Amendments Nos. 3 and 4 are alternatives to amendment No. 1, while amendment No. 2 is consequential on amendment No. 3 and all may be discussed together by agreement.
Children Bill, 1999: Committee and Remaining Stages.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 15, line 18, before "(1)", to insert the following new subsections:
"(1)Subject to subsection (2) of this section, this Act, to the extent that the provisions thereof do not involve a charge on public funds, shall come into operation one calendar month following its enactment.
(2) Part 3, to the extent that the provisions thereof do not involve a charge on public funds, shall come into operation upon the enactment of this Act.”.
The purpose of the amendment is straightforward. The Bill has been in circulation since 1999 while a previous Children Bill was introduced in 1996. The general concept of the Bill has been in the Department for almost five years. This legislation has been in circulation for over two years so one assumes the necessary preparatory work has been ongoing in the various Department over that time in terms of the implementation of the various sections.
The amendment relates to Part 2 dealing with family welfare conferences and Part 3 dealing with children in need of special care and protection. The amendment is vital because, as it stands, the Bill does not have a specific enactment date. Certain sections need specific enactment dates. The amendment is straightforward because it relates to provisions that do not involve a charge on the public funds coming into operation. In light of all the information available to the Minister of State and the Department and the plight of many children, particularly in this city, who are in serious circumstances, I hope the Minister will accept the amendments.
Part of the amendment suggests that provisions should come into operation one month after the enactment of the legislation. I cannot foresee any problem with that proposal. There is great concern about children who are in difficulty. Parents have taken cases to court to ensure necessary attention is given to their children. Some children are out of control and parents cannot manage. They do not have the resources or the ability to cope with their disturbed children. Such children need specific psychological support and assistance. In some cases, they need psychiatric care. Unfortunately, despite the Celtic tiger, the State has dramatically let down such children. They are a vulnerable group in society and umpteen cases have gone to the courts. These cases have been taken by parents and other individuals to force the State to provide the necessary and urgent attention the children involved require.
There is no point making laws that are then put on a shelf and left to gather dust. The Bill should be put into operation immediately. There are many examples throughout the country of children who have been badly failed by the Government and society. In common with the position of the handicapped and the elderly, it is an indictment of us as a community that we are not in a position to deal with these children in a civilised, consideration and humane way that involves a level of sympathy and sincerity. Unfortunately, they have been treated as pariahs in society. However, as the Minister of State accepted on Second Stage, each child is a victim and a product of our society. We have a responsibility to respond to them and to put them on the right road. This can only be done if specific elements of the Bill are put into operation.
I hope the amendments will receive the full support of the Minister of State because an enactment date is required. The Minister of State recognises that fact and I know she will do everything she can to further implementation of the Bill. However, unless a timetable is included, the Departments of Education and Science, Justice, Equality and Law Reform and Health and Children will lag behind. They need to be put on alert and given a specific date by which they must deliver. This is the purpose of the amendments and I hope they are supported by the House.
I urge the Minister of State to accept the amendments. We all realise her commitment to children and to improve the conditions of those who are in care or have run into trouble with the law. As I said on Second Stage, this is a good Bill, but Senator Taylor-Quinn's amendments would strengthen the Minister of State's hand in insisting that the required facilities for children are put in place. Judges repeatedly say that there is nowhere to put children. The Bill would be improved if some force was put on the Department of Finance in particular to produce funds to enable units to be built.
The Senators and I share the view that as much of the Bill as possible should be implemented as quickly as possible in the interests of the children we want to serve. Senators will accept that after many years the legal vacuum in relation to children and the deficit in funding are being addressed.
Recognising that these children are products of our society, the Bill goes a long way towards ensuring that we deal with children as individuals and citizens in their own right while involving their families and the community. I accept that we need to implement much of the legislation quickly. It is also important that the resources be in place to implement the Bill properly and the Government is committed to ensuring that.
While accepting in principle the need to move forward on the Bill, I regret that I cannot accept the amendments, for various reasons some of which are technical and some practical. The first of the amendments would cause an element of confusion about what would and would not come into operation at the time of the signing of the legislation. Some sections of the Bill are dependent on others and it would be necessary to ensure that each comes into place at the right time. There are also implications with regard to funding. In an integrated Bill such as this, some sections would impose no charge on the public funds but would be dependent on sections which would involve such a charge. In practice, this would be extremely difficult to implement.
Amendment No. 4, which places a definite timescale on implementation, confuses the legislative process with the administrative provisions to be put in place. This amendment would place a burden on the Minister to accept responsibility for matters which are completely outside his control. Notwithstanding this, efforts have been made since the publication of the Bill to facilitate the speedy implementation of the Bill. The Garda community relations section has been operating pilot schemes on restorative conferencing and restorative cautioning for well over a year. About 40 such conferences have been held and the reports are very encouraging. Most of the juvenile liaison officers have been trained in mediation and other relevant skills by the Mediation Council of Ireland or by a company called Real Justice. Experts from New Zealand came here in September last to train probation officers on family conferencing.
There has also been planning on the provision of places of detention for 16 and 17 year old detainees separate from others. On 16 January 2001, the Minister announced the commencement of a major programme of redevelopment at Cork prison. It will take three years to complete, will cost £35 million and will have a separate facility for 16 and 17 year olds in a 40 place unit with full support facilities. Sites are at present being examined in the Dublin area for an extra 110 places. We all recognise the serious lack of provision for young girls who, unfortunately, are becoming more and more involved in the juvenile justice system. A site is also being sought to accommodate secure detention for up to 20 females.
Part 2 provides for the Special Residential Services Board which I appointed last year on an interim basis. The board's membership is already working on that basis and has been very helpful in our condideration of the Bill. It is crucial that this part of the Bill be implemented before others, which is why I cannot accept the amendments.
In the Department of Education and Science a capital development programme for the children's detention schools has been agreed. Plans are being prepared and £9 million has been allocated this year to implement the programme. Priority is being given to the provision in Lusk of a specialised high security unit to cater for depraved and unruly children who would previously have gone to prison and for children with particular specialised needs.
Section 101 provides for day assessment of children found guilty. We are all anxious that alternative provisions be used for children who come before the courts. Plans for the provision of the first such place at an existing probation office ran into planning difficulties regarding a simple change of use. The unfortunate consequence of that planning objection was that it was well over 12 months before a building which was already in use could have a mere change of use. I am glad to say the place is now open for referrals from the courts. However, this example serves to show how difficulties and delays can occur which would make these amendments impossible to accept. It also shows that as well as commitment from the Government and various Departments we must also have commitment from society if we are to respond to the needs of these young people.
Much preparation has been done and many provisions will come into operation immediately on the enactment of the Bill and thereafter as quickly as possible. Parts 2, 3, and 11, which relate to children who have particular behavioural difficulties and are before the courts, will be proceeded with as quickly as possible and I hope to have them in place by the end of the year. Substantial investment is needed and staffing difficulties must be overcome. Because of the integrated nature of the Bill, the fact that sections are dependent one on the other, the fact that some sections may involve a cost on the Exchequer and are dependent on others which do not and the fact that there are elements outside the Government's control, including objections from the public, I cannot accept the amendments. I ask Senators to accept my assurance and that of the Government that we intend to proceed with this major legislation and to implement it as quickly as possible.
I am disappointed by the Minister of State's response. I understand some of the difficulties she has mentioned, particularly those which relate to planning. However, I am disappointed to hear her say she cannot take full responsibility for things which are outside her control. The Ministers for Health and Children, Justice, Equality and Law Reform and Education and Science bear ultimate responsibility for the issues dealt with in this Bill. I do not underestimate the commitment of the Minister of State but if there is not an overall Government commitment to putting the provisions of the Bill in place it will not happen. That is why my amendments propose that time limits be put in place. Obstacles will always be found and Departments will always find it impossible to move this way or that. However, if they are statutorily required to act they will do so.
The Minister has outlined the difficulties she faces but I do not accept what she says. I accept that money has been committed for the purchase and improvement of various properties. The Minister of State acknowledges that there are staffing difficulties. Why have those difficulties not been addressed in the past two years? Special incentives, special training and proper remuneration should have been put in place to overcome staffing difficulties. This could have been done during the past two years.
It is unacceptable that misfortunate children, whose families have lost control of them and cannot take care of them, are not being taken care of by the State. Week after week we hear judges calling Ministers and Departments to account. This is unsatisfactory, particularly when the children in question are among the most deprived in the country. It is not acceptable for the Minister of State to say that bureaucracy and admistrative difficulties will be an impediment to delivering the service.
It is up to the Government to overcome these difficulties. The Government is elected to govern. It has a specific obligation to the most deprived members of our community. I invite the Minister of State to urge her senior Ministers, the Cabinet and the Taoiseach to deliver the provisions of this Bill. I accept her own commitment, goodwill and intentions.
It would be to the Minister's advantage as Minister of State to have a date set because there would then have to be a delivery time. It would make the Minister's life much easier if that were put into the legislation. I invite the Minister to accept the amendment.
I remind Senators that three different Departments have responsibility for children, the Departments of Justice, Equality and Law Reform, Education and Science and Health and Children. The idea behind that is to ensure that there is co-ordination between the three Departments. I meet with those three Departments regularly to ensure that we can progress all those issues which are cross-departmental. This Bill is a perfect example of this, being a result of co-operation between the Departments. Even though responsibility rests with three Ministers, co-ordination is the responsibility of the Minister of State with special responsibility for children.
I wish to address the issue of the special care of those children who are coming before the courts with behavioural difficulties. It is only in recent years that the responsibility of the State has been recognised as a result of a High Court case. From a situation where there were just 17 places for these children in 1997, we are now well on the way to providing 110 extra places. There are now 84 places and by this time next year we will have a total of 160 places for special care in high support units to facilitate these young people. I acknowledge that staffing is a difficulty but equally tremendous efforts have been made by the health boards in trying to recruit staff. They have gone as far as South Africa, New Zealand, Australia, Canada, Scandinavia, all the English-speaking countries, in their search for suitably qualified staff to work in residential care. Salaries and remuneration were issues but Senators may have noted that in recent months a very substantial increase was approved and agreed for these workers to encourage people into the profession, to give them a proper sense of vocation and to recognise the work they do. I hope this will serve to involve more people in this career area.
