Amendment No. 1 in the name of Deputy Shatter is consequential on amendment No. 2. Therefore, amendments Nos. 1 and 2 will be discussed together by agreement. Is that agreed? Agreed.
Children Bill, 1999: Committee Stage.
I move amendment No. 1:
In page 15, subsection (2)(a), line 23, to delete "and 3".
As you said, Chairman, amendment No. 2 is a related amendment which seeks to insert the following new provision:
(b) Part 3 shall come into operation upon the enactment of this Act.
This proposal is about the time frame in which this legislation will be brought into force and the problems which currently exist in dealing with children who are in need of special facilities because of their own personal difficulties. The Bill does not indicate when the legislation will be brought into force. Most of the provisions of the Child Care Act, which was passed in 1991, were not put into operation until autumn 1995. It is 2001 and we are only now taking Committee Stage of this Bill.
The provisions in section 2 allow the Minister to bring the various Parts and sections into force, essentially, whenever he decides to do so, with the exception of certain sections in respect of which he requires the agreement of the Minister for Health and Children. On Second Stage, the House was not given a concrete timeframe for the bringing into operation of the legislation. As we are only commencing Committee Stage, the Minister has not been given an opportunity to indicate what is the proposed timeframe. The first issue about which I am concerned, therefore, is when it is envisaged the various Parts and sections of the legislation will be brought into force.
The particular issue to which amendment No. 1 relates is that of children in need of special care or protection. There has been a plethora of cases in the High Court commencing in 1995 with the judgment of Judge Geoghegan and continuing through the series of decisions and judgments delivered by Mr. Justice Kelly in the 1997 to 2001 period. These cases concerned children in need of special care or protection who are not provided for under current statute law and in respect of whom the courts have had to develop law - based on constitutional principles - to require the State to recognise its responsibility to them.
In effect, we have a judicially developed and administered law which is currently operating and which has led to the necessity for an entire series of cases to come before the High Court in unusual circumstances. These are cases which should be dealt with within the framework of our child care legislation and which have resulted in the Government being regularly criticised for its scandalous failure to meet the real needs of children. We have seen the ridiculous situation where, in certain cases, health boards have been defendants while in others they have been, in practical terms, acting on behalf of a child and its parents, as applicants, to force the State to provide facilities that were needed and funding for those facilities.
I estimate that if we calculated the legal costs incurred by the State as well as those incurred by parents and health boards in the processing of these cases, the total amount would quite easily exceed £1 million. Given that there is currently no statutory framework in operation in this jurisdiction, it seems that - at the very minimum - when this legislation has been passed by both Houses of the Oireachtas and signed by the President, Part 3 should automatically come into force and provide a statutory framework to replace the judicially developed law that is currently operating in this area.
Effectively, amendment No. 1 proposes that the substantive provisions contained in Part 3 of the Bill, which we will be discussing in some detail later, come into force upon its enactment. I hope that this proposal can be agreed to on all sides and will not be a matter of contention.
I must enter a number of reservations about Part 3 of the Bill. It is wrong that it has been included and there is complete confusion about different categories of children who come before the courts. By right, this legislation should take the form of an amendment to the Child Care Act. It is wrong that Part 3 is being included in a juvenile justice Bill. That point was put across strongly by a number of the NGOs which expressed dissatisfaction with the manner in which the problem of non-offending, out of control children was being dealt with.
Having said that, however, I agree with the points made by Deputy Shatter on an earlier occasion, namely, that we would be loath to remove Part 3 from the Bill on the grounds that it is inappropriate and that it should be included in a juvenile justice Bill. If that happened, God knows when it would reappear as an amendment to the Child Care Act particularly when one considers the enormous and inexplicable delays that have dogged legislation aimed at children for many years. For that reason, I will accede to the inclusion of Part 3 in the Bill.
My amendment is designed to achieve the goal to which Deputy Shatter alluded. I suggest that we oppose Part 3 in its entirety and by doing so, the provisions of the Bill would take immediate effect. However, I am happy to agree to Deputy Shatter's proposals in this regard and abandon my own. As the Deputy outlined, a clear and strict timeframe should apply to the implementation of the provisions.
I cannot recommend amendments Nos. 1 and 2 to the committee. These amendments relate to bringing into operation Parts 2 and 3, which are primarily concerned with placing the family welfare conference on a statutory footing and imposing certain duties on health boards in respect of children in need of special care and protection. The two parts are inextricably linked and, in conjunction with the proposed amendments being put forward by the Government, they will also be linked in this way with Part 11, which establishes the special residential services board.
Under the Bill, a health board will, where it appears that there is a child in its area who may be in need of special care and protection, be obliged to convene a family welfare conference under Part 2 before it can apply for a special care order under Part 3. Under the proposed Government amendments, the health board will also have to seek the views of the special residential services board if, when a conference has completed its deliberations, it still proposes to apply for a special care order. It will, therefore, not be possible to bring into operation Part 3 without also bringing into operation Parts 2 and 11.
The Government has made a major investment in the development of child welfare services for vulnerable children and their families and children at risk, including the development of services in anticipation of the implementation of this Bill when it is enacted. This year the Government allocated a further £33 million in revenue for the further development of these services. In the letters of net determination issued by the Department of Health and Children to the health boards this year, the boards were instructed to introduce the family welfare conference on a phased basis so that they will be in a position to meet their obligations under Part 2. That Department has also approved the provision of an additional 110 high support special care places in order to enable Part 3 of the Bill to be introduced. Approximately half of those places have already been provided. Included in this figure are the places at the proposed built special care unit at Ballydowd. It is anticipated that most of the remaining places will come on stream during the next 12 months, bringing the total number of places to 160.
Significant progress has been made by health boards in meeting these targets, despite the many difficulties such as objections to the granting of planning permission, difficulties in recruiting staff due to the current economic climate and opposition from local communities. My colleagues, the Ministers for Health and Children and Education and Science have also established the special residential services board on an administrative basis in anticipation of the bringing into operation of Part 2.
The Government was also responsible for establishing the springboard initiative which establishes family support projects to work intensively with children mainly in the seven to 12 age group who are at risk of going into care or getting into trouble with the law. In addition, a joint working group comprising officials from the Department of Health and Children and the health boards has been established to identify the gaps in the services for children in need of special care and protection with a view to submitting recommendations in the near future.
A great deal of progress has, therefore, been achieved. It is ridiculous for Deputy Shatter to suggest that this problem has been ignored. Nothing could be further from the truth. No previous Government has addressed this problem with a greater degree of vigour. I pay tribute to my ministerial colleague, Deputy Hanafin. However, to allow for the planned development and strengthening of the service it is necessary to allow for the phased introduction of parts of the Bill. The amendments should be rejected because the difficulties I outlined are logistical. They can only be overcome by tackling the obstacles on the ground and not by rhetoric. It is not a question of the absence of bona fides. It is a logistical problem that cannot be overcome by snapping one's fingers. No Government has tackled this problem with greater vigour. I am the first to admit, as Deputy Shortall pointed out, that we have waited for far too long for legislation of this nature to be enacted and for the facilities required to ensure this legislation is enforced. However, there is no doubt we are tackling the problem.
Everything the Minister said is depressing and bears ill to the process. The rhetoric of concern about children's rights is nauseating. The Government has a disgraceful record. It has been in office for three-and-a-half years and because of its appalling record since the ministerial reshuffle at the beginning of last year when Deputy Hanafin was appointed and Deputy Martin was transferred it pretends that life only started a year ago. The Government will be in office four years in June and this area has not at any stage during its lifetime been regarded as a priority and has been approached with a political lethargy.
That is a disgrace in the context of the unprecedented regular and consistent judicial condemnation of the Government's failure to adopt a policy focus to put in place the necessary facilities and a statutory structure to deal with the difficulties children experience which will when the Bill is enacted result in them falling under the provisions in Part 3.
The Minister behind the rhetoric was incapable of even indicating to us the time frame for enforcing Part 3 or any other Part of the legislation. The Bill has been around since 1999. The Minister referred to the need to tackle the obstacles on the ground. Are people falling over bricks, intellectually incapable of coming to terms with the needs in this area? The obstacles are in Government. The blockage in Government arises from its abysmal failure to come to terms with the needs in this area. Its abdication of political responsibility has resulted in the High Court having to adopt a legislative role and not just in providing a basis in law for caring for children. That court has been put in an extraordinary position in that judicial comment and judgments are delivered to try to force a Government incapable of getting its act together into constructing the facilities necessary to meet the needs of children who require special care and protection under the terms envisaged in Part 3.
There have been regular and consistent changes in policies and plans. The Minister of State, Deputy Hanafin, has appeared on television patting herself on the back for the progress. If one reads the judgments of Mr. Justice Kelly and the evidence given in the courts, one discovers the Government had plans for various types of centres which, as 1997, 1998, 1999 and 2000 passed, were changed. Not one facility has been made available on time.
The Minister suggested it is not practical to bring Part 3 into force upon the enactment of the legislation because of one or two other provisions which relate to this Part. Can those provisions be brought into force when the Bill is enacted? We do not have to wait until a mysterious future date for orders to be made. Why can the Minister not even tell us at this stage when the Government, should it remain in office, envisages the legislation will be brought into operation? Will any Part of it be brought into operation before the end of the year? What is the time frame? Committee Stage will take a number of weeks and will be followed by Report Stage. When will that be ordered in the House? Will it be next June or autumn? When will the legislation be taken in the Seanad? What preparation is the Minister's Department and the Department of Health and Children undertaking to put in place the structures needed to allow this measure to operate upon enactment?
The Minister referred to one of two things that are happening but much of what needs to be done is not happening yet. If the provisions in Part 2 relating to family welfare conference must be in operation to bring Part 3 into operation, let us bring Parts 2 and 3 into operation on the enactment of the Bill because that can easily be done through amendment to Part 2 or by the Minister agreeing on Committee Stage to make an order bringing it into force. The Minister has not even told us when this Part will be brought into force.
It is the intention of the Government to abdicate its legislative responsibility to creative judicial development of the law by both the High Court and the Supreme Court for years to come. I am well used to Ministers issuing statements that fool the public into believing issues are being addressed. When the Bill is passed, there is no doubt there will be a publicity orgy on the part of the Government press office about the great achievement of getting it through.
The legislation should have been enacted by now. There is no reason it should have sat around from 1999 until now for Committee Stage to be taken. There is equally no reason following its enactment for us to wait another three or four years before its provisions are brought into force. Deputy Shortall made the case, as made to us in submissions, that Part 3 should not be in legislation. It is an amendment to and expansion of the Child Care Act, 1991, and it would have been better in that Act than in what will effectively be a juvenile justice Act.
I do not care greatly which Act it is in provided it is brought into force with some rapidity and we all know if Part 3 were deleted there would be no chance of its provisions coming into force should the Government remain in office after the Bill has been passed. There are problems with Part 3 and amendments are required which we will come to later but we can get it right. The Minister has said nothing to explain why in the context of the huge lacuna within our child care laws, which is being filled on an ad hoc basis by judicial legal development, we cannot upon the enactment of the legislation bring Part 3 into force. We should do so.
