I received from the Irish Foster Care Association, I brought forward a number of amendments in the Dáil in order to allay these fears and to provide a fairer deal for foster parents. These two amendments taken together seek to remove the existing subsection (2) which many foster parents found offensive and to substitute what I believe is a more acceptable approach. The existing subsection (2) makes it an offence for foster parents to refuse to deliver up a foster child on demand to the health board. As I said, many foster parents found this offensive and saw it as a big stick being held over them by the health boards. While I am satisfied that health boards would not abuse this provision, I am very sensitive to the feelings and fears of foster parents. I know many of them personally. I know their organisation and the people who make up that organisation. They are very decent, genuine, sincere people who do a tremendous human service in the interests of the State and the interests of little children, and we deeply appreciate that. That is why I am proposing a new subsection under which a foster parent would only be guilty of an offence if he or she refused to obey a court order to return a child to the health board. This is a much better approach and I ask the House to support these amendments.
Amendment agreed to.
Government amendment No. 63:
In page 22, between lines 27 and 28, to insert the following new subsections:
"(3) Without prejudice to the law as to contempt of court, where the District Court has made an order under subsection (2) (requiring that a child be delivered up to the custody of a health board), any person having the actual custody of the child who, having been given or shown a copy of the order and having been required, by or on behalf of the health board, to give up the child to that board, fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.
(4) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order made under subsection (2) if that person was present at the sitting of the court at which such an order was made.".
Amendment agreed to.
Section 41, as amended, agreed to.
Section 42 agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
I read the debate in the other House on this section because I have a long-established interest in the transition into the wider community of people who have been in care. Section 43 is a commendable effort to make that transition as smooth as possible. I hope the Minister will ensure, through his colleague, the Minister for the Environment, that at local level the two agencies — particularly in regard to local authorities dealing with planning accommodation for children leaving care at the age of 18 — are as willing to co-operate as the section envisages. There have been, as the Minister well knows, considerable problems about the interaction between health boards and local authorities in the area of accommodation and who is responsible for what, with, unfortunately, considerable evidence of determination to pass the buck from one to the other. The section is fine in principle. I would like to know what the Minister has in mind, to make sure that it works in practice.
I accept the principle of the section and concur with what Senator Ryan has said. Subsection (2) (d) states: that they may exist a person under this section by among other things arranging hostels or other forms of accommodation. Is the Minister satisfied that such hostel or other accommodation exists because in the Dublin area it does not seem to? There are still homeless children on the streets. It is difficult to believe that there is sufficient hostel accommodation in existence when I see homeless children. There has been the appalling situation of Father Peter McVerry, although I gather that there has been some amelioration in that situation, but I wonder if there is sufficient hostel accommodation available for this to be a practicable section.
We are very committed to the Bill and to this section. Senator Ryan has commended this provision and it speaks for itself. It is an all-embracing and wide-ranging section. It brings into focus the importance of providing education, accommodation and other facilities for young people, particularly young people who will be moving out of the child care area and into adulthood.
We have already had discussions with officials in the health boards pertaining to this. As Senators know, the health boards act as a servicing agency to local authorities in adjudicating and reporting on the conditions and environment in which people live, and their medical situation. The health boards and local authorities can co-operate in order to maximise our efforts to provide accommodation for those young people. We have had discussions with the health board staff and we are confident that this is the line that will be operated. We have already had tentative discussions and we will have more detailed discussions with the officials in the Department of the Environment pertaining to the operation of the Bill, particularly this section. I am confident that these arrangements will work well.
As Senator Norris said, hostel accommodation is available. There is probably not enough hostel accommodation but I am not absolutely certain of that situation. However, my colleague and successor in the Department of Health, the Minister of State, Deputy Flood, has responsibility for this area and has been given a co-ordinating role by Government. As a result, we are very confident that there will now be much greater coordination of the need and the services to be provided for people, particularly young people who find themselves in this situation. I can assure you that the Government are very concerned and committed to resolving those difficulties. We have made some progress and I am confident that over the next year this progress will be very obvious and the services will be improved. Arrangements have been made to provide certain services and facilities. Some of them have already been provided but most of those services will be provided in the latter half of this year and early into next year. Following that we will be in a better position to deal with these very sad human situations. I am confident that this section of the Bill will be positively operated by the Department of the Environment, the local authorities, the Department of Health and the health boards in the interests of those young people.
Question put and agreed to.
SECTION 44.
Government amendment No. 64:
In page 23, lines 40 to 43, to delete subsection (4) and substitute the following new subsections:
"(4) Without prejudice to the law as to the contempt of court where the District Court has made an order under subsection (3) directing that a child be delivered up to the care of a health board, any person having the actual custody of the child who, having been given or shown a copy of the order and having been required, by or on behalf of the health board, to give up the child to that board, fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.
(5) For the purposes of this section, a person shall be deemed to have been given or shown a copy of an order made under subsection (3) if that person was present at the sitting of the court at which such an order was made."
This amendment is being proposed on the recommendation of the parliamentary draftsman to bring this section into line with the amendment which has already been agreed to in section 41. It sets out in a much clearer and more detailed way how a person will be guilty of an offence under this section where he removes a child from the care of a health board, or prevents a child returning to care at the end of a holiday or other period when the child is at home. I trust this clarifies the position. It strengthens the Bill and I am sure the House can agree to it.
Amendment agreed to.
Government amendment No. 65:
In page 24, between lines 12 and 13, to insert the following new subsection:
"(8) Without prejudice to section 27—
(a) an order under subsection (3) may be made by a justice of the District Court for the time being assigned to the district court district where the person specified in the information resides or is for the time being, and (b) a warrant under subsection (5) may be issued by a justice for the time being assigned to the district where the house or other place specified in the information is situated,
and, in either case, where such justice is not immediately available the order may be made, or the warrant issued, by any justice of the District Court."
This is purely a technical amendment recommended by the parliamentary draftsman. It seeks to ensure that there will be no difficulties in obtaining an order for the recovery of a child who has been removed from care or in granting a warrant to the Garda to search for such a child.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 66 and 67 are related and may be discussed together.
Government amendment No. 66:
In page 24, lines 13 to 15, to delete subsection (8).
These two amendments are consequential on the acceptance earlier of the revised cross-references between Part V and Part VI of the Bill. Amendment No. 32 covers this. As a result of the new cross-references these subsections are no longer required, so I formally request the approval of the House for their deletion.
Amendment agreed to.
Section 44, as amended, agreed to.
SECTION 45.
Government amendment No. 67:
In page 24, lines 21 and 22, to delete subsection (2).
Amendment agreed to.
Section 45, as amended, agreed to.
Section 46 agreed to.
SECTION 47.
Question proposed: "That section 47 stand part of the Bill."
I have some difficulty with many of the representations that have been made to me. The definition of "pre-school service" seems to incorporate anything from the neighbour next door looking after the children for an hour a day to the granny carrying out what would, in other societies, be regarded as the normal functions of an extended family, through to commercial operations like a créche operating in a supermarket. I am not sure that we can apply the same legislative requirements to all of those. For example, we are very slow to interfere with the internal operation of a family, in terms of the parents and the children. This Bill is very carefully balanced through the judicial process to make sure that the family set-up is not interfered with. The child comes first but that does not exclude parents. It seems to me that the normal, sensible relationship between a grandparent and a child, where the grandparent is living anywhere other than in the family home, or even there, is a little circumscribed by this. I know this is with the benefit of hindsight and that a considerable effort went into this section in the other House, but I wonder whether the words "for reward" should be inserted somewhere in this, with the exception of those grant-aided by the health boards. It seems to me that where people do this without reward — and even that is not entirely satisfactory because very often somebody has to subscribe to the cost of the feeding of a child by the granny — it should be looked into.