As late as yesterday I briefed the Northern Ireland Office on our national children's strategy. I took the opportunity when in Belfast to visit some of the projects there. Some of their groups have been very helpful to us in assisting with particularly difficult cases. I have been looking to see how we can further develop that cross-Border work. I reassure Senators that everything possible is being done in relation to staffing, salaries, the development of the service and the provision of extra places and ensuring that the three Departments responsible work together to ensure its implementation. For practical reasons and because of the technical difficulties that would arise, I cannot accept these amendments but I accept that this Bill needs to be implemented.
Amendment put.
Tá
|
Burke, Paddy.Caffrey, Ernie.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Henry, Mary.Keogh, Helen. |
McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Ross, Shane.Taylor-Quinn, Madeleine. |
Níl
|
Bohan, Eddie.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim. |
Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Leonard, Ann.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Walsh, Jim. |
Tellers: Tá, Senators Burke and Coogan; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Amendments Nos. 2 to 4, inclusive, not moved.
Question proposed: "That section 2 stand part of the Bill."
I had intended dealing with this matter on the amendments but I was attending a meeting of the Committee on Procedure and Privileges at that time. This is an important section. I compliment Senator Taylor-Quinn on putting down a series of amendments and she was right in putting them to a vote.
I do not know if the Minister of State has given assurances in relation to the implementation of the Act. Section 2 comprises what I would describe as opt-out clauses. In paragraphs (a) to (e), inclusive, the Minister reserves the right to make a decision on implementation of the various stages of the Act, almost at total discretion. The agreement of the Minister for Health and Children is required in relation to section 77, the Minister for Education and Science has to make a decision in relation to the junior remand centres and consultation with the Minister for Health and Children is also required on other matters. It is an extremely cumbersome provision.
This is a substantial Bill which the Minister delayed for the past 18 months to two years to try to get it right. I would have expected adequate work to have been done during that time to put in place the necessary infrastructure to facilitate the speedy implementation of this legislation. It now appears, with these opt-out clauses, that we may or may not see the legislation implemented within the current decade. What assurances have we got on when the family welfare conferences will operate? When will the new court proceedings, which are mooted strongly in this Bill, be up and running? What consultation has taken place with the Departments of Education and Science and Health and Children to ensure that they sing from the same hymn sheet in relation to the speedy implementation of this legislation?
I am concerned that if the Bill completes its passage through the Oireachtas today and becomes law within a short time, it will be out of our hands and back in the hands of the Minister or, more correctly, the three Ministers concerned. Whatever may be said about a couple of cooks spoiling things, three Ministers could have an unhappy knack of not making decisions in unison. We should have a very firm timescale or the Minister should come back to this House within the next 12 months to report on how the Act has been implemented during that period. No element of the Act should be left unimplemented within the next 12 months.
The Minister of State, who has special responsibility for children, has given a very clear and unequivocal undertaking to this House about the implementation of this very important legislation. As has been pointed out, this was first mooted during the term of the last Government in 1996 and the current Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, has taken considerable time to trawl through it. The systems in Australia and New Zealand were looked at and expert advice was sought to ensure that this Bill would be as correct as possible in legislative terms. The Minister of State made it clear that a commitment of several million pounds was being given. I have the utmost confidence in the Minister of State, Deputy Hanafin, who has brought a breath of fresh air to her office. Such an undertaking and commitment is unparalleled. She is the Minister of State with responsibility for children, she has a focus on this legislation and she is enthusiastic about it.
As has been mentioned previously in the House, a High Court judge has strongly emphasised on a number of occasions the importance of implementing this legislation without delay, particularly in relation to the detention of disturbed children. I have no doubt whatsoever that when this Bill is enacted into law, far from the opt-out clauses to which Senator O'Toole has referred, there will be a full focus by the Minister and the Minister of State on implementing the measures contained in it, particularly those in section 2. In the eyes of the public, there is a clear moral compulsion to do this. A great deal of time has elapsed. This Bill has been progressed gradually over a period of almost five years. I am confident the new provisions of the Bill will be implemented swiftly and the required finance will be made available.
The Minister of State has pointed out that there were only about 17 places available two or three years ago for disturbed children. We must do everything possible to avoid imprisoning such youngsters. Now, there are 84 places and I hope that figure will have doubled before the end of this year so there will be places to hold – I do not want to say incarcerate or imprison – and protect disturbed children in a safe place of custody rather than in an adult prison with serious criminals.
I have the utmost faith in the Minister of State in pursuit of her responsibility for children. I hope I can allay the fears of my colleagues about implementation of this Bill. There is an unparalleled public focus on this legislation and I am confident there will be no delay on the part of the Government in forging ahead with the provisions of the Bill.
Nobody in this House would underestimate the personal commitment of the Minister of State and I agree, to a certain point, with Senator O'Donovan's comments. However, a general election could be called at any time and there could be a new Minister in charge of this brief who might not have the same level of commitment as the current holder. We have to legislate for those circumstances, leaving aside the personality of the individual. It is unfortunate that this Bill is going through without taking on board the actual proposals in relation to specific implementation dates.
In a previous response, the Minister of State said there were certain aspects that could be implemented sooner. Maybe she could come to the House on Report Stage and give specific dates as to when certain specific aspects can be implemented. If she is not prepared to accept the amendment she might as least advise the House on delivery dates for certain aspects. This is absolutely necessary otherwise the section is a farce.
While I do not want to reiterate everything that was said when the amendments were discussed, it is important to clarify for Senator Costello that much preparation has gone into the Bill. This is the most major overhaul of the juvenile justice system since 1908. Obviously, much preparation is necessary, and that does not mean it can be implemented very quickly. It should also be seen in the context of Government policies supporting families, early intervention and protection, capital investment and the work of the different Departments. The fact this legislation is the result of co-operation between three Departments is in itself a major advance. I know of no other legislation in which three Departments have co-operated so well. I believe there is a commitment – I take no credit, but thank Senators for their kind comments – in the three Departments to move forward.
The preparatory work includes the interim Special Residential Services Board, the piloting of the family conferences and the family welfare conferences, the piloting of the alternatives to detention, the restorative cautioning, the development of day centres, the capital programme for provision of places for offenders and non-offenders and the regular meetings between the different Departments to ensure we see this in the context of the wider issues with a view to moving forward. As I already indicated, I intend moving forward very quickly with Parts 2, 3 and 11, which refer to children in need of special care and attention but who are non-offenders. Each of those Parts is interlinked, and we will be finalising regulations in that regard and moving forward very quickly. Each of the three Departments and Ministers is committed to moving forward with as much of the Bill as quickly as possible, and we will be looking at setting out a time plan.
Question put and agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7.
An Leas-Chathaoirleach
Amendment No. 5 is in the name of Senator Henry. Amendments Nos. 5 to 11, inclusive, 13 to 20, inclusive, 22 to 28, inclusive, and 49 are cognate and form a composite proposal and may be taken together. Is that agreed? Agreed.
I move amendment No. 5:
In page 19, subsection (1)(a), line 18, to delete “welfare” and substitute “group”.
These amendments, which propose a change in the nomenclature of "family welfare conference" to "family group conference", were brought to me by those working in the area. I know from the Minister's earlier replies that she is well aware of the work which is taking place in the context of family welfare group conferences and the input those from New Zealand, where these con ferences were initiated, have had on the development of the service in Ireland. A family group conference has been described to me as a structured decision making meeting made up of family members. Family is determined broadly to include the children or child, parents, extended family and even significant friends and neighbours to the family who may not be actually blood related. This group of people is given private time to reach a plan to facilitate the safe care and protection of a child or children in need. There is a professional involved in information giving at the beginning of the process and in the assessment of the plan following a decision. He or she is otherwise excluded from the process unless specifically requested to do otherwise. The family group conference meeting is facilitated by an independent co-ordinator.
Some 80% of children who have to be taken into special care units will eventually be returned to their families, thank goodness, making this is a very important aspect of the Bill. I ask the Minister to change the nomenclature from "family welfare conference" to "family group conference" as that, apparently, is how these conferences are described internationally. The request was initiated by those who work in this area.
I support the amendment. As Senator Henry said, it originates in a request from the people who work in the area and it should be taken seriously. There are certain connotations to "welfare conference" which may not necessarily be desirable. Section 77 relates to court proceedings and referral of a person in the context of care or supervision to a conference. A "family care conference" or a "family group conference" would be better than a "family welfare conference". Welfare has all sorts of connotations going back to the last century, some of which are dubious and some acceptable. A neutral word such as group or a very sympathetic word such as care would be preferable.
The work of these conferences will be crucial for young people referred by the courts, and the wider as well as the immediate family should have a role. This is an extremely important provision and is a key section in terms of the operation of the general care system for young people. This term will come into normal parlance very quickly and we should be very careful in the word we choose to ensure it is sympathetic or neutral with no connotations or implications which might not suggest the best meaning we want in terms of conferences.
I support the amendment. The term "group conference" has a softer connotation than "welfare conference". Senator Henry said it would involve members of the extended family, which could be of assistance to the child. It would be evident to him or her that the extended family was concerned and involved, which could be deemed a support mechanism for the child. I commend this and ask the Minister to look upon it favourably.
This is an interesting amendment and I am sure the Minister will give a very logical explanation regarding the wording. I do not know why "welfare" is used as opposed to "group", but I will await the Minister's explanation. However, it is very important to note the Minister and her officials have examined the issue in a global context, particularly in New Zealand and Australia which are viewed as a model in terms of the concept of conferencing. I am quite sure that whatever adjective is used in the description of these conferences, be it group, care or welfare, the concept of conferences is innovative and I am sure it will work wonders for the juvenile justice system. That said, I await the Minister's explanation as to the choice of adjective.
In preparing the Bill a very deliberate effort was made to avoid using the generic term "family group conference". This term is used in other countries and that is not sufficient reason to use it here, though we can of course learn from each other. Where it originated it referred to justice conferences for young offenders – I believe the term originally came from New Zealand. However, this Bill proposes three different types of conference, the first being the family welfare conference. This is provided for in Part 2 which deals with young people who are not offenders but whose behaviour poses a serious risk either to themselves or others, to their health, safety, development and welfare. It involves referral to the child welfare system. That is why the word "welfare" is used and why it is appropriate that it should be used.
The second type of conference is part of the Garda diversion programme to assist young offenders who are being diverted away from the courts. The third type of conference is the family welfare conference for young offenders who have been charged with offences. This will be convened by the probation and welfare service under the direction of the courts and involves the introduction of the restorative justice provisions into the juvenile justice system.