Chairman, it is not your fault, but it is disgraceful that on a measure as important as this, in the context of a problem about which we read so much in newsprint, it appears that because we started at 9.30 a.m. not one journalist is remotely interested in the work of the committee in dealing with these issues. That is particularly nauseating in the context of journalists regularly criticising Members for not doing work on serious issues. On occasions the media need to examine the way they deal with the serious issues being addressed by politics.
If the amendment is not accepted, I intend to press it. I had hoped at least, if the Minister was rejecting the amendment, that he would have been able to tell the committee when Part 3 would be brought into force. Does he have a timetable? Is there agreement within Government as to when any section or part of the legislation will be brought into force? It appears the answer is "no". That is yet another scandal. Let us not have any lectures from the Minister about the priorities given to this area by the Government if, at this stage, a time frame has not been agreed between the Ministers for Justice, Equality and Law Reform, Finance and Health and Children for the bringing into force of all the sections of this measure and an agreed time frame, subject to the agreement of the committee and the Dáil and Seanad, for the enactment of the legislation.
I allowed Deputy Shatter a lot of latitude as he was making his opening remarks. Perhaps he can keep more to the amendments in future.
I support putting this amendment to a vote because we have no confidence in the Minister's ability to implement the legislation at an early stage. His record is pathetic in this area. In saying that, I do not suggest that any other Government's record is anything about which to boast, but at least a Bill was produced in 1996 by the rainbow Coalition and the Minister inherited that. It may have been 20 to 25 years late but it was produced. While the Minister inherited the Bill, he sat on it for two years. He must admit that juvenile justice received zero priority in his Department and that this is one of the difficulties with the way in which children's issues are dealt with by the Government. In the Department of Justice, Equality and Law Reform, children's issues compete with high profile areas such as the Judiciary, the prisons, the Garda and many others. As usual, children's issues receive a low priority in politics generally, especially those relating to offending children.
The Minister speaks a great deal about the improvement in crime rates in recent years. There may have been some improvements in regard to adult crime. I do not know if the problem is that the Minister comes from a very remote constituency but he does not seem to be aware of the high level of juvenile crime which exists in all urban areas. As a Deputy who represents a Dublin constituency, I can say that juvenile crime is the single greatest issue affecting every part of my constituency, and it is the issue which arises repeatedly at public meetings. It is a massive problem bubbling away under the surface and we are storing up huge problems for the future by not tackling this issue properly. I have no doubt the Chairman, who represents another Dublin constituency, will be aware of the phenomenon of gangs of children, and the children seem to become involved at a younger age each year, hanging around in open spaces. No one wants a bench, telephone box or bus stop located near them for fear it will attract young people who cause trouble and intimidate and harass people. That is what it is coming to. A huge problem is developing and the Minister's lethargy in bringing forward legislation to deal with this does not give us confidence in his ability to tackle this in a serious way. It does not give us an indication that he has any comprehension of the seriousness of the problem or the urgency with which it needs to be dealt with.
Having sat on the 1996 Bill for two years and having made umpteen excuses about producing amendments - I asked the Taoiseach about this in the Dáil on about 50 occasions and a ridiculous line was given about considering amendments and that there were so many that they may have to go back to square one - eventually in 1999 the Minister produced a new Bill which did not indicate that there had been a need for a two and a half year delay given the minor changes from the 1996 Bill. Since 1999 the Minister has sat on that Bill and has not shown any sign of a sense of urgency in bringing it forward. It has been like pulling teeth trying to have Second Stage taken and then trying to have Committee Stage taken. The Chairman has also sat on this for many months and it is only when it was raised on umpteen occasions on the Order of Business in the Dáil that people were shamed into timetabling the Bill to be taken by the committee. Clearly no sense of urgency and priority is being given to this area by the various Departments involved and their Ministers. For that reason, we do not have confidence in the Minister's ability to implement its provisions at an early date. We want to ensure he does not have a choice but to implement them, which means passing the amendment to ensure the section comes into force immediately.
On the issue of sitting on the Bill, the business of the committee is arranged by the full committee and by the convenors as well as the Chairman. That responsibility could not lie just with me.
As Chairman you have particular responsibility.
This committee deals with much business.
Chairman, I spoke to you about it on many occasions and you were not even aware of the Bill.
I reject that.
I recall our experience when we discussed the Bill on two occasions and members did not even attend the meeting. We did not have a quorum and we had to wait a half hour for one. On another occasion when three groups came to speak to us, non-governmental organisations which are especially interested in this area, no Member was present, including the Chair.
It is the responsibility of all convenors, including the convenors for the Opposition, to have members present.
People were left sitting outside for more than an hour. It was an absolute disgrace and is indicative of the lack of priority which Members of the House give to children's issues.
If we are to progress with the legislation, perhaps we should do it in the context of the reality of the situation and not the sanctimonious criticism of certain members.
Let us deal with the issues.
They are lecturing us.
If we want to ensure the Bill is not enacted for another two years, the attitude of Deputy Shortall, who I never saw attend a meeting of this committee before, will certainly help. I will not take lectures from anyone in the Labour Party. I have had discussions with Deputy Shortall about what happened in my constituency to a young man who is dead, and that was long before the Bill was published and when her party was in Government. She knows exactly to what I refer. I spoke to her in the House when this Bill was at Second Stage.
This is a private matter.
This is absolute nonsense. At least Deputy Shatter has tabled amendments. To say "section opposed"——
So have I.
Not on this section and not when she is calling a vote.
Yes, I have.
Not on this section. The section is opposed.
If Deputy Shortall wants to see something, she should be as constructive as other members. She should put her money where her mouth is.
Can we return to the amendment, please? I allowed Deputy Shortall a great deal of latitude on the basis that she was making an opening remark. Notwithstanding that, it was wide of the amendment and she should speak more closely to amendments in future. Has the Minister a response to the opening remarks?
Yes, I have, Chairman. I will take no offence to Deputy Shortall's remarks concerning the constituency I represent. There are enough divisions on this small island besides my taking offence at Deputy Shortall considering a constituency 200 miles away to be remote. Remoteness has long been relative to where one lives. I will leave it at that.
There is little doubt that the sanctimonious tones of Opposition Deputies in this matter grate. The reality is that a Bill was produced in 1996 and that I criticised it heavily when in Opposition. I made it clear then that I was not satisfied with the legislation, that I did not regard it as adequate and that I did not believe it reflected modern thinking. On coming into office, I ordered a root and branch review of the legislation and, ultimately, there were that many amendments, it was decided that the prudent thing to do was to introduce new legislation. In that context regarding legislation for children, Deputy Shortall makes the sublime accusation that I would not understand children offending coming from where I do. I have practised in the criminal courts in urban areas for many years, unlike Deputy Shortall, and I have a considerable amount of experience in relation to child offending and all forms of criminality. I suggest Deputy Shortall has none by comparison. Deputy Shortall's knowledge of criminal legislation would fall far short of what is required to enable her to make any type of a considered contribution on whether this legislation is adequate or inadequate. I can stand over those facts.
This legislation was put together after much thought and was brought before the Houses of the Oireachtas in 1999. This was done after a major amount of research which recognised that this legislation would be important not just for today, tomorrow, the next decade or the one after but for many years into what was then the new millennium. The legislation was discussed in the Dáil and Second Stage was taken in the spring. Work then began on the amendments. As far as I was concerned, I was in a position to proceed with this legislation in the autumn of last year but the committee, in its wisdom, decided to become engaged in taking submissions. I have no difficulty with that as that was the democratic decision of the committee. However, Deputy Shortall should not come into this committee and seek to lay the blame at my door. In her pathetic contribution to this debate this morning, she illustrated all the panic and desperation of the Labour Party which seems to believe more in style than in substance. The style, as expressed by Deputy Shortall, is not a pleasant one to observe.
As regards the coming into operation of Parts 2, 3 and 11 of the Bill, I have explained there are logistical reasons I cannot bring forward those Parts immediately upon the enactment of this legislation. I have also explained that it is not for the want of bona fides on behalf of the Government. I have further explained that it is the Government's intention to bring forward these Parts at the earliest possible opportunity. That remains the intention. If this can be achieved by the end of the year, and that is the objective, then so be it and I will greatly welcome that.
As regards the question of places and the political questions raised by Deputy Shatter, while comparisons may be odious, nonetheless they must be made at times, particularly when one sets out one's stall not in any constructive sense but in a destructive fashion. In that context, during the period of the Rainbow Coalition Government between 1995 and 1997 and following upon Justice Geoghegan's judgments, not one single place for a child was created. Since then 74 have been created and I have explained that we have made considerable progress in the provision of places and that we will achieve our objective of providing 160 places in the short-term. It is difficult for me to take criticism from people who did nothing about the problem. At least we have acknowledged and accepted that the problem in relation to children requires to be addressed. That is why this legislation was brought forward after deep consideration and why the resources have been ploughed into providing the places. However, no one should pretend the places can be provided overnight or that the blame lies at the door of this Government.
Deputy Shortall seeks to suggest that juvenile justice is not a high priority of this Government. Nothing could be further from the truth. No Government in the history of the State has been more concerned with juvenile justice. For example, we became involved in diversion programmes and we enhanced the role of the probation and welfare service and of the Garda community relations section in school projects and similar exercises. There have not been more Garda youth diversion projects in the history of the State. We have a social inclusion committee and more than £300 million has been included in the national development plan to address that problem. In addition, there is a specialised Garda national juvenile office which co-ordinates and monitors all aspects of juvenile offending.
Without any fear of contradiction, this problem, which has been long festering, has not been addressed with a greater degree of urgency or vigour. While it is not possible to implement all aspects of this legislation overnight, the intention is to implement each section at the earliest possible date. In doing so, we will have enacted what I described on Second Stage as flagship legislation which revolutionises the system of criminal justice as far as young offenders are concerned. I can take criticism with the best of them but when the criticism is unfounded, I cannot be expected to stay silent.
Perhaps all opening statements could be made by representatives of Fine Gael, Labour and the Government. Perhaps we could proceed in a parliamentary manner without personal criticisms of individual members on any side of the House.
I want to specifically deal with the enactment of the legislation which is the issue with which I have dealt. The Minister said it will be enacted at the "earliest possible opportunity" and that he hopes it will be brought into force by the end of the year. He told us it is not possible to bring it into force overnight and he outlined all the obstacles and the logistical problems. Other than expressing a vague aspiration that perhaps there is some remote possibility that it could be brought into operation by the end of the year, he has confirmed all my worse suspicions. This Government does not have an agreed timeframe for the enactment of this legislation or for bringing any portion of it into force. That is unfortunate. It should have been possible since September 1999 to have agreed a timeframe at Government level to bring this Bill into force. The case has been well made as to why Part 3 should be immediately brought into force. Any logistical problems that creates could be resolved by decisions made by the Government in the next number of weeks even if no such decisions have yet been made. In the circumstances, I will press the amendment.
- Barnes, Monica.
- Browne, John (Carlow-Kilkenny).
