Election of Chairman

Election of Chairman.

Clerk

The first item is the election of the chairman. I will take nominations.

I would like to propose Deputy Dermot Fitzpatrick.

I would like to second that.

On behalf of my party I understand the Whips have discussed this matter and so that we do not start off with any contention we will not be opposing the proposition.

Deputy Fitzpatrick took the Chair.

Chairman

I thank the Deputies for electing me chairman of this committee. I hope that we can get down to work as expeditiously as possible. It is, if not a contentious, a very important Bill and a very important Stage. We are looking to the best interests of one section of our society, the children. I know that my colleagues on this committee will give every co-operation to the Chair and I hope I can reciprocate that.

The next item is procedure generally.

(1) The Standing Orders provide that rules as to procedure in the Dáil shall apply to procedures in special committees except that as in Committee of the whole Dáil a member may speak more than once on the same subject.

(2) Divisions shall be taken by the Clerk of the committee calling the names of the members and, in the event of there being an equality of votes, the question shall be decided in the negative. The Chairman shall have only one vote and will not have a casting vote.

(3) There is a provision for substitutes. In the event of a member being unable to attend he or she can nominate a substitute to attend and that substitute will have the same voting rights as a member here today.

(4) In relation to the Press and visitors, meetings of the committee are held in public unless the committee decide otherwise. Private meetings may be held for discussion purposes. That is a matter for the committee to decide.

Before we proceed to consideration of the Bill proper it might be worth while, in view of the considerable number of amendments tabled, to take a little time to consider how we should conduct our business, that is, to decide on the frequency of meetings and whether we should structure our meetings to take different parts of the Bill on different days or whatever. If there are any amendments to be introduced by any member of the committee I ask that members give the Bills Office three working days notice of their said intention.

I take it that is agreed?

When the Chairman says three working days, is that three Dáil sitting days?

Chairman

No, three normal working days.

I would like to comment on procedure generally. All of us will be aware that this is a very complex Bill and it has gone through three different incarnations since 1985. There is a certain degree of urgency about it now in the light of emergency legislation passed by the Dáil in the last two weeks and also in the light of the vulnerability of the existing 1908 Act. I believe that you will have a consensus view that we should try and deal as expeditiously as possible with the Committee Stage of the Bill. The first two sections, which have been agreed, were the subject of more than four hours debate. It is important to put some structure on the remaining sections so that we would have some timescale envisaged and some priority in relation to the different sections. Also, I agree that we should fix, as far as possible, our meetings schedule. If we are to make progress on a Bill with 64 sections and over 200 amendments we will have to meet on a weekly basis. I propose that we meet each Tuesday until we finish our business.

I agree with the previous speaker. The Bill has been referred to this special committee. It is very important that it be dealt with expeditously. That can be done by frequent meetings and sufficient time devoted to it in view of the number of amendments.

I would like to see the earliest possible enactment of this legislation. As far as I am concerned 4 p.m. every Tuesday would be agreeable as far as practical until the recess.

I am sure all members would agree that we should do this work quickly. I agree that we should meet every week. I am not sure that Tuesday is a good day, particularly for Deputies from the rural constituencies. I suggest, perhaps Thursday morning would be a better day. There would be fewer meetings on elsewhere in the House and we would have more time on Thursday. I suggest 11.30 a.m.

I would like to support the suggestion regarding Thursday because, while I agree with everything else that has been said already, Tuesday can be a very awkward day for us. We could be called into the Dáil on a number of occasions and I am sure our work could be interrupted. On that basis it is important that we would go for a Dáil day when there are likely to be fewer interruptions.

From a personal position, Thursday morning would be impossible because the Whips meet at 11.30 a.m. on that morning to decide the following week's business. It usually takes at least an hour. It would never be possible for me to be in attendance on that day.

Unfortunately for me, the Fine Gael front bench meet every Thursday.

I appreciate the situation that members find themselves in. I am delighted that we are here in Committee and I look forward to working with my colleagues in ensuring an expeditious conclusion to this important work we are about to undertake. I can appreciate that the two front bench spokesmen from the two main Opposition parties will be tied up on Thursday mornings and we will have to take that into account. Perhaps we could agree on 5 p.m. on Tuesday evenings to give an opportunity to Deputies to be here and get organised for the week's business. They would need that time.

Chairman

Is that agreed? Agreed.

NEW SECTION.

I move amendment No. 10:

In page 6, before section 3 but in Part I of the Bill, to insert the following new section:

"3.—Not later than six months from the date of the enactment of this Act, and at the end of each subsequent six months period until the entire Act has been brought into effect, the Minister shall lay before each House of the Oireachtas a report detailing the progress made in bringing the Act into effect.".

This issue was debated very forcefully in the House. Because of the urgency of the legislation, our amendment sought to require the Minister to report within 12 months. This amendment would require the Minister to report within six months of the date of the enactment of this Bill, and at the end of each subsequent six month period until the entire Bill has been brought into effect.

I do not want to rehash what we already discussed on section 2. Events since then, such as the enactment of the Children Bill, 1989 highlight the requirement for urgency and good faith on the part of the Government in operating sections of this Bill. The least that would be required is accountability by the Minister of State at the Department of Health to state to the Dáil why he is not bringing certain sections into effect. If, as we discussed on section 2 of the Bill, there are good reasons for not enacting some sections immediately, let those reasons be stated. The earliest possible enactment of this Bill is not only desirable, but essential. Therefore, I would be inclined to support the amendment.

I also support the amendment. We had a long debate on section 2 of the Bill. It was important to set down the framework. The framework, as far as everybody was concerned, was that there would be no point in working hard to find legislation that would meet the needs of the day if we could not be sure it would speedily be brought into operation. The amendment being proposed now is a reasonable one. It would allow the Oireachtas to monitor the implementation of the Bill until all sections are enacted. It is a very reasonable request. As Deputy Yates has said, I think we would find all Members and parties of the House responsive to reasoned argument, if there are sound reasons for withholding particular sections. The important point is that the Oireachtas should be in a position to monitor the implementation of the Bill and the Minister should be accountable to the House for this important legislation, for which we have waited 80 years.

I am interested in hearing the Minister's response. I see no reason why a report should not be given to the House. The questions groups outside the House in the child care area are asking are, when is this Bill going to be law and when are the various sections going to be fully operable? This is far too important legislation for us to put a great deal of work and thought into it and pass it and then to let it disappear, maybe to an unknown destiny.

I thought we had dealt with this matter during our four hour discussion in the Dáil. I have listened with interest to what the Deputies have said. First, let me say that, of course, the Minister is accountable to the Dáil for the enactment of legislation. Members of the Dáil have the right to table parliamentary questions asking the Minister to account for any matter pertaining to legislation or to any area for which he has responsibility. The Opposition also have the right to put down motions on any particular matter.

This amendment seeks to reopen, in a slightly different way, a question that was discussed and decided upon in the full House when we debated the Bill on 1 November. On that occasion Deputy Sherlock and his colleague, Deputy McCartan, had tabled an amendment which sought to compel the Minister to bring all sections of the Bill into force within 12 months of its passage. As I explained then, it is the Government's intention to have the Bill fully implemented and operational as soon as possible.

It will be possible to implement many of the sections within 12 months, but other provisions may require more time before they can be properly introduced. This is why the Government are opposed to a fixed implementation date. For example, all of the new legal procedures in relation to placing children in care will necessitate the making of new and expanded rules of court. These rules are not made by the Minister but by the relevant rules of court committee, which is largely composed of members of the Judiciary. It may take some time for the committee to complete its deliberations, given the complexity of the issues involved and the need to ensure that the rules are watertight.

It will also be necessary for the Minister and my Department to prepare detailed regulations in relation to the placement of children in foster care, in relation to the inspection of residential facilities for children and in relation to the supervision of pre-school services. Again, these will take some time to prepare, particularly if we are to allow for consultations with the various voluntary bodies and staff groupings. As I have said, all of these steps will take time but I can assure the committee that the Bill will be implemented as quickly as possible.

Deputy Howlin says that it would only be fair that the Minister should be asked to give an account to the Dáil of the progress being made. It is not normal for a Minister to give reports on any Bill. That has never been done. The procedures we are asking the House to adopt and proceed with are the standard procedures used in implementing legislation. All the enabling devices available to the Minister for Health will be used to enact all sections of the Bill as quickly as possible. We have no desire to delay the implementation of the Bill, but there would be no point in putting a straitjacket on us as one of our hands would be tied behind our backs while we awaited the implementation of the rules of court or regulations and the holding of proper judicial and legal consultations that are so desirable. Consequently, I regret I will be unable to accede to this request and I would suggest, in view of the fact that we gave it long deliberation on our first day in the Dáil, the Deputy would not proceed with this amendment.

