Vol. 185 No. 2
Before we commence, I remind Members they may speak only once on Report Stage except for the proposer of an amendment, who may reply to the discussion on the amendment. Each amendment must be seconded.
Amendment No. 1 is a Government amendment and is also in the names of Senators Henry and O'Toole. Amendments Nos. 2, 3 and 6 are related to amendment No. 1 and all may be discussed together. Is that agreed? Agreed.
Amendment No. 6 is a Government amendment. I indicated on Committee Stage that I accepted the thinking behind the views expressed by Senators in regard to interrupted placements. The appropriate period to be disregarded in regard to calculating the period under subsection (2)(a) should be no more than 30 days. Hence, Government amendment No. 6 inserts a new subsection which provides that in determining whether a foster parent or relative has been taking care of a child for the period required by subsection 2(a), any interruption of the placement during that period shall be disregarded unless the total number of days of interruption, whether consecutive or not, exceeds 30. This will allow for short interruptions in the placement of a child with the same foster parent or relative to be disregarded — perhaps in cases where the child returns to his or her natural family but the return does not work satisfactorily or issues arise between the child and the foster carers which result in the child moving to another placement for a short period until the issues are satisfactorily resolved. It is on that basis I propose to reject amendment No. 3 in the name of Senator Henry which is similar, although not identical, to my amendment to address the same issue. The Government response to that issue is contained in amendment No. 6.
Amendment No. 1 is a Government amendment which is also in the names of Senators Henry and O'Toole and is linked to amendment No. 3 with which I have dealt. Amendment No. 2 in the names of Senators Browne and Brian Hayes deals with reducing the period of time for which a child should be in continuous care. The requirement in the Bill is that a child should be in the care of a foster parent or relative for a continuous period of five years. I was anxious to make the point that period of time is an appropriate one for foster parents or relative foster carers to have a sufficient level of understanding of the child's needs. If there is instability or interruptions in the placement, it would not be appropriate for foster carers to have increased autonomy in respect of the child.
My amendment No. 2 distinguishes between children aged 12 or younger and children aged 13 or older. As the Minister of State knows, even in legal terms, a differentiation is made between children aged zero to 18 years. While we apply the term "minors" to that group, there are different rules for children. The Minister of State will be more familiar than I with the various terms. The term "doli incapax”, which means incapable of crime, was used to provide for children between the ages of seven and 14 in that they could not understand the consequences of their actions. That led to different interpretations of the law for children involved in court cases. Section 52 of the Children Act 2001 provides that no child under the age of 12 is capable of committing an offence. The Tánaiste and Minister for Justice, Equality and Law Reform later changed those rules under the Criminal Justice Act 2006.
He did not change them substantially.
The point I make is that in other legislation, the Government has differentiated between the different ages and acknowledged that in legal terms, we do not classify all people between the ages of zero and 18 as one group. Children are treated in many different ways and at many different levels by the law according to the extent of their minority. A point brought to my attention was that persons under 18 years are minors yet some of them can drive, buy cigarettes, have sexual intercourse legally, leave home and get married. There is a large range within that group.
My amendment is sensible and we should differentiate so the five year rule would apply to children between the ages of zero and 12 years and the three year rule apply to children aged 13 years or over in foster care. For a child in his or her teenage years, five years is equivalent to his or her secondary education. That is why I believe five years a bit long. I have no difficulty with the five year rule in the case of an infant being fostered but it will present difficulties in the case of a teenager. That is why I put forward this amendment in a helpful manner.
I thank Senator Browne for tabling the amendment. It is not clear from the list of amendments tabled for Report Stage that the distinction is drawn but I am prepared to discuss the issue on the basis the Senator tabled in the amendment in that form. It seeks to draw a distinction for the purposes of continuity between the child aged under 12 and the child aged over 12. The Senator rightly draws attention to the fact the Oireachtas has chosen different ages in different enactments and he instanced the case of the common law where there was the principle of doli incapax. I am happy to state the concept of doli incapax was banished from our law as a result of amendments to the Criminal Act on the age criminal responsibility. There is no longer a rebuttable presumption that a child between seven and 14 years is incapable of a crime. There is now a different statutory scheme involving a control of all such prosecutions by the Director of Public Prosecutions.
As the Senator rightly said, the Children Act provides that the general age of criminal responsibility is 12 years and that is now in force. There is a very limited exception in cases of homicide and very serious sexual offences where a ten or an 11 year old is deemed capable of committing such offences. The Senator also rightly pointed out that a different age is fixed for driving purposes, that the age is fixed at 16 years for marriage proposes and that for the purposes of consent not being required to be proven against an assailant, the age is 17 years under the legislation enacted this year. There is a wide variety of circumstances and the Senator makes the case that teenage life is a rather different span of experience from childhood life in general and that five teenage years are long ones.