There are three different types of conference, the family welfare conference in which the child will be involved with the child welfare system, the conference of the Garda diversion programme and the family welfare conference for young offenders. It is important to maintain the distinctions between the three, because they have different purposes and to ensure that we recognise that children have the same needs but for different reasons. For that reason, I do not propose to accept the amendments.
I have read the Bill carefully and am well aware of the different types of conference being set up. I agree it is good to maintain the distinction between those to do with the juv enile liaison scheme and children involved in it. However, I would not agree that family group conferences in New Zealand were set up specifically to deal with children who are involved in crime. My reading of the work on the development of family group conferences in New Zealand, where these originated, is that they were to safeguard children and promote their welfare; to try to encourage the taking of parental responsibility and the taking into account of race, culture, class, language, religion and disability; to work in partnership with the family and support the children's contact with the family; to provide services for children in need and to be helpful in reuniting children with their families whenever possible. The emphasis was not on children in detention but on children who were in need, no matter what the need. The child's interests were paramount.
I am interested in this section because, as Senator Costello said, the term "welfare" is sometimes seen as slightly pejorative. It is similar to referring to a lady almoner at a hospital rather than a social worker. I hoped the Minister would accept these amendments since it was those who work in this area who encouraged me to put them forward.
Senator Henry is right in relation to New Zealand. I misread the article and left out a bit. It also refers to juvenile offenders, but I accept it is not juvenile offenders only to which it refers.
An Leas-Chathaoirleach
Is the amendment being pressed?
In the hope that the Minister will think about it, although she has not said she will do so, between now and Report Stage, I will not press it. She knows it is the concerns of those who work in the area I express.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 8, inclusive, not moved.
Section 7 agreed to.
Amendments No. 9 and 10 not moved.
Section 8 agreed to.
SECTION 9.
Amendment No. 11 not moved.
An Leas-Chathaoirleach
Amendment No. 12 is related to amendment No. 21 and they may be discussed together, by agreement.
I move amendment No. 12:
In page 20, subsection (1), between lines 14 and 15, to insert the following new paragraphs:
"(f2>d) the legal representatives, if any, of the child,
(f2>e) the legal representative, if any, of the parents or guardian of the child,".
This is not included in the Bill as it stands. It is important that the child or the parent of the child should have the right to have a legal representative present because there may be aspects of children's and care law that a legal representative could explain that others present at the conference are not in a position to elucidate. It is important that the legal and constitutional rights of the child are protected at all times. That is not to suggest that any of those present would do other than that. However, in the interests of natural justice and of protecting the rights of parent and child, it would be no harm to include this in the Bill.
I support Senator Taylor-Quinn's amendment, given that in reply to my amendment the Minister stressed the importance of this in relation to children who are being detained. It would be a useful addition in respect of those who attend a family welfare conference.
We should not lose sight of the fact that in this scenario it is primarily and more or less exclusively up to the family to decide what to do when a child is unruly or misbehaves. The purpose of this Bill is to move away from the system of justice and the courtroom and into a room where a family can decide among themselves what is best for the child. While I understand why Senator Taylor-Quinn proposed the amendment, it would defeat the purpose of the section if it were accepted. However, I will await the Minister's response. It is important where somebody of 14, 15 or 16 years of age misbehaves or faces court charges that the family should decide on the best way of dealing with the matter rather than bringing in legal representatives, solicitors or barristers. That might be a step in the wrong direction and might send out the wrong signal.
These amendments would be totally at odds with the purpose and ethos of the family welfare conference. The purpose of such a conference is to produce a plan for the future care, protection and development of the child. A vitally important part of that process is that the family should take responsibility for the child and come up with proposals or a plan and get whatever assistance is necessary from the professionals at the conference.
Such conferences and projects have been piloted over the past year in the east coast area. Their piloting suggests that within the structure followed by all family conferences, it is essential to have as informal an atmosphere as possible to give the family an opportunity to discuss and develop, sign up to and commit themselves to a plan which is in the interests of their child. It would not be in their interests nor could this objective be served by introducing the formality of having a legal representative as of right.
In convening a conference the co-ordinator will, in accordance with good practice, discuss with all the parties the persons they believe should be able to participate in this conference. If the child or the family insist that their legal representative be there, the co-ordinator could invite that representative on the basis that this person could make a positive contribution to the conference. However, it is often felt that a conference held under such circumstances is less likely to succeed because it removes the responsibility from the family to come up with a plan in the interests of their child. Because it is at odds with the whole ethos of the family welfare conference, I do not propose to accept the amendment.
I am disappointed with the Minister's response. The co-ordinator has the right to invite the legal representative if he or she deems it appropriate and deems that the legal representative has something positive and helpful to contribute. By including this amendment in the section, all one is saying is that the following persons shall be entitled to attend a family welfare conference. The legal representative of the child or of the parents of the child would have that right. By not including it, it means in a sense that they do not have that right.
It does not necessarily mean they have to attend. If the parents felt sufficiently vulnerable or incompetent and felt the need to bring somebody with them, the insertion of this paragraph in this section would be of assistance to them. It would not be the intention to make it mandatory but to assist people who may feel somewhat vulnerable in those circumstances.
The Minister mentioned the pilot scheme being run in the Eastern Regional Health Authority. I am sure she knows that the people running the pilot scheme use the description family group conferences, not family welfare conferences. It is unfortunate that we are bringing in legislation which describes these conferences as family welfare conferences when a pilot project, which has been up and running for a year and is going very well, describes them as family group conferences.
The report of the pilot project is entitled Group Conferencing, but they are not the only pilot projects that have been undertaken. The Garda also had pilot conferences. That is why they are distinguished within the Bill.
In regard to the presence of legal people as of right at these family conferences, they could be covered under section 9(f) which refers to “any other person who, in the opinion of the coordinator. . . .” could make a positive contribution. If the co-ordinator wants to seek legal advice and information, that too can be made available to the conference.
Lessons learned from the pilot projects would show that where families do not feel confident enough to progress the conference, the challenge is for the professionals to be able to deal with them. A lot has been learned already from the pilot projects by way of the type of language and process used and the type of people who are best at these conferences. I am afraid it does not include legal people.
I am talking about the conferences set up by the health boards. A pilot project began in May 1999. The Minister of State's predecessor, Deputy Fahey, went to New Zealand to see what they were doing there. It is specifically those sorts of conferences which I thought we were talking about in this section and not the police ones which come much later. I have not asked for a change in the name there. I only asked for a name change to family group conferences in the sections which apply to these conferences which are the same as the pilot project which is running for two years. I am sure the Minister of State will think about it between now and Report Stage. We are running family group conferences, yet the Bill brings forward family welfare conferences which seem to be the same thing.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 15, inclusive, not moved.
Section 9 agreed to.
Amendments Nos. 16 to 18, inclusive, not moved.
Section 10 agreed to.
Amendment No. 19 not moved.
Section 11 agreed to.
Amendment Nos. 20 and 21 not moved.
Section 12 agreed to.
Amendments Nos. 22 and 23 not moved.
Section 13 agreed to.
Amendments Nos. 24 to 26, inclusive, not moved.
Section 14 agreed to.
Amendment No. 27 not moved.
Section 15 agreed to.
SECTION 16.
Amendment No. 28 not moved.
Amendment No. 30 is consequential on amendment No. 29 and amendment No. 35 is related. Amendments Nos. 29, 30 and 35 may be discussed together. Is that agreed? Agreed.
I move amendment No. 29:
In page 23, between lines 6 and 7, to insert the following new subsection:
"(4)Where a health board decides not to apply for an order under this Part following receipt by it of a request from a child's parent or guardian that it does so, or unreasonably delays in making such an application, the parent or guardian may make application to the court under this Part.".
Amendment No. 30 states:
In page 23, between lines 23 and 24, to insert the following new paragraph:
"(f2>c) an application under subsection (1) of this section may be made by a child's parent or guardian in the circumstances prescribed by section 23A(4).
The reason I tabled these amendments is that the Bill does not envisage a situation where a health board decides not to apply for a special care order as requested by parents. There are circumstances in which parents can request the health board to seek a special care order in the courts. In the event of the health board deciding not to do this, no route is open to the parents under the Bill. It is vitally important that parents have the opportunity under the legislation to proceed to seek a special care order in the courts. This amendment proposes to give that right to the parents in the event of the failure of the health board to seek a special care order.
It is vital that the constitutional rights of parents are protected in this legislation. This amendment is an attempt to do that. If this amendment is not made to the Bill, it will be seriously deficient in relation to the rights of parents and children. Parents have the primary responsibility and in the event of other authorities not taking the responsibility, this amendment, if accepted, will enable the parent to proceed to seek a court order for a special care order in respect of the child.
I support Senator Taylor-Quinn's amendments. During debate on the Mental Health Bill, I spoke about the difficulties families can have with troublesome adolescents especially. Sometimes they have felt there has been a slow reaction by the various authorities. It has been put to me that the reaction of the medical profession has been very slow. Senator Taylor-Quinn has a very good point in tabling these amendments to allow the parents to act if they feel the situation is moving to slowly. After all, they are the people with total responsibility for the child and should be able to apply for special care orders.
The detention of a child in a special care unit should be a very last resort. It is a route we would not encourage until all other options have been exhausted. I do not propose to accept these amendments. It is correct that the health boards, which have the statutory responsibility for dealing with children, should apply to the courts for the special care order. As it stands in the Bill, the courts can grant to the health boards the power to detain a child.
A child whose behaviour would suggest there is a real and substantial risk to their health, safety, development and welfare will need special care and protection. Because these children are not criminals, they do not have the same protection of the courts as young offenders or people before the courts on criminal charges.
It is a serious matter to take away a child's liberty and it is important that the checks and balances provided for in the Bill be enforced. If a health board wishes to apply for a special care order, it must first hold a family welfare conference to ensure a family's participation in the process. If, on completion of its deliberations, a health board wishes to proceed with an application, it must then seek the views of the special residential services board. Where a health board seeks an interim care order, it is bound to arrange a family welfare conference if such a conference is not already in place and due to seek the views of the special residential services board. These checks and balances are critically important in ensuring that a child's rights and liberties are protected.