I do not intend to labour the point but I do not think the Minister has given any cogent reason for not accepting this amendment. He simply said that we had a discussion previously on this matter. He did not give any cogent reason in the Dáil either. What is required here is simply for the Dáil to monitor the implementation of the legislation, on a six month basis. This would act as an impetus for the Department, coming up to the deadline, to put pressure on the various bodies involved in the drawing up of rules and regulations, and would be of assistance to the Minister in bringing all the new regulations, rules and procedures into effect. I deeply regret the attitude the Minister has adopted. I do not think quoting a precedent is good enough. We are doing something very important in changing procedures in a very fundamental way, the first time this has been done in 80 years. Again, I regret the Minister should adopt this attitude.

The fact that it has never been done before is a very bad reason to give for not doing anything. If the suggestion is a good one, and the reasons behind it are correct, then it should be considered. This is a very practical amendment. It would certainly act as a spur to the Judiciary. We have seen what has happened with regard to the new Judicial Separation Act. It is still not working effectively more than a year after its enactment because the rules of court have not been adopted. It would act as a spur to the Judiciary and the courts if they knew a report had to be made to the Oireachtas on the progress made in implementing the measure.

Secondly, I can assure the committee, with regard to the rules of foster care, institutions, and voluntary organisations, the people working in these areas would be only too delighted to hold consultations with the Minister and his officials with a view to the early putting in place of any necessary rules or regulations. I feel that any of the excuses the Minister has given do not hold water and it will be a question that will be asked again and again about this legislation, when it will be effective, when will it be real legislation.

Like the other speakers I have not heard the Minister put forward any good reason why he should not report back, bring a report before each House of the Oireachtas, detailing the progress being made. It is very important legislation. It was necessary to enact emergency legislation to deal with part of the problem and it is reasonable to suggest — I know I am repeating this — that at least a report be prepared. His point is that he will be referring to the courts, rules of court and so forth. As was pointed out, this would help to expedite the deliberations that will take place on the issues arising following the enactment, I again appeal to the Minister to accept this very reasonable amendment.

Deputy Howlin stated he did not want to labour the point and, of course, he then proceeded to do just that. At the outset I was very gratified to hear all the speakers around this table state very emphatically that they wanted to see an expeditious consideration of this Bill. That is certainly what I want to see. We have waited 80 years for this and we will be waiting another 80 years if we proceed at this kind of pace on the minutiae. I would like to think we are not setting the scene here for the remainder of our sessions, that we will get away from the minutiae and get on with discussing the main parts of this Bill and getting it onto the Statute Book because the situation is absolutely screaming for that. The Minister has put forward a full and factual explanation why he is averse to accepting this particular amendment. That should be accepted and we should get on with the important business before us.

Clearly, Deputy Sherlock's amendment is related to section 1 (2) which provides that the Act will come into operation on such day or days by order made by the Minister, etc. Section 1 (2) is a section that is found in a considerable body of legislation, not just Irish legislation but in many other countries as well. There appears to be an unfortunate and, hopefully, unintentional innuendo that in some way the Minister would not wish to bring all sections of the Act into being as quickly as possible. The good faith of the Minister who is given considerable powers under this Bill should be accepted, as the good faith of the Minister is accepted in regard to most legislation in the State.

I would like to refer back to the emergency child care Bill because we tabled a number of amendments for what we considered were very urgent provisions. They related to the decisions of the Supreme Court and High Court in relation to children in care. At the moment, it is undoubtedly harder for health boards to obtain care orders against children and, therefore, because there are no supervision orders at the present time the timing of the introduction of supervision orders is absolutely vital to health boards relating to their child care programme. Similarly, other aspects of this legislation and ministerial amendments to this Bill relating to the rights of parents to independent assessments, copies of any assessments and video recordings are all matters which are extremely urgent in view of court decisions and in view of new information that has come to light since 1 November when this Bill was first discussed.

Will the Minister of State give a commitment which might resolve this problem of when he hopes to have those sections for example, for which there is a legal imperative. Will it be 1 March, 1 October 1990 or when because, obviously, the Opposition will not succeed in having this inserted at this stage. The next best thing in terms of meeting Deputy Jacob's desire to proceed is if we could have a commitment on when the Minister reasonably feels he could assure the committee of when these matters might be enacted.

In response to the Deputies, particularly, in response to the questions raised by Deputy Yates, I assure the members that I am anxious to have the entire Bill passed and implemented as quickly as possible. It would be impossible for me to say exactly what date we can implement any section until we conclude the Bill on Committee Stage, get it back into the Dáil on Report Stage and on to the Seanad. After concluding the Committee Stage debate I will be in a much better position to give an indication.

I cannot foretell as of now how quickly we will be able to get through this Bill. I hope it will be soon but I can assure the committee as somebody charged with responsibility that it is my personal wish, the wish of the Minister for Health, the Government and indeed the Department of Health, that we have this Bill passed as quickly as possible, I am relying on everybody's co-operation for that but it would not be possible for me to give any date at this stage. I am depending on the co-operation of members and how quickly we conclude this Committee Stage debate.

Chairman

Is Deputy Sherlock pressing his amendment?

I am disappointed at the Minister. All that is required — I do not want to be repeating thisad nauseam— is a report. Why should the Minister shy away from bringing in a report six months following the enactment of the Bill? Why would the Minister not agree if he is running into difficulties in other spheres that at least we are entitled to be made aware of that? This now is totally different to putting a time limit on bringing the Bill into operation I will press the amendment because I feel strongly about it. We are only asking for a report in this amendment.

Amendment put.
The Committee divided: Tá, 5; Níl, 8.

  • Fennell, Nuala.
  • Sherlock, Joe.
  • Howlin, Brendan.
  • Yates, Ivan.
  • Lee, Pat.

Níl

  • Ahern, Dermot.
  • Fitzpatrick, Dermot.
  • Coughlan, Mary.
  • Jacob, Joe.
  • Dempsey, Noel.
  • O’Donohhue, John.
  • Fitzgerald, Liam.
  • Treacy, Noel.
Amendment declared lost.

Chairman

Amendments Nos. 11, 12 and 13 in the name of Deputies Yates and Howlin are out of order as they involve a potential charge on revenue.

Can I ask why the deleting of "who are not receiving adequate care and protection" would conceivably put a charge on the State?

Chairman

The amendments ruled out of order impose additional statutory functions or mandatory obligations on health boards which are 80 per cent funded by the Exchequer and, consequently, there would be a potential charge on the revenue.

Can I pursue that. The actual section says; "It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection". I simply propose to delete the end of that sentence so that it reads: "It should be the function of every health board to promote the welfare of children in its area". Will the Minister of State explain how giving the duty to promote the welfare of children to a health board, who have that statutory responsibility in any event, could possibly be deemed to impose an additional charge on the State?

I should like to pose a question about the whole approach to this legislation. How do the Department or the Government regard charges because, obviously, they will arise out of the Bill? What is distinction between charges?

Chairman

The relevant Standing Order, No. 123 (3) states:

An amendment to a Bill which could have the effect of imposing or increasing a charge upon the Revenue may not be moved by any Member, save a member of the Government or a Minister of State.

What is proposed could be interpreted as applying to all children. Members will accept that that would impose additional Exchequer commitments because there is a distinction, between the general and the particular. The particular children referred to in the Minister's Bill are those who are not receiving adequate care and protection.

Since it has been said by the Government side that the Minister does not want to extend the scope of the Bill to promote the welfare of all children I should like clarification from the Minister if that is the case. If that is not the case, will the Minister introduce an amendment in his name to get around the technicality?

Chairman

We are dealing with Standing Orders, our own Standing Orders which have been agreed by the Dáil. We cannot pursue this matter any further and we must proceed with further consideration of the Bill.

I am very familiar with Standing Orders. I sought clarification as to how this would impose a charge on the State. Clarification has come from the Government side and I have put a question to the Minister about it because this is a fundamental issue. I have received a lot of representations about this issue from the caring agencies, the social workers and the child care workers involved. If I am running foul of Standing Orders in my amendment I should like to ask the Minister to encompass all children in the State in the terms of the Bill, particularly in section 3.

