Children Bill, 1999: Committee Stage (Resumed).

SECTION 9.
Debate resumed on 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 representatives, if any, of the parents or guardian of the child,".
-(Deputy Shatter.)

I welcome the Minister of State and her officials. We have spent considerable time on this amendment and a decision is required.

My recollection is that we adjourned our deliberations the last day at an exciting moment. The debate got huge media coverage and generated public interest in the important work being done by the committee. No doubt similar media coverage will be given to today's debate on this Bill which will affect all children. The Minister of State said she would come back to me on my points.

Deputy Shatter raised concerns about the European convention and how its assimilation into Irish law would affect the amendment under discussion. I discussed the issue with the Attorney General's office which is of the view that any question of a child's constitutional rights or his or her rights under the European convention do not arise. Article 6(1) of the convention provides that in the determination of civil rights and obligations and any criminal charge every person is entitled to a fair and public hearing.

As regards a criminal charge, if the charge is in any way serious this undoubtedly includes the right to legal representation. As regards a civil claim, article 6 clearly guarantees the right of access to the courts, which may well include the right to legal representation and, in certain circumstances, the right to legal aid.

Article 38 of the Constitution provides that no person can be tried on a criminal charge save in due course of the law. The courts have interpreted this in a manner which is similar to the interpretation put by the European Court on article 6 of the convention, that is, in any criminal charge where the accused faces the possibility of serious penalty the Constitution requires that the person be informed of his or her right to legal representation.

As regards civil cases, although there is an automatic right of access to the courts, so far the courts have not found that there is an automatic right to either legal representation or legal aid. However, the Attorney General's office has indicated that in its view a family welfare conference is not analogous to either a civil or a criminal trial as it is explicitly intended to be a non-judicial process for children in need of care and protection.

The Attorney General's office concurs with the view expressed at the previous meeting that if legal representation was considered necessary or desirable then section 9(1) is sufficient to deal with this matter. The question of accepting or rejecting Deputy Shatter's amendment is therefore a policy issue. I am unable to accept this amendment.

I listened with interest to what the Minister said. I reiterate the point I made last week that Fine Gael supports the concept of family welfare conferences and views them as having a very important role to play in addressing problems experienced by children in this area in a manner that allows solutions to be found on an agreed basis between professionals, family members and, where the child is of an age to fully understand what is occurring, with the agreement and co-operation of the child. I am, however, concerned that what will give rise to family welfare conferences are issues which could otherwise be dealt with through the court system. I am concerned that things said and done in family welfare conferences without parents or children having legal advice available to them, if they need it, could create difficulties at a later stage. My amendments will allow for the children or parents, if they wish, to have their legal representatives present at a family welfare conference. Exclusion of these provisions will result, in so far as there is a discretion vested in determining who should attend the conferences under subsection (9)(1)(f), in that discretion being exercised in a manner which I believe will result in the automatic exclusion of legal representatives even when they are requested.

I am conscious of the importance of family welfare conferences not becoming an alternative dispute mechanism for resolution of difficulties relating to children on an agreed basis. I am not suggesting lawyers should attend such conferences as advocates but parents and children should have the right to have their lawyer in attendance to hear the exchanges between the different people trying to tease out the problems and for advice and counsel if they seek it.

In circumstances where lawyers operate under a guideline and rule system in which they cannot act as advocates in family welfare conferences but are only present to provide advice to guardians, parents or children such lawyers who are familiar with dealing with children's problems can play a very positive role. Parents who may resist implementing a new structural arrangement relating to their children which is in their child's welfare may well, with the assistance of lawyers who are fully conversant with the alternative approaches which may be adopted by the courts simply by providing them with advice get them to co-operate in circumstances in which such co-operation would not otherwise be forthcoming.

The Minister said the Attorney General's office has made it clear in the context of criminal proceedings that the issue of legal rights in the context of legal representation specifically arises but decisions have not been made in the area of civil litigation. While I appreciate that arises directly not from family welfare conferences but from family court proceedings I do not accept it. I am not criticising the Minister but rather the advice she has received. It is disingenuous. The State was brought before the European Court of Human Rights many years ago by Mrs. Josephine Airey because it did not provide a proper civil legal aid system to facilitate her to process family law proceedings and be properly represented before the courts. Family law proceedings are civil proceedings. When we incorporate the European Convention on Human Rights into our law and use it as a mechanism for testing the enforceability or validity of laws the Airey case and its implications will be directly applied to our law whether it derives from the Irish Constitution or the European convention. Certain rights will automatically flow as a consequence of decisions delivered by the European Court of Justice. If parents indicate their wish to participate in family welfare conferences but would like to be accompanied by a lawyer as an adviser and not an advocate, to help them tease out what is happening and if a discretion is exercised by the individual in charge of the conference to automatically exclude lawyers we will inevitably have, in the context of family welfare conferences, a challenge based on the Airey case under the European Court of Human Rights which the courts will have to deal with directly.

I am also concerned that should we not incorporate the amendments I have tabled an inevitable challenge of a constitutional nature to this section could create a difficulty for about two years following enactment of the legislation whereby the courts by their intervention, as proceedings wind their way through the High Court and ultimately the Supreme Court, could effectively put the provisions relating to family welfare conferences into a legal twilight zone until the constitutional and European Convention on Human Rights ramifications are worked out. It is my intention, for all those reasons, to press this amendment which will avoid the difficulties I have outlined arising.

On the last point raised by Deputy Shatter and his concerns about the difficulties that not accepting his amendment would create, I do not read the section - perhaps I misunderstand it - as saying one cannot have a lawyer present. Section 9(1) contains a provision stating that if it is deemed necessary to have a lawyer present then that can be permitted. It is a little alarmist to suggest there will be constitutional challenges to something which is not being written into law.