- Flanagan, Charles.
- O’Sullivan, Jan.
- Shatter, Alan.
- Shortall, Roisin.
- Timmins, Billy.
- Ardagh, Séan.
- Coughlan, Mary.
- Kitt, Michael.
- McGennis, Marian.
- McGuinness, John.
- O’Donoghue, John.
- Wade, Eddie.
- Wright, G.V.
I move amendment No. 3:
In page 16, between lines 10 and 11, to insert the following subsections:
"(3) One month after the enactment of this Act, the Minister shall lay before each House of the Oireachtas a timetable detailing when it is proposed to bring into operation each of the provisions of this Act and the reason or reasons for the timetable detailed and the said timetable shall be considered by each House within one month of being laid before it.
(4) Should the Minister propose to amend the timetable required by subsection (3) of this section, the Minister shall lay an amended timetable before each House detailing the reason or reasons for the amendments specified which shall be considered by each House within one month of being laid before it.
(5) Any part of this Act not brought into operation by an order made as provided for in this section within 12 months of the enactment of this Act shall automatically come into operation upon the expiration of 12 months from the date of its enactment.".
This amendment proposes the insertion of additional subsections to section 2. This is a very important Bill which has had a very long gestation period. Most of the Bill's content seek to replace the Children Act, 1908. A Bill was produced in 1996 by the previous Government and it took three years to produce this Bill which was introduced in September 1999. The experience of the 1991 child care legislation was that once it passed through the House, the House lost any control over when the provisions contained therein would be brought into force. That Bill was enacted by a Fianna Fáil Government which was subsequently replaced by a Fianna Fáil-Labour administration.
Between 1991 and the end of 1994, nothing happened. No section of the Bill of any major relevance, substance or importance was brought into force during that time. Only in autumn 1995 did Deputy Currie, the then Minister of State with responsibility for children, bring the provisions of the Bill into force. I recall as an Opposition Deputy throughout the lifetime of the Fianna Fáil and Fianna Fáil-Labour Governments raising questions about when the Bill would be brought into force only to be told that it was the Minister's responsibility and that the House had no further role to play. It was for the Minister to decide when to table the relevant statutory instruments to revise the regulations. It is entirely unsatisfactory that such a significant and important Bill can be passed through both Houses of the Oireachtas and signed by the President only to disappear into a political twilight zone in which nobody but the Minister and Government of the day can decide when to enforce it. The Government is not even open to scrutiny as to its intentions.
I am seeking the inclusion of a requirement that one month after the Bill's enactment, the Minister would table a detailed document setting out the time frame within which the various parts or sections of the Bill would be brought into force and considered by the House in order to ensure a degree of ministerial accountability. I also tabled the amendment because I anticipated much of what the Minister said in regard to the previous amendment. He said he hoped the Bill would come into force by the end of the year but was not sure when that might happen and really could not give any commitment on the matter. Acceptance of this amendment will facilitate the Minister in fulfilling his hope that the legislation will be in force by the end of the year as it envisages that, whatever happens, the legislation would come into force 12 months after its enactment.
In so far as the Government may have a time frame in the first 12 months to bring various parts of the legislation into force, the effect of accepting this amendment would be that it would have to submit that to the House and give reasons for it. Should the Minister discover that some provision he hoped to introduce at an earlier date cannot be introduced, for reasons outside his control, it would be possible for him to come back to the House and amend the time frame. Both Houses of the Oireachtas would then have an opportunity to debate the proposed amendment and the consequences of whatever time frame is put to the House, in dealing with issues relating to children. I appreciate this is an unusual way of dealing with legislation but it is time that, as a Parliament to which Government is accountable, the Houses of the Oireachtas retained a degree of control in regard to the bringing into force legislation approved by the Houses of the Oireachtas. The courts have also commented on the manner in which we enact legislation and leave it on the Statute Book, for decades in some cases, before enforcing it.
I hope this amendment will be accepted and that the Minister will recognise that it will assist him in ensuring the necessary resources will be provided to make this legislation operational. This legislation will be of huge importance in dealing with children who get into trouble with the law and those with special needs who require special care or protection. We must ensure that children who get into difficulty with the law do not embark on a life of criminality and we must also ensure that the available alternatives to assist children become operational.
I support this amendment. For the benefit of Deputy McGennis, the purpose of my amendment which opposes the section——
The Chairman's ruling on personal attacks obviously does not apply to Deputy Shortall.
If the section were deleted in its entirety, that would mean the Bill would automatically come into force on being passed. My intention was to bypass the endless delays associated with this area of law. Any delayed commencement provision should be time limited and I am happy to support Deputy Shatter's proposal.
I, too, support this eminently sensible and practical amendment. I particularly support the suggestion in subsection (5) that any part of the order which could not come within the time frame would be brought back to the Houses. The more discussion and dialogue we have on this matter, the better.
Deputy Shatter's amendment confuses the legislative process with the administrative provisions required to be in place before the Act, or any part, section or provision thereof, is brought into operation. Asking a Minister to accept an amendment such as this is tantamount to asking him or her to accept responsibility for the unknown or matters completely outside his or her control. I will illustrate this in a moment but, first, I will outline what has already been done to ensure the Bill's speedy implementation.
The Garda community relations section has operated pilot schemes in restorative conferencing and cautioning for more than a year. In excess of 20 such conferences have been held and I am delighted by the encouraging feedback I have received. The experience gained through the operation of the pilot schemes has resulted in my tabling two amendments in regard to later sections of the Bill. Some 38 juvenile liaison officers have already been trained in mediation and other relevant skills by the Mediation Council of Ireland and a company named Real Justice. By the end of this month, an additional 40 officers will have been trained in convening, facilitating and conducting family conferences. This means most juvenile liaison officers will be trained in the coming weeks.
With regard to the family conference to be convened by the probation and welfare service, experts came to Ireland last September from New Zealand to train probation officers in family conferencing. Planning has also been carried out on the provision of places of detention for 16 and 17 year old detainees, separate from older detainees. On 16 January 2001, I formally announced the commencement of a major programme of redevelopment at Cork prison. The project, which will take three years to complete at a cost in excess of £35 million. This will include a separate facility for 16 and 17 year old detainees, a 40 place unit with full support facilities. Sites are at present being examined in the Dublin region for a further 100 such places comprising separate secure detention for up to 20 females and 80 males.
Part 2 of the Bill provides for a special residential services board. This is already operating with a full membership on an administrative basis within the enactment of the legislation. Plans are being prepared in the Department of Education and Science for a capital development programme for the children detention schools. Some £9 million has been allocated this year to implement that programme. Priority is being given to the provision in Lusk of a specialised high secure unit to cater for depraved and unruly children who would have previously gone to prison and for children with particular specialised needs.
Section 101 provides for day assessment of children found guilty of offences as an alternative to a report being prepared while the child is in custody. Plans for the provision of the first such place in an already existing probation office encountered planning difficulties as a result of change of user of the office. The unavoidable consequence was a delay of well over 12 months. However, I am pleased this week the place is open for referrals from the courts on the preparation of probation officer reports. Any problem with planning illustrates how delays can occur that make acceptance of an amendment such as this impossible. In relation to Deputy Shatter's earlier amendment, I explained why there were logistical difficulties which could not be overcome overnight.
It is clear that much is being done to ensure the speedy and co-ordinated implementation of this Bill. Many provisions will come into being when the Bill is enacted, including more shortly afterwards. The fact must be faced that some parts will require substantial capital expenditure or the employment of additional staff before they can be brought into operation. Given planning and other delays, including the current difficulties in attracting staff of a high calibre, it is difficult to predict precise implementation dates for some parts of the Bill. I wish I could be more definite in that respect. My intention was to implement Parts 2, 3 and 11 before the end of the year. What I have outlined makes acceptance of the amendment impossible, which I regret.
Deputy Shortall tabled an amendment opposing section 2 but offered no alternative. I presume this is intended to stimulate a debate on how soon the various Parts of the Bill will come into operation. I have just explained what has been done to bring the Bill into operation and what is being done as we speak. I have also outlined the difficulties that lie ahead and I do not think it is necessary to repeat what I said. Section 2 is the most progressive type of commencement provision because it allows the various provisions to be brought into operation as they are ready. For example, if a section, or even a subsection, is ready, it can be brought into operation without waiting for the whole Part or even the entire Bill to be ready. To only alternative to opposing section 2 is to put a commencement date on the Parts of the Bill that cannot come into operation immediately.
As I explained when discussing Deputy Shatter's amendment, it would not be possible, for practical reasons to do with modern day realities, to proceed on that basis. Accordingly, I recommend that section 2 remains part of the Bill.
The Minister said that the logistical difficulties to which he referred earlier primarily relate to problems that can arise in the planning process. That is not a reason for not accepting the proposed amendments. The amendment tabled envisages that, a month after the Bill has become an Act, a time frame be submitted to the Dáil and the Seanad which sets out the Minister's intentions. Given that issues may arise that are not expected and that time frames may have to be changed, even when they are originally furnished in good faith, there is a provision to amend the timetable. Clearly, if bringing into force a particular provision in the Bill required that a particular resource be available and that problems can arise in the planning process, problems can also arise in the staff recruitment area that are not anticipated which make it impossible to bring a particular provision into force. The new subsection (4) to section 2 was proposed to address that issue.
The Minister detailed some of the advances that have been made. In fairness to him, I welcome the fact that some planning has been put in and that some progress is being made to ensure there are trained personnel to implement some of the provisions of the Bill. Just as I may be critical of some things the Minister is not doing and that I believe should be done, he is correct to have done this. I am pleased the New Zealand model, which has been discussed on previous occasions in different forums, has been used in the training of probation and welfare officers to ensure conferencing can be undertaken at an early stage. In that context, I would like the Minister to clarify some issues.
We are aware there have been difficulties in relation to the availability of probation and welfare officers in the context of the family courts dealing with issues relating to children. At present if a district judge wants to get a report on a child, various courts currently are not serviced by probation and welfare officers in practical terms. In other cases if a district judge looks for a report, it might take six to 12 months to get one on issues that arise under the Guardianship of Infants Act, 1964, which can have a direct relationship to the interaction on occasions with issues that will arise under this Act and the Childcare Act, 1991.
I would like the Minister to tell us how many additional probation and welfare officers have been recruited in the last 12 months and what further complement is needed that is currently outstanding? How many of them are designated to deal with either issues that come before the courts relating to children only or issues that come before the courts in the context of family conflict between either married or unmarried parents whose relationship has broken down, where the care and welfare of children are a matter of dispute and where access to children is a matter of dispute? What is the Minister doing to resolve that problem? Are genuine recruitment difficulties being experienced? It is important to give us some insight into not just the availability for welfare officers to deal with children under this Bill, but their general availability to deal with issues relating to children.