I would not like to suggest that we should use Standing Orders to create an attitude that the Minister, the Department, the Government or the health boards do not have the welfare of children at heart. Of course we have the welfare of children at heart. In the Bill we are seeking to do specific work. We do not want a broad, open-ended, vague and general assertion that the health boards should be given statutory responsibility for all the children in the country. We all know that the vast majority of our children are well cared for by their parents. In the Bill we are obliging health boards to promote the welfare of those children who need care and attention. The effect of what the Deputies are suggesting would be to place an open-ended obligation on a health board to promote the welfare of each and every child in their area. This runs counter to the central objective of the Bill, which is to provide care and protection for children who are deprived, disadvantaged or at risk.

The purpose of the Bill is to target support on those children who are most in need and who are most vulnerable. Health boards are being given responsibility to promote the welfare of these children and this section gives the boards wide powers to provide child care and family support services towards that end. What the Deputies are proposing would dissipate the energies of the health boards and their staffs by asking them to promote the welfare of almost one million children in the State, the vast majority of whom are being well cared for by their parents. I would be afraid that those who would lose out would be children and parents who have less clout and who are less well able to articulate their needs, the very people this Bill is designed to help. We must be clear about what we are proposing to do.

May I raise a point of order?

Chairman

I do not wish to stifle debate but all these points will arise on the section.

On a point of order I should like to say that I have difficulty in understanding the Chair's ruling. The Chair quoted the Standing Order under which he was ruling out the amendment and it was to the effect that it would impose a charge on the Exchequer. It is difficult to accept that, particularly when one considers that the provisions of the Bill will result in charges on the Exchequer. How can an amendment to a section of such a Bill be deemed to be out of order?

Chairman

The effect of the amendment would be that charges would be increased and it would be contrary to Standing Order 123. I do not think we should debate Standing Orders today. We must work within them.

Do I take it that we will be discussing the points raised on the section itself?

Chairman

Yes.

Amendments Nos. 11 to 13, inclusive, not moved.

Chairman

On amendment 14, amendments Nos. 1, 2, 3 and 4 to amendment No. 14 are related. We will be discussing amendments Nos. 1, 2, 3, 4 to amendment 14 and 14 together, by agreement.

I move amendment No. 14:

In page 6, lines 18 to 34, to delete subsection (2) and substitute the following:

"(2) In the performance of this function, a health board shall—

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise—

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

(3) A health board shall, in addition to any other function assigned to it under this Act or any other enactment, provide child care and family support services, and may provide and maintain premises and make such other provision as it considers necessary or desirable for such purposes, subject to any general directions given by the Minister under section 52.".

Section 3 is one of the most important provisions of the Bill. It is the foundation stone on which all the activities of health boards under this Bill are based. It places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection and also gives them new and expanded powers to provide child care and family support services.

The main purpose of this amendment is to insert a new paragraph requiring health boards, in carrying out their duty under this section, to regard the welfare of the child as the first and paramount consideration. I am also availing of the opportunity to make a number of technical changes.

Subsection (2) provides that, in carrying out its statutory duty to promote the welfare of children who are not receiving adequate care and protection, a health board must take certain steps and comply with certain conditions. The first of these steps is contained in subsection 2 (a) which requires health boards to seek out children who are not receiving adequate care and protection.

Subsection (2) (b) paragraph (i) contains the new provision concerning the paramountcy of the welfare of the child. It provides that health boards, having regard to the rights and duties of parents, shall regard the welfare of the child as the first and paramount consideration. This is a clear declaration that the primary motivation of health boards is to promote the welfare of the child. This makes explicit what has always been implicit. The central objective of health boards in providing child care services is to serve the best interests of the child. This provision will reinforce that long-established policy.

Subsection (2) (b) paragraph (ii) requires the health board in so far as is practicable to have regard to the wishes of the child. The proviso is to take account of situations where it would not be practicable to consult the child, for example, where there was an immediate threat to his safety or well-being.

Subsection (2) (c) requires health boards to have regard to the principle that it is generally in the best interests of a child to be brought up in his own family. What this means is that where a child is not receiving adequate care or protection, the health board will generally be expected to assist the family so that the child can remain at home. Only in exceptional cases, where this has failed or where there is a serious threat to the child should the child be taken into care.

Subsection (3) requires health boards to provide child care and family support services and enables them to provide and maintain premises and to make such other provision as they consider necessary for that purpose.

I have deliberately not attempted to spell out the types of services which might be provided. This is to give health boards maximum flexibility in responding to the differing needs in their areas and to ensure that there is no obstacle to the development of new services to cater for needs which might emerge in the future. However, among the services which I expect will be provided under this provision is intensive social work support for families at risk, child guidance and assessment, home helps and home makers, family resource centres, preschool services for children from disadvantaged families, day fostering, residential facilities and specialised projects for the young homeless and other at risk groups.

As the Minister of State has said, section 3 and the Minister's improvements as outlined in amendment No. 14 to section 3 are the core legislation under which health boards will have to perform their duties in relation to child-care services. In view of the fact that the principal change the Minister has made from the original Bill is to insert the words " regard the welfare of the child as the first and paramount consideration in relation to the potential conflict of rights between the rights of parents to the custody of their children and the rights of children to protection", what is the advice he has received from the Attorney General or the law officers of his Departmentvis-�-vis the constitutionality of this provision?

I would like to state at the outset that I am not opposed to having the rights of children as the first and paramount consideration. In fact, I have inserted a preamble at the end of this Bill to a similar effect. However, I have been advised that under the inalienable and imprescriptible rights of parents as set out in Articles 41 and 42 of the Constitution that, to put it mildly, there is a constitutional conflict here.

I refer the Minister specifically to two Supreme Court decisions, one in March 1985 and the other on 22 June 1977, where it seems on the face of it that the rights of children are subservient to the rights of parents. I would like to know in that regard — this arose under the emergency legislation — if the Minister is satisfied that this provision is constitutional.

I would certainly like to put on record my view that it should be considered, by the President, under Article 26 of the Constitution. There is precedent before where that had been discussed in the Dáil and it was subsequently followed up on it by testing its constitutionality. It is a process of 60 or 90 days. It would resolve this issue one way or the other before having it the subject of target practice in the courts or for eminent lawyers to find loopholes in it. I would like to move amendment No. 1 to amendment No. 14 if that is in order.

Chairman

Yes.

I move amendment No. 1 to amendment No. 14:

In the first line of subsection (2), after "shall" to insert "be under a statutory duty to".

I would like to say briefly what I am trying to do. I am trying to improve the Minister's provisions and I hope he will look kindly on them. In relation to amendment No. 1 we have found under the 1970 Health Act — I refer specifically to section 67 and other sections — that health boards are under obligation by the words "a health board shall" and in the instance of section 67 "shall provide a dental, optical and aural service for eligible patients". As we know in that narrow context most health boards are not providing that service to eligible patients. There are other examples that I could give.

It seems — I know there is a legal challenge to that — that the word "shall" tends to be ambiguous and vague, to put it mildly; in so far as times of financial stringency are concerned, when the rights of children are covered by "as a health board shall" this is not adequate. I want to strengthen this by putting in, to clear up any possible ambiguity, that health boards shall be under a statutory duty to apply the different provisions.

The other amendments Nos. 2, 3, 4 and 5 relate to specific provisions that are omitted and need to be dealt with. There is an important need to co-ordinate information. When I say all relevant sources I mean such sources as school attendance officers in the primary and secondary schools, who have no link-up with the health boards at the present time, probation officers under the juvenile justice system and other officers in relation to that service. It is absolutely vital that there be an onus on health boards not only to carry out the work in their own areas but also to link up with the adoption services, to co-ordinate the information there and with youth services generally. I think that is a reasonable item to include that they would, in carrying out their duties, make available not only to the child care advisory committees but to the Minister and to the public at large the maximum possible information.

In amendments Nos. 3 and 4 I want to give practical effect to giving children supreme rights especially when they are in care because there have been cases, both abroad and here, where there has been a change of situation whereby children have been released from care. It is very important that prior to any change in the child's circumstances, be it a change from residential care to fosterage or releasing a child back to his or her natural parents, that there should be an obligation on social workers to inform children of their right to be consulted prior to any change in their circumstances, any action that is taken by the health board or that they, of their own right, be allowed to initiate a review of their circumstances and that all their requests be documented. I feel that all of these things give practical expression to putting the welfare and the consideration of the child first. I hope in these matters of detail that the Minister will see fit to accept these amendments and clarify the constitutional questions I have raised.

I, too, accept that this is the bones of the entire legislation. This will be the statutory duty devolved on health boards and it is important that we reflect on it. I will not repeat any points already made. I welcome the Minister's comments in relation to a debate we have already had on the emergency legislation. The Minister is aware of the views expressed at that time by myself, Deputy Yates, Deputy Shatter and others regarding the conflicting rights of parents and children under the Constitution. I welcome the Minister's amendment. It is clear and unambiguous in relation to his desire to place the child, the well-being of the child and the rights of the child in the foremost place. That is very welcome indeed and is most important.