I appreciate the spirit in which the amendment was tabled but in foster care, the care of teenagers is often the most difficult aspect of the whole equation. The bulk of children in long-term foster care tend to be taken into care at a very young age and so the continuity and attachment are established very early on. It would be very unusual for a child aged 12 to be placed in foster care for an unbroken period of time. I am not certain the issue Senator Browne is trying to address is one that arises that often. Given that teenage years are a time of maturity, maturation and great change, some emotional stability for the teenager is probably more important than ever. There is an argument for arranging this matter the other way around rather than in the sequence in which the Senator has raised it.
I move amendment No. 2:
In page 3, line 30, to delete "five years" and substitute the following:
"—
(i) 5 years in the case of a child aged 12 years or younger, and
(ii) 3 years in the case of a child aged 13 years or older,".
I second the amendment.
Amendments Nos. 4, 5 and 22 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 4, lines 8 to 10, to delete all words from and including "a" in line 8 down to and including "time" in line 10 and substitute "the parents of the child".
I moved this amendment on Committee Stage. I have great difficulty with the wording as it stands. I examined much of it on Committee Stage and I will discuss some of the problems it presents, including those which have become apparent since then. Certain people must give their consent in respect of orders that can be sought under this wording. At the moment, this right is limited to those parents who have custody of the child at the time. Alternatively, it allows for someone acting in loco parentis to play a role.
What would happen if neither parent had custody of the child at the time and someone in loco parentis had custody? What would happen if the parents in question were married? The legislation as it stands would essentially give more rights to someone who is a legal stranger to the child, namely, the person acting in loco parentis. I believe someone who acts in loco parentis should have a role in this legislation. On the other hand, the legislation does not give a say to two people who are legal guardians because they are married to each other but who do not have custody of the child at the time. This is one example where I see a problem with the way the legislation is worded.
What would happen if the parent who had custody of the child at the time was the unmarried father who, again, has no legal relationship with the child and is not the guardian, and the person without custody was the mother, who is the legal guardian? She is not given a say even though she is the child's legal guardian. The way in which the legislation is worded, which the Minister of State said goes back to previous legislation, is rooted in a bias against fathers, especially unmarried fathers. When one considers the case of a married father, one can see that the legislation is discriminating against someone who is the legal guardian of his children.
The wording must be re-examined. Even if it is not examined now, it should be examined in future. Possibly the way to re-examine the wording in this section is to introduce the type of amendment I will move later which would essentially include someone who has a bona fide interest.
The wording definitely presents problems and we must re-examine the way in which we define parenthood. The Children Act 1997 defines a parent as a mother or a father. We must re-examine this. Apart from the fact that the legislation as currently worded is biased against fathers, it also could be used against a mother who does not have custody of her child at the relevant time in that she would not have a say. The Minister of State needs to re-examine this section.
Amendment No. 5 is similar. There is another contradiction in this section. Paragraph (d)(ii), on page 4 of the Bill, states, “if the child is in its care under section 18, given notice of the application to a parent having custody of the child at the relevant time. . .” I could be misinterpreting that paragraph but it appears that account would be taken of a relevant time before the child was in the care of the Health Service Executive. My basic point is that parents, and possibly others, should not be excluded from this process. Therefore, the Minister of State should broaden the wording of this section. The legislation should not discriminate against a parent who does not have custody, as there may be many reasons for that. Perhaps that is the parent who should have custody.
A safety net is provided in the wording of subsection (3), on page 4 of the Bill, which states:
The requirement of subsection (2) (d) as to the consent or notification of a parent or other person does not apply if—
(a) the court is satisfied that he or she is missing and cannot be found by the Health Service Executive, or
(b) the court, having regard to the child’s welfare, so directs.
The court has the final say and the child's welfare is given prominence in that subsection. Given a safety net is provided in terms of the court, why can the legislation not be broadened to ensure both parents, irrespective of their marital status, have a say? It is important the court has the final say and must have regard to the child's welfare.
Amendment No. 22 relates to variation of the order. The point I made about amendment No. 5 also applies in this case. The type of variation being provided for in regard to the new section 43B could apply to conditions, for example, access. Subsection (9) refers to section 37 and my reading of that is that an order could be issued that simultaneously covers section 37 of the Principal Act and relates to this new provision. It could apply to an element of access. Why is the non-custodial parent again being excluded? This is not appropriate particularly when foster parents, relatives or persons acting in loco parentis are allowed have a say.
I second the amendment.