It is neither sufficient nor acceptable, where parents feel they cannot cope, to merely lock up a child. Special secure care is the ultimate level of care provided for a child and other measures can be availed of prior to resorting to special care. A child may first be taken into foster care, ordinary residential care or a high support unit – residential care with an intense level of staffing and therapy. It is vital that the provision of special secure care is left to those who have statutory responsibility in this area. A child's rights must be recognised and his or her liberty must not be taken away lightly. I accept that where special care orders are required, it would be undesirable for delays to arise in obtaining them but the provision of additional places through the building programme should ensure that will not happen.
The practice in this area varies significantly from the position outlined by the Minister. I acknowledge that the Bill provides for checks and balances such as the family conference and consultation with the residential services board but we must deal with realities. The Minister envisages that the accommodation problem will be addressed and this will happen at some future date. However, a health board, on consulting the residential services board, is likely to be informed that accommodation is packed beyond capacity, that places do not exist for children in these circumstances and that there is a backlog of children in need of accommodation. In an effort to cover their own backs, bureaucrats and administrators will decide they cannot proceed with applications for special care orders because the necessary accommodation and facilities are simply not available.
A vacuum will be created in this area. A child in serious need of care may not receive it because a health board decides for a variety of reasons not to apply for special care orders. I accept that the health boards have a statutory responsibility in regard to these children but the primary, constitutional responsibility rests with parents and it would be very wrong to exclude them by the terms of this legislation.
The health boards must at all times act in a child's best interests. If they feel a child is in need of services, health boards are obliged to provide such services. That is why services at various levels are being funded and supported. In the past three years, an extra £90 million was provided for such services in addition to capital expenditure on places. It is envisaged that health boards would first put in place all of the other services, such as family support, foster care, ordinary residential care, high support care and that special care would only be availed of as a last resort. I would not like to see a situation arising in which health boards charged with looking after a child's best interests and welfare would be guided by administrative concerns. That is why we have made provision for additional places. The principle of ensuring that detention is only availed of as a last resort rather than a quick solution is very important.
I accept the importance of that principle but children are currently being held overnight in cells in Garda stations because health boards cannot provide accommodation.
It is important to distinguish between offenders and non-offenders. Unfortunately, situations have arisen in which young people charged before the courts have, by virtue of the fact that accommodation was not available in Oberstown or Trinity on a particular night, had to spend the night in a Garda station. These are not the children to whom we refer here. We are discussing special care orders for non-offenders whose behaviour puts them at risk.
Some children become offenders because their problems are not dealt with in the first instance.
I do not think it is fair to say that all of the children held overnight in Garda stations are offenders. As I understand it, the fact that some of them are non-offenders has posed severe difficulties for the courts. I cannot cite particular cases but I am quite sure that not all of these children are offenders.
We must recognise the progress made in regard to the provision of places. Irrespective of whether children are offenders or non-offenders, their basic needs are the same and are simply addressed in different ways. While I recognise the difficulties in recruiting staff, the provision of additional places and the progress made in terms of expenditure and capital developments will ensure that the problems which currently exist will not exist in the future. The phased implementation of the Bill's provisions is crucial in this regard.
Acting Chairman
Is the amendment being pressed?
I hope the Minister will reconsider this issue prior to Report Stage and return to us with a more positive approach.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
Acting Chairman
Amendments Nos. 31 and 32 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 31:
In page 23, between lines 40 and 41, to insert the following:
"(4)A notice containing an abridged version of the rules of the special care unit shall be displayed in a conspicuous place in each unit and a child on admission to such a unit shall be given a document which contains information relating to the rules and the daily routine in the unit and is written in language appropriate to the age of the children catered for in the unit.".
We discussed the difference between offenders and non-offenders during the debate on the Bill. It strikes me as odd that children in schools of detention may, in some respects, be in a better position than children taken into special care units. Amendment No. 31 is more or less a repetition of the terms of section 179(3) and amendment No. 32 is essentially a restatement of section 201(2).
Section 179(3) provides that children in places of detention will be familiarised with an institution's rules and routines on admission. However, the same does not seem to apply to children admitted to special care units. Neither is any description provided in regard to the disciplining of such children. I would welcome the inclusion of the proposed subsection (6) in amendment No. 32 which seeks the prohibition of corporal punishment or any other form of physical violence, deprivation of food or drink, treatment that could reasonably be expected to be detrimental to physical, psychological or emotional well being or treatment that is cruel, inhuman or degrading. These provisions apply to children in places of detention but do not appear to apply to children in special care units.
I fully support Senator Henry's amendment. It is highly commendable and necessary because those who will given the responsibility of administering these units will have specific responsibilities and will be dealing with difficult situations. It is important to ensure absolutely by statute that nothing untoward is done in those units and that specific direction is given in legislation, and not only by way of guidelines from the Department, in the interests of protecting these children. That is vital. I commend Senator on tabling the amendment.
In relation to amendment No. 31, this is an operational matter best addressed in the regulations and the standards of practice that are being developed for special care units. The purpose of the Bill is to provide the legislative framework for the establishment of these units, the circumstances in which they should be used and to impose an obligation to have them inspected. This is the appropriate level of detail that should be put in primary legislation regarding these units.
Senators will be aware the establishment of these types of units is a new development here. In order to ensure they are subject to the proper level of accountability, the Social Services Inspectorate set up in 1999 has drawn up draft national standards for special care units. These standards will provide the basis on which inspectors will form judgments about the quality of care provided in the units. The standards cover the following areas: the purpose and functioning of the units; management and staffing; planning for the young people in the units; the care of the young people; their education and the safety; and security of the premises. They include detailed directions on the rights of the children to have access to information, to be consulted in matters affecting them and respect for their privacy, dignity and individuality. They also deal in detail with issues regarding discipline, restraint if absolutely necessary, complaints procedures and absences without authority. These are the first sets of standards and it is certain they will be updated as all concerned in the provision of the service and the inspectorate gain more experience. It is, therefore, important to maintain this level of flexibility to ensure the services can be continually monitored and improved when necessary.
The standards will be enforceable as this Part is an amendment to the Child Care Act, 1991, under which the Minister has the power to give general directions to health boards on the services provided under the Act. In addition, detailed regulations will be made under this Part regarding the establishment and operation of these units, similar to those already in force in relation to mainstream residential care. They will deal with the additional issues that specifically arise in special care units. The regulations and standards together will help to ensure the children placed in the units will receive the proper care and protection they need.
With regard to amendment No. 32, I have already pointed out that the regulations and standards will deal in detail with the issue of appropriate discipline. I do not believe that the proposed subsection (6) adds anything significant to the Bill, as the points raised are adequately dealt with in section 246, which makes it an offence for any person having custody, charge or care of a child to wilfully assault, ill treat or neglect a child. As we are dealing with a new development in special care and the Social Services Inspectorate has drawn up draft guidelines, it would be best to consider what Senator Henry suggested when the Social Services Inspectorate is placed on a statutory footing, which we intend, rather than in this legislation.
This will not do. The Laffoy commission was set up because children in units were abused over years. This is not good enough. These are the people who we have to make certain are protected from a statutory point of view. Amazingly, children who have committed crimes are in a better position than those who may have been neglected.
I accept fully what Senator Henry said. That is why the Government set up the Social Services Inspectorate to ensure standards of care are there.
The amendment is being pressed.
Amendment put.
Tá
|
Burke, Paddy.Caffrey, Ernie.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Keogh, Helen. |
McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Quinn, Feargal.Ross, Shane. Taylor-Quinn, Madeleine. |
Níl
|
Bohan, Eddie.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim. |
Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Leonard, Ann.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Walsh, Jim. |
Tellers: Tá, Senators Henry and Quinn; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
I move amendment No. 32:
In page 23, between lines 40 and 41, to insert the following:
"(5) Any child who breaches the rules of a special care unit may be disciplined on the instructions of the Director of the unit in a way that is both reasonable and within the prescribed limits.
(6) Without prejudice to the power of the Minister to prescribe limits for the disciplining of children detained in special care units the following discipline shall be prohibited–
(a)corporal punishment or any other form of physical violence,
(b)deprivation of food or drink,
(c)treatment that could reasonably be expected to be detrimental to physical, psychological or emotional well-being, or
(d)treatment that is cruel, inhuman or degrading.”
Amendment put.
Tá
|
Burke, Paddy.Caffrey, Ernie.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Keogh, Helen. |
McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine. |
Níl
|
Bohan, Eddie.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim. |
Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Leonard, Ann.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Walsh, Jim. |
Tellers: Tá, Senators Henry and Quinn; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
A Chathaoirligh, I propose an amendment to the Order of Business, that the sos be extended until 2.10 p.m.
Is that agreed? Agreed.
Sitting suspended at 1.20 p.m. and resumed at 2.10 p.m.
Amendment No. 34 is consequential on amendment No. 33 and both may be discussed together by agreement.
I move amendment No. 33:
In page 24, line 3, after "concerned" to insert "or to a parent or guardian of a child".
If these amendments are accepted the proposed new section 23B(5) of the Act of 1991 would state:
If, while a special care order is in force in respect of a child, it appears to the health board concerned or to a parent or guardian of a child that the circumstances which led to the making of the order no longer exists with respect to the child, the board shall, as soon as practicable, or a parent or guardian may apply to the court which made the order to have the order discharged.
This is similar to an earlier proposal. It seeks to allow a parent or guardian to apply to the court in the event of the health board not proceeding to seek a court or care order. I earlier outlined the reasons for this. It is vital that it should be done. It is in the interests of the constitutional protection that exists for children and their parents.
Circumstances can arise where a health board may decide not to seek a court order. Should that happen and the parent or guardian is dissatisfied with the decision because they consider there is an absolute necessity for an order, they should have the right to seek one. I hope the Minster will agree to the amendment.
The proposed new section 23B(5) to the Act of 1991 imposes on a health board the obligation to go back to the court and seek a discharge of the special care order in respect of a child where the circumstances which led to the making of the order no longer obtain. Under the proposed amendments, a parent or guardian will also be obliged to apply for the discharge of the order where the circumstances which have led to the making of the order no longer obtain.