I am intrigued by the difference between section 47 and section 56. Section 56 deals with the definition of children's residential centres and specifically excludes residential centres which are managed on behalf of a Minister or a health board. Section 47 specifically includes pre-school services that are managed by a health board. There seems to be — I am reluctant to use the word again but it is the one that comes to mind — an inconsistency here.
Perhaps — to be of assistance to Senator Ryan — he might vary "inconsistency" occasionally with "anomaly". The phrase to which Senator Ryan has drawn our attention is a grant catch-all phrase calculated to encompass more or less everything. I am not sure that I like it for a number of the reasons which Senator Ryan has outlined. Also, it is very broad and I wonder if the very broadness of the sweep of this section may be one of the reasons we do not have — unless the Minister is kind enough to accept amendments that are shortly coming up — a system of registration. That is a serious lapse. There are many grey areas — for example the granny looking after kinds — which should perhaps be included in this section. As well as that there is no registration, there is just notification later on. I think that the sweep of these sections is too broad and too lacking in the kind of definition I would like to see.
First, we are talking here about non-family situations. Granny will not be included, auntie will not be included, Uncle Johnny next door, cousin Mary across the road or in-laws will not be included. They will be regarded as an extended family accommodating a family because they have a purely personal blood interest, if you like, and family connection with the children they are looking after.
We are talking about people who are providing a service in this area. It may be dangerous to use the word "reward" because we are covering all kinds of situations including the supermarket créche. There may be no reward for that apart from the fact that supermarkets, by providing a very upmarket or a specific type of créche, may be able to attract more customers for monetary gain. A person could run a particular service and other enjoyments and benefits could be conferred on them as distinct from monetary benefits as a result. We might not be able to enforce regulations and inspections or otherwise, as a result of those people being involved in providing that type of service for which there was no obvious, proven, tangible monetary reward for them. We must have that latitude there. What was the second point made by Senator Ryan?
My second point related to those grant-aided by health boards and the contrast between section 47 and section 56.
There was much discussion on this on Committee Stage by the all-party committee. We felt it would be unwise to have a situation where a health board would register their own institutions and children. We had to get away from that, where they would not be in a position to register themselves. We decided to be very specific and in section 56 exclude the areas that pre-school and registration did not cover. Apart from that everything is covered. We felt that that was in the best interest of providing a proper system, maintaining proper, supervisory and regulatory control. That was agreed ultimately on Committee Stage after much debate.
I am amazed at the definition by the parliamentary draftsman of pre-school service, given the obscurity of the language they have used on some occasions in the interest of what they are assured by their Minister was precision. It may well be the intention not to involve the extended family, but the truth is that a pre-school service means any pre-school, playgroup, day nursery, créche, day care or other similar service which caters for pre-school children. First, there is a problem here, we are saying to a mother who works at home looking after her children that if she chooses to look after one of the neighbour's children she is running a pre-school service. We have this ridiculous position where the State accepts her capacity to look after her own children but insists on a considerable right to supervise how she looks after perhaps a child of another family.
That definition is quite leaky and vague and may well result in considerable problems in the future for many couples where both go out to work. A large part of the informal network of child support or child care operates to the satisfaction often of the parents in an informal fashion which might involve a family member — that may not be the Minister's intention but I think it is contained in it — but also non-family members. The intention is to regulate a growing industry and to ensure that it operates under proper standards, but a large part of that industry is so diffuse and informal that it either defies inspection or results in a clamp-down which will close a large section of it. Many people are quite happy to have, perhaps, one or two children staying with them during the day but if they suddenly discover that they are liable to have a health board inspector descend upon them to assess the quality of the service they provide, then that informal section will close down.
That definition should be tightened up. If I was as good a draftsperson as I should be I would have offered a definition myself but on this occasion I am inviting the Minister to use the expertise at his disposal. He has referred on a few occasions to the considerable expertise at his disposal and he was very enthusiastic about it. Perhaps he would invite that considerable expertise to attempt simply to say what he said which is that the immediate family are not included. Secondly, he did not talk too precisely about the position of the person who takes in one child. That person is covered by the definition. I find it quite difficult to conceive what may happen if every mother around the country at home with her children, who takes in one of the neighbour's children for a modest reward, suddenly discover that they have to notify the health board and are liable to inspection. This may mean that many of those informal arrangements will stop.
If I understand my colleague, Senator Ryan, correctly I respectfully disagree with him. I accept beyond a shadow of a doubt that there are many excellent, informal arrangements and I take the Minister's point about the immediate family and the extended family. However, I am of the view that from the smallest unit up, we have to regulate our child care services at all levels and be seen to regulate them. I believe that many of our child care services, informal or otherwise, are of the highest standards and have nothing to worry about.
I would put a different emphasis then Senator Ryan on this. Because of the sensitivity and the importance of child care at all levels, because it is critical that the child gets the right care in its infancy, as that care will affect the child in adulthood and will affect society in many ways and is so important for the individual child, I would go the whole way. I would favour a comprehensive and clear regulation of all forms of child care service. I would do that while acknowledging and paying tribute to the tremendous number of excellent carers around this country. I am well aware of this, know a number of those people and they have nothing to worry about. I favour regulation because I argue, and I am convinced of this, that the care of the infant child is central to the welfare of that human being, it is central to society and it is central to the future of society. It is relevant in many ways. There is nothing wrong with having clear regulations right throughout this service.
If I was to adjudicate on the recommendations of Senator Ryan and those of Senator O'Reilly I am afraid I would come down on the side of Senator Ryan. Senator Ryan is trying to ensure that the regulations applied are watertight. However, I think I am interpreting him correctly when I say that he does not want every situation regulated. If Mrs. Browne next door takes in my child for a period of a day, a week or a year it is an arrangement between her and me and that kind of neighbourly family back-up support should continue. We should not regulate and encroach on that kind of personal relationship between neighbours and friends. Our purpose is to regulate where there is a regular, consistent service being made available for some type of gain, be it monetary gain or some reward, and that we should be in a position to regulate that. When bringing in regulations we must take into account that children must be given a certain type of environment in which to grow up, develop and evolve and on which they can base mutual trust and judgment. They should be able to see the human dimension in those with whom they are dealing and respond in their own development. If we regulate in a very stringent manner and impede that kind of relationship and development we will do a disservice to the development of young people. However, we need regulations and in view of what Senators Ryan and O'Reilly have said we will have another look at this. If we can tighten it up and eliminate any grey areas we will certainly do so on Report Stage.
Question put and agreed to.
SECTION 48.
Government amendment No. 68:
In page 25, subsection (1), line 31, to delete "of" where it secondly appears.
As this is a minor grammatical correction I would be grateful for the agreement of the House.
Amendment agreed to.
I move amendment No. 69:
In page 26, between lines 8 and 9, to insert the following new subsection:
"(4) Regulations under this section shall also apply to after-school care services.".
This would simply bring after-school services within the ambit of the regulations. I believe the Minister will be sympathetic to this. I hope so because, after all, we have just being talking about pre-school operations but there are, as the Minister knows, also what are known as after-school services which means, for example, looking after children when the formal school day is over. It is a growing area of business. There are people engaged in this throughout the country and it is not regulated at present. It is important that it should be brought within the scope of the Bill. It is appropriate, relevant and germane and apparently the Minister has already been considering it with regard to pre-school services. I will be very happy, having been advised, to supply the Minister with this sort of definition. For example, the National Children's Nurseries Association, one of the groups that approached me on this are prepared to supply me with it. I will be happy to supply the Minister with this definition so that it is not confused with clubs or other extra-curricular activities. The kind of definition we would have in mind would be the care of school children in a group setting for more than three hours in the school week. Will the Minister consider adding this group of children to the scope of the regulations?