I indicated to the Senator on Committee Stage that this was an issue we should revisit on Report Stage. My officials have assisted me in carrying out considerable research on the issues involved, and there is an explanation. Having regard to what is provided for in the legislation, the Health Service Executive is necessarily a party in this regard. The foster parent or relative to whom the order was granted is also a party. That is not a plurality of persons in that the foster care can take two forms, namely, relative foster care or a foster parent. The other two categories referred to are the person who has custody of the child at the relevant time or a person acting in loco parentis.
In regard to the 1991 Act, where the question as to who should be served with proceedings arises, the Act provides that under section 4(2) a child cannot be taken into voluntary care against the wishes of a person having custody or of any person acting in loco parentis. Section 4(3)(b) of that Act provides that when a child is taken into voluntary care, the HSE shall have regard to the wishes of the parent having custody or of any person acting in loco parentis in the provision of such care. In the context of a section 4 application where a child is surrendered voluntarily into care, the persons who do that are the persons having custody or the person acting in loco parentis. Therefore, there is an inner logic in providing in their case that they again become the party who are notified.
Section 4(4) of the 1991 Act provides that the HSE shall take a child into care if, among other things, a parent having custody of him or her is missing. Section 6(4) of the Act also provides that the HSE shall not take a child into care for the purposes of adoption against the wishes of a parent having custody or of any person acting in loco parentis. Section 12(4) of that Act provides that when a child is removed to safety by the Garda Síochána, the HSE returns the child to the parent having custody, or to any person acting in loco parentis or seeks an emergency care order. Section 14(1) of that Act provides that when a child is delivered up, or placed into the custody of the HSE in an emergency, the HSE informs the parent having custody or the person acting in loco parentis.
When we dealt with the Bill on the last occasion I mentioned section 17(2)(b) of the 1991 Act which deals with interim care orders. This has been amended by section 267 of the Children Act 2001. Again in this instance the parent having custody or the person acting in loco parentis is the person on notice. Likewise, an application for an interim care order for an extension of an order must be made on notice to the same parties in section 17(3) of 1991 Act. Section 18(7) and (8) of that Act provide that when a care order is made the court may require the parents of the child or either one of them to contribute to the HSE for the care of the care. I want to return to that point because it is the only example where the parents are referred to. Under this legislation the parent has a very wide meaning. I will return to that point.
The 1991 Act also provides that a supervision order shall authorise the HSE to visit a child on occasion and give the child's parents or person acting in loco parentis any necessary advice as to the care of the child. That is the supervision order machinery which is the lesser machinery in the Act. There is the care order and the supervision order, which is a lesser form of control. Again, that is exercised against the parent or person acting in loco parentis under section 19(2) of the 1991 Act.
If a parent or person acting in loco parentis is dissatisfied with how the HSE has exercised its authority — the word “parent” is included in this subsection — he or she has a remedy under section 19(3) of the 1991 Act. Section 19(4) of the 1991 Act provides that the supervision order can require the parents of a child or the person acting in loco parentis to have the child attend a medical or psychiatric examination.
In addition to the points Senator Tuffy made in this regard, she mentioned the question of access. That is dealt with section 37(1) of the primary Act. It provides that the HSE shall facilitate reasonable access to a child in its care by the child's parents, any person acting in loco parentis or any other person who, in the opinion of the executive, has a bona fide interest. Section 37 of the 1991 Act protects the position in regard to access.
For the sake of completion, section 42(2)(c) of the primary Act provides that reviews of cases of children in care require that the HSE considers whether it would be in the best interests of the child to be given into the custody of his or her parents. An important point, which I overlooked on the last occasion — although I am not saying Senator Tuffy overlooked it but it seems we both did — is that this Bill is an amendment to the 1991 Act. The Senator will note that the bulk of the sections of the 1991 Act involve notice being given to the person in custody or the person in loco parentis. This is not because of some legislative intent to disadvantage or to discriminate against any other party. It is because the child care legislation is a code for the protection of children. In the first instance, that protection has to be exercised against the person who has the actual custody of the child or who stands in the relationship of a parent to that child.
That has to be the scheme and purpose of the legislation. Were it otherwise, those whose duty it is to implement the legislation would be obliged to make their investigations and see that the child is in the custody of a particular person or that a particular person is acting as parent in respect of that child. If we were to go down the path Senator Tuffy is advocating then the HSE, through its servants and agents, would have to make further inquiries about all the other persons who might have some relationship to that child, legal or factual, in a context where the child is in need of care and protection. That is why the legislation provides as it does in the bulk of the matters that it is the person having custody or the person standing in the relationship of a parent to the child who has to be notified.