It would be inappropriate to include this amendment in this subsection. The subsection clearly relates to the obligations of the health boards in the context of their powers and obligations in relation to a special care order as set out in the section. It is the responsibility of the health board to provide or arrange to provide the appropriate services and provide the necessary care and protection for children in special care units. The health boards, therefore, are the bodies which are in the best position to determine if the circumstances which gave rise to the order in the first place have ceased to exist. It is appropriate that it should remain the obligation of the health boards to seek a discharge under these circumstances and that the obligation should not be imposed on parents or guardians.
Senators may be concerned about the rights of parents or guardians in these circumstances. This is properly addressed in section 23F, which allows a court on its own motion or on the application of any person to vary or discharge a special care order. This will allow a parent or guardian to seek the discharge of a special care order if they so wish.
I am disappointed with the Minister's response. By not accepting the amendment, he is excluding the primary right of the parent. The primary right will be given to the health board in this instance and that is unconstitutional. I ask him to reconsider the matter.
The amendment was tabled on Committee and Report Stages in the other House and the Opposition accepted on the basis of section 23 that it is unnecessary.
The Opposition may have accepted that in the other House, but this is another House and we are entitled to our views. We feel free, able and competent to articulate our views and to stand over them. I remind the Minister that there is not superior knowledge or competence in the Lower House. While his assertion may have been accepted there, he should deal with the amendment tabled in this House and not refer to what happened in the Lower House.
Amendment, by leave, withdrawn.
Amendments Nos. 34 and 35 not moved.
I move amendment No. 36:
In page 28, line 47, to delete "periodic inspection" and substitute "inspection every six months".
My amendments were not discussed in the Lower House. If I am dealing with a Dáil Bill, I examine the legislation as passed by that House. I do not only read the Second Stage contributions so none of the amendments I tabled was discussed in the Lower House.
I tabled this amendment for the same reason that I tabled amendments Nos. 31 and 32. Children in detention units are being given extra statutory rights, which they should have, compared to those in special care units. Under amendment No. 31, I referred to section 179(3) while under amendment No. 32 I referred to section 201(2). This amendment seeks to take account of section 186 which relates to the functions of the inspector.
Section 186 states that an inspector shall carry out regular inspections which should take place at least once every six months of each children detention school and place provided under section 161. This is satisfactory, but the Bill states in relation to special care units that regulations shall be made for inspection by the Minister. Section 16(7) refers to a periodic inspection of these units by authorised persons.
We have learned that many institutions run by the State were not properly inspected. This is why the Laffoy commission was set up, although I wonder if it was worth establishing it because no notice has been taken of the history of such units. The least that can be done for children in such units is to ensure that the supervision is as good as for those in detention units. This is why inspections should take place every six months rather than at least every six months as the Bill states in relation to detention units.
I support the amendment. Inspections every six months should be a minimum requirement in special care units. I assume it is an omission on the part of the Minister and the Department because it would be consistent to have the same supervisory role and inspection routines in special care units as in detention centres. Given the history in this area and the facts that have emerged in recent years in relation to care and detention units in the State, it is vital that, at a minimum, the same rules apply. I have qualms about inspections only being carried out every six months, but I support the amendment. I presume its exclusion is an oversight on the part of the Department.
The Senator should know by now that we do not have oversights.
The Minister should not be so superior. Is he omniscient and omnipresent?
The Minister should be allowed to reply without interruption.
I do not recommend acceptance of the amendment because it is too prescriptive. Under the amendment, the regulations would provide for inspections every six months. As Senators will be aware, the social services inspectorate has been established on an administrative basis; it is still at the development stage. It has already carried out excellent work in its inspections on residential homes and it has pub lished a report of findings on inspections of children's residential homes. This has provided invaluable guidance for the management of these homes.
However, the inspectorate is still a small organisation and it would not be wise at this stage to impose such a strict timetable on inspections. It is proposed to establish the inspectorate on a statutory basis. When the legislation is being drafted, it is likely that the SSI will be more experienced in its operations and it may be appropriate to consider such an amendment at that stage. The inspector of children detention schools essentially will only have schools on two campuses to inspect. The social services inspectorate will have a much wider remit. At this stage, six monthly inspections would not be feasible.
The problem is that the lowest common denominator is being used. The Bill does not even say it would be desirable. Some of the children involved may not even have visitors. As it stands, they are not in a position to complain to a visiting committee. Children are being badly treated in some of the legislation going through the Houses at present. For example, under the Mental Health Bill, children cannot go to tribunals. Under this Bill, special care units do not have to be inspected as frequently as detention units. The Bill should point to what is considered right. People who are stretched for funds and staff should not be told that they have a right to say they cannot run places because they must get more staff. The amendment is the least that could be done.
Question put: "That the words proposed to be deleted stand."
Tá
|
Callanan, Peter.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim. |
Glynn, Camillus.Kett, Tony.Leonard, Ann.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Walsh, Jim. |
Níl
|
Burke, Paddy.Caffrey, Ernie.Doyle, Joe.Henry, Mary.Keogh, Helen.McDonagh, Jarlath. |
Norris, David.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine. |
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Henry and Quinn.
Question declared carried.
Amendment declared lost.
I move amendment No. 37:
In page 29, line 45, to delete "or otherwise".
Following the deletion I propose, the subsection would then read "any arrangement or undertaking whereby a child is for more than 14 days in the full-time care, for reward, of a person other than his or her parent". I do not understand why "or otherwise" is included in that subsection. What is meant by "otherwise"? It is totally superfluous to the section and could be interpreted in a variety of ways. The section would be better and less open to varieties of interpretation if that word was omitted.
I support Senator Taylor-Quinn's amendment. It is a curious phrase and I am interested to hear the Minister's explanation.
I cannot recommend this amendment to the House. The provisions of the Bill in relation to private foster are intended to update the legislation in this area. They are designed to exclude normal arrangements that are made by parents and guardians on a regular basis regarding the care of their children. It is intended to ensure that, whether there is a reward, the health boards should be notified of a private foster care arrangement. The effect of the Senator's amendment would be that only arrangements made for reward would be governed by the legislation. As I pointed out in the other House when this amendment was put forward in that House, there would be considerable difficulty in defining where an arrangement was for reward if payments of any sort, for instance for expenses, were made. I am aware that provisions were proposed in the Child Care (Care and Protection) Bill, 1985, in relation to private foster care and that it did contain this distinction. It did, however, qualify it by stating that "a person undertaking the care and maintenance of a child shall be deemed to do so for reward if he receives any payment or gift of money or money's worth or any promise of such a payment or gift in connection therewith, irrespective of whether he makes a profit or intends to make a profit". Under the Senator's amendment even this qualification would not apply.
In any event, to ensure that no obstacle can be put in the health boards' way in fulfilling their obligations, I feel that it is preferable to adopt the straightforward approach and impose the obligation on all persons arranging or undertaking foster care arrangements, as defined in section 23O, regardless of whether there is a reward. I am therefore recommending that this amendment be rejected. When this amendment was put before the Dáil, concerns were raised that the definition would preclude parents or guardians from placing their children with friends. The Government took these concerns on board and amended the definition appropriately. This was accepted by the Dáil on Report Stage.
Is the amendment being pressed?
No. Quite frankly, I am not very satisfied with the Minister's response. It does not make a lot of sense.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In page 32, between lines 49 and 50, to insert the following new subsection:
"(i)that the person or persons who arranged the foster care arrangement and the person or persons undertaking such arrangement co-operate with the health board in assessing whether it is in the interests of the child's welfare that the arrangement continue or be terminated,".
It is important that this subsection is included at this point. There is a number of other conditions included here where the health board may apply to the District Court for specified orders. It is in the interests of the child's welfare and I ask the Minister to accept the amendment.
I cannot recommend that this amendment be accepted. The purpose of section 23U(b) is to allow the health boards to apply to the court for any one of a number of remedies where the board is of the opinion that a person has made or undertaken a private foster care arrangement without notifying the board or is not taking all reasonable steps to ensure the child's health, safety and welfare. These remedies are so that the board may obtain from the District Court under the Child Care Act, 1991, either a supervision order, an emergency care order, an interim care order or a care order. Alternatively the health board can apply to have the arrangement terminated and the child returned to his or her parents or guardian.
Under the Senator's amendment it is proposed to add as a further option that a health board apply for an order obliging the persons concerned and the health boards to co-operate in assessing whether it is in the interests of the child to continue or terminate the arrangement. It seems impossible to have a court order making somebody co-operate on a matter. Senators should note that the amendments on private foster care are being inserted into the Child Care Act, 1991, and are therefore governed by the principles set out in section 3 of that Act. It would therefore always be an obligation on the health board to act in a manner that regards the welfare of the child as the first and paramount consideration, having regard to the rights and duties of parents, whether under the Constitution or otherwise.
If a health board considered it appropriate to monitor and supervise the situation voluntarily in co-operation with the private foster carers, it is open to the board to make that arrangement, without recourse to the courts. This is the situation in relation to many vulnerable children where the health boards work with the families to ensure their protection without taking the child into care. Trying to oblige the health boards or people to co-operate by court order is an impossibility.
Is the amendment being pressed?
No. The Minister's response is not very satisfactory. What the Minister is asking here is that the persons directly involved in making the arrangements for the foster care of the child or those involved in the foster care are ready to co-operate. These are people who would have very close contact with the child. If these people are not prepared to co-operate, there is something wrong. It is absolutely vital that there would be co-operation. To include this amendment would protect the interests of the child further. I am disappointed the Minister does not see fit to include the amendment.
Amendment, by leave, withdrawn.
Amendment No. 40 is consequential on amendment No. 39. Amendments Nos. 41 and 42 are alternatives to amendment No. 40. Amendments Nos. 39 to 42, inclusive, may be discussed together by agreement.
I move amendment No. 39:
In page 33, line 18, to delete "and".
Amendment No. 40 proposes the deletion of subsection (2) (b). Amendment No. 41 seeks to insert the following new subsection:
"(3)A health board shall not unreasonably withhold its consent to the continuation of a private foster care arrangement as referred to in paragraph (b) of subsection (2) and, in particular, such consent shall not be withheld solely because a foster parent applies under the Adoption Acts, 1952 to 1998, to adopt a child in his or her care.”.
This amendment is specific and ensures further protections for the child. It ensures reasonable action and behaviour at all times in respect of the health board. Acceptance of this amendment would ensure reasonable consideration was given.
I support Senator Taylor-Quinn's amendments. While one would hope there would never be a situation where a child was removed because the foster parents were applying to adopt the child, it would be good to ensure this could not happen and that this would not be the sole reason for removing the child.