I support Senator Norris on this amendment. It is very much in keeping with my earlier remarks and I am aware that this area is not regulated at present. I stubbornly reiterate the point that we cannot have enough regulation for the good of children and that services that are in order have nothing to worry about.
I agree with my colleague, Senator Norris. If I were a Minister I would not be happy with the wording of the amendment.
I am not fussy about the wording.
The Senator usually corrects the rest of us.
I only correct the Senator and only when she needs correcting.
As Senators Honan and Norris are interrupting each other I am standing here minding my own business.
An Leas-Chathaoirleach
Will the Senator speak to amendment No. 69?
The term "after school care services" is very ambiguous and requiries defining. Senator Norris is right in that the regulatory procedure being introduced for pre-school centres should also apply here. It is inevitable that for the same reasons that child care centres or pre-school services are expanding, after school centres will also expand. Parents who put their children into pre-school centres because they both work will need places where their children can go after school given that the first two years in primary school usually finish at 1 p.m. and in later years it is rarely later than 2.30 p.m. or 2.45 p.m. There is, therefore, a considerable need to ensure that the commercial services available are properly regulated. I do not propose to be as stubborn as Senator O'Reilly — to regulate the granny — we must allow people at family level to trust each other, but there is a case for Senator Norris's amendment, whatever about its wording.
I am a little confused because I wonder how we all grew up without all these regulations and I am worried that we are beginning to over-regulate the development of children. Senator Ryan was accurate when he said that I have some difficulty with this amendment because it is very vague. It could result in State interference in a whole range of activities in which children are involved after school. For example, is it the intention that various extra-curriculuar activities organised by school teachers outside school hours would be the subject of regulations by the Minister for Health? Is it intended that the activities of summer projects or youth clubs would be affected?
We all know that in modern times schools run many activities during holiday times, particularly at the Easter holiday period and in the wider summer holiday period. They create many opportunities for young people in various school projects and activities. Schools also run such activities for non-students, young children who may be attending national school, within one or two years of second level or who will attend second level in a few months' time. It would be very unwise for us to interfere in that area. It would take away the flexibility, the civic and the personal commitment among teachers, school principals and school management to making their facilities available to the wider community. It would take away from the fun and enjoyment because they have to have some kind of a structure and a system within which they must operate. If we interfere and over-regulate for them it would undermine the tremendous opportunities created for children by very responsible people in our society. We must commend this.
The amendment gives no clue as to the meaning of the phrase "after-school care", or the age up to which children would be subject to the proposed regulations. Are we to say that this proposal would be up to the age of 18 years? If that is the case, we are talking about young people at third level. That is another dimension. How will we regulate those in a third level institution, who have already come through first level and second level, where there were rules and regulations to be obeyed? They are now coming into adulthood; they are in a new environment and there are certain regulations in operation at third level. Those students have a personal commitment to whatever opportunities are available, sporting, extra-curricular, or otherwise. It would be unwise to involve the Department of Health and the Child Care Bill in that situation. Perhaps Senator Norris, in the light of that, may wish to consider withdrawing the amendment.
I will not push it, but might I suggest that the Minister's advisers get in touch with the National Children's Nurseries Association so that there could be some further degree of clarification, because they were in contact with me? The Minister has expanded the case to the point of absurdity and that is a very useful logical method of demonstrating the flaw in an argument. I accept that; it would be absurd to have people in university being catered for by this kind of regulation.
Some of them need aftercare services.
That may be true and if any of them need nappies changed, Senator Honan, we will know where to direct them. There is a serious issue here and this is related to the question of the employment of parents. Frequently children are left in a créche or a pre-school partly facilitating parents who are in employment and when this formal pre-school or Montessori group ends at a particular time there is then a gap of a number of hours during which care is provided, although it may not be formalised as pre-school or créche facilities. It is after-school not in the sense of the recipient of this care having finished with secondary education. It is simply a question of time. I quite accept that the amendment is vague, but I think the principle could do with some further examination and perhaps it could be returned to on Report Stage. I am happy to withdraw it, but I will be back in contact with the people who briefed me and see if they can give me a definition. It is clearly something about which they have a genuine concern.
I think the concern of Minister Treacy is that we as legislators are not entitled to regulate every hour of a child's life and we seem to be doing this. If we did not have regulating legislation we would be asked to do it, and the opposite would be true also. Senator Norris wants the care in the class situation or in the minding situation and now he is talking about after-school care service. The Minister is appealing to us that as legislators we should not set down regulations for every hour of the child's life but should give the child some freedom. He has also told us that there are already in place some of the protections for the hours that Senator Norris is concerned about. I must say I was delighted that for once he was checked on the wording because he is forever checking us lesser beings here on how we should word our amendments or motions. I think Senator Norris should show common sense and withdraw this amendment.
Let us put this in context. Many pre-schools operate from 9 until 12.30. Not all of them are eight hour day services. Many of them are actually a transition from the home to school, where the mother or a parent may well be still working in the home. That would cover a period of two to three hours. Some of these other centres take children who come out of school at 1 o'clock and look after them, say, from 1 p.m. until 5 p.m. or 5.30 p.m., which is four and a half hours. That is as long a period of care for the child as many of the places that we see fit, quite rightly, to regulate.
The second thing is that we have the lowest school entry age in Europe, or one of the lowest. Senator O'Reilly is among those who is an expert on this. But it is among the lowest: children can enter our school system at four years of age. Four years is a remarkably young age and, if it is valid to regulate pre-school services for kids of three or four or up to six, as we have done here, then it seems to me to be valid to extend this to at least cover children between four and eight years, because a pre-school child is defined as a child who has not attained the age of six and who is not attending a national school or a school providing an educational programme similar to that in a national school.
We accept that the children who need protection under this section are aged up to six, but if they go to school at the age of four for three hours a day and then go to another service for four hours a day, they do not need the protection that children would need if they went to a pre-school for three hours a day and were not going to the national school. It is not logical. There is a logical argument for extending the limited powers of notification and inspection to all persons who provide a service for children outside school hours and where they are, as I said, running a commercial operation.
We could argue all day about definitions and I am sure Senator Honan would be particularly delighted if myself and Senator Norris launched into an interesting discussion on the meaning of words. It seems to provide her with endless entertainment. The issue is that there is a logical argument in principle for what Senator Norris is saying and I do not think the Minister, to be fair, has addressed it straight on.
I have to say that we must have respect for the role of the parents and we cannot, as Senator Honan said, over-regulate for children. Indeed, Senator Ryan has made a wonderful case for the withdrawal of this amendment. If we have the youngest school entry age in the world — and we have at four years of age, a very young age — I think a wonderful facility is being provided by the State that parents can have their children go to school at four years of age. It provides a great facility also for maintaining the level of school services that we have, local services in particular. You have national schools throughout the country in small towns, in large cities and in rural Ireland. The fact that you can bring children of four years of age into those schools protects that school and its teaching complement and ensures that opportunity is there for children not to have to travel too far to school. They get great time and attention. The parents are happy in the knowledge that they are down the road in the local national school. They are cared for by excellent teachers. The parents can take them home early, if they are very young, or they can take them home in the evening along with other children, or whatever.
I think this is a situation that we should not interfere with. We must recognise and realise that we are putting children at four years of age into a regulated régime. If we are going to have a situation that when they come home in the evening they have not the flexibility to roam and run around as they like under the care of their parents and have to go into another regulated situation, we would be going down the wrong road. All I am saying is that I would not be able to accept this amendment, but if Senator Norris has some documentation which he has received from this organisation I most certainly will exmaine it.
I am most grateful to the Minister. I think he is excessively gracious, particularly in the light of the fact that Senator Honan explained what he meant, what he thought and what he was about to say. In fact, his contribution was quite redundant. I am absolutely abashed——
That is what you call a disciplined party.