In the 1991 Act the Legislature has not omitted to address the concerns raised by Senator Tuffy because section 3 of the Act, the first substantive section dealing with the functions of the health boards — and now by adaption the HSE — states that it is the function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. It further states in subsection (2):
In the performance of this function, a health board shall—
(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;
(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise—
A specific obligation is imposed by section 3 on the health board to have regard to the rights and duties of parents, whether under the Constitution or otherwise. It is not limited to parents under the Constitution, who of course would be parents of a family founded upon a marriage. The Senator will note the expression used is that it extends to all parents "or otherwise". That relates to the entire operations of the HSE in the context of the implementation of this legislation.
I mentioned that the two crucial sections from the point of view of taking children into care are sections 4 and 18. Section 4 of the 1991 Act deals with the taking of the child into voluntary care. Clearly that is done on consent and it cannot be done against the wishes of a parent having custody of the child or a person acting in loco parentis to the child. Such a person would have to be put on notice of any application to obtain one of these orders under the new legislation that would give foster parents rights. Given that the parents consented to place the child into care, clearly they have a veto on the foster parents obtaining any rights in respect of the child.
The other circumstance we have to address relates to section 18. This is the section that permits children to be taken into care. Again, I have checked out the matter because that section is silent in respect of what party should be put on notice of an application for a primary care order. The matter is dealt with by rules of court. The relevant rule of court provides the exact same statutory formula as is used in the Act. The care application must be made on notice to the person having custody of the child or a person standing in loco parentis to the child. That is the rule of court and it is implemented in section 18.
I draw the attention of Senator Tuffy to a further section because it is of particular importance in the context of the point she raised. I refer to section 24 of the 1991 Act which will apply to the amending legislation. Section 24 provides that in any proceedings before a court under this Act in regard to the care and protection of a child, the court must have regard to the rights and duties of parents, whether under the Constitution or otherwise, so all parents fall within the intendment of section 24. By virtue of section 24, the District Court clearly has to have regard to the status of parents under the Constitution and parents otherwise. That is a function of the District Court under the legislation.
In the context of a section 18 application where a child is being taken into care, plainly the court, under its own rules, is only obliged to serve the person in loco parentis — the person having custody of the child — but the court may well join a further party having regard to the provisions of section 24. The court has that inherent power by virtue of section 24 of the Act. Having said all that and given that the Child Care Act scheme in regard to these matters is considerably broader than the scheme in many other items of legislation, there is no reference to the position of the legal guardian. Senator Tuffy is correct on that. I made the point earlier that I understand the scheme of the legislation because the anxiety is to give the social worker the power to deal with the position that he or she faces — a child who is in the custody of a person or who stands in a relationship of parent-child with a particular person. Clearly that is the person in the first instance with whom the social worker must deal.
Some of the sections of the Act, such as section 18 and the section with which we are dealing in this Bill, can have far reaching consequences. For that reason I will revisit the question raised by Senator Tuffy. I hope I have reassured her that there is provision in the legislation which goes considerably further than either of us envisaged on Second Stage. That said, I am prepared to look at the issue of whether the guardian of a child would, in appropriate circumstances, at least be able to apply to the court for a hearing. The word "parent" is already used in the legislation and used without qualification as to status, be it by way of guardianship or the constitutional definition of the family or otherwise.
I wish to respond to a couple of points. The Child Care Act 1991 is wrong if in certain sections it does not involve the parent of the child who does not have custody. That is a mistake. There is an inherent bias as to which parent gets custody and why the other parent might not. I do not say we individually have that bias but it is evident in court decisions historically and that is why we are in this current situation. The safety net is present in the legislation, with the provision that the court has the final say and the reference to its decision being in the child's best interest. Looking for consent should not be a problem. It is not a case of looking for the consent of any relative, just that of the other parent. If the other parent cannot be found, the legislation provides a safety net. It is not just a question of notification — although that is provided as an option — consent is also involved. This is a mistake because of the way the system is designed and the legislation is framed. We may well be excluding possible options for the health board.
I am in favour of the legislation. We must provide for situations where the parent who does not have custody could play a bigger role but where the health board would not be aware of that. Given that we do not make the health board look for the other parent it does not need to inform itself of how beneficial the other parent might be in regard to the decision that may be taken or that he or she could have something worthwhile to contribute.
The Minister of State referred to the rules of the District Court. I do not know whether they are implemented. That raises the issue of whether the legislation could be challenged in terms of its constitutionality. I accept that applies to many different issues. The Minister of State also referred to the Constitution being an over-arching document and that the District Court must have regard to it. Perhaps if the Constitution were interpreted by a court it could conclude that the non-custodial parent should not be excluded. Specifically on amendment No. 22, I do not fully understand how that section will operate in terms of the new section 43B and how it relates to section 37.