Regarding the legal issues, the Attorney General referred to the Airey case in his note saying that it does not confer any automatic right but may well include a right to legal representation. The point he is making is that a family welfare conference is not analogous to either a civil or criminal case. It is a non-judicial process and therefore those considerations do not come into effect. Second, the proceedings of the family welfare conferences are privileged and as such there would not be any question of anything which comes out of such conferences being used in future court cases, criminal or civil proceedings. On the policy issue, which is very important, Deputy Shatter mentioned lawyers who are very good at dealing with cases involving children. Many lawyers have made very valuable contributions to cases dealing with children's problems. What one is talking about in relation to a family welfare conference is not children's problems but rather "a child". It is one child and its family in a particular situation and a lawyer is not necessarily an expert on that child and that family. It would interfere with the dynamic of the process if one brings in somebody who is an expert on general issues rather than someone directly involved with the given family issue. After all, the responsibility will rest with the family trying to solve its problem to come up with a solution as to how they will deal with the case bearing in mind what the professionals have to say. Lawyers are not being excluded by law. If deemed appropriate they could be invited in but we believe they should not be included by law because that is not the direction in which we want the family conference to go.

If a family welfare conference takes place arrangements are agreed as to how to deal with the specific problems of a child between all the participants in the conference. If following those arrangements being agreed the parents some weeks later, having reflected on the agreement, decide that this is not a good idea after all and we will not so deal with matters. If, as a consequence, the health board decides to bring court proceedings and an issue arises as to why it did not bring court proceedings earlier, presumably if the court raises that issue, the persons acting for the health board in the courts will be able to say that arrangements relating to this child were agreed in a welfare conference but these arrangements did not work out, it would seem to me that the court would have to at least know that, even if the court did not know the exact dynamic of what occurred, in those circumstances there is a possibility that parents may agree arrangements for their children but, subsequent to them getting advice or perhaps getting a different perspective from other professionals unconnected with a health board, they may not co-operate with them. I am aware that what occurs in the conference is privileged. Consequences will arise from what is agreed in the conference which will in real terms affect the legal rights of the parties involved. That is a particular concern and it cannot be totally ring-fenced from what might occur on a later occasion should the particular child be the subject of court proceedings.

I accept what was said earlier. We have already acknowledged under section 9(1)(f) that a discretion may be exercised to allow people to attend but bearing in mind the philosophical background as articulated by the Minister to these conferences, the likelihood is that there will be a great reluctance to ever allow them attend. It would be unusual for a co-ordinator to later allow that to occur and the Minister, in fairness, would probably acknowledge that.

I am concerned that this issue, among one or two others I intend to raise as we go through the Bill, does not result in the Bill having to be referred by the President under Article 26 of the Constitution to the Supreme Court for a test as to its constitutionality. It is important that we try to avoid that possibility, just as it is important that we ensure that should that not occur, provisions in the Bill are not open to constitutional challenge. That constitutional challenge could take place not just in the context of the family welfare conference but should proceedings subsequently be brought in relation to the child who is subject to the family welfare conference, what occurred there could be open to constitutional review in some shape or form because of the consequences of not implementing what was agreed and their implications for the subsequent court case.

First, a family welfare conference is not a once-off event; more family conferences can be held. Second, Deputy Shatter will notice that our amendment No. 14 states that the decisions and the recommendations would not be privileged whereas the proceedings would be.

Amendment put and declared lost.

Amendment No. 11 is in the name of the Minister. This amendment has already been discussed in some way with Deputy Shatter's amendment No. 9 so I would like members to be cognisant of that.

I move amendment No. 11:

In page 20, lines 22 to 25, to delete subsection (2) and substitute the following:

"(2) If, before or during a family welfare conference, the coordinator is of opinion that the presence or continued presence of any person is not in the best interests of the conference or the child, the coordinator may exclude that person from participation or further participation in the conference.".

Without reiterating all the points, the original draft allowed the co-ordinator to exclude a person from the conference if it is not in the best interests of the child to remain. It is proposed to amend this so that a co-ordinator can also exclude a person in such circumstances before the commencement of the conference rather than waiting until the person is in attendance. Obviously, in relation to all the arguments, the co-ordinator has to ensure inclusiveness but the best interests of the child must be paramount and the interests of other vulnerable family members must also be borne in mind.

Members will remember that last week we mentioned the example of a person with a drug problem who had been excluded from the pilot project at the outset rather than during it. In most of the cases where that did happen, it was the families who decided who was the person to be excluded but this amendment is to give that right as of now.

I want to raise some issues about this amendment. We all recognised in our discussions last week that circumstances may arise where some of the people who are entitled to attend as a right at a family welfare conference may, due to their addictive problems, be it drugs or alcohol, be incapable of contributing in a constructive way to the conference and be disruptive. In those circumstances, there should be a provision for exclusion but I wonder, in so far as this amendment applies and the particular provision in the Bill which allows also for exclusions prior to the commencement of the conference, whether this part of the Bill should be spelled out in greater detail. I want to give the Minister one or two examples of what I have in mind.

As someone who has practised for many years in the area of family law, wearing my lawyer's hat, I would have to say that, as in all walks of life, whether it is law, politics, medicine, social work or health board employees, there are some wonderful people who are very committed to what they do and who apply a great deal of common sense. On occasions, however, one also comes across people who have little common sense and who, either due to lack of experience or their own dominant personalities, tend to view that whatever they think is right and whatever everybody else thinks is wrong. There have been a number of court cases over the years in circumstances where very odd reasons were given by individual social workers for the need to take children into care which, when explored by the courts, have proved to be less than persuasive. Again, family welfare conferences are not court issues but the co-ordinators have had special training and hopefully this all works extremely well but it would be the co-ordinator who would decide if someone should be excluded.

If someone not suffering from addictions or who has no particular major psychological difficulties attends at a conference and profoundly disagrees with what is being proposed, say one parent is in agreement and the other is not - that may derive from marital difficulties of some description between the parents - at what point will a co-ordinator determine that arrangements simply cannot be put in place for a particular child because of lack of agreement? At what juncture can a co-ordinator decide that the person who will not agree to what is being proposed should simply be put out and we should get on with it? That is a concern. I agree there is a need for exclusions in particular instances but at what stage may it happen?

It does happen in professional life that the co-ordinator will see one parent as an ally and the other parent as an antagonist and could unilaterally conclude that the way to put in place arrangements relating to a child is to exclude the parent perceived to be the antagonist. Occasionally the parent who is opposing arrangements is actually more correct than the other parent. It may be that a co-ordinator may be led to believe there is a particular type of difficulty within the family by one parent, which the other parent denies is a difficulty, and it could be that the other parent is telling the truth.