I am glad I am not under your discipline, although I know there are sections on this side who would find it immensely pleasant. I would be most interested to hear if Senator Honan has detected a grammatical blemish in that statement. I stand over it absolutely but it is rather broad in its sweep and could be tightend up. I take the Minister's generous offer to heart and I shall certainly supply him with additional information.
Amendment, by leave, withdrawn.
I move amendment No. 70:
In page 26, between lines 8 and 9, to insert the following new subsection:
"(4) All pre-school services should be of a fit standard regardless of whether they are child-minding, family, nursery/day care, or pre-school at or near the workplace, having due regard to the emotional and social child development needs."
An Leas-Chathaoirleach
Has the Senator been authorised to move the amendment?
I was authorised last week to move any amendments in the name of the Labour Party. I am simply formally moving it so that the Minister may reply if he wishes and so that they may have the opportunity of introducing it on Report Stage.
I think I would be delighted to accept the social licence which has been transferred to Senator Norris in this case and respond. I will accept the spirit of what the Senators are trying to achieve in this amendment. The whole purpose of this Part of the Bill is to ensure that the pre-school services will be of a fit standard and that they will serve to promote the social and emotional development of the child. I would refer the House to subsection (1) of this section, or page 25 of the Bill, under which the Minister for Health is required to make regulations for securing the health, safety and welfare of pre-school children; for promoting their development towards this end the Minister for Health may impose requirements in regard to the premises in which pre-school services are to be carried out and in regard to the equipment and facilities to be provided.
Furthermore, section 50 imposes a statutory duty on persons carrying on pre-school services to take all reasonable measures to safeguard the health, safety and welfare of children attending those services. I suggest, therefore, that what the Senators are trying to achieve here is already contained in the Bill and that there is no need for the amendment. Perhaps, Senator Norris may be able to use the licence which has been transferred to him to withdraw this amendment.
Amendment, by leave, withdrawn.
Section 48, as amended, agreed to.
SECTION 49.
I move amendment No. 71:
In page 26, subsection (1), line 12, to delete "give notice to" and substitute "register with".
As the subsection stands it states that: "A person carrying on a pre-school service in the commencement of this Part shall give notice to the relevant health board in the prescribed manner." My amendment would alter that by proposing that a person in this case would register. What we are effectively trying to do here is to improve the legislation in this respect. It is important that I make a background point to this, a Leas-Chathaoirligh. The background point would be that as a party we are very much aware from practical experience — I know many cases of this myself — that there are many excellent high standard pre-school services throughout this country. They are in existence already and are providing a tremendous service. They provide a tremendous developmental function for the child and a tremendous back-up to a family unit where two parents are working, although it does not necessarily follow that both parents need be working for this facility to be used.
We are very much aware of this and are very proud that that is the case. We totally support that, but what we want to achieve is that all existing pre-school services including those superb and excellent services, would be registered as and from the implementation of this Bill. The reason we want them to be registered is that we want it to be clear that they are part of a register, that they live up to set standards and that there is a standard of care and a standard of physical environment there, which is so important to the development of a child. We want to ensure also that there is a standard of learning experience there, which is also so important to the development of a child, that there is a standard of care, emotional as well as intellectual, and that all of these standards are ensuring that the pre-school services are for the good of the child.
The fact that I, the Minister and other Members of this House, know that there are many existing pre-school services that are of this standard is not sufficient reason to be relaxed about the situation. Because of the sensitivity of this area and because I know as a teacher — I taught for a number of years at both primary and vocational levels but more particularly at primary level — and I can tell this House, if the House needs informing, that there is no area so critical to the development of a human being as the very early infant stages. That is where it really matters for the ultimate type of person that will emerge, intellectually, socially and emotionally.
For that reason I think it is a very critical area that needs regulation and the highest standards. I would appeal to the Minister to go for a system of registration here, that a register should exist and that there is a clear set of standards for the physical space, the building, the size of the building, the colour of the building, how creative the environment is, the kind of care, the kind of teachers, etc. All of this should get consideration.
I think this is a very significant amendment. It is put down in the very best interests of the legislation. I wholeheartedly accept that we have had a very positive approach here today and that we have had a very constructive debate. I appeal to the Minister for a number of reasons, firstly, as an affirmation of those who are doing a good pre-school job already — they merit such an affirmation and they would receive it this way — and, secondly, that for the sake of the children we put in a system of registration for the pre-school services already in existence and for those that will come into existence.
There should be nothing wrong with that and nobody should be alarmed about that. I cannot see who would be alarmed by that. I would be very cynical about the motivation of those who would be alarmed about a system of registration. It would raise a question mark as to why a person might want to prevent a system of registration. I appeal to the Minister to accept this amendment as improving the legislation and as implementing a system of registration for pre-school services that I can only see being to the good of very young children, and that is critical to society.
I am very grateful to Senator O'Reilly for having led off on this issue. It is a very important amendment and a number of us spoke on it. Senator O'Reilly spotted an occasion where I had not put an amendment in. I thought I had covered all eventualities but the Senator spotted one where this change had not been made. A number of us, including Senator O'Reilly, spoke on Second Stage on the question of registration versus notification. It is a crucially important point and I very much hope the Minister will see his way to meeting us on this one.
As it stands, notification is really not sufficient. At the moment all that need happen is that a child care facility simply notifies the local health board that they are in operation. That legalises them and gives them a degree of recognition. I do not think, in view of the very considerable caring concern that the Minister has evidenced throughout the passage and discussion of this Bill, that it is appropriate that somebody can simply set up shop, notify the health board and immediately be accepted as having had some kind of an accreditation. I simply do not think that this is at all appropriate. It is correct that we should remove the phrase "give notice to", which is a kind of a passive acceptance by the system, and substitute for that phrase the much stronger and much more responsible phrase "register with". That is in my amendment No. 72, which is virtually identical to Senator O'Reilly's earlier amendment.
With that there is also amendment No. 73, which, if the Minister accepts either of our two amendments or both of them, would be necessary. I see no point in requiring registration unless the Minister stipulates what that registration shall consist of. Amendment No. 73 inserts a new subsection which gives that degree of definition and says: "A register of pre-school services will be maintained and made available to the public in each health board area, preferably in library premises." Again, this is an important addition to the Bill and one with the principle of which the Minister will certainly have no great difficulty. It simply means that parents who wish to place their child in an appropriate environment can have access to a register which will indicate that this is a properly supervised facility and that they can have confidence in placing their children in such a facility.
Amendment No. 74 is not my amendment, it is Senator Ryan's and he should obviously deal with that. Amendments Nos. 77 and 78 are mine and they are simply extensions of the question of registration as opposed to notification.
I suppose it is almost redundant for me to say that this alteration in the Bill, which is clearly an amelioration, has been urged upon me by a considerable and well qualified group of people in this area. Certainly, as Senator O'Reilly raised the spectre of people objecting to it, all I can say is that those bodies which are already recognised, and deserve the thanks of the Irish people for their marvellous work in this area, do not seem to have any worry about it; in fact, they are actively canvassing that this system of registration should apply. I would have to say that without a system of registration a nonsense is made up of whole sections of the Bill. We are presuming to regulate and yet we are allowing people to set themselves up and there is no real method of establishing their proper accreditation.
I am somewhat taken aback by my colleagues. Is one going to argue about a difference between notification and registration? Part VIII goes through a process of registration and through the process of stages. For instance, Senator O'Reilly and Senator Norris want registration, but they do not say whether they can refuse to register anybody. If they cannot refuse to register anybody, notification and registration mean the same thing. If Senator O'Reilly and Senator Norris want pre-inspection before approval of every single child care facility or pre-school in the country, then we are going to have something close to chaos on our hands.