The section I wish to amend mentions any condition or restriction attaching to that order. Therefore, conditions or restrictions can be involved. They may concern access or conditions relevant to the parent who does not have custody. In particular, amendment No. 22 provides that the parent without custody should be able to state he or she wants an order varied or discharged and have an opportunity to explain why. This should be the case not only regarding an order but also regarding conditions and restrictions attached to an order.
A parent without custody may have a contribution to make and should be able to go to court to state he or she wants an order or a condition varied because as a parent he or she is able to act in a particular way or has a particular opinion. This issue is raised not only in this Bill. It is a general problem in legislation which we must examine.
The one point in dispute is that I do not accept the motivation of the 1991 Act was to discriminate against anyone. The Act clearly states the court must have regard to a person who is a parent whether under the Constitution or otherwise. The phrase "or otherwise" recognises every parent of a child irrespective of his or her status. It goes further than the generality of our legislation which tends to restrict the right-founded guardianship of a male parent who is not married. This legislation goes further in respect of parents.
Senator Tuffy invites me to put all of this expressly in the legislation. That would impose an obligation on a social worker to look beyond a person who has custody of a child or a person who appears to be a parent of a child and make inquiries on what other persons stand in a legal——
What other parent?
What other parent? There could be——
What is so bad?
A child could have a legal guardian who is not a parent. The legislation is silent on that issue and I intend to examine it. A parent may not be disclosed by the other parent, as Senator Tuffy suggested. That can arise. The more inquiries one imposes on a social worker, the slower the process of child protection will be. This is a reality we must face as legislators. The purpose of protection is to protect a child in a particular context. The child is cared for and protected by the person who has custody of him or her or who stands in a relationship to the child.
We gave the courts a function to have regard to the wishes of parents generally in respect of children, and that is in the legislation. To go down the road Senator Tuffy suggests would mean writing into the legislation a positive obligation on the HSE to establish whether these parties exist. Inevitably that will add a further level of complexity to what is already an extremely difficult operation for all concerned. That said, Senator Tuffy has raised a serious question and I will examine it further.
Amendments Nos. 7 to 11, inclusive, amendments Nos. 13, to 16, inclusive, and amendments Nos. 19 and 20 are cognate. Amendment No. 17 is an alternate to amendment No. 16 and amendment No. 18 is related. Therefore, amendments Nos. 7 to 11, inclusive, and amendments Nos. 13 to 20, inclusive, may be discussed together by agreement.
These are all drafting amendments consequent on the earlier Government amendment which necessitated the insertion of a new sub-section into the Bill.
I move amendment No. 12:
In page 5, between lines 18 and 19, to insert the following:
"(7) Where a consent is given under subsection (6), the foster parent or relative of the child shall inform the Health Service Executive as soon as may be reasonable.".
I raised this point on Committee Stage. The purpose of the Bill is to give foster parents more autonomy. However, even with these increased powers, foster parents should be obliged to keep a written record of any serious medical procedures the child requires. We will go from a situation where foster parents must inform the HSE to not informing it. A half-way house should exist.
Last week, the Minister mentioned a report on foster care. However, from speaking with foster parents I understand it is not strictly enforced. While what the Minister stated may be correct in theory, in practice it is open to abuse. It would be no harm to keep a written record of serious medical procedures or admissions to hospital for surgical or psychiatric reasons.
Is the amendment being seconded?
I second the amendment.
The purpose of the Bill is to give foster parents or relatives caring for a child for a continuous period of five years more autonomy on the day-to-day care of the child. The HSE will continue to have a role in the life of a child in care through its involvement in the review of the implementation of the child care plan. If foster carers need advice on a significant matter, they will continue to have access to a named social worker, known as a link worker, who will provide information, advice and support to them.
Senator Browne's concern is that decisions on medical matters can have a fundamental effect on the welfare of the child. In a sense, his amendment attempts to construct a half-way house between what is envisaged in the legislation and what is the present position. I am glad to state I can be of some comfort to him. Section 2(5) of the Bill enables the court granting the order to impose any conditions or restrictions it sees fit as to the extent of the authority of the foster parent or relative to whom the order is granted.
To address Senator Browne's point, the power given to a foster parent or relative can be the entire power the HSE had in respect of the child, including the power to consent to medical matters. However, the court can take a different view and restrict the scope of the power given to a foster parent. It might be appropriate in the case of an extremely ill foster child about whom fundamental medical decisions must be taken. The court might take the view in such a case the HSE should continue to have the final say and not the foster parent.
To that extent, the legislation addresses the Senator's concerns. A full blank cheque is not automatically given to a foster parent. The control of the care plan always exists. In addition, section 2(5) allows the court to give less than a full grant of power to a foster parent.