We have seen in recent times, particularly in the family law area, many fathers of children born outside marriage and husbands of children born within marriage complaining that within the courts system what they say when there are disputes about children is not always given the credibility or the weight it should be given, and that after 100 years of fathers, particularly with marital children, having a dominant view and the dominant view being accepted, since the 1960s, as the world has changed, fathers have been regarded as practically irrelevant on occasions by the courts. I have seen that happen in practice on occasions. Is there a risk that in family welfare conferences, where there is great bitterness between mothers and fathers and where the mother sees the co-ordinator as an ally and the father is perceived to be a protagonist, the father may find he is excluded from the family welfare conference? In the long-term that may exacerbate the problems of the child rather than help to resolve them.

If it is perceived by a co-ordinator that arrangements can be agreed in respect of a child by the exclusion of one parent from the conference, how will that work in practice? I have already told the Minister that I have some familiarity with the New Zealand model but it is important we tease this out here. Let us assume arrangements were agreed and the mother goes along with them. We will take two instances, one that the father suffers from some type of addiction and the other that he does not. Subsequent to the arrangements being agreed, if the parent who is not agreeable and who has been excluded seeks to be disruptive or oppose those arrangements, I presume he or she could do that by going to the courts, as that is one avenue available under other legislation. We should tease out that situation a little more.

We have provided a general framework, but there are instances which could be specified. If the Minister of State does not intend to expand on this in the legislation by specifying specific instances in which people may be excluded, does she intend to do it by way of a statutory instrument, by non-statutory guidelines to be provided to co-ordinators or, in the context of the training perceived, is a draft available of the type of guidelines that will be given formally to co-ordinators under the legislation to deal with the issue of exclusions?

Those are pertinent questions.

Deputy Shatter's questions are always pertinent. It is dangerous to be too prescriptive in legislation at this stage, particularly in a new development which is in the process of being developed. There will be guidelines, regulations and standards, which will be monitored by the social services inspectorate. Those guidelines will be drawn up as a result of the pilot projects currently under way and already our thinking is informed by the evaluation of those projects that took place. On foot of last week's meeting, I asked for that evaluation report to be circulated to all members of the committee, to help our understanding of where we are at in applying the family welfare conference. It is important to recognise that the co-ordinators will be fully trained to act fairly and that the people sitting around the table at a family welfare conference would have a real interest in the child. It would also include perhaps a teacher, someone who is important in the child's life, people who will be able to see the broader picture as well as the child's situation. The people at the family welfare conference would come with a willingness to come up with a plan for that child. In avoiding being prescriptive, we will have the regulations and standards, which will be monitored and backed up by training based on our experience to date.

Amendment agreed to.
Section 9, as amended , agreed to.
Section 10 agreed to.
Amendment No. 12 not moved.
Section 11 agreed to.
SECTION 12.

I move amendment No. 13:

In page 21, between lines 6 and 7, to insert the following:

"(d) the legal representative, if any, of the child,

(e) the legal representative, if any, of the parents or guardian of the child,".

The amendment raises the issues we discussed under amendment No. 10 and under this amendment those issues arise in that context. I do not want to delay the time of the committee on it, I just want to have the amendment formally put.

Amendment put and declared lost.
Section 12 agreed to.
Section 13 agreed to.
SECTION 14.

I move amendment No. 14:

In page 21, between lines 28 and 29, to insert the following subsection:

"(2) Subsection (1) does not apply to a record of decisions or recommendations of a family welfare conference.".

Section 14 confers privilege on the proceedings of conferences and ensures that any information arising from the conferences cannot be used in court proceedings. This is necessary as a vital aspect of the conference is that the participants feel free to discuss any matter relevant to the care and protection of the child. For instance, if it emerged during the course of the conference that the child had been involved in any criminal activity, it is important that this information could not be used in court proceedings against the child. This additional subsection is being put forward to clarify that records of decisions and recommendations are not privileged and the court may have access to them.

I wish to raise a question about the reference in the amendment to a record of decisions, which relates to an earlier point I made. If someone is excluded from attending a family welfare conference or following a meeting of the conference, someone is excluded from the different meetings that take place, will the record of their having been excluded be available to the court and the reasons for their exclusion be detailed in the context of that? This section provides that the detailed recommendations will be made available to the court, which was the reason for the original amendments I tabled, which I still believe are important. For example, if a mother or father has been excluded from attending a family welfare conference, will a court be told that? Will there be a record of the reasons for that exclusion, or will a court be told blandly that someone was excluded?

Section 14(1) states that no evidence shall be admissible in a court or any information, statement or admission disclosed or made in the course of a family welfare conference. If in the course of a family welfare conference it emerges that the child has been the subject of abuse within the family, does subsection (1) provide that the detail of that admission in a conference could not be used subsequently in court?

I did not discuss the substance of subsection (2), although I do not want to stop my colleague raising a very important issue that I intended to raise. To avoid us covering the same ground, will the Minister of State explain if it were disclosed to a co-ordinator in a family welfare conference that a child has been a victim of either physical or sexual abuse, how would such privilege work in the context of the Private Members' Bill that I steered through this House a few years ago, which allows for the giving of information concerning children who are victims of abuse and which imposes certain obligations to give that information? There is no interaction between this Bill and that earlier Bill. Perhaps the Minister of State would clarify that issue.

If somebody is excluded, that would be a matter of record. There is no reason the reason for that person's exclusion could not also be a matter of record, as the idea of excluding them is because it would be in the best interests of the child. That could also be part of the record that could be presented to the court.

The section, as drafted, does not provide for that. The section provides for the disclosure to the court of the record of decisions or recommendations of the family welfare conference. Subsection (2) does not specifically state, as perhaps it should, the words, "does not apply to a record of decisions or the giving to the court of reasons for the exclusion of a person from a family welfare conference or recommendations of a family welfare conference". I do not know whether the Minister would be willing to accept such an amendment across the floor, but I suggest that section should be amended in that way, which would mean it would read, "Subsection (1) does not apply to a record of decisions or for furnishing the reasons given for the exclusion of a person from a family welfare conference or recommendations of a family welfare conference". If the Minister is not willing to accept that amendment, I ask her to table an amendment to deal with this matter on Report Stage. As the amended subsection is phrased, I do not think the reasons for an exclusion could be given.