I cannot accept that the concept of registration as envisaged by Senator O'Reilly and Senator Norris is anything but another word for notification if you do not put in a procedure for refusal, a procedure for inspection and a procedure for appeal against refusal, all of which take up the best part of three or four pages of the next Part of the Bill. That is why I prefer my own amendment. All my own amendment says is that the public should have access to the names, addresses, etc. of those persons or premises which notify their existence to the health board.
I suspect the Minister is going to tell me that section 54 (3) makes provision for that. I do not think it is as specific or as clear as it ought to be. Large bodies have a habit of not taking the most benign interpretation of things and they may well interpret it in a less open and a less detailed fashion. I know of one local authority who in a related area, to give an example, will allow people to inspect environmental impact studies, for instance, but will not give them copies of it because they say they are not obliged to give you a copy. An environmental impact study is very thick sometimes. It is effectively not available to the public if the public cannot take it away and study it. Similarly I would be worried if it is not made precisely clear that the public are entitled to know who exactly has given notice. That is all that can be done unless there is a procedure for pre-inspection, for refusals and for appeals and much more detail in terms of standards.
I have listened to the arguments from some people in the profession, but most of what I have heard from people in the profession, as I recall it, involved, if not a stated requirement, an implied requirement for pre-inspection. It seems to me physically impossible to impose a burden of pre-inspection on every single pre-school as defined here. In the little part of Cork city that I am familiar with I could probably have my two hands to count the number in that small area of places that would be classified as providing pre-school facilities. If that is extended over the whole of the city of Cork and then out into every town and every townland — and there is virtually a person providing a pre-school service in every townland in Ireland at this stage — then the implication of pre-inspection is enormous. The alternative then is to assume that registration means the same as notification, in which case we should not be wasting our time talking about it.
This is one of the most important aspects of the Bill as far as I am concerned. I was involved for many years in the Civics Institute and we ran nurseries in Mountjoy Square and in Dublin 8. We endeavoured, as one of our objectives, to raise the standards of pre-school play groups all over the city; I am not sure that we were able to cope with the whole of Ireland. We drew up standards and did everything we could to run courses and to help them. There was always this problem of the unsatisfactory pre-school play group run either in a slovenly manner, or by unscrupulous people, or by people who were simply in it to make money. If that was true — and I am talking of 20 or 25 years ago — that situation has certainly become very much more widespread. There is now a situation where people are simply opening up these pre-school play groups and they are quite clearly — I am sure this has been said before; unfortunately I was not here for the earlier part of the debate — running them as businesses. Somebody who rang me recently wanted to run one of these pre-schools in our area and wanted to know if planning permission would be a problem for them in a residential area. They referred to it quite straightforwardly as a business. The husband was ringing on behalf of the wife, she would be running the business, etc. Therefore, I have great concern about this section of the Bill.
I take the points that Senator Ryan made. I certainly am not looking for what he interpreted Senator O'Reilly and Senator Norris to be looking for, a semantic change to "registration" from "notification", which is in the Bill. That is not what I am looking for. My concern is that — if the health board maintain a register of persons who are running a pre-school play group and if that register is available for inspection, say, in the local library or wherever it may be, there is an obvious assumption there that these are satisfactory, well run institutions. I think it will be making the situation even worse the more you publicise and make that information available, because if you simply have notification, the very worst pre-school play group in this country — we need not go into what that is; I am sure that has been spoken about — the one that this Bill is there to stamp out, can continue. They can simply notify the local authority — call it "register" or "notify"; that is what Senator Ryan is talking about — or whoever they have to notify, the health board or whoever. That register will be available perhaps in the local library and an unsuspecting mother goes in there and says: "Oh, this is the register", and does not bother to check it. They get a false sense of confidence about it. They do not realise that it has not been vetted or do not realise that it could be the worst one in the country. They send their child off there, happy in the belief that this is a satisfactory situation.
This matter is germane to the whole Bill. I take Senator Ryan's point. It is obviously a problem. We are back to what is a pre-school. If a mother has two children of her own and she decides to take in two more from a neighbour who goes out to work, is that a pre-school? Where is the cut-off point? What is a pre-school and what is not a pre-school? I think that any pre-school being run for a certain number — that number would obviously have to be decided on; I do not think one could say it should be four, six or eight — would have to be inspected. Then there would be a guarantee that there was some sort of standard.
I do not agree with Senator Ryan that this is an impossible situation, that is, provided we define a pre-school play group as something more than the mother who takes in two children other than perhaps her own. Bord Fáilte, for instance, have registration for bed and breakfast outfits. I consider it is far more important that there should be registration for a pre-school play group than that there should be registration for where our tourists and our visitors come to stay. I would prefer to see the money taken out of that and put into pre-schools, if that had to be. That, of course, is not what I want; I want them both to be done. I think the registration of bed and breakfast accommodation is very important, but I cannot accept that it is more important, because there are people going to bed and breakfasts who are perfectly capable of looking after themselves and, if they do not like it, they can take themselves off somewhere else; whereas, unfortunately, that is not the case for a child who goes to one of these pre-schools.
Another situation which we have is that a landlord is obliged to register if he has two flats in a house. In that situation there is no automatic inspection: the local authority can inspect it if there is a problem. That is a situation which I do not think would be sufficient in the case of a pre-school play group. Therefore, I would ask the Minister to think about this one very seriously.
Senator Ryan may have misunderstood my amendment and the very helpful contribution made on it by Senator Norris. What I think Senator Ryan fears might arise is that we would have a network of inspectors criss-crossing Ireland visiting pre-schools, that the whole regime would become punitive, obstructionist and difficult. That, of course, is not what we are talking about. There is no question about that. What the amendment is trying to ensure is that a system of registration exists that will ensure the highest standards in the pre-schools of this country. The amendments are proposed in the knowledge that that exists, by and large already; but we want to isolate the cases where it does not exist and get rid of those. I would be saying that the people registered could at any time lose their registration if they were not up to standard or if their standards fell to a level that was unacceptable.
The object of registration is to ensure the highest standards. I can appreciate that Senator Ryan would legitimately be concerned if we were going to set up some absurd bureaucratic inspectorate that would cause all sorts of inhibiting problems for the pre-schools, that people would operate their pre-schools on a day-to-day basis totally nervous about when will this horrendous inspector appear. That is not what we are talking about at all. We are ensuring by a system of registration that the very best standards exist, that it is possible that somebody can cease to be registered and that somebody does not automatically be registered without it being the case that certain standards exist. In other words, we want the highest and best form of regulation. I have taught for many years — and I remain a teacher on leave of absence — and I know that if you do not get the pre-school path, the very junior years, right, then you do not get the latter stages right. I am very anxious about that and I am appealing for the Minister to accept the amendment. I want to make that qualifying remark in the light of Senator Ryan's contribution, which I know was well motivated.
We have given tremendous time and attention to these sections at the all-party Committee Stage and again in the Dáil, and I want to assure Senator Hederman and the House of that. The first point I wish to make in response to these amendments is that the Government are committed to introducing statutory procedures for the regulation, inspection and supervision of pre-school services. However, we are also anxious to avoid creating an elaborate, supervisory system which would cost a huge amount of money to operate, a cost which would ultimately have to be borne by parents of children attending these services; and this, we feel, would be totally unfair.
It seems to me that the notification system which we have proposed in the Bill meets two objectives: it provides a system of statutory control and it does not impose a huge cost on the users of the pre-school services for these young children. What we propose is that there would be a legal obligation on persons carrying on pre-school services to notify the health board of their existence and operation and failure to do so would itself be an offence.