I want to ask the Minister about another issue which has been talked about for many years. It is no more the Minister's fault than the fault of previous Governments that this issue has not been addressed, therefore if I am critical of the Minister I will equally be critical of his predecessors. Why do we still use people whom we call probation and welfare officers who are dealing with issues simply in relation to the welfare of children? We do not have legislation that recognises that the people we label as probation and welfare officers have a real role to play in areas that are not simply to do with prisoners being on probation. There should be a whole new statutory framework detailing the roles played currently, and envisaged for the future, by probation and welfare officers, and they should be given a different name. No Government to date has regarded this as a priority. The new and enhanced roles these officers are being given under the legislation, and their needs in dealing with other issues in relation to child welfare, require that there be a distinct and identifiable family division of officers who are not necessarily referred to as probation officers. This is something to which I would like the Minister to respond.
Finally, the Minister spoke about the bringing into force of the Act by the making of regulations and the requirement to give the Dáil a framework of the timetable as in some way interfering with the administrative processes. This is not an administrative issue; it is a legislative issue. It is an issue about legislation being brought into force. Any orders the Minister makes under this legislation must be laid before the Dáil. These orders are never discussed. Even though they are framed in a negative way, they will come into force within 21 days unless there is a motion annulling or opposing them. It is time to ensure the Dáil and the Seanad remain relevant in the context of bringing into force legislation for which both these Houses had previously been responsible. It is part of the reform needed to make Parliament more relevant and to ensure Ministers are truly accountable for their actions. The legislation provides a good opportunity to set a precedent for the manner in which we should deal with other similar complex legislation across a broad range of areas, in particular, legislation to be enacted by the Houses of the Oireachtas, none of which the Government intends to bring into operation immediately following its passage.
I would like the Minister to expand on the action he is taking in this area. How many additional detention places will be provided under the current development plan? I am aware that in the past year additional staff were recuited to increase the staff complement of the probation and welfare service to the long promised level. What is the number of additional probabion and welfare officers required - I cannot recall the figure included in the reply to a recent parliamentary question tabled by me - for full implementation of the Bill? What discussions, if any, has the Minister had with the Higher Education Authority to ensure an adequate number of social workers are being trained in the universities to meet the demand for probation and welfare officers that will arise shortly on implementation of the Bill?
Deputy Shatter ignored the fact that it is specified in the proposed subsection (5) that the legislation would have to come into play within 12 months of its enactment. I have explained the reasons it may not be possible to do this.
Placing the probation and welfare service on a new statutory basis is an interesting suggestion which could be looked at and examined in greater detail. I engaged in an examination of the probation and welfare service and excellent reports on its role and how it could be expanded to reflect modern needs were produced under the chairmanship of Mr. Brian McCarthy. As a result of these reports, I sought and received sanction from the Minister for Finance to increase the number of probation and welfare officers by 39. Since then, two competitions have been held. Unfortunately, despite the fact that we advertised not just internally, but externally we were unable to recruit the required number of staff. This meant that we had to look at the matter again to see whether there was a new way of attracting staff. We have, therefore, commenced a competition to recruit 25 temporary officers. I hope this will be successful and that we will now manage to recruit the required number of staff.
There is, unfortunately, a shortage of people willing to work in the probation and welfare service. That much is clear after holding two recruitment competitions. This is both disappointing and a source of concern. To answer Deputy Shortall, it is difficult to estimate the number of probation and welfare officers that will be required, but I have inserted a ball park figure of 70 as the number that will be required to adequately deal with the legislation. It could be said that a smaller number might suffice, but that is the aspiration. This does not mean, however, that we do not have difficulties in recruiting the staff concerned.
The number of places required to be provided under the expansion programme is 140 approximately.
I was talking about the number of additional places in detention schools.
In that instance, the number of additional places is 30.
On what is this figure based?
It is based on experience and studying the situation to determine what are the precise requirements. It is estimated that if the number is increased by 30, that will suffice. One can only estimate as one goes along. I cannot estimate what the position might be ten years from now; this is the best estimate we have.
To overcome staffing problems in high support and special care units, health boards have undertaken recruitment in the United Kingdom, Scandinavia and, even, South Africa. That gives one an idea of the skills shortage we are experiencing in this area. Deputy Shortall has a point, that there is a strong case for holding intensive discussions with the Higher Education Authority on the possibility of producing more people with the required skills. The difficulty is that many people have different priorities and seek different outlets for their skills. A position with the probation and welfare service is no longer unattractive. We have tried to ensure it is made as attractive as possible. I hope the attempt to recruit probation and welfare officers on a temporary basis is successful.
We now proceed to amendment No. 4 which is grouped with amendments Nos. 60 to 62, inclusive, 74, 77, 80 to 83, inclusive, 86, 88, 89, 91 to 93, inclusive, 96, 99 to 101, inclusive, 103, 104, 106, 124, 125, 132 and 134. Is it agreed that they be discussed together? Agreed.
I move amendment No. 4:
In page 16, subsection (1), line 39, to delete "place of detention" and substitute "children detention centre".
The Bill proposes that all children on remand, in custody or in detention be kept separate from older remandees or detainees. The policy in this regard was determined by our ratification of the UN convention on the rights of the child. The places of detention to be provided by the Minister for Justice, Equality and Law Reform for 16 and 17 year old detainees are called precisely that in the Bill. That name could be confused with places of detention, other than prisons, that can be provided under section 2 of the Prisons Act, 1970. Examples of such places are Loughan House, Shanganagh and Shelton Abbey. It is worthwhile, therefore, providing a different name from that in the Bill.
For several reasons I am proposing that the detention facilities for 16 and 17 year old detainees be known as children detention centres. With children under 16 years of age being detained in what the Bill describes as children detention schools, a name such as children detention centre for 16 and 17 year old detainees is a logical and appropriate progression. However, there is a more fundamental reason for a change of name. Section 156 states that no child, that is, a person under 18 years of age, can be sentenced to imprisonment. This is a feature of the Bill, and the policy in this regard will be mainly realised through the introduction of restorative justice measures and the provision of a wide range of community sanctions. It is essential that neither the perception nor the reality of the detention of 16 and 17 year olds is confused with imprisonment. Therefore, an ethos should develop in the centres where that age group will be detained, that is more akin to that in children's detention schools than that in places of detention for older detainees.
I have already given statutory recognition to that by the inclusion of section 153 which provides that the children's detention centres would operate under their own rules and not, as at present in St. Patrick's Institution, under prison rules. Those rules would be closer to those that would apply in children's detention schools than to those that would apply in prisons. I am also providing an amendment to section 153, which we will discuss later, for an overlap of the membership of the visiting panels for children's detention schools and children's detention centres.
How best to implement the decision to separate 16 and 17 year old detainees from older detainees is at present under active review. The prison building programme provides for the following accommodation exclusively for children: a 40 place unit with full support facilities on a dedicated site adjacent to Cork Prison - planning of this project is at an advanced stage and preliminary work is due to commence shortly; a 100 place unit with full support facilities in the Dublin region comprising separate secure detention for up to 20 females and 80 males - sites are being examined at present in order to identify a suitable location for this facility as a matter of priority.
The primary objective of the children's detention centres will be to afford young offenders in the appropriate age group the opportunity to develop the skills necessary to avoid future offending by the creative design of high quality purpose built facilities and the provision of high grade support services delivered through a progressive regime payable through their special needs. A comprehensive training programme will be put in place at an estimated cost of £2 million. A wide range of care and support services will be required, including teaching staff, in particular remedial teachers, nurses, child psychologists, psychiatric services and probation and welfare officers.
Accordingly, I recommend to the committee, these amendments which will have the effect of providing further evidence of a clear distinction between the detention regime for 16 and 17 year olds and prison.
Why is the Minister making a distinction between 15 year olds and 17 year olds? Why is he suggesting that we should drop the term "school" in the name of the detention centre? Is his thinking based on the fact that it is compulsory to attend school up to 16 years of age? Surely the approach in dealing with juvenile crime should be to try to compensate for the deprivation which most of these young offenders have experienced. More and more, what we are seeing is the result of shortcomings in the education system where the vast majority of children who come before the courts are seriously educationally disadvantaged. What these young people need more than anything else in addition to a secure environment is compensation for their educational disadvantage. For that reason I see no justification for dropping the emphasis on the schooling aspect of the centre for people over the age of 16. If anything there should be more of an emphasis on meeting their educational needs. I would be opposed to drawing that distinction between under 16s and over 16s. We should continue to call the facility a school.
I emphasise that the fact that places for 16 and 17 year olds will be known as detention centres does not mean that there will be a lesser emphasis on the educational aspect. The emphasis on education will continue. I agree with Deputy Shortall that very often there is an educational deficit which requires to be made up. The reason places for 16 and 17 year olds are described as detention centres is that these children are older and come under the remit of the Department of Justice, Equality and Law Reform. Children under the age of 16 would come within the remit of the Department of Education and Science and it is appropriate that their places would be described as schools. As we progress with this legislation it will become apparent that the age of criminal responsibility is to be increased to 12, which is in line with one of the amendments I proposed.
The situation then is that, in Shakespearean terms, a rose by any other name would smell as sweet. It is not the intention to lessen the emphasis on education as a result of the change of name. It is merely to indicate that the place concerned is under a different remit and to reflect the ages of the people concerned, in the case of the Department of Education and Science, under 16 years of age and, in the case of the Department of Justice, Equality and Law Reform, 16 and 17 year olds.
The Minister's reply is an illustration of difficulties that arise in the context of children being the responsibility of different ministries. I do not expect the Department of Justice, Equality and Law Reform to run the Department of Education and Science or vice versa. The explanation of the Minister has more to do with the convenience of political administration than the welfare of children. There was a time when we used to encourage people to stay at school until they did what was then known as the intermediate certificate and is now known as the junior certificate. Nowadays we try to encourage all children to stay in education until they complete their leaving certificate. It would seem that the fact that the detention centres come under the political remit of the Minister for Justice, Equality and Law Reform and provision for children under 16 under the political remit of the Department of Education and Science is not a reason for not calling the places where children of 16 and 17 are to be sent schools unless the intention is not to provide them with education but simply to detain them. A assume that is not the Minister's intention. I assume the intention is that should 16, 17 or 18 year olds, who are still in need of education, be sent to a detention centre, that they would have available to them an education system which will allow them to go on to do what would normally be their final post-primary examination along whichever track it is determined they should pursue it.
Could the Minister explain what role the Department of Education and Science will have in making input to the provision of education for, for example, the leaving certificate, for any child under 18 who is detained in a detention centre, and if there will be full provision for teaching? Would the Minister agree that it would probably be preferable that where the child is held is called a school, albeit a secure establishment of a different nature to day schools that most children in this country attend? Would it not also be in the interests of the children themselves, should they get over the difficulties that resulted in them being sent to what will now be termed a detention centre and return to the community, and facilitate them in reintegrating and in obtaining employment, if the place in which they received their post-primary education was labelled a school and not a detention centre?
I do not have strong views as to whether it should be called a children's detention centre or a children's detention school but I support the Minister's amendment. If there was a suggestion that by making it a children's detention centre for young adults, 16 and 17 year olds, it would then lessen their opportunities for schooling, I would not support a proposal to change it.