I am not that anxious to go down that road on the basis that subsection (2) does not exclude giving the reasons for decisions of exclusion——

That matter would be privileged.

——but by specifying that one will give the reasons for someone being excluded, one might also open up questions as to why one is not giving reasons for some of the other decisions that are being taken.

In relation to information about abuse or something else that would not be in the interests of the child coming out of the family welfare conference, that would not prohibit an investigation taking place. It would prohibit the information gained at the family welfare conference being used in the court proceedings, but an investigation could take place.

How would that work? If a party to the welfare conference, such as a health worker, gets that information, would he or she be obliged to follow it up? I do not understand why it cannot be used.

Under the children guidelines they would automatically be obliged to follow it up. The social worker, for example, would be present. If a child said it at a family welfare conference, it could not be used in court proceedings afterwards. However, the investigation could continue.

The people who have that knowledge can follow it up.

They can use it.

What the Minister has said is extremely serious. The family welfare conference under the legislation is privileged. Privileged means that those participating in the family welfare conference cannot reveal the dynamic of what occurred in the conference in court proceedings. Privileged may also mean that information furnished in the family welfare conference cannot be shared with other people outside it. That could be a violation of that privilege. If the view is that matters affecting a child's welfare, which involve allegations that could give rise to court hearings when disclosed in a family welfare conference, can be taken out of the conference and the information given to other people, which could stimulate an investigation, it seems that family welfare conferences, as the Minister of State is now considering them, are not privileged. Family welfare conferences could act as the catalyst for the initiation of an investigation and for bringing not just civil proceedings but criminal proceedings.

Perhaps the Minister could reply to that point.

That puts in further context my concerns about people having their legal representatives with them. Something disclosed at a family welfare conference is, on the one hand, privileged but, on the other hand, the Minister of State is saying the co-ordinator or health board social worker who is attending the conference can take from that conference any information available to them. They cannot use what is said in the conference to take court proceedings but they can use it to initiate an investigation which may then result in court proceedings. It is either privileged or it is not. One cannot have it both ways.

We are operating under a different constitutional system from that which applies in New Zealand. This is a problematic area. I am not sure the Minister of State is right. If, for example, the mother, father and child are in the conference and the child makes no allegations of abuse but the mother and father are at war with each other, which is part of the child's problem, and the mother uses the family welfare conference to levy a charge against the father of sexual or physical abuse, which the child does not admit as having occurred and which may not have occurred - it may be an untrue allegation - will that stimulate an investigation as the allegation is made in privileged circumstances? These are important issues.

They are important issues.

They are important issues but I thought it was the investigation and the results of the investigation which would give rise to the court proceedings rather than how the information was initially gained.

The conference would be the initiating forum for the investigation and this could taint the legality of the entire investigation and subsequent civil proceedings even in circumstances where a child is in genuine need of care and has been tragically the victim of abuse.

If a charge of abuse is made against someone, the court will discuss the charge and not how or where the charge was made. It will discuss whether the abuse did or did not take place. It is not how they got the information that it may have started but whether it did happen which would form the basis of the investigation of the case.

I would like to give the Minister of State a serious example. We are talking about two different areas, the provision of care and protection for children, which is of huge importance particularly where a child is the victim of abuse, whether it is physical or sexual, and the related area where someone has physically or sexually abused a child and a criminal prosecution might be brought. Let us assume a co-ordinator calls a family welfare conference and at that conference an allegation of physical or sexual abuse is made against a father. As a result of that conference, the allegation made must be communicated to someone so it can be investigated. As the conference is privileged, to whom can it be communicated? Under existing guidelines it should be communicated to the social worker in charge of the community care area who deals with non-accidental injury to children and who has an obligation to communicate it to the Garda. The gardaí can start a Garda investigation which might have criminal consequences. The health board social worker can start an investigation which may result in care proceedings being brought.

If the Garda investigation results in a prosecution being brought and if in court criminal proceedings it is established that all this was initiated as a result of an allegation made in a family welfare conference, the proceedings of which were privileged and at which the father was not entitled as of right in legislation to have a lawyer present to advise him, based on other types of criminal prosecutions the criminal prosecution could not be successful even if the father had committed the most horrendous abuse because the entire investigation would be tainted. This is the same as the Garda Síochána unlawfully arresting someone, holding him or her in the Garda station and getting information from him or her which they further investigate and which could produce a criminal prosecution. Perhaps in the Garda station the person says something which confirms he or she robbed a bank - perhaps he or she did rob a bank. When the criminal prosecution is brought, the investigation and evidence will be tainted by an illegality and no conviction will be secured. There is a plethora of court cases in this area.

We need to tread carefully because we must get this right. I am sure there are many good reasons for it to be privileged. However, if an allegation can be taken out of a family welfare conference and an investigation is stimulated which could have civil and/or criminal consequences, this is a more difficult area than may be perceived under our constitutional system compared to that in New Zealand.

I would not dream of arguing legal points with Deputy Shatter. I will, therefore, refer back to the Attorney General for his advice and come back to the Deputy on Report Stage.

Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."

Perhaps the Minister could clarify section 14(2) which states:

Section 51 shall apply, with the necessary modifications, in relation to publication of proceedings at a family welfare conference and the protection of the identity of a child in respect of whom such a conference is being held.

Section 51 deals with the protection of the identity of children. It states:

Subject to subsection (2), no report shall be published, or included in a broadcast -

(a) in relation to the admission of a child to the Programme or the proceedings at any conference relating to the child, including the contents of any action plan for the child and of the report of the conference, or

(b) which reveals the name, address or school of the child or any other information, including any picture, which is likely to lead to identification of the child.

(2) Subsection (1) does not apply to the publication or broadcast of-

(a) statistical information relating to the Programme, and

(b) the results of any bona fide research relating to it.