I regret I cannot recommend acceptance of these amendments. Amendment No. 39 is a technical amendment, depending on the acceptance of amendment No. 40.
The purpose of section 23V is to prohibit people from using the mechanism of private fos ter care to circumvent adoption procedures under the Adoption Acts. Under the provisions of section 23V(1) arranging or undertaking a private foster care arrangement for the purpose of adopting a child is prohibited. Subsection (2) is designed to accommodate bona fide situations where a child is in private foster care and a genuine relationship has developed between the foster carers and the child. It allows carers to adopt the child subject to the condition that the child is eligible.
Under the Adoption Acts the prospective carers would also have to undergo an assessment. Subsection (2) (b) allows the private foster care arrangement to continue pending the completion of the assessment if the health board consents. This is an important protection for the child. If this subsection was deleted it would undermine that protection and the intent of subsections (1) and (2).
Amendment No. 42 has a further amendment to that section. It would allow the health boards to apply to the court for the various remedies which come under the Child Care Act, 1991. The health board must understand that at all times the interest of the child is paramount. This Part is deliberately incorporated into the 1991 Act to ensure the legal protections exist for children. Therefore, this Part is not designed to reinvent the child care legislation. No new procedures are being proposed in relation to the provisions governing taking children into care.
I congratulate the Minister of State on what she has done to improve the position of foster care. Those recent changes were very good and the increase in the amount of money being paid to foster parents is about 20 years overdue. It can be an onerous task, especially with older children.
I take the Minister's point on the reason for not accepting Senator Taylor-Quinn's amendments. If foster parents tried to adopt the child and failed, for whatever reason, I assume the foster child would not necessarily be taken from them. This is probably what is behind Senator Taylor-Quinn's amendment. If an attempt is made to adopt the child, will that mean that the child will be removed from them? They have at heart the best interests of the child, who may have developed a satisfactory relationship with them or the family.
The purpose is to ensure that people are not getting involved in private foster care arrangements for the purposes of adoption and that the two main criteria for adoption are adhered to. They are that the child is available and eligible for adoption and that the parents are suitable. It is not intended to split up a foster arrangement. We are talking only about private foster care arrangements which involve a small number of people.
Amendment, by leave, withdrawn.
Amendments Nos. 40 to 42, inclusive, not moved.
Question proposed: "That section 16 stand part of the Bill."
When this Part of the Child Care Act was being changed it was put to me that it was a pity sections 25 and 26 were not changed. Section 25 provides that if a child is joined as a party in proceedings before the courts the child is given legal representation. That is absolutely right. Section 26 provides that if a child is not a party to the proceedings, a guardian ad litem is appointed for the child. In neither case can the child have both. Both may be desirable. For example, the guardian ad litem may have built up a relationship with the child but if the child is then joined as a party in the proceedings the guardian ad litem is dismissed and legal aid is applied to the case. It was put to me by those who work in the field that it is a pity the child is not given both legal aid, if it is a party to the proceedings, and a guardian ad litem, if that is considered necessary. If the child is made a party to the proceedings and is then given legal aid the child loses the guardian ad litem.While the Minister of State cannot do anything about it today she could do it on Report Stage. This is the type of practical point that is brought to our attention from time to time. I cannot do anything about it because it incurs costs, though not that much. I hope the Minister of State will consider it and I would like to hear her views.
The Senator will be aware that in the national children's strategy there is a commitment to review the whole guardian ad litem scheme. A document at a recent conference of the Law Society which I attended will contribute to that debate. It is a system which, after many years, needs to be reviewed. We will certainly bear in mind what Senator Henry has said.
I am grateful for the Minister of State's reply because it seems the common-sense thing to do.
Question put and agreed to.
Sections 17 and 18 agreed.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
This is an important section. The objective of the programme to place a child under the supervision of a juvenile liaison officer is highly commendable. We should avail of this opportunity to put on record the good work being done by juvenile liaison officers in addressing many difficult situations. Many work hours beyond what they are paid for and have a genuine commitment to their work. They deserve support.
Question put and agreed to.
Sections 20 to 22, inclusive, agreed to.
SECTION 23.
I move amendment No. 43:
In page 36, between lines 6 and 7, to insert the following new paragraph:
"(d) admission to the Programme is in the best interests of the child,”
While I am sure the entire motivation in the programme would be in the child's best interests, I would prefer to have this specifically written into the Bill. This Bill should be primarily about protecting the interests of the child. It will not do any harm to have this repeated in various sections of the Bill so that it is very much orientated towards and focused on the child.
I share Senator Taylor-Quinn's concern with regard to the best interests of the child. When one is dealing with children in this context, there is a balance of rights involved, including those of the child, society and the victims. All of their concerns need to be taken on board. In order to address the issues raised by the Senator, an amendment was put into section 23(2), which covers those issues. This provides as follows: "The director shall be satisfied that the admission of the child to the programme would be appropriate in the best interests of the child and not inconsistent with the interests of society and any victim". That covers the point raised by Senator Taylor-Quinn while recognising that there are a number of interests involved.
Amendment, by leave, withdrawn.
Sections 23 agreed to.
Sections 24 to 26, inclusive, agreed to.
SECTION 27.
I move amendment No. 44:
In page 37, subsection (1)(f2>a), line 42, to delete "12 months" and substitute "not less than 6 months and not more than 24 months".
The 12 months period is based on the experience of the Garda national juvenile office, much praised today by Senator Taylor-Quinn, which found that it has worked well to date. The 12 month period can be varied by the director, in accordance with ministerial regu lations and the family conference can also vary it. The Senator's suggestion has merit, but in view of the fact that current practice works so well and that it is recommended by the Garda national juvenile office, I propose to stick with the 12 months period.
Is the amendment being pressed?
I have to accept what the Minister of State has said about the experience of the people on the ground. If it is found that there is a need to make it a little more flexible, perhaps she might reconsider this at a future date.
Amendment, by leave, withdrawn.
Section 27 agreed to.
Sections 28 to 38, inclusive, agreed to.
SECTION 39.
I move amendment No. 45:
In page 42, subsection (3), between lines 34 and 35, to insert the following new paragraph:
"(e) the undertaking by the child of community services as defined by the Criminal Justice (Community Service) Act, 1983, for a specified number of days over a specified number of weeks for a period of time not exceeding 24 hours in total.”.
I am suggesting the inclusion of this new paragraph in section 39(3).
For both technical and policy reasons, I do not propose to accept this amendment. On policy, the final report of the expert group of the probation and welfare service made recommendations concerning changes to the operation of the community service order scheme. As that report is currently being examined by the Department of Justice, Equality and Law Reform, it would be inappropriate to give any undertakings on the operation of the 1993 Act until that examination is completed later this year. On the technical aspect, the Community Services Act provides for the imposition of community service by the courts and only by the courts. It can only be imposed as an alternative to a custodial sentence, it has to be for young people who are 16 years or over and the minimum number of hours provided for is 40. The amendment suggests community service, arising out of an action plan formulated at a Garda conference, for 24 hours for a child aged 12 years upwards. That would be in conflict with the existing legislation. Because of that – and I am not saying that Senator Taylor-Quinn's proposal does not have merit – the Minister has undertaken to refer this amendment to the group which is looking at the final report of the expert group already referred to. While not accepting it now, it will be followed up in the context of the community service scheme.
I appreciate what the Minister of State has said in relation to the legalities applicable to 16 year olds. It is a move in the right direction to refer it for further consideration by the group to which she referred and I hope something positive will emerge. It is important that children in such circumstances should be community orientated and it would be to their advantage to have some sense of community obligation. I hope this Bill can be amended in future to take this into consideration.
Amendment, by leave, withdrawn.
Sections 39 agreed to.
Sections 40 to 60, inclusive, agreed to.
SECTION 61.
I move amendment No. 46:
In page 51, subsection (1)(b), lines 34 and 35, to delete “member in charge of the station” and substitute “the child, being an adult relative or other adult reasonably named by him or her”.
I have been agreeable for a very long time, agreeing to many sections. Perhaps the Minister of State has a good explanation but I find the provisions of the Bill odd in this regard. It is a sad reflection on society that section 58 provides that "where a member in charge of the station is unable to communicate with the parent or guardian of the child, or the parent or guardian indicates that he or she cannot or will not attend the station within a reasonable time, the member may inform the child or cause the child to be informed, without delay, of that fact and of the child's entitlement to have an adult relative or other adult reasonably named by him or her given the information specified and requested to attend at the station without delay." That seems a very good idea. Under section 63(3), a child who cannot get hold of a parent or guardian can name another adult, not being a member of the Garda Síochána, in relation to notifying a solicitor. That all seems very good. The same applies again in section 62(2)(f2>b)(iv). The name of any adult who attended at the station at the request of the child is also to be taken.
Section 65 again refers to an adult who attends at the request of the child. However, there is a change in the section dealing with the interviewing of children, namely, that the child can ask to have the parent of guardian present, or, in his or her absence, another adult, not being a member of the Garda Síochána, nominated by the member in charge of the station. Why has there been this change? The person named by the child, who is in loco parentis, may have been available. It seems strange to suddenly decide that person will not do in terms of being present in the interview, and I would like to know why this change in policy was made.
Under section 61 the interview will normally be in the presence of the parent or guardian of the children, under subsection (1)(a). I draw Senator Henry's attention to section 61(7) which says that references to a parent or guardian include references to an adult relative of the child, an adult reasonably named by the child or the other adult named in subsection (1)(b). Therefore, while it is not clear technically, from a policy point of view, the section sets out to achieve exactly what is intended. The Parliamentary Counsel wanted to avoid unnecessary repetition but the meaning is still absolutely clear. In other words, the child is entitled to have present at the interview a parent or a guardian, an adult relative, another adult reasonably named by the child or in their absence an adult nominated by the member in charge. Therefore, the meaning is the same as it is defined in subsection (7).
The Minister has just managed to spare herself another vote. That sounds reasonable and I presume it will be pointed out constantly to the child. I knew there had to be some good reason.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 51, subsection (1), between lines 35 and 36, to insert the following:
"and no questioning of such child shall take place nor written statement be sought in the absence of video recording of what occurs.
(2) Any information obtained by the Garda Síochána pursuant to subsection (1) shall be inadmissible as evidence in the absence of a video recording of the obtaining of such information.”.