I accept the word of the Minister of State. However, I would be happier with written legislation. I am aware the foster care plan exists and in theory a record of what happens is written down. I understand that is not necessarily the case in practice.
Section 37 of the Child Care Act 1991 relates to access to children in care. It provides that where a child is in the care of the Health Service Executive, either under a care order or otherwise, the executive will facilitate reasonable access to the child by his parents, any person acting in loco parentis or any person with a bona fide interest. It also provides that a person who is dissatisfied with the arrangements made by the executive may apply to the court and the court may make an order in regard to access and vary or discharge the order on the application of any person. The Health Service Executive if it considers it necessary to safeguard a child or promote a child’s welfare can apply to the court for an order authorising the executive to refuse a named person access to a child in its care.
In the context of this wording, notwithstanding that subsection 2(10) provides that the new sections that are being inserted into the Child Care Act 1991 by the Bill are without prejudice to any other provisions of the Act which assigned functions to the HSE, I have considered the issue further and wish to propose a new Government amendment No. 18 which addresses the concern raised by Senator Tuffy in her amendment No. 17, already discussed, and inserts a new section into subsection (10). That provides that subsection (10) "is without prejudice to the jurisdiction of the court to make, at any time, an order under section 37 with respect to access to the child or to vary or discharge such an order, including an order continued or varied pursuant to that subsection." This amendment will allow for new access arrangements to be made or existing access arrangements to be varied after an order under this section has been made and also brings into force by implication the standing of the various parties referred to in the original access section.
I thank the Minister of State and his Department for producing an amendment which deals with the issues I had raised in amendment No. 17. I presume it will do so appropriately. If it does not, my Dáil colleagues will have an opportunity to deal with the matter further. I thank the Minister of State for accepting the point.
I move amendment No. 21:
In page 6, between lines 5 and 6, to insert the following:
"(12) In this section, "missing", in respect of a parent, means a parent who has had no contact whatsoever with either the child or the Health Service Executive for a continuous period of at least 1 year.".
I am concerned about the lack of clarification with regard to the term "missing". I can foresee this issue causing difficulty in future cases and it would be helpful if we clarified it in the Bill. The Minister has stated that the courts generally agree as to the meaning of "missing" but I wonder if this would withstand a challenge. If we were to copperfasten and clarify the matter in the Bill, it might help to prevent unnecessary legal battles in the future.
I second the amendment.
We discussed this issue at length on a previous occasion. I am of the view that it is for the courts to decide, based on the information provided to them by the executive on the efforts made to contact the person, whether they are satisfied that the parent or other person is missing and cannot be found. Courts are used to conducting this exercise; it is part of their experience. We, as a Legislature, should not try to fetter the courts too much in their explorations on this issue. We have supplied them with a concept, namely, "missing". It is for the courts to determine whether a person is in fact missing.
To include a requirement that a person who has not contacted an official or officer at a health board for a year or any other period should be automatically deemed to be missing is not the answer. It is far preferable to give the court power to decide whether someone is missing because it can consider the entire file and make an independent, objective judgement on the issue. This protects the person who is missing far more than the insertion of a requirement that a particular period of time should have elapsed. Were we to insert that requirement, it is unlikely any person would know about it who is not in the administration of the HSE.
I move amendment No. 23:
In page 6, between lines 18 and 19, to insert the following:
"(e) a person who, in the opinion of the court, has a bona fide interest in the child.”
I put down this amendment on Committee Stage. I argued at that time that the section as it stands was more limited than section 37(1), which allows a broader category of interested persons, for example, relatives of natural parents, to apply for conditions to be added to the order under the Bill. I ask the Minister of State to consider the amendment as it might be a way of dealing with the issue I raised in amendment No. 22. Section 37(1) of the principal Act states: "facilitate reasonable access to the child by his parents ... or any other person who, in the opinion of the board, has a bona fide interest in the child”. This Bill ties in the new sections 43A and 43B with section 37 of the principal Act, which allows for the type of person I allow for in amendment No. 23.
I do not understand why the category of "any other person who, in the opinion of the board, has a bona fide interest in the child” is allowed for in the principal Act but not allowed for in this Bill although section 37 is allowed for in the amending Bill. With regard to the new sections 43A and 43B, the Bill at page 5 allows that a judge might make an order with regard to section 37. The new section 43B on page six mentions conditions or restrictions attached to that order. That could include conditions that would have a connection with access, which is what section 37 of the principal Act is about. To be consistent, the Minister of State should allow my amendment. It would allow for the parent who does not have custody, and would solve the problem I raised earlier, at least for this part of the amending legislation.