(3) If any matter is published or broadcast in contravention of subsection (1), each of the following persons, namely-

The section details various publications which should be guilty of an offence. Perhaps the Minister could clarify what the phrase, "with the necessary modifications", means. The Supreme Court has held that Acts of the Oireachtas as passed by ministerial order cannot be amended by statutory instrument or regulation. What modification is envisaged to section 51? How does this arise? Clarification is important here.

In the context of statistical information and the results of any bona fide research being allowed to be published, is it envisaged that statistical information relating to family welfare conferences can be published? Will the Minister of State detail what type of information is involved and will she explain what is meant by bona fide research? Does it mean research conducted by someone appointed by the Government or a Government agency or by a university or does it mean that the media - RTE, TV3 or the print media - can research how these conferences are working? Parents, social workers or co-ordinators who have participated in these conferences may wish to publicly discuss the dynamic of the way they work without revealing the name of a child. If they wish to publicly criticise the manner in which outcomes are being agreed is it something that can be properly discussed in public?

There is a danger that in the family welfare conferences a difference in terms of power may emerge among the participants. A health board social worker might be able to exercise a degree of control as to outcomes because parents may know they are under threat of civil care proceedings should a programme relating to a child not be agreed. Co-ordinators may at some stage get it seriously wrong. If they do, if a programme for a child is agreed and if that child, subsequent to the operation of this programme suffers serious injury or neglect can there be discussion on why matters were dealt with this way and how the conclusions in the programme were reached? If one parent objects to an arrangement, the other agrees and the one who objects is thrown out and it subsequently emerges that what was agreed in relation to the child was seriously detrimental to the child's welfare, can this be publicly discussed? Or is it the case that this provision will be used to censor discussion and a general public understanding of how this works? Perhaps the Minister of State will clarify some of these issues.

Section 51, referred to by the Deputy, relates to children being referred to a Garda programmeper se. The words “with the necessary modifications” refer not to a programme but to decisions at the family welfare conference. It is largely concerned with allowing the section to apply. Instead of dealing with the programme one is dealing with the decisions of the family welfare conference. The words were necessary because they are not concerned with identical aspects but with decisions of family welfare conferences.

The Deputy also raised questions regarding changes to section 51.

I was concerned with its application to family welfare conferences. We might consider it at a later stage in relation to the programme type of approach.

The Deputy also raised questions about who can carry out the research and who can talk.

Can the media write about the dynamics of how these work? For example, if participant parents in family welfare conferences are unhappy with the way things work can they contact the media and can the media report on it? How would this equate with the manner in which children are not identified? Who will control research? If I, or any other Deputy or this committee wishes to research how family welfare conferences are functioning will we require sanction from somebody who is in a position to decide on whether the research is bona fide?

It is important to note that we are concerned with individual family conferences that cannot be written or spoken about. The valuation report gives an overall view. Independent research that is bona fide research can be published and broadcast. Publication is not allowed only where material is identified or there is a reference to specific cases.

Is the research controlled by the Government or can others undertake it? What sanction will they require and how will it apply in the context of the dynamics of the way family welfare conferences work?

I am not sure if there is a definition of bona fide research, but there is not any difficulty in undertaking research for research purposes for bona fide reasons, as opposed to investigation of a particular family or family conference. They may have to be protected in those circumstances. However, there is no problem with the research into conferencesper se nor with their results in a general sense being published or broadcast.

I will give a specific example of a family welfare conference held with regard to a child where the arrangements are agreed on resolving whatever difficulties the child is having, be they the child's difficulties or those derived from parental of family interaction. If six months later the child is found dead and the case is made that the child should have been taken into care, that the family welfare conference was an inadequate mechanism to deal with the child's problem and that the programme put in place for the child did not meet the needs of the child is what occurred at the family welfare conference privileged? Can anyone investigate what occurred? Can the relations or parents of the child who participate in that conference co-operate with the media who are investigating why this happened? Can only family welfare conferences as a generic thing be generally investigated or can research be done on what occurred with regard to the child and the appropriateness of the manner in which the child and the child's difficulties were dealt with and programmed to be dealt with and with the arrangements put in place for the future?

I suggest there are constitutional problems with section 14(2). If it is intended to apply section 51 to this provision - all that is intended is to replace the word "programme" with the words "family welfare conference" - a difficulty arises because what is provided for is statistical information relating to a family welfare conference, not to family welfare conferences. It is not possible to amend legislation by statutory instrument. Successive Ministers cannot, as they see fit, invent what these necessary modifications should be. There should be a specific section in the legislation under the subhead, "Family Welfare Conferences", dealing with the protection of identity of children and parents, not just of children because parents will participate in them voluntarily. The section needs to spell out precisely what information can be published about family welfare conferences, including the outcomes. It should also detail the extent to which the privilege is delimited should there be an anticipated disaster with regard to a child who is catered for by agreed arrangement arising out of the conference.

A standard would apply to the bona fide aspect. Under Deputy Shatter's example there would be nothing to prohibit the health board in such circumstances undertaking research having access and using the information, which would be used for bona fide purposes.

Would that apply even to Government bodies and State agencies?

Yes, but it would be for the health board to decide what was bona fide research. It would not cover use for a sensational story in a newspaper.

Sometimes sensational stories reveal truths that Government bodies and State agencies would rather conceal. Much that we know about some of the tragic cases of child abuse in recent years has come either as a result of criminal prosecutions occurring because adults, who were victims as children, insisted on it or as a result of children losing their lives due to the inadequacy of the steps taken by health boards which had received reports. If it was left to State agencies and State bodies to determine who would investigate them, these things would not be public knowledge and some of the changes in legislation we have made would not have occurred.

There is stronger legislation and increased investment in this area to ensure that more people work in the area. There are "Children First" guidelines which enable all people working with children, either in a voluntary or full-time working capacity, to know the procedures and the Government has also set up the social services inspector. This enables us to be in a position to provide proper services and then to investigate and to inspect facilities for children, to inspect standards and to ensure the safety of children. A great deal of progress has been made and much progress still needs to be made, but it is important that the health board should have the say in who is able to do the research.