When we deal with young adults, even 15 year olds who have fallen out of the education system, we do not usually send them to institutions that are called schools. I am thinking specifically of Youthreach programmes and so forth. Young people who end up in difficulty tend to have a problem with school. As Deputy Shortall said, most of the children who end up either before the courts or as the subject of legislation such as this will have fallen out of the school system and have a particular problem with school. They will say themselves it is the last place they want to go. There can be an advantage in this in that we are not saying that because the child caused difficulties and has not gone to school they are being sent to a particular type of school which they must attend.
With regard to the Minister's statement, "a rose by any other name", in recent years we have seen the documentaries about what were called industrial schools. They could not be offered as a model we want to see repeated. If, as I understand it, the amendment simply tries to accord with the Minister's intent in the legislation that a young person can be sent to a place of detention, I do not have a problem with it but if there were a suggestion that the educational opportunities would be lessened, I would have a problem with it.
Will the Minister explain the reason for the division of responsibility between the Department of Education and Science and the Department of Justice, Equality and Law Reform in respect of teenagers under 16 years and over 16 years? Legally, persons under 18 years of age are considered to be children. Will he also expand on the plans he outlined for new facilities? There are currently no deterntion facilities for girls aged 16 or 17 years. There were a number of high profile cases recently where people had to be released because there was no secure place in which they could be held. What is the Minister proposing to cater for 16 and 17 year old offending girls?
One should not read too much into the fact that one is to be called a detention school and the other is to be called a detention centre. Clearly it is to reflect the ages of the children concerned. The fact that one is a detention centre and the other is a detention school does not mean that the standard of education will be less in one than in the other.
The children in the detention centres will obtain an education and there will be an emphasis on remedial teaching where necessary. The objective of the exercise is to develop the young person's skills to enable them to take their place in society and, hopefully, in the labour market. The objective is to help the child in so far as that is possible and to try to terminate the prospect of reoffending.
I can assure Deputy McGennis there will be education available to young people in the detention centres. A wide range of care and support services will be available to those children and the Department of Education and Science will be involved in so far as teaching staff are concerned. The centres will also have nurses, child psychologists and psychiatric services. Probation and welfare officers will also be involved. The care will be comprehensive and the young person will have an opportunity to develop his or her skills. The distinction between the school and the centre, therefore, should not be interpreted as meaning that there will be fewer services available in one place as opposed to the other because that is not the case.
There are historical reasons for children under 16 years being under the remit of the Department of Education and Science while 16 and 17 year olds are under the remit of the Department of Justice, Equality and Law Reform. It is also related to the school leaving age. There is a great deal of co-ordination among the three relevant Departments. That is illustrated by the presence at this meeting of officials from all three Departments and the Minister of State with responsibility for children. Legislatively, it is important that there would be different names for the places concerned. It is a legislative imperative in that it makes for greater clarity and Deputy Shatter will understand the need for that.
I asked the Minister about the provision for 16 and 17 year old girls.
My apologies. Deputy Shortall is correct that there is a real problem at present in relation to places for girls. The intention is to provide 20 places in the 100 place unit in the Dublin region. Sites are being examined at present to try to provide this facility. This is a priority to provide the necessary site so the unit can be built as quickly as possible. It will include places for 20 females.
Amendment No. 5 is consequential on amendment No. 34 and amendments Nos. 12, 35, 42, 45 and 46 are related. It is proposed to discuss amendments Nos. 5, 12, 34, 35, 42, 45 and 46 together. Is that agreed? Agreed.
I move amendment No. 5:
In page 17, subsection (1), between lines 4 and 5, to insert the following definition:
" 'Gaeltacht area' means an area for the time being determined to be a Gaeltacht area by order under section 2 of the Ministers and Secretaries (Amendment) Act, 1956;".
These amendments are connected because they are all concerned with the Irish language and culture. A number of them have been put down by Deputy Shortall. Those amendments were also sent to me by Comhdháil Náisiúnta na Gaeilge. As they have implications for the Department of Education and Science and the Department of Health and Children in addition to my Department, those Departments have been consulted and, as the amendments may have implications for policy generally on the Irish language and constitutional rights, the Department of Arts, Heritage, Gaeltacht and the Islands and the Attorney General have also been consulted. The outcome of those consultations means I can accept some of Deputy Shortall's amendments and I have put down amendments in my name in place of others.
My position generally on the amendments is that I fully support the need for children's linguistic rights and cultural identities to be recognised and upheld. Any differences between my amendments and those of Deputy Shortall are either drafting differences or are necessitated by practical considerations. My colleague, the Minister for Arts, Heritage, Gaeltacht and the Islands, is preparing a languages Bill at present. I could have avoided tabling these amendments on the basis that it would be better not to anticipate that Bill but I am satisfied that the amendments I am accepting and proposing will not conflict in any way with that Bill.
As there are 15 amendments in this grouping, I will briefly explain my position on each of them. The first amendment, No. 5, provides a standard definition of Gaeltacht area. As this expression is used in the amendments, it is important that its meaning is clearly understood. Deputy Shortall's amendment, No. 12, would require administrative services for family welfare conferences to be provided in Irish by the health boards for children from the Gaeltacht or for children whose first language is Irish. I am advised that while the health boards support the use of Irish as far as possible, many health board employees have been and will continue to be recruited from abroad. In those circumstances it would be impossible to guarantee that such administrative services will always be provided in Irish, as envisaged in the amendment. Inability to convene conferences due to the conditions required by this amendment could place children from the Gaeltacht or Irish speaking children at a huge disadvantage I regret, therefore, that I am unable to accept amendment No. 12.
Amendment No. 34 in my name covers the same ground as amendment No. 35 in the name of Deputy Shortall. The drafting, which is a little different, makes the same point, that is, that notices to parents about decisions on cautions should be available in Irish for children from the Gaeltacht or whose first language is Irish. I accept amendment No. 42 in the name of Deputy Shortall which is concerned with informing parents of their child's arrest in the Irish language when the child is from the Gaeltacht or whose first language is Irish. I propose amendment No. 45 in place of Deputy Shortall's amendment No. 46. There is no difference of substance between the two amendments. I propose that the entitlement to be questioned in Irish in a Garda station be confined to children living in the Gaeltacht or whose first language is Irish, but that any child should be entitled to make a statement, either orally or in writing, in Irish. That is, probably, also the intent of the Deputy's amendment as it would be in line with the wording of other amendments.
While I could accept, in principle, amendment No. 94, I am proposing in its place, mainly for technical reasons, amendment No. 95 which deals with the same point. For consistency with section 158, which outlines the principle object of children detention schools, I propose to include in the matters in respect of which rules can be made the personal as well as the cultural and linguistic identity of children. Similarly, I propose amendment No. 107 which covers the point made by Deputy Shortall in amendment No. 108, but with a minor drafting change. The same applies to amendments Nos. 111 and 112. Amendment No. 111 in my name is similar to amendment No. 112 in the name of Deputy Shortall, but with a minor drafting change. The amendment requires the inspector of children detention schools to have regard to the cultural and linguistic facilities in the schools when carrying out an inspection.
I accept amendments Nos. 114 and 128 in the name of Deputy Shortall. The effect of amendment No. 114 will be to require the Minister for Education and Science, in appointing members of a visiting panel, to ensure some members have knowledge or experience of the children's cultural and linguistic needs. Amendment No. 128 will require the special residential services board to ensure a co-ordinated approach to the development and provision of cultural and linguistic programmes for children in children detention schools and special care units.
I will propose amendments Nos. 5, 34, 45, 95, 107 and 111 in my name and accept amendments Nos. 42, 114 and 128 in the name of Deputy Shortall. The amendments will not conflict with policy on the Irish language and are not out of line with more general proposals being prepared by the Department of Arts, Heritage, Gaeltacht and the Islands.
I move amendment No. 6:
In page 17, subsection (1), line 20, after "person" to insert "who is the guardian of a child pursuant to the Guardianship of Infants Act, 1964, or who is".
This is a technical amendment. In the context of the legislation, a legal guardian is said to mean in relation to a child "any person appointed to be his or her guardian by deed or will or by order of a court". The legal guardians of 99% of children throughout the State are their parents who are recognised as guardians by statute under the Guardianship of Infants Act, 1964. The legislation provides that married parents are automatically joint guardians of their children. In the case of unmarried parents, the child's mother is guardian automatically. By agreement with the mother or by order of the court the natural father becomes a guardian. I do not understand the reason the concept of legal guardian appears to be confined in the legislation to those appointed by deed or will or by orders of a court and does not include those who are guardians of their children under the Guardianship of Infants Act, 1964, as amended. The effect of the amendment would be that legal guardian would be defined in the Bill to mean as, in relation to a child, "any person who is the guardian of a child pursuant to the Guardianship of Infants Act, 1964, or who is appointed to be his or her guardian by deed or will or by order of a court." I hope the Minister recognises the need for this amendment and that he will accept it.
It is a little more than a technical amendment. I thank the Deputy for bringing the matter to my attention. I will not say that he is right as I do not want to be judgmental, but I agree with him.
Is there a possibility that I am right?
I agree with the Deputy.
I move amendment No. 7:
In page 17, subsection (1), lines 29 and 30, to delete paragraph (a) and substitute the following:
"(a) in case one parent cannot be located after reasonable inquiry, the other parent,”.
The section, as drafted, seems to exclude fathers from the definition of parents in cases where the mother has sole custody andvice versa. That seems wrong. What does the Minister intend in this provision? It will mean the duty to attend and the liability to be arrested under section 91 will only apply to the mother or the person who has sole custody. I cannot understand the Minister’s thinking. I would expect that in the case of a child whose mother or one of the parents has sole custody there would be an obligation on the State to make every effort to contact the other parent given their joint responsibilities. Will the Minister outline his views?
The words the amendment seeks to delete from the definition of "parents" are "in case one parent has the sole custody, charge or care of the child, that parent,". The word "parent" is not defined as it means either the father or the mother of the child. The word "parents" is defined not so much to indicate what it means because that the meaning is obvious, but to indicate when it can be taken to mean one parent. The definition in the Bill makes it clear that that parent is the one who has "sole custody, charge or care of the child". That provides a clear and unambiguous meaning of the word "parent" in this context. It would be a matter of fact which parent has the custody, charge or care of the child, although in some cases a court order may be involved.
I am not convinced that the amendment would improve the wording of the definition in the Bill. It could lead to confusion about how long is a reasonable time or occasions when time is important. It also raises questions about what would happen if the missing parent was located. It cannot be assumed that the missing parent abandoned his or her family or that the family wants the missing parent back in their lives. In other words, the amendment would replace a straightforward provision with a complicated proposal which could have many different outcomes. I am not, therefore, prepared to accept the amendment as it could bring confusion into a situation where clarity is required.
There are many cases where one parent has sole custody and the whereabouts of the other parent are well known. Why is the Minister suggesting that the parent should not have a liability? I cannot understand the Minister's thinking.
If someone has sole custody, a decision has been made about the child's welfare. I agree that if a decision has been made which means that a parent is not necessarily part of a child's life and they are then brought back into it, there could be serious consequences.