This is a follow on to Senator Henry's amendment. This is a protection element which would be important for both parties, namely, the child and a member of the Garda Síochána. In an era of modern technology it would be most appropriate in these instances for this provision to be included as it would protect all parties in terms of various accusations which could be levelled at a future date. The existence of a video to which reference could be made to provide clear evidence and show exactly the manner in which the interview was conducted and the written statement made would provide ample evidence and proof that everything was 100% above board and that the child was in a reasonable and proper frame of mind at that time, was fully aware of his or her rights and was properly notified of his or her entitlements. This would work to the advantage of all the parties and should be part of every questioning situation, not just in relation to children.
I support the amendment, particularly the section relating to videoing interviews. I know we are trying to promote this in all Garda stations and it is worthwhile starting it in this Bill.
The amendment would imply that every Garda station would at all times have available to it the equipment and facilities to enable video recording of all interviews with children. Currently, statements made in the course of Garda interviews with suspects are video recorded in a limited number of refurbished stations which have been equipped for that purpose. Work is also well advanced in terms of a nationwide scheme which will cover approximately 150 stations and is expected to be completed by the end of the year. Currently, Garda video recording is carried out under the Criminal Justice Act, 1984, and Electronic Recording of Interviews Regulations, 1997. These regulations provide for the recording of interviews in respect of detained persons. This is subject to the availability of the equipment and other circumstances. Therefore, it is not the case that all the relevant interviews are recorded, even in stations where the cameras have been installed. The 1997 regulations do not make specific provision for a situation where the person being interviewed is a child, but they were drafted to operate in conjunction with the 1987 custody regulations which cater for interviews with persons under the age of 17.
The purpose of the amendment appears to be that all interviews involving the questioning of children as suspects should be recorded on video. Frankly, this would be impractical as the recording equipment will not be available in every Garda station. The costs are substantial, and apart from that each interview room, apart from having the recording equipment, would also have to be specifically fitted out for lighting and other purposes. The estimated cost of providing the facilities, training and storage for the 150 stations which will be equipped by the end of this year is £10 million.
In addition, the amendment makes no distinction between the offences covered for the various interviews. It would be inevitable that the number of recording units would be limited. It would be unrealistic to expect the recording of an interview with an adult in a very serious case should be brought to an end because it was necessary to make the equipment available to do an interview with a child charged with a minor offence. Because it is impractical and unrealistic to expect this to be done, I cannot accept the amendment, bearing in mind the requirement in section 61 that the interview with the child should always take place in the presence of their parent or guardian, or an adult reasonably named by them. This provides protection for the child in the absence of cameras.
Perhaps the Minister would at least consider some attempt being made to interview the children in some of the 150 Garda stations which will have this equipment and to a direction being given that where practicable or possible, a video recording of interviews be done. I recognise the realities in relation to some Garda stations, which do not have the facilities, but this is the 21st century and we should be aspiring to having that equipment in place. It would be particularly useful and helpful in the case of children, recognising that the child may have a parent, guardian or other adult present during the course of the interview. On balance the matter must be seriously considered by the Department so such facilities are put in place soon.
One would have to distinguish between serious and lesser offences. The key words mentioned by the Senator are "possible" and "practicable". If a child was brought for questioning from the heart of the country and had to travel 100 miles to attend a Garda station with the relevant equipment—
Such a journey would not be necessary. If it was, then it would be an awful indictment of the Department.
We would hate to think that a person from the cliffs of Clare would have to be brought a long way—
To Thurles or Ennis.
I do not know the location of the 150 stations, but it is important that protection exists for the child by way of the person being present rather than just the equipment, and that guarantee is in section 61.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 52, between lines 21 and 22, to insert the following new subsection:
"(8) For the purposes of this section a parent or guardian shall not be regarded as obstructing the course of justice where he or she advises a child of his or her right to remain silent.".
This is a fundamental principle of our democracy and of civil rights. It can be treated otherwise only under the various Offences Against the State Acts. I am seeking to reinstate a fundamental principle in the Bill. Children often automatically answer immediately when questioned. The type of constitutional protection that applies to an adult should also apply to a child and a parent advising a child of his or her right to remain silent until he or she gets legal advice should not be deemed to be obstructing the course of justice. It would be a simple matter to put that into the Bill.
This section authorises a member in charge of a station to remove an adult from where a child is being questioned or from where a written statement is being taken where he or she has reasonable grounds for believing that the conduct of the adult amounts to an obstruction of the course of justice. The amendment seeks to offer a partial guideline to the meaning of obstruction by excluding from it advice given by the adult to the child to remain silent. Much thought was given to this amendment and the conclusion arrived at was that it would not be in the best interests of the child or the parent or other adult to accept this amendment for a couple of reasons.
The first is the question of whether giving legal advice could be regarded as obstruction, and it seems that obstruction could never be caused by a parent taking reasonable precautions to safeguard the rights of his or her child. If anything, it could be described as furthering the course of justice. Advising a person of a legal right is not an obstruction, no matter what the circumstances in which the advice is given. The problem with the amendment is that it might result in parents perceiving that they are, by means of a legislative provision, being encouraged to offer legal advice which they are singularly unqualified to give. No reference should, therefore, be made to their giving such advice, no matter what the context. Obstruction is not defined either here or in other comparable legislation. Giving it a partial meaning or providing a guideline towards its meaning could do more damage than good by introducing uncertainty.
Advising a child of his or her right to remain silent amounts to legal advice. In most cases the child will already have received legal advice from his or her solicitor, and a solicitor is qualified to give legal advice. In the vast majority of cases, however, the parent or other adult would not be appropriate persons to give legal advice – their amateur advice could conflict with professional advice.
It is not just a question of telling a child to keep quiet and that all will be well. A decision to remain silent could have major implications in any subsequent criminal trial and any advice to that effect could only properly be given by a solicitor armed with the facts of the case. For example, inferences can be drawn from an accused person's decision, when being questioned or charged by the Garda in relation to a drug trafficking offence or an offence contemplated by the Offences Against the State Acts, to remain silent and not to mention facts which he or she later relies upon at trial. That is covered under other legislation, the Criminal Justice (Drug Trafficking) Act and the Offences Against the State (Amendment) Act. The Minister for Justice, Equality and Law Reform is currently preparing further legislation which proposes to apply to other serious offences provisions similar to those in section 7, in other words, that inferences can be drawn from an accused person's decision to remain silent. In such cases advice to remain silent could have implications later.
This amendment also raises the question of the precise role of parents or other adults when present at the questioning of their children. There is power under section 70 for the Minister to make regulations on that role. For those reasons I cannot accept the amendment.
I am surprised the Minister of State would justify the denial of a fundamental legal and democratic right and suggest that parents are not in a position to advise children of a basic civil right. It is common knowledge that one has a right to remain silent until one obtains legal advice. The same rights that apply to an adult should apply to a child who is in custody. A parent should be entitled to tell their child what their rights are and not be deemed to be obstructing the course of justice by so doing.
The arguments put forward by the Minister of State are totally unacceptable and erroneous, and would not stand up to legal scrutiny. People are competent to do lots of things. One does not have to be a solicitor or a barrister to know what a basic civil democratic right is or to tell somebody what their basic rights are. As to the long-term implications in terms of further examination or trial, I do not accept what the Minister of State said and I am surprised that such a statement should issue from her.
I reiterate that parents taking reasonable precautions to protect their child would never be deemed to be obstructing the course of justice. That would be the duty and responsibility of the parent. Parents can give whatever advice they want in the best interests of their child, but it would be inappropriate to put that on a statutory basis. That is the fundamental reason for the objection. The child's civil rights are not interfered with in any way.
Amendment put and declared lost.
Section 61 agreed to.
Sections 62 to 76, inclusive, agreed to.
SECTION 77.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 59, subsection (1)(a), line 13, after “child” to insert “where it appears to the court that the parties are open to such a procedure”.
I tabled this amendment because I have many constituents who work in these areas and they put it to me that, from a practical point of view, it would be worth including that the court should try to set up a family welfare conference only if it was satisfied that the parties were open to such a procedure and that there would be no point in trying to set it up if it was obvious that the parties were not interested in becoming involved in the procedure.
The amendment proposes to amend section 77 of the Bill. This section allows the court, where the child is brought forward on a criminal charge, to adjourn proceedings and refer the matter to the health board where it deems it appropriate. The Senator will appreciate that any child referred to the health board under this procedure is likely to have exhibited serious behavioural difficulties or anti-social behaviour and in such cases the board may have to consider initiating the process of applying for a special care order which could lead to a child's detention in a special care unit.
The purpose of convening the family welfare conference is to ensure that the child does not become the subject of a special care order application without serious consideration of the alternative options being undertaken. We discussed this morning the number of checks and balances which are in place to ensure that, even if it is proposed to go ahead and seek a special care order, the best interests of the child are paramount and that detention, in whatever form, will be used only as a last resort. That is the philosophy behind it. It is the Government's belief that the family welfare conference is the best forum in which to explore all the different options for the child before reaching the stage of looking for a special care order.
I can accept that the Senator's constituents probably feel that therapeutic solutions cannot be imposed on people who are not willing to accept them. It is not proposed to do that, nor would it be feasible to do so. However, the family welfare conference empowers families to come up with solutions to the problems which have led to the child becoming vulnerable and being at risk, and such conferences have a high success rate. It can only be ensured if there is a high level of consensus arising out of it, and the Bill provides for that. If the family cannot come to an agreement, the Bill also provides for that. The co-ordinator can refer the matter back to the health board for further consideration. With those types of checks and balances etc., the issues the Senators have raised would not arise under the legislation.
We have talked frequently about the lack of resources in this area. My constituents must come across so many hopeless cases that they feel they have to put huge efforts in the areas where there is a possibility of getting some result. It is a terrible reflection on family situations which can occur, but I take the Minister of State's point.
Amendment, by leave, withdrawn.
Section 77 agreed to.
Sections 78 to 160, inclusive, agreed to.
SECTION 161.
I move amendment No. 51:
In page 104, lines 16 and 17, to delete subsection (5).