There are a large number of sections dealing with this and they do so in great detail. I think Senator Ryan has made a very practical contribution on this whole matter. If we are to have a situation of registration and pre-inspection we are going to be in a position that many of the existing services would be put out of operation immediately. That is not what we intend or what anybody wants to imply or to achieve. We want notification, which is ultimate registration. There would be specific forms to be completed. We have ensured that the staff of the health board, qualified professionals, inspectors from the Department of Education, will be in a position of visit these schools. We want to ensure that there will be a levelling of standards and a gradual improvement of those standards. All that would be operated in consultation with the Department of Education and the Minister for Education. We are talking here on a Bill which is the ultimate responsibility of the Minister for Health. Consequently, we cannot be operating on the basis that we are wearing two hats, one on the health side and the other on the education side. We must ensure that where there is a dovetailing there is a balanced, consistent effort to ensure that we are as fair to everybody as possible and that we bring in reasonable control, not absolute control.
At the end of the day we must always remember that those ultimately responsible and the ultimate arbiters in any situation will be the parents of these children. If they are dissatisfied with the type of service that is being given, with the facilities available, with the charges being imposed, they will respond by reporting to the health board or withdrawing their children, or both. We can be certain in that situation that the system will operate effectively.
The Minister for Health will make regulations to control the operation of pre-schools following consultations with the Minister for Education and the Minister for the Environment. Health Boards would be required to have the services inspected from time to time and would be able to call on the assistance of inspectors from the Department of Education in the case of services which have an educational dimension. The other areas of service they will be able to call on the Minister for the Environment and the other statutory authorities if an examination or an inspection pertaining to the safety of a building or fire safety regulations or anything like that needs to be carried out. In the event of serious of persistent failure to adhere to the regulations the courts will be able to impose fines and, more specifically, order that the service be closed, either temporarily while improvements are being effected or for a longer period. This is a major change. We have covered a very wide area. We have brought these pre-schools under statutory and State control. We have involved regulations and an inspectorate and this is a major departure. We should all welcome it. It is more than adequate to deal with any abuses which may arise in the area of pre-school services.
With regard to Senator Ryan's amendment No. 74, I would draw attention, as he did himself, to section 54, part III, which requires each health board to make available to any interested person information on pre-school services in their area. As far as I am concerned, what that means is that if I am living in a health board area and need information from the health board pertaining to the pre-school services in my area, I am entitled to get it. If the health board refuse to do so, all I have to do is make a phone call to the Department of Health who will direct the health board to make that information available to me. That is how simple it is to operate the regulations which we propose to bring into operation as soon as the Bill has been passed. This achieves in a slightly different way what Senator Ryan is trying to achieve in amendment No. 74.
I hope that what I have said is a clear commitment on behalf of the Government to regulate and to take under statutory control the pre-school services in the country. It is also an acknowledgement by us of the situation that exists today and the tremendous level of service being given by many pre-schools right across the country. It is also an acknowledgement by us of the necessity to have an opportunity to inspect and to ensure that a proper service is being given right across the board in this very important area. I hope this is to the satisfaction of the House.
I regret to say it is not entirely to my satisfaction. The Minister is a little disingenuous in one of his arguments at least when he said the situation is that if parents are dissatisfied they can withdraw their child or report to the health board. Of course, they can. They can do that without this Bill. If this is the principle along which the Minister is operating there is absolutely no point in regulating things at all because the free market operates. You can have Dotheboys Hall, you can have borstals all over the place, you can have murder machines. Of course, the parents can withdraw the children. It is the old "If you don't like it, switch it off" argument. It is rather curious that the Minister's colleague does not operate this in regard to pornography and video nasties and so on: "You have the off switch; why do you not use it?" I do not accept that argument at all. There would be no need to go round and laboriously pre-inspect every school, but each school would be liable to inspection and as a result of this liability could be de-registered. Perhaps some legal machinery needs to be applied to this. The Minister has the resources of parliamentary draftspersons; lonely, isolated individuals like myself trying to read through this kind of legislation do not, so we put down our own, akwardly phrased amendments. If a principle is accepted I have no wish to stand over every single word.
Certain doubts have been raised about the authenticity of the point of view expressed here. I am not an expert but I do not think Senator Ryan is either although I frequently find myself in agreement with him. I am acting on the basis of advice from Barnardos which echoes the general welcome we have all given to this Bill and goes on to say that "registration is essential for pre-school services because it imposes standards which have to apply before the facility can be registered. Clearer child development and curriculum standards need to be laid down. A list of registered facilities would then be available to the public and parents on the understanding that they were fit to operate. Notification as defined in the Bill does not incorporate these safeguards".
This amendment is defective in word if not in spirit and has to be taken with the other amendments that deal with the question of authorised personnel because our definition of those stated that they must be properly and professionally qualified and trained. At the moment authorised personnel are designated by the Minister and that is not good enough either.
In case other doubts are raised as to the professional competence that lies behind these amendments or if there is any feeling that they have been casually or mischieviously put down, may I say I have received another submission from a group that includes the Royal College of Psychiatrists — child psychiatry division — the Irish Association of Social Workers, the Irish Association of Care Workers, the Federation of Services for Unmarried Parents and their Children, Focus Point, Street Wise, Catholic Youth Council, Family Lawyers Association, CARE and the Resident Managers Association and this is what they have to say on the point of notification versus registration: "registration rather than notification is needed. A pre-school service must be of a certain standard before it can be registered. This must be vetted by the particular health board but we are in need of a Bill to set out clear guidelines as to standards of practice in accordance with child development facilities."
It is possible under this amendment for a facility to register and for an assumption to be made by the central authority that the facility is bona fide. It is assumed by the process of registration that the child care facility has entered into a contract which states on their part: "We have understood and met the requirements for the establishment of this kind of thing", and then there can be inspection. They are liable to inspection and should be liable to de-registration. I am not sure whether the Minister has satisfied us on whether or not can they be de-notified. Senator Ryan has now assumed ministerial responsibility and it comes as a great pleasure to me because I think — not denigrating the present Minister — in the light of the Senator's contribution that he would be an excellent Minister.
He may see the light and come over here.
I could not bear any further defections. I would have to be taken into child care myself if there were any further defections from this ground.
Do you anticipate any further defections?
If I go, I will not be defecting. I will be elevating.
I am tempted to make a pun but I will not because it would be rather obscene. I am not sure that it would come within the scope of parliamentary language——
Does Senator Ryan think I should make it? I was merely going to observe that joining the political parties as currently presented would represent, in my case, defecation rather than defection. I am sure that is not parliamentary language.
It certainly puts pressure on me.
I am not sure if I am wearing my putative hat as the Minister's alter ego or whatever, at this stage. My colleagues have put down amendments about registration which are meaningless. If they want to put down amendments about registration which involves a process of inspections, appeals, refusals etc., then let us have a debate but let us not spend a long time arguing about a register which is the same thing as notification. Saying it is a register rather than notification does not make it any different. If Senator O'Reilly and Senator Norris want to put in a procedure for registration similar to the one under Part VIII then they have a perfectly valid point. I would not agree with them largely because the definition of pre-school service, which I am not happy with, is extraordinarily wide-ranging in this Part.
There is an obligation on every person carrying on a pre-school to take all reasonable measures. The Minister will make further regulations about health board pre-schools. People will be appointed by the health board, and it is not "may" but "shall", who shall inspect premises where there is a notified play school; they can get a warrant from the District Court to enter any premises where they believe an un-notified pre-school service exists. There is a provision for a person who contravenes the requirements of this Part to be convicted, fined £1,000 or in addition to or as a replacement for to be prohibited from carrying on a pre-school service for a period. These are fairly substantial powers.
I do not normally take the Government's part but there are an enormous number of people in our society who go out to work in order to have a roof over their heads because it takes two peoples' salaries to pay the sort of mortgage you have to pay on a new house today. We should not impose any extra costs on pre-schools other than the minimum necessary to provide reasonable guarantees of a decent service because the more we regulate and the more we involve pre-inspections the more cumbersome and complicated the apparatus becomes.