What about a case where they are part of the child's life?
If they are part of the child's life, they will not have sole custody.
Often they could.
It could happen that someone will make a decision which is not necessarily in the interests of the child.
I understand the Minister's point that complications could arise in the context of some provisions of the Bill and the interaction of parents. There is a difference between a parent who has sole custody of a child where there is no contact with the other parent or where the whereabouts of the other parent are unknown and a parent who has sole custody of a child in circumstances where the other parent has regular access to or contact with the child. It is possible, for example, for one parent to have custody and for the other to have the child stay with him or her every second weekend from Friday to Monday, to go away on vacation within that period, although not necessarily abroad, or to stay with relations. There are different levels of involvement that parents have in circumstances where a parent has sole custody. In the context of the circumstances in which the legislation provides for different types of intervention, it would seem to me that where the whereabouts of the parent is known, and where the parent has maintained a relationship with the child or is in regular contact with the child, that parent should fall within this definition. Perhaps the Minister will give further consideration to that point on Report Stage in the context of foreseeing what complications might arise under the legislation. In circumstances where the legislation prescribes different types of intervention or legal process, no one is suggesting that some search would be necessary to ascertain the whereabouts of a parent who has disappeared and lost touch with his or her children.
The amendment as tabled could give rise to a great degree of complication. First of all, what is a reasonable inquiry, and what is the length of time that would allow for a reasonable inquiry? As I have already outlined, in some cases the time factor can be of the essence. Let us say that the missing parent is located and is not wanted back by the family, that creates severe difficulties. The solution which is in the legislation is more straightforward and provides for a greater degree of clarity. Nonetheless, it is a complicated situation and I accept that Deputy Shortall's intention is not to foist a parent who has abandoned the family back on the family. Deputy Shatter has outlined that point also.
I favour what is in the legislation at present and I take Deputy Coughlan's point in that respect. We will look at the situation to see if an improvement can be brought about. I cannot hold out any great hopes of doing that but we will certainly try.
The Minister is making a mistake in assuming that the other parent is always missing. We are not talking about situations like that. There are many situations where one parent has sole custody, while the other parent is in regular contact with the child and may play a significant part in that child's life. He or she may play a significant part in relation to the reasons for the child offending, so it would be desirable that that person would be involved in the family conference. The Minister appreciates the point I am making. I will withdraw the amendment if the Minister gives an undertaking to consider this matter further for Report Stage.
Yes, I will. I would make the point, however, that if a parent cannot be located after reasonable inquiry, it is fair to assume that parent is always missing, if the Deputy sees what I mean.
However, there are plenty who are not and they have rights as well.
We will look at it, yes.
Amendments Nos. 8, 50, 51, 52, 53, 54, 87 and 133 are related and may be discussed together by agreement.
I move amendment No. 8:
In page 18, subsection (1), to delete lines 6 to 8 and substitute the following:
" 'remand centre' means a centre designated as such undersection 89;”.
The purpose of these amendments is to change the name of remand institution to remand centre. The expression "remand institution" originated in section 9 of the Criminal Justice Act, 1960. That provision allowed the Minister for Justice to approve of places called remand institutions for the remand of persons between 16 and 21 years of age - in other words, the same age group that could be detained in St. Patrick's Institution.
For two reasons I am proposing in these amendments to rename remand institutions which will be used for the remand of the 16 and 17 year old age group as remand centres. First, it will distance perceptually, as well as structurally, the remand facilities for 16 and 17 year olds from those of older people up to 21 years of age. Second, the new terminology is in any case more appropriate for the Bill.
Section 89(2) already provides that remand facilities for younger children on remand will be in junior remand centres provided and operated by the Department of Education and Science. Once children in remand in custody reach 16 years of age they will graduate from the junior remand centres to remand centres. The expression "remand centre" will also correspond to the new name "children detention centre" that I have proposed in the separate amendments we have just discussed, for places of detention for 16 and 17 year olds.
It is worth pointing out at this stage that the Bill encourages remanding children on bail rather than in custody. Section 101, in particular, is relevant in that respect. It sets out in detail provisions relating to where the child should be, or reside, to facilitate the preparation of a probation officer's or other report from the court. For example, the child may have to reside at home or in the residence of another person who has undertaken to the court to care for the child. Or, if the child is already resident in a residential centre, he or she would have to remain there while the report is being prepared. Amongst the places the child may have to attend to facilitate the preparation of a report are day centres and other suitable places. One such other suitable place has just been prepared in Finglas on an inter-agency basis, involving the probation and welfare service and the Department of Education and Science, and is available for the preparation of reports this week. But for the planning process taking longer than anticipated, the first day remand facility would have been up and running some time ago.
I recommend to the committee, these amendments which change the name of remand institutions to remand centres in respect of remanding in custody 16 and 17 year olds.
I move amendment No. 9:
In page 20, subsection (2), line 2, after "unanimously" to insert "in so far as is practicable".
This amendment deals with the manner in which family welfare conferences carry out their functions and how they will make determinations as to what should be done in the interests of a child. Section 8(2) currently reads:
Any recommendations made by a family welfare conference shall be agreed unanimously by those present at the conference.
Section 9 details various persons who are entitled to attend the family welfare conference. As detailed so far in the section, they are: the child, in respect of whom the conference is being convened; the parents of the child; any guardian that might have been appointed for the child; such of the relatives as may be determined by the co-ordinator after consultation with the child and the child's parents or guardian; officers of the relevant health board; and any other person who the co-ordinator, after consultation with the child and his or her parents or guardian, believes would make a positive contribution to the conference because of their knowledge of the child. There is a series of different people who will either be entitled to attend or who may be invited to attend the family welfare conference. The intent is that the family welfare conference ultimately reaches conclusions as to what steps should be taken in the context of the child whose future is being considered in light of the events that have resulted in the family welfare conference being called.
As regards recommendations to be made in relation to a child, section 2 has the rather odd provision that the recommendations must be agreed unanimously by those present at the conference. In other words, if one person who is present at the conference is not agreeable to what is being proposed to the benefit of a child, and to what is agreed by everyone else present, the recommendations cannot be made. For example, what happens if, in the context of difficulties a child has pursuant to section 9(1) (f), it is decided to invite someone else along to the conference who it is thought can make a positive contribution to the child’s benefit? Let us assume that it is a neighbour of the family whose child is being considered, or some relation. Let us assume they come along and have some proposal that no one else believes is to the benefit of the child. If the parents do not want to go along with it and the professionals attached to the health board, who have expertise with regard to children, do not believe it is a good a idea, what happens is this person can effectively veto recommendations being made because subsection (2) states that these recommendations must be unanimously made by those present at the conference.
Let us assume the child has two parents, as most children have, and both parents attend. Let us assume the marriage relationship between the parents has collapsed - maybe they are incompatible or maybe one parent suffers from a drug or alcohol addiction - and they are all present at the family welfare conference. If the parent who suffers from a particular addiction or perhaps does not but is a violent parent who has been battering his son or daughter and possibly his wife objects to recommendations, that person can veto the success of the family welfare conference.
I do not think the Minister intended that this would work out in this way but I am a great believer that when looking at proposals of this nature, one would look at how they may operate in the real world in the context of the diverse and complex family problems that can arise in the way human beings behave. If recommendations are to come out of a family welfare conference after the process has been undertaken, I do not think the legislation should require that recommendations by a family welfare conference be agreed unanimously by those present in the conference.
I have suggested that this provision be amended and the amendment I suggest is not necessarily the perfect phraseology but it is that suggested by one of the groups which participated in an oral hearing and from which we also received a written submission. It proposes to amend the section to read as follows: "Any recommendations made by a family welfare conference shall be agreed unanimously in so far as is practicable by those present at the conference." I am inserting the words "in so far as is practicable."
I am not sure the word "unanimously" should be in the section at all. The wording I am using moderates what is there and creates the possibility that if we have a violent parent, an alcoholic parent, a drug addicted parent or a parent who is none of those things but is simply a difficult personality and lacks appreciation of the nature of his or her child's problem and cannot agree to anything, the family welfare conference could work to the benefit of the child despite the fact that someone participating in it may not agree to what is being recommended and suggested by everyone there, including a parent. That is the reason for the amendment. I hope the Minister will adopt the amendment at this stage and, if so, I also think this is a subsection to which we need to give some additional thought in the context of how it will work out before we get to Report Stage. It would be wrong to leave it unamended in its present form.
I agree with the case put forward by Deputy Shatter. All of us would understand the difficulties in such a family welfare conference. Section 9(2) states that if in the course of a family welfare conference, the co-ordinator is of the opinion that the continued presence of any person is not in the best interests of the conference or the child, the co-ordinator may exclude that person from further participation in the conference. As Deputy Shatter points out, if one really difficult person holds up proceedings, does one then have to try to proceed to subsection (2)? In what way might one be able to exclude that person because it might add to the tension and difficulty? I urge that it be looked at.
Maybe we should tease this out a little more. I assume the concept is that the child will be a participant in the discussions and the decision making. If there is an ethos that we are there to support a child in difficulty, if we are to allow that child to participate and if we are to have a unanimous decision, we may have a situation where a child will say they do not agree and to hell with everybody. That could happen and it may not be in the best interests of the child. Conversely, it is important to encourage everyone to come to the same conclusion. Forced prayers are bad for the soul and we do not want that situation to arise.
I do not remember if case conferences had to be unanimous because it is so long since I was in college or in this job. Things have progressed and changed in the last number of years. From my experience working in Scotland with juvenile offenders, it was always important to try to bring a child, particularly in the 14 to 17 year age bracket, to the position where they were a participant in the decision making process and knew that people were there to support and help them as opposed to having a dictatorial attitude to their welfare. That is the concept we are trying to introduce in the legislation.
Perhaps we are writing in stone something which may not necessarily be the right thing to do and are giving no flexibility to people who are participating in the situation. If we say the decision has to be unanimous and some fellow is a real stickler on the law and says it must be unanimous, although that may not be the right thing to do, there would be no flexibility for anyone to bring a case conference to a stage where a proper decision could be made.
I note the next section provides that if one cannot get agreement at that stage, it will go back to the health board. It states that the matter shall be referred to the health board concerned for determination. Sometimes that is a good idea because a conference may not work and one has to move on to the next step. However, we could still allow the possibility that if a conference is not going to work, it could go to the health board for a determination. I agree with Deputy Shatter on unanimous decision making regarding a family welfare conference. Maybe the Minister has some compelling reasons this has to be so but it is an idea we should tease out if we are coming from an ethos where the participant should have a role in the decision making process.
I was tempted not to speak as the amendment makes a lot of sense and I presumed the Minister would have intervened and said he would accept it. Two other sections support the existing wording and they have been referred to by Deputy Barnes and Deputy Coughlan - subsection (3) and section 9(2). I think they may create problems. If one refers a decision to the health board, people might seek a judicial review on the basis that a unanimous decision was not reached and they might challenge the health board decision. In the meantime, the child could become completely out of control and the situation would get worse.