I would also welcome the clear explanation from the Minister of State that he has had advice from the Attorney General's Office on the constitutionality of that section of his amendment and that he can assure this committee that he is satisfied that it will hold up to constitutional challenge. We have had advice from eminent lawyers ourselves and unfortunately the confidence of this side of the House is not strong that that would be the case.

I said on the previous debate and I reiterate this now, that a referral by the President is a matter for the President obviously in his absolute discretion. I hope that the Minister will indicate that the contents of this subsection which relates to the paramount position of the child and the welfare of the child will be Government policy to such an extent that if it was found that a constitutional amendment was required such an amendment would be pursued by the Government. I can assure him that he would have the support of the Labour Party in any such endeavour.

With regard to the third paragraph in the Minister's amendment, I listened with interest to his explanation. I endorse and applaud all he said. It is something that I have long talked about in relation to social worker support for families at risk, that is family resource centres.

There are now few family resource centres in this country. I have worked in particular with one which was based on a Bristol model of total family support that had tremendous results in England. Unfortunately, the reason they do not exist in this country is that they were never resourced here. I hope we are not simply having pious aspirations put into legislation. I would hope that all these important, valuable resources will be made available to the community. They need funding. The Minister must give a commitment that the funds will be provided to establish in all the major urban areas — and in the rural areas where children are not often thought as being vulnerable and often are very much neglected — family support units and social workers' support teams.

The additional amendments in the name of Deputy Yates to the Minister's amendment No. 14 strengthen it somewhat. I have looked at his first amendment. I honestly do not share the view that the word "shall" is in any way ambiguous. The notion that the word "shall" is ambiguous defies logic. The example instanced by Deputy Yates, was the 1970 Health Act and the obligations laid down therein. It is my view that the provisions would be found to be binding if they were challenged in a court action, but if he thinks they need to be strengthened I have no difficulty in supporting that. I would also support the other two amendments, giving a base of extra information to health boards and, in concrete terms, legal bases to children's fundamental rights.

I have listened with interest to two very good contributions. The advice available to me is very, very clear. The proposed reference to the welfare of the child is modelled on similar provisions in section 3 of the Guardianship of Infants Act, 1964, and in section 2 of the Adoption Act, 1974. I would like to quote the relevant provision from the 1964 Act:

Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.

For a number of years some lawyers and other commentators expressed doubts about the constitutionality of section 3 of the 1964 Act on the basis that it was alleged to offend against the guarantees to respect parents' rights contained in Articles 41 and 42 of the Constitution. The matter was finally resolved in 1985 when the Supreme Court delivered a unanimous judgment in a case known as K.C. v. An Bord Uchtála (1985) ILRM 302. The Chief Justice declared that:

Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child which is defined in section 2 of the Act in terms identical to those contained in Article 42.1 is to be found within the family unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.

That judgment now constitutes the authoritative judicial pronouncement on the balance to be drawn between protecting the welfare of the child, on the one hand, and defending and vindicating family rights, on the other.

The proposed amendment will fall to be construed in a similar way. Thus, health boards and the courts will be permitted to intervene and place children in care against the wishes of their parents only in exceptional cases where, for example, the parents have neglected or ill treated their children or where there are other compelling reasons why the welfare of the children demands that they be removed from their family.

This approach finds support in Article 42.5 of the Constitution which requires the State, as guardian of the common good, in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, to endeavour by appropriate means to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. I hope that clarifies any doubt anybody might have.

Will the Minister respond to the amendments?

I have to concur with what Deputy Howlin said about the word "shall". I do not visualise any ambiguity in it either; it is a very strong word. The word "shall", when used in a Bill, means that something must be done. In this case the health board must take the steps and comply with the conditions set out in subsection (2). The board does not have any discretion in the matter. The insertion of the phrase "be under a statutory duty to" does not alter this in any way. A board is under a legal obligation to act in accordance with this subsection, regardless of whether this phrase is contained in the Bill.

Amendment 2 to amendment 14 in the name of Deputy Yates requires a health board to co-ordinate information in relation to all children in its area — this refers back to the first amendment proposed by Deputy Howlin — and not just those who are deprived, disadvantaged or at risk. This would not be appropriate because the responsibilities of health boards under this Bill relate solely to children who are not receiving adequate care and protection. These are the most vulnerable children in our community. For this reason section 3 provides that health boards shall focus their energies and attention on them. I would not be happy to see any dilution of this role, however slight. I regret that I will not be able to accept this amendment.

There are two more, amendments Nos. 3 and 4. Perhaps the Minister will surprise us.

I do hope to surprise the Committee, if not before Christmas, certainly after it. Under subsection (2) (b) of amendment No. 14, health boards are placed under an obligation to give due consideration to the wishes of the child, assuming, of course, that the child is of sufficient age and intelligence to express a view. However, the obligation is subject to the proviso "in so far as is practicable". This is a recognition of the fact that it is not always possible or practicable to consult the child or to have regard to his wishes. For example, where there is an immediate and serious threat to a child's safety it would not be practicable to consult the child about the making of an application for an emergency care order. Similarly, a health board could not be bound by the wishes of a child; otherwise what would a health board do in a case of an alleged sexual abuse if the child wanted to return home and resume living with the alleged abuser?

On the other hand the Deputy's proposal that a child should have a right to be consulted before any action is taken in relation to him is not realistic. This could serve to prevent health boards taking action to protect children in certain circumstances, particularly in an emergency. If for example, the board was unable to consult the child — under the Deputy's proposal — the board would be prevented from taking action to protect the child. I am sure this is not what the Deputy intends, but is seems to me that this could be the effect of what he is proposing. Having said that I want to make it clear that I support and accept the principle of children in care being kept informed of their progress and being consulted as far as possible before any decision is taken that might affect them.

Social workers, child care workers, foster parents and others who deal with children on a day to day basis are well aware of the importance of this. I would prefer to rely on their judgment and experience than attempting to set in place a very legalistic and bureaucratic system of reviews as seems to be envisaged by the Deputy in these amendments. Dá bhrí sin ní bheidh mé in ann iad a fhreagtar.

The Minister's amendment which is in the constitutional limitations within which we operate, is an improvement on the Bill but it really does not answer the question Deputy Yates and Deputy Howlin raised. The formulation of subsection (2)(b) directly arises from the fact that the constitutional position is unclear. It is set out in a way which ensures that subsection (2)(b) is not constitutionally infirm. It is sufficiently ambiguous to mean nothing at all and will only mean whatever individual judges think it should mean in so far as the Judiciary ever have to review the application of that section. Taking it that this section is designed to set out basic principles that are to guide the health board as opposed to basic principles being necessarily litigated, I am not sure how it clarifies anything for health board personnel or social workers. That is not the Minister's fault. It is the fault, in a sense, of a Constitution which dwelt too much on parental rights and not enough on children's rights. The section we now have is a product of that constitutional approach.

The Minister referred to two different court decisions with which I have a great deal of familiarity. The Minister referred to the more recent decision where the Supreme Court said that the courts can only remove a child from the care of parents if there are compelling reasons or if the allegations made against the parents fall within Article 42.5 of the Constitution where there is a physical or moral problem with regard to the parental approach to the children. That is all very well but the problem is that section 3 may have relevance to court proceedings but it also has relevance to other things. It is a general guide to how health boards are to approach things. This is not something that the Judiciary will interpret. The difficulty is if the Minister establishes, as he is seeking to establish, a child care and family support service. It is interesting to note that we say we are providing this without actually defining what that terminology means. I will come back to that in a moment.

If we are trying to protect the welfare of children, I do not know how social workers will be able to work, on the basis of the principles that they have to apply, when they have to intervene to protect children. You cannot take a child out of the care of a parent unless there are compelling reasons. I accept that and I do not think any of us would want to see children taken out of the care of parents unless there were serious reasons for doing so.

I have great worries about the Minister accepting the entirety of the new subsection (2) when he is not also taking on board one of the amendments Deputy Yates' tabled — amendment No. 2 to amendment No. 14. Subsection (2)(a) requires the health board to take such steps as it considers requisite to identify children who are not receiving adequate care and protection. The health board now have an obligation to identify children who are possibly at risk. There may be children who are at risk or whom the health board suspect may be at risk, but in respect of whom there are not compelling reasons to move them from their families, and there may be a need for an ongoing health board involvement. The gobbledegook of subsection (2)(b) which is required by the Constitution will not greatly assist health boards in determining what they should do in that context. How can a health board identify which children are at risk if they do not have an obligation to co-ordinate information from more relevant sources relating to children in their area?