I know that certain professional bodies have suggested pre-inspection and no registration until they have been pre-inspected but I do not agree with them. In the submission I got from Barnados dated February 1989, their section on notification and inspection is not as specific as the letter Senator Norris quoted from. The proposed procedures are reasonable and fair as long as people know about them. It would be useful for the health board to ask everybody who notifies them to state in that notification that they meet the standards required or that they are satisfied that they are operating properly under the provisions of the Act. That would be a reasonable request and an inspection would possibly follow. Such a notification of compliance would put an onus on people to make some effort to meet the reasonable standards set down but I think the Part is quite reasonable as it is.
I am not satisfied with the Minister's reply on this; his approach is too lax as is Senator Ryan's. Any existing or potential child care service should be registered and anything short of a national registration system is inadequate.
If we were to introduce a registration system for pre-schools it would be necessary to have a system of pre-inspection of pre-schools before they could be registered and a number of Members — Senator Ryan in particular — referred to this. It would be necessary in this case to have provisions similar to those contained in Part VIII dealing with children's homes, for example, section 57, the prohibition of unregistered centres; section 58, registration of children's residential centres; section 59, appeals against refusal of registration. I do not believe that pre-school services require this type of detailed regulation and we must all accept this. I sincerely thank Senator Ryan for his excellent practical exposé of the current situation.
Once the Seanad and Dáil pass this Bill and the President signs it, it will be the law of the land; notification will be required. Certain details will have to be given on that notification which will be subject to examination by the health boards. If the health boards deem it immediately necessary they will send out an inspector or inspectors to examine that situation and if those inspectors find something they are not satisfied with they will report to the health boards who will direct that certain things be done or, alternatively, if things are serious they will direct that the centre be closed down. If a refusal to close down is not acceptable to those promoting that centre, or administering it, or in control of it, then this Bill will allow the health board to take that centre to court to get a clear decision. If that is not regulation and implementation of the law in a totally new way for these pre-school services, I do not know what is.
We must accept that many well-intentioned people run a tremendous service on behalf of little children and as Senator Ryan said, on behalf of parents who need that service so that both parents can go to work. If we bring in registration we immediately put many of those children at risk and their parents' jobs at risk. That would be unfair and would not be in the best interests of the children for whom we are here to ensure that we pass the best laws possible.
In view of that I appeal to Senator O'Reilly and his colleagues not to press these amendments as I believe they are unnecessary.
I respectfully suggest to the Minister that the way to correct the situation he adverts to in terms of the difficulty that might be posed for parents who wanted to put children into pre-school services or for people running pre-school services would be to look at our taxation system and at other areas of legislation outside this. I do not believe that introducing a less than comprehensive registration system is the right method. Implicit in that last reply from the Minister is an acknowledgment that a registration system — and this is important — would involve a different set of standards and I accept that difficulties could be caused for individuals. I submit that the Minister should look at the taxation system and for that reason I cannot accept his reply.
Question put: "That the words proposed to be deleted stand".
The Committee divided: Tá, 25; Níl, 13.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Foley, Denis.
- Hanafin, Des.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Lanigan, Michael.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Brendan.
- Ryan, Eoin David.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Hederman, Carmencita.
- Hourigan, Richard V.
- McDonald, Charlie.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Staunton, Myles.
Tellers: Tá, Senators Haughey and Hussey; Níl, Senators Cosgrave and Neville.
Question declared carried.
Amendment declared lost.
Amendments Nos. 72 to 74, inclusive, not moved.
Question proposed: "That section 49 stand part of the Bill."
Why can amendment No. 74 not be moved? It is not connected to the other amendments.
It was related with them for discussion. It was stated when we commenced dealing with amendment No. 71 that amendment No. 72 was cognate and amendments Nos. 73, 74, 77 and 78 were related and could be discussed together as they dealt with registration. That principle has been decided.
I will not argue with the Chair. The tone of the debate for the last hour was about the difference between registration and what I had in mind. It does not matter anyway.
I have no control over it. If it does not suit Members, I regret it.
I regret that the division was called because it rules out all these amendments being re-entered on Report Stage. Perhaps on Report Stage or on Fifth Stage it may be possible to enter into some small degree of discussion on the matter. I would welcome the opportunity to go back to the people who briefed me and raise with them some of the reasonable objections made and the case entered by the Minister this afternoon. I am not completely satisfied. The Minister has relieved some of my doubts and seemed to indicate that the process of notification goes some considerable way towards meeting the reservations expressed to me by professional and caring bodies. I will try to find some method of placing their views on the record at a later stage.
As regards giving notice to the relevant health board in the prescribed manner, is the "prescribed manner" referred to somewhere, or is it a matter for regulation? What will be the prescribed manner?
Immediately after the Bill is passed the child care division of the Department who are presently engaged in putting the regulations together and in having discussions with the relevant bodies and various statutory agencies in other Departments with an interest in the Bill, will bring forward the regulations and the Minister will have an overview of them. Eventually the final regulations will be published.
I share Senator Norris's concern that the matters that he wants looked at on Report Stage be looked at and I trust the Minister will do so. He is concerned that because of the vote some of the issues will not be examined on Report Stage.
Does the Minister envisage that the notification procedure will involve either on the part of the health board or on the part of the person who is giving notice, some reference to the standard specified under section 50 or will it simply be a formal notification? Will the health board have to remind them or will the people have to let the health board know?
The regulations will be published and will become public knowledge. We may place advertisements in various newspapers. People notifying us would do so in a formal way. Once that was done, we would issue them with a special form which they would have to fill in great detail. We would also send documentation to people where we knew of services being offered. Once the regulations are in position we will see how to achieve the maximum amount of registration through the notification system.
Question put and agreed to.
Sections 50 and 51 agreed to.
SECTION 52.
Amendments Nos. 75 and 76 are related and may be discussed together.
I move amendment No. 75:
In page 26, subsection (1), line 27, after "Part" to insert ", such authorised persons to have specialised training as appropriate for their duties".
The amendment deals with ensuring that authorised persons have a specialised training which would be appropriate for their duties. This is a reasonable amendment. It is important that personnel involved in child care ought to have proper professional training and that those employed to supervise in such a child facility ought to be trained in the appropriate fields.
The emphasis in the Bill, by and large, is on physical environment. There is very little concept of the kind of care or the quality of that experience for the child. I know from what the Minister has said that this is very much in his mind and although he did not take on board an amendment earlier in the afternoon from Senator Ryan, which spelt out this question of the care and supervision of the child, the development, etc., the Minister made it perfectly clear that this is implicit, as far as he is concerned, in the Bill.
Hygiene and safety regulations have to be met but under "health" it is essential to consider as well as physical health, the psychological and emotional health of the child which is influenced by the environment. A child in a creche, playgroup, nursery or any child-minding centre will spend the greatest part of his or her early life in that environment. For that reason it is felt that the Bill should be amended to ensure that those undertaking supervision and inspection are trained in child care, child psychology and child development. This will enable the health board or the Department of Education to second staff to do this training or to contract those skills in from outside. It seems perfectly logical and reasonable to expect people in this kind of authorised position to have certain qualifications and skills, otherwise there is very little point in them being there at all.
The Bill as it stands is a little bit naked in its phraseology because it seems to allow the Minister to designate people. The coalition which represents eight or ten different groups say that in order to inspect and supervise facilities adequately, the authorised persons must be trained or have access to professional persons. They give as an analogous case the Department of Health and Social Services inspectorate role in the United Kingdom. Barnardos say there should be training of personnel in order to ensure that they have the proper skills. The setting down of minimal standards will necessarily imply that those who work directly with children will be professionally trained to do so. The Bill should ensure that specialised training is mandatory for all those working in this area.