I previously raised the issue of grandparents. This is also related to the overall aim of the Bill regarding the types of consents that foster parents can give under this new legislation. Those consents can include the broader consents a guardian can give or they can be restricted. That is why the Minister of State is allowing for conditions and restrictions in the new section 43B. It is possible that, for example, a grandparent, parent who does not have custody or other relative could come forward and say that in certain circumstances he or she could have a role. That is why it is worded so broadly. If access comes in here, to be consistent the Minister of State should allow my amendment. What would be the harm? The court has a say and all the protections and safety nets to which the Minister has referred exist. Why not provide for these relatives in the legislation? The protections exist and the courts will do what is best, taking into account the welfare of the child and the background circumstances. There is information the court may need. A grandparent, parent who does not have custody or somebody who has a bona fide interest in the child may be able to say he or she wants an order discharged or a condition varied because he or she can contribute. The Minister of State should consider accepting this amendment. I do not see the problem with it, given it is already in section 37 of the principal Act, to which the Minister of State referred.
I second the amendment.
We have accepted it in the Government amendment.
Sorry.
Senator Tuffy was probably not perusing the amendment when I read it out. The new subsection (10) has been added as a result of the Government amendment No. 18 in response to the Senator's earlier amendment and inserts the following: "(11) Subsection (10) is without prejudice to the jurisdiction of the court to make, at any time, an order under section 37 with respect to access to the child or to vary or discharge such an order, including an order continued or varied pursuant to that subsection." Senator Tuffy is talking about the discharge of this order.
That amendment deals only with the issue of access.
Yes.
My amendment No. 23 is not necessarily restricted to access. It is restricted to whatever one can do under section 43B. I am saying that more than the people the Minister has outlined——
Senator Tuffy argues that a person who has the right to be heard on access should have the right to be heard to discharge the entire order.
It would not necessarily be to discharge the entire order. The Minister says one can use section 43B for conditions or restrictions. I understand what he is saying. Perhaps the issue of access is dealt with by his previous amendment. I accept that. I did not appreciate that at the time. I can see what the Minister is saying.
Senator Tuffy has achieved that. She is winning.
I have achieved that and I appreciate that.
Is Senator Tuffy pressing the amendment?
I am pressing the amendment.
May I respond?
Of course the Minister of State may respond.
There is still an issue. It is varying the order, not just discharging it and it could vary any condition or restriction. People other than the four types of people the Minister of State has listed could contribute something and they should be able to go to the court. The Minister of State has allowed for it in the Government amendment and the original legislation allowed for it. It would cover the role of grandparents or other people on access. I referred to access because I did not appreciate what the earlier Government amendment did. However, it may relate to the other aspects of the order and the conditions. Perhaps grandparents or other relatives who have a bona fide interest should have a say.
The bulk of Senator Tuffy's comments are addressed by the Government amendment on access. The principal Act's access arrangements are expressly provided in this legislation. The Parliamentary Counsel was concerned that their implication was not sufficient on a matter as fundamental as access. As Senator Tuffy pointed out, it is an area where a wider range of parties is expressly recognised in the legislation. Senator Tuffy asks, given that this issue is addressed, why those parties do not have a wider right to participate in these proceedings. I return to the earlier discussion we had and make the point that under the Constitution and otherwise, the courts and the HSE, in exercising its functions under the legislation, must have regard for parents. Senator Tuffy seems to lean towards giving a wide range of parties an express right to be notified of proceedings of this character.
Although I addressed this issue earlier in discussing the responsibilities of the HSE and its social workers under this legislation, I would like to put another consideration before the Senator. It has been my experience as Minister of State at the Department of Health and Children with responsibility for children that one of the great problems with children in difficulties before the court is that too many parties, and especially too many legal representatives, appear in these cases and that there is not enough focus on the need to provide services for these children. A great number of parties appear, whether under the guise of guardians ad litem or as their legal representatives, who purport to express a view on the welfare of the child without providing a service. It is my firm conviction that Government agencies, whether the HSE or the newly established Youth Justice Service, have to take responsibility for children and be heard on this subject. Many of the changes to the Children Act were directed to this end. I have reservations about the proliferation of parties appearing in cases in connection with children’s welfare in the courts, especially when legal representation is engaged on their behalf. The bill for this is footed by the Exchequer. Money is paid to the legal profession, not diverted to where it is needed, to provide services for these difficult children.
The Minister of State is correct. In my amendment I lean toward a broader category of person. I have particularly in mind parents without custody, grandparents and guardians. I still have a difficulty with this. The Minister said he would examine the issue in general. This section is not to do with notification. It gives a person the power to apply to the court to vary or discharge an order or particular conditions in that order. What if a grandparent, guardian or parent without custody could come the court and say that circumstances have changed and that he or she can play a bigger role in a child's life and wants the court to consider varying or discharging the order on that basis? I hope the Minister re-examines this as he said he would. We need to examine all these issues.