Deputy Shatter claims that section 51 should be rewritten.

There should be a specific section dealing with family welfare conferences separate from the provisions in section 51, specifying exactly what can and cannot be published and the extent to which investigations or research can be conducted.

Deputy Shatter is trying to be too prescriptive. One cannot set out that X group can do research but Y group cannot.

There can be specific provisions of a substantive nature which relate directly to family welfare conferences and which are different to the Garda programmes provided for in a different part of the legislation. As someone who recognises the importance of protecting the anonymity of individuals who have family problems, I am equally aware of the dangers of all the information, which can be made available when things go wrong, solely deriving from State agencies even in the context of a social services inspectorate.

I doubt whether that inspectorate has sufficient staff to carry out all of the duties which the Government is saying, ultimately, it will be empowered to carry out. Currently it carries out limited duties. Currently it is a non-statutory body.

For three and a half years the Government has promised legislation to provide a social services inspectorate. The Minister of State, Deputy Hanafin, and the Minister for Education and Science, Deputy Martin, like to pretend the world was only created in February 2000 and that their predecessors, Deputies Fahey and Cowen, had no particular involvement in these areas for two and three quarter years, but I can remember in 1997, Deputy Cowen telling Deputy Shortall, me and others that we could not deal with issues relating to disclosures of abuse and reporting because legislation for a social services inspectorate was being given a priority.

I do not mean this personally but, politically - this inspectorate is the play thing of the Department. The Department can determine what the inspectorate does because it is not statutorily independent of the Department. It is extremely dangerous to create a situation where, should children be abused or not properly dealt with by State agencies, the media will be excluded from fully investigating what occurred and what went wrong, if part of what went wrong derives from wrong judgments made and wrong programmes adopted in a family welfare conference.

It is important to say the social services inspectorate was set up in 1999, by my predecessor, Deputy Fahey. It is set up on an administrative basis at present. It has four inspectors who are working independently and extremely thoroughly.

Four inspectors for the whole country, dealing, in theory, with all issues relating to the care of children. They are confined in what they do.

At present their remit is to inspect children's residential centres for the health boards. They have already carried out a number of inspections. They have issued their composite report which has provided useful guidelines. They are strictly working in an independent and thorough manner.

We are discussing the Children Bill. I know that section 14, and particularly the matter to which Deputy Shatter is adverting, is important. I am sure we will come back to it again when we come to section 51 and we will have time to consider it over the intervening period. Is the question, "That section 14, as amended, stand part of the Bill", agreed?

No, it is not. I have considerable reservations about this section. For a Bill which has been published for this length of time, section 14(2) is quite unworkable and no doubt unconstitutional. For that reason and for the reasons I have given in dealing with subsection (2), I formally oppose the section.

Did the Minister of State not already say that she would come back to the section on Report Stage?

Minister of State, Deputy Hanafin, do you wish to make a final comment on this before we put the question?

I understand that the wording "within the necessary modifications" is simply a drafting device in order that we would not be repeat ourselves from section 51 and bring it all forward again. The Chief Parliamentary Counsel felt it was not necessary to reiterate everything, which is why those words are there.

On the other point made regarding the body which would adjudicate on what is bona fides research, in fairness, important points have been raised by Deputy Shatter. It is a complex Bill and none of us expected the Minister of State to know the implications of every phrase in it. There are genuine concerns. Most of the serious issues which have arisen in the past have involved a State agency. We must learn from that experience. It is not acceptable that a health board would adjudicate on what could be researched. I would ask the Minister of State to take a little time to consider that and to come back to us on Report Stage. There are concerns about the social services inspectorate, as constituted at present. There may be potential for the proposed ombudsman for children to have a role in adjudicating on it but it would not be acceptable that the health board would adjudicate.

We will come to this again when we are dealing with section 51, which will give everybody time to consider the matter and to look into it. That is really where it arises.

Question put.
The Select Committee divided: Tá, 8; Níl, 7.

  • Ahern, Michael.
  • Ardagh, Seán.
  • Coughlan, Mary.
  • Hanafin, Mary.
  • Lenihan, Conor.
  • McGennis, Marian.
  • McGuinness, John.
  • Wright, G. V.

Níl

  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Mitchell, Olivia.
  • Quinn, Ruairí.
  • Shatter, Alan.
  • Shortall, Roisín.
  • Stanton, David.
Question declared carried.
Section 15 agreed to.
NEW SECTION.

I move amendment No. 15:

In page 22, before section 16, but in Part 3, to insert the following new section:

"16.-From and after the commencement of this Part, no order made by any court in exercise of a wardship jurisdiction may authorise the detention of a child.".

I tabled this amendment because it was requested by the social services inspectorate. It recommended the termination of detention under wardship jurisdiction so that the Child Care Act would be the sole means of detention of a child. There is evidence in Britain, where the wardship jurisdiction commission remains, that it is being used as a back door for the detention of children. If the criteria in the legislation for care orders are sound, there will be no need to have this alternative provision for detention under a wardship jurisdiction. I hope the Minister of State accepts the amendment.

I cannot accept the amendment on the basis of the advice of the Office of the Attorney General that there is a serious risk of it being unconstitutional. I am advised that, in a judgment in a ward of court withholding medical treatment given in 1996, it was pointed out that the wardship jurisdiction of the High Court and, on appeal, the Supreme Court, is an integral part of the administration of justice subject only to the provisions of the Constitution. Where, in the opinion of the courts, a particular function is central to the administration of justice, it is not open to the Oireachtas to interfere with it by legislation.

This does not mean there cannot be any regulation of court business by statute. The running of judicial proceedings and the administrative arrangements of the courts are clearly matters appropriate to statute. It is also clearly a matter for statute to lay down penalties for criminal offences and, in the case of the lower courts, to limit the amounts of awards that may be made. However, where a function is inherently judicial, for example, the decision on an appropriate penalty in a specific case, there cannot be any interference with this function.