There is commonsense involved here which even so unsophisticated a mind as my own can comprehend. I could again read into the record of the House the views of a number of caring and professional bodies who strongly feel that there should be some kind of qualification or training required. I do not suggest that they have a Ph.D. in child minding but I am suggesting that in order to inspect, it is really necessary to have some acquaintance with this role.
My amendment is different and a slightly more appropriate way of achieving the same objective which is that the Minister shall make regulations prescribing the qualification and/or experience required by a person to be appointed under subsection (1). It is important that the inspection be carried out by somebody who has a qualification or experience or both. The individual should be properly qualified either formally or by experience. I would prefer both.
I agree with Senators that persons carrying out inspections under this Part should be appropriately trained and qualified. Health boards employ a wide range of professional staff including doctors, nurses, social workers, health inspectors, administrative, engineering staff and others. Any of these staff would be in a position to contribute to the inspection of pre-schools. We are anxious to give health boards the maximum flexibility in assigning staff to undertake these inspections and that is why we have not idicated any specific category or grade of staff. The various professionals I have mentioned have their own systems of training and prescribed qualifications. Health boards operate training, in-service and refresher courses. We intend that some of these courses will be specifically for the Child Care Bill and the various obligations contained therein. In view of this, there is no need for these amendments and I suggest that they be withdrawn.
I am not pressing my amendment but I will leave it so that I can re-enter it on Report Stage.
The appropriate qualification or experience should be spelled out because as the Bill is drafted an inspector of drains could be sent in to assess the psychological environment. I do not think that is appropriate. I am not tying the Minister down to anything specific. We are just saying "appropriate". We are not putting down a list of specific qualifications. It seems reasonable to ensure appropriate qualifications. I do not want to be contentious and I hope that the Minister might be in a position to undertake to look at the situation again. It is not an extravagant demand. The question of appropriateness is an important principle with which I am sure the Minister and Senator Brendan Ryan would find themselves in partial agreement.
The more I listen to Senator Norris the more I realise how little he knows about health boards. There is no need for this. As for a health board sending out an inspector of drains to fulfil section 52 of this legislation, that will not happen.
I am not one to advocate greater trust in health boards because my thoughts on health boards are known. At the same time, I do not think it necessary to go down the road of stating how specially trained people should be for appointments. Knowing health boards, I can say they will not send out an inspector of drains to comply with section 52 of this legislation.
Is amendment No. 75 being pressed?
It is not being pressed at the moment but I reserve the right to come back to it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 76 not moved.
Section 52 agreed to.
SECTION 53.
Amendments No. 77 has already been discussed with amendment No. 71. Is the amendment being pressed?
I do not see how it can be unfortunately, but in any case I would not press it. I would like the opportunity to talk about it again on Report Stage. It is certainly not being pressed but I think it has probably disappeared.
Amendment No. 77 not moved.
Is amendment No. 78 being pressed?
It is in the same situation; it is a kind of limbo.
Amendment No. 78 not moved.
Government amendment No. 79:
In page 27, between lines 7 and 8, to insert the following new subsection:
"(4) A warrant under subsection (2) may be issued by a justice of the District Court for the time being assigned to the district court district where the premises are situated.".
This is another technical amendment recommended by the draftsman. Its purpose is to clarify that a warrant under subsection (2) to enter a premises where a pre-school service has been or is believed to be carried on may be issued by the district justice of the district where the premises are situated.
Amendment agreed to.
Section 53, as amended, agreed to.
SECTION 54.
Question proposed: "That section 54 stand part of the Bill".
In this case the Minister will make regulations to effectively ensure that the health board provide the same facilities for their child care services as are being provided by, for want of a better word, the "private" sector. It intrigues me that, as far as I can judge — and the Minister can correct me — there is no similar provision for children's residential centres in the next part.
Question put and agreed to.
Section 55 agreed to.
SECTION 56.
I move amendment No. 80:
In page 27, line 44, to delete "excluding" and in page 28, lines 1 to 11, to delete paragraphs (a) to (e).
I am not tempting fate but I half expected this to be ruled out of order because quite clearly if the inspection and registration procedures that are imposed on children's residential centres that are not institutions managed by the State were to be imposed it would involve a charge on the revenue. I will not push this amendment to a vote because, re-reading this part of the Bill, I am aware that it would need some further thought to make it consistent. I do not want to play around with inconsistent amendments. I do not understand why institutions managed by or on behalf of a Minister or a health board should be excluded from a definition of children's residential centres. I read the Report Stage debate in the other House on this with interest but as I understand it, this Part VIII is dramatically different from Part VIII before Report Stage in the other House and in terms of the genuine concern that then existed that children's residential centres should be defined and registered the exclusion of institutions managed by or on behalf of the Minister or health board went a little bit by default. I am not happy that any residential institution looking after children should be permitted to meet standards other than the highest possible. My amendment simply deletes the exclusions from section 56 because they are quite wide-ranging. They cover all institutions managed by or on behalf of a Minister or health board; an institution in which the majority of the children being maintained are being treated for acute illnesses and an institution for the care and maintenance of physically or mentally handicapped children — that raises interesting questions about mentally handicapped children who are taken into care for one reason or another; a mental institution within the meaning of the Mental Treatments Acts, 1945 to 1966; and an institution which is a certified school. My amendment is to give notice that it is an unhappily generous exclusion in terms of the State's own responsibilities.
I would like to begin by setting out the background to Part VIII of the Bill. Under current legislation there are two categories of children's homes. The Children Act, 1908, provides for the certification of certain homes as industrial schools. However, for many years they have been withdrawn from the type of work which they were originally doing and they now cater for deprived and neglected children placed by the health boards. There are 20 homes of this category and they include examples like St. Kieran's, Rathdrum; St. Vincent's in Drogheda, St. Anne's, Kilmacud; Gracepark and Mayfield in Waterford and Nazareth Home, Tralee. The second category are those approved by the Minister for Health under the 1953 Health Act for the reception of children in the care of health boards. Examples of these are Madonna House and Miss Carr's, both in Dublin and St. Muriel's Nursery in Donegal.
While these two categories of homes are developed under two different statutes they now deliver a similar service for children in the care of health boards and all are funded by the health boards. By virtue of section 64 it is intended that they would cease to be certified as industrial schools or approved homes as the case may be and would become children's residential centres. Under existing law there is no requirement on a religious community or other body who propose to establish a residential home for children to seek approval or recognition from a health board or from the Minister for Health. The decision to apply for approval is entirely at their discretion. In practice, the management of such homes generally apply for approval or certification in order to secure the commitment of financial support for the health boards for their operations. In some cases, homes may be set up and operated without any direct support from health boards.
When the Bill was originally introduced it provided for the continuation of this system of approval where applied for by the manager of a home. At the Special Committee there was unanimous agreement that the Bill should be amended so that it would not be lawful for any person or any body to operate a home for children unless it was registered with the local health board. The Bill was then amended to give effect to the desire of Deputies that a registration system for these homes be set in place. I might add that the registration scheme is closely modelled on the new nursing home legislation which was recently passed by the House and has since been enacted into law. I trust that based on this information the Senator will agree to withdraw this amendment and allow the situation that we have agreed at committee to prevail.
It is 6 o'clock and I am aware that the Minister felt that we could continue, but that is not permissible because the House ordered the business earlier today. If we were to proceed beyond 6 o'clock and pass any further sections of the Bill, we would be in contravention of the Order of the House. It might very well be that the legislation that would be passed could be contested. I advise the House on that. I ask the Acting Leader of the House to report progress and move the suspension of the House until 6.30 p.m.
I suggest that maybe we could take the Report and Final Stages the next day.
I will suggest that to the Leader of the House.
I believe it is under discussion among the Whips.
Progress reported; Committee to sit again.
Sitting suspended at 6 p.m. and resumed at 6.30 p.m.