The sections before this are really admirable and a huge improvement on what we had before. However, we have run into so much trouble in the past with various places of detention being mix'em gather'ems that I query the wisdom of allowing private institutions, which do not exclusively cater for one child or other, to set up again. This was exactly the type of problem we had in the past where children under special care, truancy and detention orders and orphans were all sent to the same place. We have repeatedly talked about the shortage of facilities and I am afraid a lot of these places will emerge again. I will not name the ones that have been in trouble in the recent past where the activities and lack of training of the staff have been most undesirable. I would have thought that these private institutions should opt to be one sort of institution or other. That is why I believed this section was undesirable, that is, because these institutions need not cater exclusively for children found guilty of offences.
It is not expected that this section would be used very often. Part X gives the Minister for Education and Science power to designate places as children detention schools. These schools would cater for children aged 12 to 16 who are guilty of offences where the court is satisfied there is no alternative to them being in detention. Section 161 gives the Minister power to enter into arrangements with persons to provide other facilities for the detention of the same age group of young offenders. Any such place need not cater exclusively for young offenders.
I know the situations about which Senator Henry is talking and we would not like to return to such situations. Indeed, throughout this Bill one will find there is a separation of offenders and children who have behavioural difficulties but who are not offenders. Although this section may not be used very often, it is an important provision to have on stand-by.
The Department of Education and Science would have to provide therapeutic care and treatment in the schools for young offenders who require it. Some of that treatment might be very specialised and it might not be possible to provide it in the schools. The Senator may well have come across colleagues dealing with people who are now presenting with very different types of problems, almost unique to a child or a very small group of children, and who need very specialised treatment. In circumstances where it might not be possible to provide that within the school, section 161 would be invoked. It is anticipated that any such place would almost certainly provide similar treatment for non-offending children. While one might be mixing non-offenders with offenders, it would be for the purpose of receiving the specialised treatment needed. If that subsection was deleted, that route would be cut off and the opening would not be there for the specialised treatment as it might not be available in the school in which they are present. It is a safeguard in the interests of the child.
There is a concern among the public about places of detention being provided by private organisations or companies. I am aware that in recent years a number of interested parties from England have attempted to set up such centres in Ireland. The recent history of places of detention that were not in State ownership or under State control has surfaced and some of the things, and atrocities, that took place there were appalling. We need to do everything to ensure there is not a repeat of that.
As regards private individuals, or companies, who get involved in providing this type of care and service, primarily companies operate to make a profit. The interests of the child need to be the priority at all times. I am concerned that private companies and organisations could set up facilities, which could occur under this Bill and European legislation. A hallmark of the discussion we have had on this Bill has been the lack of facilities and personnel. If these types of facilities mushroom, there will automatically be a move in that direction. That is something about which we need to be very careful and which is not desirable. The Departments of Health and Children, Education and Science and Justice, Equality and Law Reform must take the initiative in this area and must be to the forefront in the provision of the service. We must not allow a development of this nature to occur.
I share the concerns expressed by Senator Taylor-Quinn. The section does not refer to specialised treatment. I would be the last person to prevent a young offender with specific problems from being moved to a centre in which there were non-offenders to avail of specialised treatment. However, the Bill does not refer to such specialised treatment. The Minister may recall Mr. Justice Peter Kelly saying some weeks ago that he found out by accident that a certain unit from which a young offender came before him was one of the types of establishments to which Senator Taylor-Quinn referred. Private detention centres are flourishing in the UK and the US and they also exist in Ireland.
I am very concerned about this section. I know the Minister cannot ban such centres but I would like to think they would at least be required to provide specialised services or treatment, not least from the point of view of protecting those children who may not be offenders. Some young offenders will be involved in serious drug offences or may have serious drug problems. Peer pressure may result in other young people who have not committed offences being exposed to or becoming experienced in these matters if they attend detention centres in which young offenders are placed. I am very unhappy with this section.
I assure Senators it is not our intention to allow private operators to provide places of detention. That is not the purpose of this section. Where non-governmental organisations, such as voluntary organisations, provide places for children in terms of residential and high support care, they must be registered with and inspected by the relevant health board. Health board facilities are inspected by the social services inspectorate. Any non-governmental facility which may be established under this section would be subject to the same strict inspection criteria. We do not intend to open the doors to private operators, we merely want to ensure that where it is necessary to place children together for specialised treatment etc., the Bill facilitates this.
The Bill does not refer to specialised treatment or anything like it. I am fearful about the sort of institutions which will crop up as a result of this provision, although I acknowledge that the Minister's intentions are honourable.
I fully accept the Minister's intentions in this area. However, English companies have attempted to secure properties and planning permission in remote areas of rural Ireland for this type of facility. I was particularly concerned in one case by the isolated nature of the location in which a company sought property. I am fearful that this section will enable such companies to establish centres here, although I acknowledge that is not the Minister's intention. While the same regulations and inspection requirements may apply to such centres, we must be far-sighted and vigilant. I urge the Minister and the Department to ensure that health boards will be very alert to any proposals in this area as we must protect our children at all costs.
On an earlier section in which I sought to ensure institutions would be inspected at a minimum interval of six months, the Minister stated that sufficient inspectorate staff did not exist to facilitate this and that inspections could only be carried out periodically. These detention centres could be very isolated and uncontrolled. I reiterate that I do not believe this is the Minister's intention, but this section is far too loose and may result in difficulties on the ground.
These institutions could be used for purposes other than specialised therapy, such as half-way houses for people leaving young offenders' units who need to be reintegrated into society. Such half-way houses could either be run by or subject to inspection by the probation and welfare service. The necessary safeguards are provided for in the Bill and all institutions, which may be put to a number of uses in children's interests, will be subject to all the Bill's provisions. It is not intended that this section will be widely used but I felt it was necessary to make provision in this area.
Is the amendment being pressed?
No, although I remain extremely unhappy about this section.
Amendment, by leave, withdrawn.
Question proposed: "That section 161 stand part of the Bill."
Although I recognise the reasons for including this section, I fear it could give rise to serious problems in the future given that the inspectorate is short staffed and that private institutions already cater for these young people. I have praised the Bill's many valuable provisions but I fear the looseness of this section may prove troublesome.
Question put and agreed to.
Sections 162 to 271, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I congratulate the Minister of State and her officials on this Bill. Generations of people must almost have come before her, as this is a mammoth Bill. It has been a worthwhile task. It is a major improvement, particularly in the area of children in detention who come before the courts. I expressed my concerns about various areas. I hope that in practice the necessary resources will be provided to put into action what is intended in the Bill. I know the Minister of State's heart is in this and that was obvious the whole way through when we was dealing with it. I thank her and her officials for carefully explaining matters.
While some people may think the Bill has come up here for rubberstamping, there are those of us who believe that what happens in the Upper House is also of importance. That is why we get a little miffed; it seems fairly obvious that amendments have no possibility of consideration. I wish the Bill well and congratulate the Minister of State on having steered it through.
I welcome the passage of the Bill through this House. As I stated on Second Stage, having regard historically to the Succession Act and the Companies Act, 1963, this is major legislation that is more than welcome. It has taken both Houses and different Governments to tease out this Bill.
It is a user friendly Bill to provide for the safeguarding and protection of children. It is a reforming Bill and its approach is extremely innovative. I congratulate the Minister of State, Deputy Hanafin, the Minister and all the officials concerned on the great work that was put into it. Since I started studying law 25 to 30 years ago, I would rate this as one of the Bills that will go down in history as a major milestone in legislation and it is most welcome.
I have no doubt the Minister of State is committed to ensuring the necessary resources will be put in place to implement the provisions in the Bill, including the placing of children who are unruly in safe houses, etc. That must be welcome.
I pay tribute to my colleagues, Senators Henry and Taylor-Quinn, who made some excellent points, although I had to leave the House for three-quarters of an hour during the debate. Some of their amendments were not far off the mark, although I suppose the Minister of State and her officials have to take a certain line and overall her response to the various amendments was prudent and well thought out. It is a great day for this House that this Bill has been passed.
I join Senators Henry and O'Donovan in complimenting the Minister of State, Deputy Hanafin, on steering this Bill through both Houses of the Oireachtas. It is progressive legislation relative to the legislation that was previously in place. The Minister of State and her Department officials must be complimented on the extensive work and research in compiling the extensive sections of this Bill in an attempt to promote and advance the protection of children, particularly the reorientation of children who have specific difficulties back into the community.
I hope the points raised on this side of the House will be considered by the Department. We were disappointed that some of our amendments could not have been accepted, as they were tabled in good faith and because of concern regarding particular areas. Our main concern still remains the operation dates of the various sections and putting those in place.
I have every confidence the Minister of State is fully committed to the Bill, but it is vital to secure the necessary resources from Cabinet to implement various sections. I urge her and her senior colleague to ensure that is done. This is fine legislation, but it is no good unless the necessary resources are provided to implement it. I wish the Minister of State every success in securing the necessary resources to make this legislation effective.
Ba maith liomsa mo bhuíochas a ghabháil leis na Seanadóirí a chabhraigh go mór linn, ní hamháin chun an Bille seo a chur tríd an tSeanad ach trí dhá Theach an Oireachtais.
The passage of this Bill is completed through both Houses of the Oireachtas and Senators have raised some valuable points that will be taken on board in our consideration of other issues that refer directly to this legislation. On behalf of the Minister, Deputy O'Donoghue, who is the Minister sponsoring and responsible for this legislation, I thank everyone involved for their interest and the thorough debate that has taken place on various aspects of it.
As has been said, this is historic legislation. It is the greatest change in children's legislation since the 1908 Act. That is nearly 100 years old, but it has now been completely revamped. To go forward on the principle that we are working in the best interests of the child and that detention is used only as a last resort can only be for the good of the child. The way in which this Bill also recognises the responsibilities of the individual, the family and society makes us all face up to the fact that this is about our children and their lives and that we all have a part to play in that, particularly in regard to children who are offenders and those who have special needs in terms of having behavioural difficulties.
I particularly wish to mention the officials of the three Departments involved, the Departments of Justice, Equality and Law Reform, Education and Science and Health and Children, who have been working on this legislation for many years. I assure the Senators that this is not legislation that will be left on the shelf. The Government is totally committed to ensuring this Bill will be enacted with the proper provisions and necessary investment. While much of this work has started and I thank the Senator for recognising that, much more needs to be done. Having this legislation on the Statute Book will mean we can move forward in the best interests of children, their families and society.
Acting Chairman
I join other Members in thanking the Minister of State and her officials for their work on this Bill and congratulate the Minister of State on the passage of this Bill through the House.
Question put and agreed to.