It is, therefore, doubtful that, in a wardship case, it is open to the Oireachtas to prescribe that there cannot be detention. It would be more likely to be the view of the courts that it is for them to say whether there are cases where detention is needed and that this is a special judicial function which cannot be interfered with by legislation. Deputy Shortall, in referring to the social services inspectorate, perhaps refers to cases in the High Court where children with behavioural difficulties have been brought before it. These cases are not generally dealt with under the court's jurisdiction concerning wardship but its inherent jurisdiction under the Constitution to vindicate the rights of citizens. The Attorney General's office advised that, while the constitutional basis for the decision may be different, the principle is the same. The courts exercise an inherent judicial function given to judges under the Constitution. On the basis that the Attorney General believes it would be unconstitutional, I cannot accept the amendment.

It seems extraordinary advice. There does not appear to be justification for retaining the provision for the detention of children under wardship jurisdiction. I do not understand how there can be justification for detention of children outside the provisions of legislation which has been brought forward, such as the Child Care Act and this Bill.

I regard the advice the Minister of State received as extraordinary. The judgment to which she referred and from which the extract comes referred to the fact that wardship jurisdiction has been vested in the courts over hundreds of years and that the exercise of that jurisdiction is only subject to the Constitution. It is not my understanding that a judgment of any nature from the courts exists which states that the Oireachtas cannot legislate for the exercise of wardship jurisdiction. As a result of being developed in the courts over the years, when the State, in theory, acts as the parent of a child, something which dates back to the old powers vested in the monarch, and because legislation has not been enacted in this area, as the common law developed in this area stands, wardship jurisdiction is only subject to the Constitution.

It is extraordinary that anyone in the Attorney General's office should interpret that as meaning that the Oireachtas cannot, by legislation, address issues relating to the substance of the wardship jurisdiction. The Oireachtas has failed to do so over the years and the wardship jurisdiction has been judicially developed, often in an extremely beneficial way, to fill legal lacunae the Oireachtas has failed to address.

The system operated in the same way in England regarding the protection of children. Legislation there, although always substantially more up to date on child care issues than ours, fell substantially out of date. During the 1960s and 1970s and into the early 1980s, wardship jurisdiction was used generally by local authorities in England to take children into care in circumstances where they needed to be protected and where legislation did not provide for that protection.

The Minister told us how important is the advice from the Attorney General's office. This is the oddest advice I have ever heard and is a serious misinterpretation of a court judgment. I regard the advice the Minister of State has been given as not just questionable but totally misleading. That is serious.

I understand what Deputy Shortall is trying to achieve with this amendment. I am not convinced that this is an amendment I would support because I regard the wardship jurisdiction as a fail-safe mechanism. It is a jurisdiction that has been availed of in circumstances where the Oireachtas has failed to provide legislation to ensure the protection of children.

I recall a case a number of years ago where a child in the care of an English local authority was brought to Ireland in circumstances in which that should not have happened. I had an interest in the case in that I was the lawyer instructed to act on behalf of the English local authority. The only way the child could be provided with care and protection and the only mechanism available to us was to apply to the Irish courts to have the child made a ward of the Irish courts and for them to return the child to the English jurisdiction. Today we could use the child abduction legislation for this.

We may still find the wardship jurisdiction important. For example, we discussed when this legislation will come into force, issues relating to that and problems that might arise. Deputy Shortall may wish to consider what I will say next. Let us assume the legislation is brought into force in a piecemeal way over the next five years and that, by the exercise of the democratic will of the people, Fianna Fáil is still in Government after the next election and still occupies the Department of Health and Children - I hope I am wrong in that. Let us also assume that a Fianna Fáil Minister, confronted with the fact that Part 3 of the legislation was not brought into force, a part we tried to have brought into force immediately following the Bill's enactment, becomes increasingly irritated by more judgments from Mr. Justice Peter Kelly excoriating the failure of the Government to provide proper care facilities for children.

Incidentally, Mr. Justice Kelly's cases are not wardship cases but are dealt with as separate issues. They are cases brought under the Constitution and Mr. Justice Kelly does not take children into wardship. He makes decisions based on constitutional provision and it is a misunderstanding to view it differently. Let us assume the courts' jurisdiction in this area evolves and they decide children should be made wards of court, something they could do in these circumstances. It is extraordinary that this jurisdiction has not developed into a wardship jurisdiction as well as a constitutional jurisdiction. It might be more effective if that were the case. A Fianna Fáil Minister could use the Deputy's amendment, if accepted, to ensure that children for whom care is not provided under Part 3 cannot be detained by the courts in circumstances which embarrass the Government.

It is always dangerous for us as legislators in dealing with children's issues to assume that every possible situation requiring children to be detained has been dealt with in legislation. I regard the wardship jurisdiction as a fail-safe mechanism, something to be invoked should a child with particular needs fall outside the net. I regard the advice the Minister received as extraordinary because we should have legislated many years ago for how the wardship jurisdiction should apply to children. We should still consider doing so. To suggest the Oireachtas cannot legislate for the wardship jurisdiction is extraordinarily odd advice.

I am not sure I understand the amendment. Am I correct in saying that, if it is agreed, there will be no circumstance in which a child who is a ward of court could ever be sent to a place of detention? Might there not be occasions on which this course of action would be required?

I would like to hear Deputy Shatter suggest cases where that might arise. I take his point about the bringing into force of various sections of this legislation. However, if the entire Bill is enacted and brought into force, does he believe the wardship jurisdiction should then be dropped?

One example would be where a couple from this country who have been deemed unsuitable to adopt outside this country go to a state in South America which may or may not be a party to the Hague Convention on child abduction and return with a child who has been placed with them. If they do nothing to the child a health board cannot, for example, take proceedings under the Child Care Act, 1991. However, there could be considerable concern that they retain the child in their care having been previously deemed unsuitable to adopt.

Under existing legislation if a health board had concerns about the child but no allegation of misbehaviour could be made, and if the child had been properly handed over to the couple under the law of the South American country, so there would be no question of Hague Convention child abduction, the health board could apply to the court to have the child made a ward of court. The court may allow the child to remain in the care of the couple under wardship but may allow the health board access to the child which it could not get under the Child Care Act as nothing had occurred between the adoptive parents and the child to indicate that the child, at that moment, was at risk, even though the couple may have been deemed unsuitable for particular reasons. This might sound far-fetched but it is not so in the current environment.