While much of what I am thinking of has more a family law aspect than a child care one, it is also relevant here. We need to examine the types of reforms being introduced. Australia introduced the Family Law Amendment (Shared Parental Responsibility) Act this year and it specifically defines grandparents as people who have custody, unlike Irish law. To allow grandparents we bring in the broad definition but do not specifically mention their role. Perhaps we should begin to specifically mention grandparents in our legislation and examine our definition of parent in order that we do not exclude any parent. The welfare of the child is always the paramount consideration.
I reiterate that I am not saying the motivation of this legislation or even the principal Act is to discriminate against anyone. However, there is an inherent bias in the legislation which emerges when we try to amend it. We are looking at the manner in which society was ordered in days gone by, and we must examine modern realities instead.
I will look at the question, but let us talk about the best interests of the child. We are talking here about a child who has already spent five years in the care of a foster parent. Therefore the court has taken the view, either with the consent of the person who surrendered the child into care or having looked at all the circumstances in the light of a care order under section 18, that in its best interests the foster parents should now be able to make decisions in respect of the child. Then there is a care plan. The child is in the care of the State and supervision by the Health Service Executive, HSE, remains on foot of this. Now we are saying that we should foment litigation involving a remoter party to this particular transaction. I do not believe this is in the best interests of the child. Finality must be brought to the child's attachment as well, and that is a fundamental issue in legislation of this type.
That said, I am willing to look at the issues. Senator Tuffy has raised a fair point to the effect that while the legislation speaks of parents, under the Constitution and otherwise, and therefore has not been influenced by any social attitude or assumption since the time of its enactment in 1992, it does not deal with the question of guardians, and they have legal rights. These are not dealt with in the legislation in express terms, and there are other issues of that type which I am certainly willing to examine.
I thank Senators on all sides of the House for the welcome they gave the legislation. I appreciate the contributions made. On the detail of the legislation, two points were made by Senator Browne and Senator Henry, respectively, about the duration of time to which this order should apply. The discussion on that was very valuable because it served to bring up the nature and purpose of the legislation as well as its context.
Senator Tuffy tended to dwell on the question of the parties. She raised a general point which I will certainly examine further. We also had an opportunity to examine the detailed mechanics of the legislation. I know Senators were disappointed that other amendments which I had signalled were not tabled in this House. I understand that this was the subject matter of division in the House earlier. However, when those amendments are brought forward, they will come back to Seanad Éireann for full discussion and I have no difficulty with that.
I thank the Minister of State, his officials and the other spokespersons in the House. I hope this Bill will ensure that both foster children and foster parents have a better lifestyle and greater autonomy in their daily lives, which is the main purpose of the Bill. Despite the country's accumulation of wealth and success in recent years, many problems still remain. Unfortunately, there are many children in foster care who will be taken into care by the State in future and it is vital to have the necessary legislation in place.
I welcome and support the legislation. I thank the Minister of State and his staff for all the work they did and I appreciate his listening to the issues I raised and his assurance that he will give them further consideration. Obviously, I appreciate that some of the amendments I tabled were addressed by the Minister of State in Government amendments.
On a general point, while supporting the legislation, I want to pick up on the remoter parties issue. My main reason for tabling the relevant amendments was that, despite people's rights per se, those remoter parties, which could include a parent without custody, a legal guardian or a grandparent, might have something to contribute to the process which could help and perhaps even save the State money in the long term. If some such party could volunteer to play a greater role in the child’s welfare, that would obviously be good from the State’s viewpoint. It could be good too for the child and is something that should be taken into account. That was one of the motivating factors for my amendments.
This needs to be examined much more. Instead of saying the HSE might be caused greater inconvenience, we should ask whether such an initiative would help it more, broaden its outlook and help it make a better decision.
Gabhaim buíochas leis an Aire Stáit. Tá an-obair déanta aige agus a chuid oifigigh agus gabhaim buíochas croíúil leo.
I sincerely thank the Minister of State. This is important legislation and he has excelled in his capacity as Minister of State with responsibility for children. This legislation, as was agreed on Second Stage by Members on all sides of the House, seeks to protect children, to give those in difficult situations, such as broken homes, living conditions that are as normal as possible and such as might be enjoyed by children in more favoured situations.
I thank my colleagues on the other side of the House. This is again a clear example that a good, responsible Opposition complements good Government. This has been evident in the debate on all Stages of this Bill and I am pleased to have been part of it.