The Minister said this Act applies to children at risk, children being neglected. I do not know if the health board social worker working within a health board area would know if a particular child is at risk. Do I wait until a child is presented to me already having been battered or allegedly sexually abused, before I get all the relevant information? How do I know if a child is at risk? It seems to me that we have a common purpose in this and we can argue the semantics of some of the amendments that have been tabled by Deputy Yates, all of which have a very distinct and clear intent, but a serious objection can not be made to amendment No. 2. If amendment No. 2 is not taken on board the health board cannot identify children who are not adequately receiving care. Will the Minister explain what steps he envisages health boards taking in the performance of their duty now imposed on them to identify children who are not receiving adequate care and protection? How will they identify them? When will they be identified? What steps will they be able to take? You do not take children into care if you are trying to discover whether they have been abused. You normally take them into care if you know they have been abused.

There is a very serious gap in this legislation. The Minister is imposing a duty on a health board without giving them the means to fulfil it, without requiring them to either obtain or giving them access to obtain information they require to fulfil that duty. One of the criticisms we made of the emergency legislation can be made of this legislation — Deputy Yates has a later amendment tabled and I want to put the Minister on notice that it is relevant to deal with this issue — is that a health board may believe a child may be at risk, may have been sexually abused, may have been physically assaulted, may simply not be receiving adequate food and may be starving to death but the health board may not know the position. Before they know whether to take the care proceedings or before they decide whether it is a good idea to get a supervision order, the health board may want to have the child medically examined.

This legislation does not impose an obligation on parents or confer a power on health board social workers to get a court order to require a parent, who is not willing to co-operate with a health board, to have a child brought along to a clinic, doctor or child psychiatrist for an assessment. It does not involve taking a child into care. It does not involve the health board having to make a judgment that a child has been abused. It would assist a health board in trying to identify if a child is receiving adequate care or protection.

The problem we have with paragraph (a) of the amendment — that paragraph (a) is identical to the original draft of the Bill — is that the Bill does not provide the means for the health board to identify in the way described if the child needs protection. If we accept that you cannot take a child into care unless there are compelling circumstances, you may want to find out whether there are compelling reasons to give a child protection. We need to address this. This reflects on this section and on later sections. I am raising this to be helpful so that the Department might look at amendments necessary in later sections to deal with this. I invite the Minister to take on board very specifically Deputy Yates' amendment No. 2.

In the context of amendment No. 4, I raise a very serious issue. I have no doubt that health board personnel, be they social workers, doctors or otherwise, who work in the child care areas at all times act in good faith. They are anxious to protect children, they do what they believe is right, and I believe in the majority of cases the action they take is correct, but there are occasions when things are done because people have made wrong judgments. At present, for example, if a child in care wants to see his or her parents and is being denied access, or access is being curtailed, or if the child is making requests, for example, to see members of the extended family or grandparents, it is left to the judgment of the individual social worker very often to decide whether the child will have that sort of access. Later in this Bill there is provision for access orders.

In these circumstances the courts by and large, will do what the social workers and doctors recommend and the social workers and doctors are not always right. It is very important that health boards be required to document the requests of children in care with regard to particular matters, such as access and contact with family and friends. There is no requirement in the Bill to ask for that to happen at the moment. This is important in the context of protecting children's rights and that protection can be given for children, but it does not in any way create any constitutional problems.

Deputy Howlin is right and Deputy Yates is right: the ambiguity in section 3 (2) (b) about having regard to the rights and duties of parents, whether under the Constitution or otherwise, and the welfare of the child expressed as a paramount consideration is legal gobbledegook I am familiar with, but it is gobbledegook that I do not think will greatly help social workers or health boards in making decisions or deciding how to implement Parts of this Bill. It will never really clarify the true position with regard to rights of children until we amend our Constitution and move away from concepts that people were familiar with in the twenties and thirties but which are somewhat less relevant today.

I concur wholeheartedly with the previous speaker when he said that when a person complained to a community welfare officer that children are not being adequately cared for, the community welfare officer might involve the social worker. All this time the parent of the child or children as the case may be is subjected to this kind of harassment although there might be no grounds for the allegations. Consequently, it is necessary to be most specific. For that reason I agree with amendment No. 2 to amendment No. 14. Deputy Yates mentioned the school attendance officers. In many areas there may not be any school attendance officers and we should consider whether in such circumstances school teachers could be helpful. I think it is necessary for the Minister to clarify at what level of health board personnel a decision is to be taken. For instance, the section refers only to the health board; there is no reference to officers acting on behalf of the health board. At what level are the officers representing the health board empowered to make a decision as to whether the child or children are receiving adequate protection? It is necessary to define and clarify that. Surely the health board as defined in the Bill can be represented by an executive. I support Deputy Yates' amendment No. 2 to amendment No. 14.

I am not going to repeat my point about constitutionality. Suffice it to say I feel this matter should be considered further after it has gone through the Oireachtas. In relation to my amendments Nos. 3 and 4 to amendment No. 14, I am quite concerned about the Minister's attitude. We are talking about vulnerable children who are in care, whose family situation has most likely broken down, they may have been abused, they may have been physically assaulted and they find themselves in care. They are very vulnerable children. It is absolutely vital that we do not presuppose what is in the best interests of those children because it is not always the case that adults know best. In some cases the children are able to speak up for themselves and articulate their own requests. I think there is a shorthand in what the Minister is saying since it is not always practicable to consult children it should not be done at all. I believe there should be legal protection for children in care and they should have rights of consultation and information, and not just be left with the assurance that in a couple of years' time when this legislation has gone through the Dáil that the Minister felt it was desirable.

They deserve legal protection, and it is only reasonable that there should be an obligation on social workers not to sweep anything under the carpet. They should be obliged to document those children's requests in case parents, when they are visiting once a week or once a fortnight, want to find out whether the child asked to be transferred to another centre or was unhappy with the foster parents. We are talking about people who will never make submissions to us, who are not part of any lobby group and who, we are told, may not know what is best for themselves. I fundamentally disagree with that. We are talking about children as defined in terms of age group, children up to 18 years. Are we saying that 16 and 17 year old children do not know what is in their best interests? I do not accept that point. If the Minister cannot accept this wording and gives a commitment to insert "where practicable" or "where possible" on Report Stage I will withdraw amendment Nos. 3 and 4 to amendment No. 14 because if they are simply pressed to a vote then I cannot raise them again on Report Stage. This is not just a matter of detail; this is a matter of fundamental rights for children who cannot be heard otherwise.

In relation to Deputy Howlin and the Ministers assertion that "shall" shall mean "will" fair enough. I am delighted to hear they feel that way about it but, with respect to them, it does not really matter what they think. What matters is what the chief executive officers of health boards who are left to implement this and what members of health boards feel.

In case people think that one swallow made the summer in relation to my example about dental, aural and optical care, I paraphrase section 53 of the Health Act of 1954 where it says that health boards shall provide assistance to incapacitated persons who cannot afford their own institutional care. This matter came up in relation to subventions payable by health boards for those in nursing homes. I assure the committee that the majority of CEOs take the view, even though it has the words "shall provide assistance", that it is very "iffy" as to who shall and who shall not have assistance provided for them.

I know two CEOs who deliberately have said that there is no statutory obligation on them to provide a dental service and the word "shall" is used. So, with respect, my practical experience is that "shall" does not mean "will". It may well be, as Deputy Howlin outlined, if it was tested in court it would mean "will" but we are dealing with the poorest section of the community who cannot often get their legal rights.

In relation to amendment No. 2 to amendment No. 14, the arguments have been well made. I think a major defect in what is proposed here is that it seeks that the health administration will deal with all child care services. We know that the problems of disadvantaged children are to do not only with their health but their welfare, their education, their environmental circumstances and so on, and we have spoken here about education, the Department of Justice and so on. The Minister says this will provide an obligation in relation to all children to coordinate the information. It would only provide the obligation to assimilate and co-ordinate the information to children who are the subject of reports of school attendance officers, who are deemed to be in need. I do not see, as Deputy Sherlock said, any other way of identifying the core group of children who are the subject of this Bill, unless there is that type of co-ordination.

Chairman

Before I call the next speaker, I would like to ask the committee how long do they wish to continue this evening. I am in the Members' hands.

Until 6.30 p.m.

Chairman

Is it agreed that we adjourn at 6 p.m? Agreed.