I support section 9(2) in relation to the previous argument. One might want to exclude someone from a conference and it may be a parent. As Deputy Coughlan said, the child is entitled to attend the conference but a situation could arise where, no matter what is proposed with the full agreement of all the others present, the child is so out of control that they will not agree to anything. Maybe there are compelling reasons but they are not immediately obvious. We might be tying our hands too much if we say everyone who is party to the family welfare conference has to agree or nothing will happen and it is referred to a health board. We are simply creating problems down the line.
Amendment No. 11 does look somewhat related.
I welcome to the committee the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Hanafin. I think this is first time for her to respond on behalf of the Executive regarding a Bill.
I would like to be on the other side of the table. It would be nice if I could accept the amendment but, as we already said, the idea of the family welfare conference has come to us from New Zealand. It is a progressive way of moving forward. I understand that even in New Zealand the unanimous acceptance of the conference and the decisions of the conference are crucial to the action to be taken regarding the child.
Of the people who are there, obviously the child would participate according to his or her own age or understanding. It is crucial that the family would take responsibility for the child and that it cannot be said subsequently that a person never agreed to that in the first place. He or she must have signed up to it in the context of the family welfare conference in the presence of the professionals.
The checks and balances are written into the legislation in that the examples raised by Deputy Shatter of the people who need to be excluded are referred to under section 9(2). With amendment, these people could be excluded either before the conference would take place or even during the conference. The Deputy may be aware that these conferences have been part of a pilot programme for the past year and, in fact, they did find that it was necessary to exclude people, primarily people who had a drug problem whose lives were perhaps a little chaotic and who were not able to contribute in a positive way to their understanding or to the role they would play in the welfare of the child. That is why those sections are in the Bill. The other check and balance would be that the matter could be referred to the health board and they would have to set out the disagreements which had arisen, again bearing in mind the overall priority of the welfare of the child.
There is another check and balance on page 37, relating to the action plan. Section 39 states that "Any such action plan shall be agreed unanimously by those present at the conference, unless the disagreement of any person present is regarded by the facilitator as unreasonable, . . . ". Therefore their agreement to the plan shall not be necessary. If somebody disagrees simply because he or she is a difficult person - returning to the examples raised by Deputy Shatter - that person could be deemed to be unreasonable in his or her expectations; the same would apply if it was the child who decided to say no because he of she did not have a level of understanding to be able to realise that the plan was in his or her best interest.
The idea behind family conferencing is that one is drawing together the people from the family who are crucial to the interests of the child and the professional point of view. It differs from case conferences, to which Deputy Coughlan spoke, because the child and the family are not usually present at case conferences whereas this involves them all. They are the people who would have to implement it and that is why it is felt that they need to sign up and be unanimous in their decision as to what the future action plan would be.
I am not satisfied with the Minister of State's reply which gave a direct insight as to why this needs to be amended. I am aware of the New Zealand legislation and the successes they have had. I am also aware of the fact that even when one deals successfully with things in the legislation one produces, it is not perfect, just as no matter how much we work on this over the next number of weeks, this will not end up being perfect either. Things always emerge which one does not expect.
We should not slavishly follow the New Zealand legislation but we should learn from their experiences. The Minister of State pointed to the section which I expected her to raise, that is, section 39, with which I am familiar, which is not a reason for us not amending it in the manner I prescribed but which is the classic reason we should amend it in the manner I prescribed. That particular section, to which the Minister of State correctly referred, makes provision in the preparation of an action plan for the exclusion of the need for the agreement of someone who is not behaving in a reasonable way. Section 39(2) states "unless the disagreement of any person present is regarded by the facilitator as unreasonable,".
The amendment I propose is necessary but I am not hung up on the phraseology. Subsection (2) could equally state that "Any recommendation made by a family welfare conference shall be agreed unanimously by those present at the conference" and further state that "unless the disagreement of any person present is regarded as unreasonable". Why should there be a differentiation between section 39 and section 8(2)? Why should there be an inflexibility built into subsection (2) which is not desireable?
As someone who participated in the first version of family welfare conferences run as an experiment in this State in the social service centre of St. Agnes Convent in Dublin in or about 1972 or 1973, I have experience of the nature of this which some colleagues may not have. I was participating as a student of the Crumlin free legal advice centres. One of the things of which I am very conscious is that this does not work unless the child one is dealing with agrees to co-operate in the plan or is of such a young age that the child's agreement is not necessary but certainly parental agreement is, otherwise it will not work.
If there is this provision in section 39, it makes no sense not having either the wording I propose, which is, to insert the words "in so far as is practicable" in subsection (2), or the wording replicating the section 39.
The Minister said that if we have a problem, to which my colleague, Deputy Barnes, rightly referred, we can deal with it because if the co-ordinator believes that the continued presence of the person is not in the best interests of the conference, the person can be excluded. Let us examine that for a moment and the practical workings of this and the problems it might create. What has been happening to date, as the Minister stated, is a non-statutory exercise in the context of seeing how the system works. Let us assume, therefore, that a case conference is called, both parents are present and it is not realised that one of the parents has a drug or alcohol addiction problem or that one of the persons has a personality problem, a personality disorder or a psychological condition or simply is of a state of mind where he or she is incapable of seeing what is in the best interests of the child. It may be a parent living at home, in which case that creates a problem in having an agreed plan put in place. It may be a parent who is not living at home with the child but who was brought to the case conference, if not as a parent in the context of the definition then perhaps as a person under section 9(1)(f), that is, another person who everyone thought could be helpful. They want to reach agreement on making recommendations. On the basis of this, can they do it? One thing they do is, having listened to this particular person referred to under section 9(1)(f), who perhaps is a parent, grandparent, an aunt or an uncle, one can decide that everyone else can see what should be done and there are recommendations on which they can all agree. The section says that the conference must agree unanimously and the co-ordinator knows what to do, that is, evict the person. The co-ordinator decides that the person falls under section 9(2), which the Minister proposes to amend, and throws the person out. Then the conference can say that everything is being dealt with unanimously. How many legal actions will that produce? Will we contrive to put people out of family welfare conferences because it is clear that everyone present but one can agree on recommendations and the Act states that these must be agreed unianimously? That is not a desirable approach to take.
I actually do not care if the New Zealand legislation has the word "unanimously" here. We are dealing with a particular approach. Realising this type of difficulty can occur when dealing with action plans under section 39 in the context of recommendations, we are insisting on the use of "unanimously". The only reason the Minister has given for insisting on it is because "it is in the New Zealand legislation". That is the primary reason. Obviously one may have a family welfare conference where only one person objects to recommendations and where it is quite reasonably concluded that the welfare conference will not work because that person is so pivotal in the child's life and without that person co-operating there is no point in making recommendations and the issue of the child's problems in future will have to be dealt with differently. However,there will be many instances where that is not the case.
The Minister of State provided the example of what has happened, in voluntary terms, to a person who is drug addicted. That person, if not excluded at the start and excluded afterwards, may quite properly argue, particularly if he or she has no insight into what is in the interests of a child's welfare, that any recommendations that are attempted to be implemented by a family welfare conference after the event are contrary to the statute. Instead of family welfare conferences keeping people and children out of court and allowing an agreed approach between professionals attached to the health board and parents and children, there will be a constant stream of litigation.
I urge the Minister of State to reconsider her reply. There is no political dimension involved here; it is not a case of Fine Gaelversus Fianna Fáil. I am merely trying to work out how to make this concept work. I fully support the concept and I want to see it working on a widespread basis and I want to ensure the personnel required to operate it are brought on board. However, I do not want family conferences which have the prospect of achieving a great deal to benefit a child to be blown out of the water by a section in the Bill that is structured in a way which is not appropriate.
I again urge the Minister to consider inserting into the subsection the amendment I have tabled. I ask her to consider between now and Report Stage, if she remains unsatisfied with the position, replicating in section 8(2) the wording contained in section 39(2) to deal with similar problems.
I support the amendment. I will not reiterate the valuable points made by Deputy Shatter. I believe this subsection will lead to the creation of further problems. Reference was made to the position in New Zealand but has feedback been received from the people who operate the system there with regard to difficulties which may have arisen? The Minister of State indicated that there is a pilot programme in operation here. Has this been operating on the basis of unanimous decisions only and have difficulties arisen? In my opinion, particularly in light of the sensitive and divided relations that can emerge in family situations of this nature, we will require the establishment of conferences on conflict resolution.
We could do with plenty of that here.
As Deputy Shatter stated, this is not a case of Fianna Fáilversus Fine Gael. In a week when members of the Fine Gael party are fighting among themselves, we certainly would not like to enter the fray.
Would the Minister of State consider arranging a family welfare conference for Fine Gael?
There might be people who would——
I am sure the Minister of State will be delighted to know we are reaching an agreed resolution.
It may not be unanimous.
We certainly would not want the clause on unanimity to apply to our leadership contest.
I suspect the Minister of State would not like it to apply either.
Will it be necessary to evict anyone?
The primary consideration is obviously not what is happening in New Zealand but the fact that a family must sign up and be agreeable to what they believe is in the best interests of the child, otherwise it would be impossible to implement the terms. In my opinion we are, perhaps, underestimating the role of the professionals in this area and the way that they, even the co-ordinator, progress a family welfare conference and arrive at an ideal solution.
Not only has family welfare conferencing and, in fact, family conferencing been working on a pilot basis for the past year, it has also been evaluated. An extremely useful document has been presented which outlines the difficulties which arose, where progress needs to be made, etc., and which will be helpful in the development of family conferences. In the context of our current discussion, it was interesting to note that where people were excluded from conferences it was families who decided who was to be excluded, even if that was another family member. By the time that stage of a conference was reached, the families knew who was crucial to the process and were able to agree what was in the best interests of their children. I do not believe we should dilute that commitment by removing the requirement for a unanimous decision to be reached.
I would have thought that section 9(2) would have acted as a form of check and balance mechanism. However, in light of Deputies comments and the fact that section 39 which deals with Garda conferences contains a particular provision, I will give a commitment to reconsider the position before Report Stage.
I will withdraw the amendment in light of that commitment.
Amendments Nos. 10 and 13 may be taken by agreement. Is that agreed? Agreed.
I move amendment No. 10:
In page 20, subsection (1), between lines 11 and 12, to insert the following:
"(d) the legal representatives, if any, of the child,
(e) the legal representative, if any, of the parents or guardian of the child,”.
I am conscious that the purpose of a family welfare conference is to keep people out of the courts, to help them avoid litigation and to encourage them to reach agreed solutions regarding how to deal with a child who is in difficulty. There is a concern, however, that parents should co-operate in family welfare conferences and that in circumstances where there is an issue about the welfare of a child and where the child's welfare may not be fully understood by the parents, the child's position in the conference should be protected.
We envisage that the personalities who will attend a conference will be the child and his or her parents or guardian and any guardianad litem appointed for the child. I presume that means a guardian ad litem appointed under the provisions of the Child Care Act, 1991, or a guardian ad litem appointed pursuant to the provisions of the Children Act, 1997, in the context of its interaction with this particular measure. Under the 1991 Act, if a child has a guardian ad litem appointed, that child may equally have a separate legal representative appointed to protect his or her rights, based on the perception that the child’s rights welfare does not in all situations necessarily coincide with parental rights and desires.