In Ireland and a number of other countries the wardship jurisdiction is operated as a fail-safe mechanism. Some of the most extraordinary cases which none of us would have anticipated have come before the courts in other countries under the wardship jurisdiction to provide mechanisms for protecting children. This is not a detention issue and it would not involve taking the child into detention. I have reservations about curtailing the wardship jurisdiction. It is not used very often. The cases coming before the courts are arising on constitutional grounds that children are not being made wards of court. Because the courts are exercising a constitutional jurisdiction, even when Part 3 is brought into force, there is a possibility, should a child not be properly dealt with under that Part, that the court will still invoke the constitutional jurisdiction having regard to the plethora of court cases since 1995.

This is a broad issue.

The intention of the social services inspectorate was to tighten up the situation regarding detention and to ensure there would not be a short cut in terms of children's rights. I bow to Deputy Shatter's experience in this area.

This is for another forum and the issue is very broad.

I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

Amendment No. 16 is consequential on amendment No. 33 and amendment No. 135 is related. These amendments may be taken together.

I move amendment No. 16:

In page 22, line 6, to delete "Part" and substitute "Parts".

This is a technical amendment which allows for the insertion of Part IVB in the Child Care Act, 1991, to govern private foster care arrangements. Amendment No. 135 is also a technical amendment concerning the jurisdiction of the courts regarding Part IVB.

Amendment No. 33 is the substantive amendment concerning private foster care. Private foster care is currently governed by the Children Act, 1957, which provides for the regulation of placement of one or more children under the age of 16 apart from their parents or having no parents for the purpose of nursing and maintenance. This Act replaced the original provisions of the 1908 Act.

The provisions apply whether children are being place for reward or in the case of children whose parents are not married, regardless of whether for reward. This distinction was not affected by the Status of Children Act, 1987, which reformed the law on illegitimacy.

Over the years these provisions fell into disuse and it was decided to repeal the 1957 provisions under the Child Care Act, 1991. It was not proposed under that Act to introduce provisions regarding private foster care. However, between the enactment of that legislation and its implementation a new requirement was found for the provisions. The provisions provided the only basis on which health boards could supervise the practice of non-national child care agencies sending troubled children to this country. They also provided the basis to enable health boards to monitor children from Chernobyl being brought to this country for holidays and respite care. As a result, the provision for repealing that part of the 1957 Act and the Child Care Act, 1991, was not brought into force. It is proposed that with the passing of this Bill, all remaining repeals scheduled in the Child Care Act will be undertaken and the law governing the protection and welfare of children at risk will be consolidated into the two Acts.

As private foster care arrangements may involve vulnerable children and children at risk, there is a need for legislation to ensure that health boards are notified of such arrangements. It would not be appropriate to leave the current legislative arrangement in place given the clear intention of the Oireachtas with the passing of the Child Care Act, 1991, that the 1957 provisions would be repealed. As Part 3 of this Bill amends the Child Care Act, 1991, this is the most appropriate legislative vehicle to introduce these amendments.

The proposed amendments will re-enact and update the provisions of the 1957 Act. This will abolish the distinction between children whose parents are married and those whose parents are not and will update the definition of private foster care and include children up to the age of 18.

Another issue to be addressed in this context is the question of adopting children from abroad. A range of legislation is in place and further legislation is proposed for this area. Existing legislation does not deal adequately with the practices which have emerged regarding the long-term placement of children from abroad. The inherent risks in placing such vulnerable children have been highlighted to the Department by health board personnel working on the ground. This is of particular concern where a couple bring in a child for temporary care and then proceed to apply to adopt the child, although their eligibility and suitability was not assessed prior to the placement of the child. This has occurred in a small number of cases. I am not impugning the good faith of such people but there is a danger in such situations that the structures for the prior assessment of eligibility and suitability for inter-country adoption set out in the Adoption Act, 1991, are being circumvented.

In addition to dealing with this situation, the provisions are also designed to deal with two other specific circumstances which have arisen in recent years. These are where non-national children are placed here by non-national child welfare agencies, mainly with families of their own nationality. There are a small number of such placements in this country, mainly in the regions of the North Western, Southern and Western Health Boards. It is anticipated this will also have an impact on some of the children placed here under the Chernobyl projects. An estimated 2,500 children are placed under these schemes.

In many cases these groups have a good working relationship with the local health board but it is important that a system of notification is established on a proper statutory footing and that the law is updated. These proposed provisions do not interfere with the obligations of health boards under section 3 of the Child Care Act, 1991, to promote the welfare of children who are not receiving adequate care and protection.

It is 1.10 p.m. Do members wish to make some short opening remarks as we will come back to this issue at the next sitting?

Some of the Minister of State's amendments are technical, to which I have no objection. However, we are also dealing with amendment No. 33 which is the substantive amendment.

I did not notice that at the outset.

I have tabled a series of amendments to amendment No. 33. If we discuss amendment No. 33 now, we must get into the technical detail of private foster care and examine those amendments.

I propose that we deal with amendment No. 16 now and adjourn thereafter.

While I am aware that technically we must discuss amendment No. 33 with amendment No. 16, it is not helpful. I want to examine the totality of private foster care provisions. Would it be possible to discuss the content of amendment No. 33 on a section by section basis? We should consider the specific provisions to be inserted in the legislation. I do not wish to prolong our discussions but such an approach may more readily facilitate our consideration of my amendments, some of which could be disposed of very speedily. It would be somewhat more complex to deal with each of them in one fell swoop in the context of the new subsections.

I would need to obtain the Minister's agreement to such an approach. If the Minister has prepared her brief on the totality of amendments, we will have a global discussion.

So be it, but we must discuss my amendments in conjunction with this group of amendments.

Amendment agreed to.

We could work our way from amendment No. 16 up to amendment No. 33 and discuss the latter amendment when we reach it rather than discussing it at this stage. That might facilitate the Minister and her officials in allowing them more time to consider the amendments tabled to No. 33.

We will discuss the matter with the clerk and the Bills Office.

The committee went into private session and adjourned at 1.20 p.m.