I want to comment very briefly on a couple of points that were made in relation to Deputy Yates' amendments. First, in relation to amendment No. 3 to amendment No. 14, he wants an allowance to be made for a child to initiate a review of the circumstances. I suggest that we should be very cautious about this. After all, children are at prime whim stage. This is obvious to any teacher, social worker or school attendance officer who deals with them and to allow a blanket right for children to initiate reviews I believe could have the potential to cause chaos. I would certainly caution very strongly going down that road from my knowledge of children in my capacity as a teacher. For example, it is invariably the case that if a child has any little whimsical problem in relation to a class, the child would like to be transferred to another class and any teacher will tell you about that. When you refer to any problems about in-care facilities or in-care locations, giving that kind of statutory right to children could lead to a plethora of applications for review which could, as I said, throw the system into chaos and divert the attention and the resources away from areas that are more essential.

In relation to the co-ordination of information, I do not know if Deputy Yates is aware, but there is at the moment what I believe to be quite a satisfactory level of co-ordination of information among professionals. For example, I worked in the inner city and I know that there the attendance officers are in regular consultation with the teachers. I know that teachers generally throughout this city — I do not have much experience of them in the country, except as a student myself — are very professional in the way they approach and deal with information in relation to the possibility of risk.

There appears to me to be a strong correlation between those who are committing acts of truancy or absenting themselves from school and children at risk. I am not saying that all those who are absentees from school are at risk but there is a fairly strong correlation between the latter and the former. There is regular consultation at professional level on an ongoing basis there. I can tell members also that I have become aware on numerous occasions where teachers and attendance officers have passed that information to school principals that it has readily been passed on to the relevant concerned agency.

I would be very concerned about a statutory duty — I ask the Minister for clarification on this in case I am not interpreting it correctly — being placed on teachers and attendance officers to forward information immediately that there is any suspicion of any risk in relation to a particular child. I would be much happier to allow the arrangement that is there, certainly for the present, whereby it is an informal one but it is dealt with at the highest professional level by these professionals. If you start going down that road — maybe we will eventually have to go down that road — of putting a statutory obligation on a teacher to report any suspicion he or she might have of risk in relation to children, you could have what I could only describe in reference to amendment No. 3 to amendment No. 14, a situation where teachers, finding that the onus or statutory obligation was on them, would report each and every incident. I do not know what is basically causing concern to Deputy Yates about the present information flow system which I am certainly aware is there.

I would be concerned, too, of course that in the country and to my knowledge in County Dublin — I have debated this many times with former Deputy Boland when he was Minister for Education and successive Ministers for Education — we do not have a school attendance officer system. I wonder what he would have had in mind there; perhaps the Garda Síochána? I will not mention specific areas, but I am dealing with areas where there is particularly acute disadvantage and I am aware from my knowledge that the information flow in relation to the Garda Síochána is quite good and effective.

I know that everybody would like to have an ideal system but I am not quite sure at this stage that we should go down the road of placing a statutory obligation on every professional dealing in any way with children to come forward and report each and every incident. Maybe that is not what Deputy Yates intends but certainly from what he says that is the understanding I have of it. I would prefer the informal arrangement to obtain.

In relation to informing children of their rights, paragraph (b) (ii) of the Minister's amendment is very clear. It has been my experience in dealing with children that even up to the ages of 14, 15 and 16 they can be extremely confused as to exactly what they want. It is not the case, except on very rare occasions, that children know what they want.

That does not in any way conflict with the child-centred curriculum that we have in primary schools because that is geared very professionally towards trying to get them to be more self aware, more creative and inculcate values of independence and thinking for themselves. I have never read a psychological report that would attribute to children the ability to be able to formulate an independent, mature judgment up to the age of 14, 15 and 16. I know that church authorities give them that judgment at the age of seven but we are in a different field here and I would certainly be very cautious. I accept that the Minister's amendment, having regard to age and understanding, is not denying that right but is putting the onus on the professionals to determine the level of understanding and perception the child has in a mature, judgmental way about his or her position.

I know the chairman is anxious to bring the series of amendments to a conclusion and I will try to be succinct in my comments. I have said what I want to say about the Minister's amendment and with a caveat on the constitutionality provision, I welcome the provisions in it. I hope the Minister will provide resources for it.

In relation to the first amendment to amendment No. 14 in the name of Deputy Yates, if we devalue the word "shall" in legislation, we are doing a disservice. I believe "shall" means just that, shall do, shall be done. Where there are instances of the law being neglected, it is our duty as legislators to protect the law. I know in this Bill, there are hundreds of "shalls" in it and if we simply remove them all and put in "be under a statutory duty to" I do not think we will achieve very much. We really need to ensure that the provisions we enact in the Oireachtas are actually carried out by those whose duty it is to do so.

In relation to the second amendment, I am very concerned that this amendment be made, I am at something of a loss and I know that all of us, in framing amendments to legislation like this, are somewhat at sea but I am learning all the time. Maybe the chairman would indicate to me how amendment No. 13 which it was decided would involve a charge on the State because it gave extra powers to the health boards was out of order, whereas amendment No. 2 to amendment No. 14, which also gives extra responsibility to health boards is in order. I welcome it being in order, let me hasten to add, but the perils of framing amendments to this sort of legislation are a little bit of hit and miss. Maybe there are clearer rules that will be explained to me in due course. It is important that this amendment be accepted and I support it for the reasons I have given.

I have listened with great care to the Minister's response to amendment No. 3. I would be loath to support anything that would constitute a barrier to intervention where intervention is absolutely necessary. We are all aware of cases where orders were quashed because a certain mechanism was not carried out to the letter of the law. I welcome the Minister's indication here that the views of children will be taken into account. Perhaps the Minister might reflect on it and come forward with his own amendment on Report Stage to incorporate that, by way of regulation or by way of directive to the health board rather than by statutory provision.

The fourth amendment deals with the documentation of the request of children in their care. This is a reasonable one and I do not understand why it cannot be accepted by the Minister.

I refer to the point that Deputy Howlin raised in relation to the distinction between amendment No. 13, which was not taken because it might be regarded as a charge, and amendment No. 2 to amendment No. 14 of the Minister. Perhaps the reason this one is taken — and I will take your guidance on this — is because it states in paragraph (a) that the health board shall take such steps as it considers requisite to identify and such steps may involve co-ordinating information from all the relevant sources. Perhaps that might take care of the problem. While I am on amendment No. 2 to amendment No. 14, I am a little bemused by the phrase "all relevant sources". I would think that there would be ambiguity there and that it perhaps might lead to a legal minefield in that if a child was taken into care and someone challenged it they may come along and say, "well you did not get information from a particular body which we feel is relevant "but perhaps the health board did not feel it relevant. I would like to hear Deputy Yates on that point.

The point made by Deputy Shatter in relation to the balance between the parents' rights and the children's rights is very well made. It is a difficult area. It is an area that has taken quite a lot of legal argument over the last number of years. Any student of law would always have recognised that in all legislation dealing with children, in particular problematical children, whether it be the Guardianship of Infants Act or the Adoption Acts or indeed this Bill, it is vitally important that we insert the phrase stating that the welfare of the child is the first and paramount consideration. That phrase has stood the test of time down the years.

While Deputy Yates may have adverted to the fact that the Supreme Court may have cast some doubt on that, we have put in the balance at the very start of that paragraph (b) with the phrase "having regard to the rights and duties of the parents". It is important that that is there. Deputy Shatter seems to believe, and he is probably correct, that it is not much assistance to a social worker dealing with a particular child. There is no doubt about it that the social workers, even after the recent Bill that went through the Dáil, have taken legal advice. In my own area they have had meetings with some very eminent senior counsel as to the legal niceties of that Bill. I have no doubt that in framing the guidelines, the Department and the health boards will have due regard for the previous decisions that are madevis-�-visthe balance between the rights and duties of the parents and also the child.

I agree entirely with Deputy Howlin and the Minister of State in relation to amendment No. 1. It is well established that "shall" puts a statutory duty on whoever it intends to put that statutory duty. We are just dealing in semantics by putting in "be under a statutory duty to". In relation to informing the children, while there would be a desire to take into account the wishes of the children — and the Minister has taken that into account — I believe that the amendment proposed by Deputy Yates is perhaps flawed in that there would be a difficulty in informing children of a very tender age, and some people may feel that even children under the age of 16 are not fit to make a decision or to be informed or to be involved in the decision-making process in regard to their situation. With regard to the point made by the Ministervis-�-vis emergency care orders, the problem of informing children in that respect would cause a problem in the future.

The Minister's subsection (2) is well drafted. As I said earlier, it is trying to find the balance between the duties of the parents and also the welfare of the child and also taking into account the wishes of the children and the fact that it is in the best interests of the child to be brought up in the family circle. That subsection is well drafted and should be acceptable to most people.