It is important, in the context of family welfare conferences and having regard to the fact the constitutional position in this State is different from that which obtains in New Zealand, that we consider the constitutional position of parties with regard to family welfare conferences and their entitlement to obtain legal advice in the context of what is being discussed and agreed. I do not envisage that any lawyer should have a particular advocacy role in a family welfare conference. I do not perceive a conference as some form of legal contest in which someone is going to make an adjudication.
I hope the Minister of State will take note of the fact that I am starting from a position where I fully understand the dynamic of a family welfare conference, its purpose and, in the context of diverting from the need for court processes, its benefit. However, under our Constitution parents of children are entitled to legal advice and assistance in dealing with issues relating to their child's welfare in circumstances in which a health board seeks to put in place arrangements for a child that the parents have not either put in place or considered. Under our Constitution, children are also entitled to legal representation. What will happen in a situation where a health board wishes to call a family welfare conference and where the parents, because of issues relating to their child, may have obtained legal advice beforehand, perhaps in relation to other difficulties that have arisen or subsequent to an invitation to the conference to discover whether they should participate? What will happen where a health board indicates that it wishes to proceed with such a conference and where the parents indicate that they would like to co-operate and seek that an arrangement be put in place to help resolve their child's difficulties but that they would like their solicitor to attend because they feel they may need advice during proceedings? What will happen if they indicate that they are worried and intimidated by the process and would like someone there not merely to provide advice but to explain our concerns and wishes in relation to the child. What happens if a 14 year old child knows about his or her legal entitlements and takes a similar view? Perhaps the child has had a run in with the law in the past and has been before the Children's Court and would like to be accompanied by the solicitor who represented him or her. I am concerned by the way in which this is constructed, that the view of the welfare service will be that in no circumstances should anybody be accompanied by his or her lawyer to a family welfare conference. That could create many constitutional problems should a conflict arise with regard to family welfare conferences. I tabled these amendments so that we can tease out this important issue.
I propose to insert to new subparagraphs in section 9(1) to provide for the attendance of the legal representatives, if any, of the child - in 90% of cases there will not be a legal representative - and the legal representatives, if any, of the parents or guardian of the child. Consideration and time needs to be given to this issue. I anticipate the Minister of State will say it is a bad idea because such conferences should be informal and legal jousting is not needed and that conferences should have procedures which make it clear that they are not a forum within which lawyers can make legal submissions or behave as they do in adversarial court proceedings. Parents are entitled to be accompanied by their lawyers if they want to get some help or advice, particularly if they find it difficult to articulate their views or have a limited education and want help. In some circumstances the presence of lawyers might help to ensure a successful outcome to such a conference, rather than be a hindrance.
My gut instinct is to keep lawyers out of it for a number of reasons. Section 9(1)(f) deals with this anyway. I am not sure if the amendment is made what are the implications for those who seek civil legal aid. I was a Member of the Seanad when the Civil Legal Aid Bill, 1995, was introduced and I recall successfully seeking entitlements in it for people such as social welfare tribunals, which were later rejected by the Dáil. I am not sure what is the position for those who cannot afford their own legal representation in terms of whether they would qualify for legal aid if this amendment is accepted. It would lead to inequality where those who could afford lawyers would do better than those who could not.
Deputy Shatter has much more experience in this area than I but those who have contacted me in regard to family law cases preferred to put their own cases. They found that when they instructed a lawyer on their behalf, he or she did not make the points they requested. Deputy Shatter said people who have a limited education or who might find it difficult to make their own case might feel a lawyer could do better but they do not always feel that, and they sometimes feel lost in the process. I do not know what will be the Minister of State's response but my instinct is that lawyers should be excluded. If they must be present that should be provided for under section 9(1)(f).
Despite the reputation of Ireland's wonderful legal eagles I am concerned about the involvement of legal representatives. If legal advice or clarification were requested at such a conference I am sure it would be provided. This legislation covers offences which range from the very minor to the very serious and the involvement of legal representatives at the early intervention stage on a minor offence would not be productive. I have grave reservations about the adoption of the amendment. It would take from the ideology behind what we are trying to achieve in this legislation in taking such matters out of a legal setting and providing for empowerment and decision making. I do not agree with Deputy Shatter.
To what extent does an exclusion of an entitlement to the child or parent to have a lawyer present for a family welfare conference as a right as opposed to a discretionary judgment by the co-ordinator conflict with the European Convention on Human Rights and fundamental freedoms? To what extent has that been vetted by the Department in the processing of this legislation?
In response to Deputy McGennis, I am somewhat mystified about people who instruct lawyers to represent them in family cases when they want to present their own case and do not want lawyers. Lawyers are not compulsory and, hopefully, they never will be.
Despite my high regard for lawyers, I do not accept these amendments. They go against the purpose and ethos of the family welfare conference. Deputy Coughlan put it well. This could be considered at the early intervention stage. Such conferences were successful because of their informal nature according to the evaluation of those which took place in so far as one is dealing with parents and encouraging them and their child to take responsibility within the family context. Making it too legalistic or bringing other people in as of right moves the conference in a totally different direction at a stage where it is not necessary.
Legal advice can be sought by the co-ordinator under section 10(3) and legal representation, including lawyers who have knowledge of the child or the family or who have expertise, can be brought in under section 9(1)(f). It is important that families should feel comfortable in their own surroundings and should not feel they must rely on a lawyer because the family must sign up to the outcome of the conference. The objective is to keep the conference informal and agreeable to all concerned. If they want legal representation, it can be included under section 9(1)(f). I am not sure that providing legal representation as a right at such conferences is the most successful way to go, particularly in light of the findings.
With regard to Deputy Shatter's question about the European convention, the provisions were cleared by the Attorney General. I cannot make a categoric statement in that regard but it would have been cleared by the Attorney General.
To what extent has the legislation been proofedvis-à-vis our Constitution in the context of the issues I raised? To what extent has the Attorney General’s office directed its attention to this? To what extent has it been proofed relative to the European Convention on Human Rights? When we enact domestic legislation to give effect to the convention, it will impact on this legislation. I am not sanguine or happy to learn that it comes from the Attorney General’s office and that it has agreed to it. That office is a strange place because Governments constantly take the view and respond to Opposition Deputies when constitutional queries are raised that, because legislation has come from and been checked by the Attorney General’s office, it is fine. The oddity is that it is the one office in Government that one can constitutionally prove how frequently its advice is right. At least half a dozen provisions in legislation are struck down annually as unconstitutional which the Attorney General’s office previously assured Ministers did not create constitutional difficulties. When the courts find against the State in the case of legislation about which constitutional issues arise, the Attorney General’s office is wrong. Its advice valuable, but imperfect.
I will not press these amendments, but it was important that we discussed them. This is an issue which should be examined further. I was interested when the Minister of State referred to section 9(1)(f) and would like her to confirm that, in the context of family welfare conferences, where the co-ordinator receives a request from the child or his or her parents for the attendance of their legal adviser, that it is a matter to which consideration will be given. Will she also confirm that it is a matter which, in appropriate circumstances, will be agreed and that guidelines with which all co-ordinators will comply will not be put in place which will prevent those who will attend such conferences having their lawyer present?
Will the Minister of State clarify the role she expects the guardianad litem, who is appointed for the child, to play in the context of these conferences? There is confusion, even under existing legislation, as to the nature of the roles guardians ad litem are supposed to play. To some extent, the guardian ad litem will represent the child’s view, especially in circumstances where the child and his or her parents are not ad idem or in sync with each other and where there is conflict. There could be a situation where the guardian ad litemis a qualified lawyer. The parents could find themselves in a position where they request their lawyer to attend only for the co-ordinator, because he or she does not want the conference to become excessively legalistic, to say “no”. Such a conference will not produce recommendations.
Perhaps the issue I have raised in this context is more academic and theoretical than real, but if that were to happen, one could predict that no recommendations would emerge from a situation with that level of conflict. We, therefore, need to consider this a little more. We have a different constitutional framework than in New Zealand, which means that we may need to deal with the issue differently.
What is the position on the European Convention on Human Rights?
I hope to check with the Attorney General regarding the European Convention on Human Rights before we meet again next week.
I understand very few lawyers have been appointed guardiansad litem, rather, those appointed are experts in the child care area. Deputy Shatter may have noted that the national children’s strategy highlighted, as one of the tasks to be performed, the need for a review of the guardian ad litem system. In the context of the family welfare conference, the difference is that the guardian ad litem is present on behalf of the child who most likely will not be in a position to represent himself or herself well. His or her parents, on the other hand, will be able to represent themselves and will not necessarily need a lawyer to be present. If the parents or the family would like their lawyer to be present, section 9(1)(f) provides that any other person can be present who, in the opinion of the co-ordinator consulting with the child and the parents, can make a positive contribution because of his or her knowledge of the child or the family or their particular expertise. Those are the guidelines which will be followed. While there will not be a legal right, there will be an opening for others to be present.
Taking up what Deputy Shatter said, if the ethos of the co-ordinator is to exclude, is it not possible that he or she may come down on the side of not allowing legal representation? If it is at the discretion of the co-ordinator, is there a conflict between the right of the person to be represented legally, if they wish, and the fact that the co-ordinator can decide who will participate?
No, all that will be done in consultation with the child and his or her family. It will be agreed between them which people will be present. It is a case that they should not have a legal right to be present because every case is different. That is the reason I cannot accept the amendments.
Is Deputy Shatter pressing the amendment?
No. I am anxious before we leave this topic, however, to give the Minister of State an opportunity to come back to us on the advice she will receive from the Attorney General's office on the European convention. There is no point proceeding to another amendment. Perhaps we can leave it at that for today and the Minister of State will come back to us with that advice when we reconvene. We could then proceed rapidly to the next amendment.
I do not think the Minister of State gave that specific commitment, rather that she would have a word with the Attorney General and that the matter would be examined.
The Minister of State said that she would try to obtain advice.
If she cannot, I promise that we will not be unduly critical. It would be helpful, however, if she was given an opportunity to come back to us on the matter. If she cannot do so next week, we will still proceed. Perhaps we could reserve our position.
Will the Deputy withdraw the amendment?
I will leave it until we come to it next week.
We are dealing with it now.
The Deputy is trying to filibuster.
The Deputy will note that there are related amendments and that the matter should be raised at that time.
Provided the Chairman does not inform me on amendment No. 13 that this issue has already been discussed.
I will, certainly, do so on amendment No. 13, but I am sure the Deputy will be able to raise the issue again on amendment No. 11 or section 39.
I take the view that, as it is now 12.30 p.m., I should not inconvenience the committee by pressing the amendments. It would be helpful to wait until next Thursday when, I understand, we will reconvene, to give the Minister of State an opportunity to come back to us.
Is the Deputy withdrawing the amendment?
No. I will leave it until we meet again next week.
We can discuss it again.
As it is not worth a vote, we will suspend consideration of the Bill.