Subsection (3) is important because the system at the moment is very lacking in the support services for child care for problem children. I have no doubt that every Deputy in the House is aware of problem children in their respective areas and no one seems to know what to do with them. The services are not reacting properly. That section, while it is fairly bald, gives a fairly definite commitment to put in the support services that are needed.

I was going to ask about the suggestion that the health board should take such steps as it considers requisite to identify children who are not receiving adequate care and protection. That was before my colleague, Deputy Shatter, spoke and he certainly explained to a great degree what we are talking about here. It still begs the question, how do they identify these chldren.

Perhaps the Minister might give us some idea of what kind of direction will be given to the health boards. As Deputy Shatter pointed out, we are not just talking about legislation here that is going to stand up to the test in the courts. We are talking about legislation that is going to be a directive and a guide for the people who are going to be involved with children and child care.

With regard to a point made by Deputy Fitzgerald on Deputy Yates' amendments and specifically amendment No. 2 to amendment No. 14, I believe that this is eminently sensible. I would like to think that after all this discussion and debate the Minister would accept the need for looking at this again. Deputy Fitzgerald said that there should not be a statutory requirement or an obligation on those people dealing with children on a day-to-day basis to report abuses or instances which would cause them concern. I would question that because many teachers have said to me that they are concerned, and they realised over the years in classrooms that they were concerned by the number of children who had presented symptoms of sexual abuse and they did nothing about it. There is a case to be made for making it obligatory to report instances or allegations of sexual abuse of children. That is something I would support. Given the movement of teachers and the fact that children can be moved out of a class or teachers can move away or go on maternity leave or whatever, an ongoing source of information is needed to co-ordinate the kind of services, psychological services, the nurses, the doctors, people who are dealing with the family and with the children. This is a very important amendment and I support it.

On the further amendments, as a parent I certainly would have always down through the years consulted my children on anything that affected them. In good families now you do not adopt an authoritarian approach, you accept that even young children have feelings, views and opinions and it is important that they should be heard. If we are to replicate the best substitute care for children or treatment of children we should replicate that of good family treatment. Children should be consulted and informed, keeping in mind the emotional state of the child, I certainly believe that documentation of the request should be done I do not think this will be a very difficult thing to do. It certainly will not be very costly but in the overall information and reporting of children, the basic knowledge of their situation and their needs, it would be very useful to have documentation of what the child is feeling and what the child wants.

Section 3 (1) makes the situation quite clear. It imposes an imperative on the health boards to promote the welfare of children in their area. In effect, it imposes a statutory duty. Section 3 (1) does not exclude any steps which the health boards should take in promoting the welfare of children. Section 3 (2) specifies certain statutory duties on health boards which they must undertake. Again it does not exclude any steps which health boards are obliged to take to promote the welfare of children in their area. Subsection (1) insists that health boards take such steps as are necessary to promote the welfare of children in their area, so that nothing is excluded from the achievement of that particular objective. It is important that that is pointed out.

In regard to amendment No. 1 put down by Deputy Yates, the use of the imperative in a statute imposes a statutory duty on the health board and there is no need to go on to explain that the use of the imperative is a statutory duty. If, as he says, there have been times when the imperative has been honoured more in the breach than in the observance, that does not exclude the fact that the statutory duty exists when that legislation is still on the Statute Book.

With regard to amendment No. 2 put down by Deputy Yates, I fail to see how the co-ordination of information, subsequent to the identification of the children who require help, can assist in identifying the children in the first place. There is an obvious drafting defect in that the amendment refers to children and a child is defined in the interpretation section as being a person under the age of 18 years other than a person who is, or has been, married. Clearly it would not be within the power of any health board to co-ordinate information from all relevant sources relating to all of the children within the jurisdiction of a given health board area. I believe Deputy Yates would have to agree with that.

The practicality of the situation, is that the vast majority of people are extremely concerned about the welfare of children, be they teachers, doctors, nurses or social workers. These people, in so far as they possibly can, have helped and will now help the health boards to assist and to identify children who are in need of adequate care and protection. I will go further and say that this applies not just to the professionals but to the vast majority of reasonable and decent human beings.

In relation to amendment No. 3, I would be concerned about it with all due respect to Deputy Yates, while respecting what he is trying to do. He says he wants to inform children of their right to be consulted prior to any action or change in their circumstances and allow for a child to initiate a review of their circumstances. He makes the point, validly perhaps, that a child of 17 years can, for example, be consulted and he asked the Minister if he was saying, for example, that a child of 17 years should not be consulted. If I may put the converse to Deputy Yates, would he say that a child of four, for example, would know how best he should or should not be cared for in the future? I am sure he would agree that one cannot generalise and to that extent the amendment, which in my view actually purports to give adult status to children, is not reasonable or, to use the word I used earlier on, it is not just practical.

It is far more practical to have regard to the age, understanding and the wishes of the child and to realise that a child of 16 or 17 may well be able to decide or at least help substantially in giving guidance as to how best he or she should be regarded or helped by a given health board. It also recognises that a child of four, five or six years, who, incidentally, is not even recognised as having the use of reason, would not, in all justice and practicality, be in a position to assist the health board in this way.

The Minister's suggestion is clearly on a practical level and is far more reasonable and most reasonable people would agree with that. One cannot, in an imperfect world, introduce an amendment to this type of legislation which would purport to give adult status to children.

Could I ask one very simple question?

The Deputy always asks simple questions.

On occasions I do. The problem with the debate is that we are analysing section 3 and it is very difficult. One can envisage particular situations which might have practical application as a guidance to a health board. A lot of publicity was given about a week ago to a case involving a 13 year-old girl out of control who had been before the children's courts on a number of occasions, whose mother said that she was not able to take care of her child. The Department of Education, apparently, did not have any place to which the child could go and the District Justice had done everything within his power, within the varied options available to him, to provide for the care of that child under the legislation as it stands at the moment, until the child reaches the age of 16. If this section becomes operative, what role would the health board have in the context of that child or other children of a similar disposition with similar family problems and similar background problems?

At the outset I want to pay tribute to everybody for their very detailed contributions. We have teased out this section in great detail.

We have not dealt with the section yet.

No, but we are teasing it out. The identification of children at risk is an on-going process involving a wide range of professionals, for example, social workers, public health nurses and other medical officers, employed by the health boards. Referrals also come from teachers, the garda, neighbours and hospital casualty departments. This is a well-established process and will continue under this Bill.

I might also mention that the INTO and the Primary School Managers' Association are preparing guidelines for teachers on how to deal with suspicions of abuse. We do not visualise any mandatory reporting. This has proven of nuisance value in 60 per cent of the cases in the US. This was referred to in the Dáil debate and we believe that there are clear guidelines provided by the Department. We have tremendous co-operation from the other professional bodies. We believe this is the correct way to proceed. I want to make it clear — and I do not want anybody to have any doubt about it — that, in so far as it is practicable and in so far as is possible we want consultation with the individual child. There is no doubt about that. I would not want anybody to suggest that this should not be done as we definitely want consultation where possible.

Some of the points raised by Deputy Shatter, particularly the earlier points, can be considered later in the Bill. For example, the question of access and the assessment of children at risk, are the subject of amendments at a later stage. We will clarify these matters in the various sections as we come to them. The same situation pertains in the points raised by Deputy Sherlock who sought clarification in relation to who will carry out the various functions given to the health boards under the Bill. I would draw his attention to section 55 which confers these functions on the chief executive officer of the health board. Of course it is not intended that the CEO would perform these functions himself. The CEO will be able to avail of his powers under the Health Acts to delegate functions to other officers of the board, for example, social workers, medical officers and other professional people.

I concur with Deputy Ahern in his statement regarding the legal consultation that has taken place with regard to the Bill but particularly with regard to the Supreme Court case. This would cover some of the points raised by Deputy Shatter. I would like to quote an extract from an opinion given by an eminent senior counsel to the child care organisation, CARE, in relation to the interpretation of the judgment of the Supreme Court in the KC case as follows:

In my opinion the test is intended by the Supreme Court to be construed as meaning compelling reasons relating to the welfare of the child.

In other words, it is not a question of balancing the welfare of the child with the family rights of the child's parents. The welfare of the child remains the first and paramount consideration but, in so far as it must be presumed that the welfare of the child is to be found in the child's family, the child should remain in that family unless there were compelling reasons relating to the welfare of the child which required that it should not remain with the family. I have read comments on this case to the effect that it represents a radical change of approach by the Supreme Court in being prepared to sublimate the welfare of the child to the constitutional rights of the family, meaning to the constitutional right of parents under Articles 41 and 42. In my opinion this is not a proper construction of the approach and judgments of the Supreme Court in the case; what the Supreme Court did in essence was to read in a presumption which sprang from the rights of the child — which the child has had as the child of a family — in addition to the other constitutional rights of children as identified in G-v-An Bord Uchtála. The approach was a "child-centred" approach and the test of compelling reasons was intended by the court to relate to the interests of the welfare of the child. Undoubtedly, it has placed a stiffer onus on any body or person seeking to remove a child from married parents but the focus of the test of compelling reasons centres on the welfare of the child.

The main point I take from this is that the judgment involves a child-centred approach and this is fully in keeping in what we are attempting to legislate for in this Bill. Deputy Shatter raised the case of a particular girl, in my own county, in the city of Galway, which has been featured in the media. The girl in question was before the courts on a number of serious charges and responsibility for providing accommodation for her rested with the Department of Education in accordance with the relevant provisions of the Children Act, 1908. The Government are looking at the question of providing additional accommodation for young offenders, particularly young females, and it is their firm intention to deal with this situation as a matter of urgency. I am taking that a step further in this Bill. In this section we are giving flexibility to the health boards to acquire in a particular way, as suits a particular situation, the necessary accommodation they would need. We do not want to tie their hands in that area. This would cover the point made by Deputy Shatter.

The Minister in his last sentence hit on a problem that we have with the Bill. It is a problem that remains in the context of the health boards' operations. Section 3 (1) provides for the health board to promote the welfare of the children in their area who are not receiving adequate care and protection. In the context of the young child to whom the Minister referred, I do not want to be specific in relation to that child beyond the fact that the case highlighted a problem that we lost sight of, which is the need to co-ordinate under one ministry all legislation in relation to children and the need in local areas to have a coordinated approach to the provision of care and to take children into care. Whether a child of 12 or 13 is taken into care as a result of a criminal prosecution or as a result of a health board moving to take the child into care, is often more an accident than anything else; the child who is taken into care under a health board care order could just as easily be taken into the care of a health board following a criminal prosecution because most children taken into care tend to come from deprived communities or deprived families.

I deliberately raised that question — not to create any difficulty for the Minister — so that we might further reflect on it before Report Stage. It does seem to me when this Bill becomes operative — and I think it is correct that this should be the case — that a child in that position would fall under the aegis not of the Department of Education, but under the Department of Health. Our problem is that in the context of this Bill it would fall under the aegis of the Department of Health represented by the health board within the health board area. There could be a conflict as to whether it is the Department of Education who have an involvement or the Department of Health. That conflict derives from the fact that we are only dealing with the taking of children into care in this legislation. We are not dealing with children under criminal law.

Following the enactment of this Bill, will there be an obligation within each health board area to provide the facilities to deal with children caught in the type of situation in which that child was caught? That child is an offender and also a victim of her own circumstances.

Deputy Howlin made a point, about the word "shall" and about imperatives. Section 3 (1) says: "It shall be a function of every health board to promote the welfare of children". If that is to be truly meaningful it means that health boards will have to provide facilities for children such as that young girl within each of their areas and central Government will have to provide health boards with the resources to provide such facilities. Last week we saw that central Government have not yet given even the Department of Education the resources to provide the facilities on a nationwide basis. I question whether there is the commitment to provide the financial wherewithal to health boards to provide these type of facilities within health board areas. That is an important point and worth raising in the context of this debate.

Chairman

I remind the Deputies that we have gone over time but I do not want to restrict the operation of this committee in any way, good, bad or indifferent.

I am willing to withdraw amendment No. 1 but I will press amendments Nos. 2 and 3 and I will be retabling amendment No. 4 on Report Stage.

Could Deputy Yates deal with the points I have raised in relation to all other relevant sources? What are his views in relation to that?

I take the point made by the Deputy but I have already outlined what I consider to be relevant sources in terms of those under the aegis of the Department of Education including both the mainline educational services, the youth services but also those in the Department of Justice. It depends how you define "relevant". I would be open to an improvement in that but I feel the basic point which I am trying to seek in amendments Nos. 2 and 3 is worthy of adjudication.

I would like to respond to Deputy Shatter; he is entitled to a response. I have to say that I do not think it is feasible that all the laws and responsibilities for child care can be put under the one ministry because the functions and role of the Minister for Educationvis-�-vis education, the Minister for Health vis-� vis health, the Minister for Justice vis-�-vis criminal law are totally different. I do not think it would be possible to encompass the lot under one ministry. There may be an overview responsibility but when it boils down to law — I am talking to a number of lawyers here, I have no experience whatsoever in that field — I do not think it would be possible for us to put it all under the one ministry.

The primary function of our child care services is to try to ensure that children will not come into conflict with the law. In reference to the situation pertaining to the case which the Deputy has referred to, the girl was before the courts on criminal charges. That is the function of the Department of Education. As a result of that court decision the Government are considering the matter at the momentvis-�-visthe allocation of further resources to the Department of Education to ensure that there is adequate accommodation for situations like this. There is no doubt that there should be. Once the court had discharged that girl to her home obviously it was then a matter for the health board. We would hope, after this Bill, the flexibility will be there for the health boards to be able to address a situation like this.

I do not wish to prolong this in any way but it seems to me that even under existing legislation and under the Children Act the local health board could, in fact, move in the context of that girl in the light of her mother's statement that she needs help in caring for her child. I do not like debating an individual person in public and I do not want to say any more than that. I am concerned that it is not simply a case when you deal with young teenagers — the under-14 or 15 age group going down — you can be criminalised in Ireland at the age of eight or nine.

There is no strict dividing point between a young child who comes into a children's court charged with a criminal offence and a young child who ends up being taken into care through care proceedings. The difficulty we have at the moment is that it is dealt with piecemeal, partly by the Minister's Department; indeed things have greatly improved since the Department of Health have had a greater jurisdiction in this area than was the case some years ago. There is still too much in the Department of Justice in relation to children. I would like to see the Minister and his senior Minister — we would support them in this — saying that the area of juvenile law, justice and child care should all be in the Department of Health. If we did that we would have more comprehensive legislation in these areas that would really work. I believe we will still have a piecemeal situation even after we have enacted this Bill.

I can appreciate very much what the Deputy is saying and perhaps when this committee has concluded its deliberations and put through a good Bill we can address that situation.

Amendment, by leave, withdrawn.

Chairman

The Deputy is pressing amendment No. 2 to section 14 and amendment No. 3 separately.

Yes, I move amendment No. 2 to amendment No. 14:

In the last line of subsection (2) (a), after "protection" to insert "and co-ordinate information from all relevant sources relating to children in its area".

Amendment put.
The Committee divided: Tá, 5; Níl, 8.

  • Fennell, Nuala.
  • Sherlock, Joe.
  • Howlin, Brendan.
  • Yates, Ivan.
  • Shatter, Alan.

Níl

  • Ahern, Dermot.
  • Fitzpatrick, Dermot.
  • Coughlan, Mary.
  • Jacob, Joe.
  • Dempsey, Noel.
  • O’Donohhue, John.
  • Fitzgerald, Liam.
  • Treacy, Noel.
Amendment declared lost.

I move amendment No. 3 to amendment No. 14:

After paragraph (c) of subsection (2), to insert the following paragraph:

"(d) inform children of their right to be consulted prior to any action or change in their circumstance and allow for a child to initiate a review of their circumstances.".

Amendment put.
The Committee divided: Tá, 5; Níl, 8.

  • Fennell, Nuala.
  • Sherlock, Joe.
  • Howlin, Brendan.
  • Yates, Ivan.
  • Shatter, Alan.

Níl

  • Ahern, Dermot.
  • Fitzpatrick, Dermot.
  • Coughlan, Mary.
  • Jacob, Joe.
  • Dempsey, Noel.
  • O’Donohhue, John.
  • Fitzgerald, Liam.
  • Treacy, Noel.
Amendment declared lost.

I intend to retable amendment No. 4 on Report Stage.

Amendment No. 4 to amendment No. 14 not moved.
Amendment No. 5 to amendment No. 14 not moved.
Amendment No. 14 agreed to.

Since we have made such good progress we will conclude the section. There is only one amendment left.

We all indicated earlier on that we wanted some broader discusion on the section. We would require more than a few minutes to do that. I suggest we adjourn until 5 p.m. next Tuesday.

I support that because amendments Nos. 11, 12 and 13 require discussion on the section.

Seeing it is near tea time we will not disagree.

Chairman

Before the committee adjourns, for future meetings do the committee wish to have an open ended meeting or would they like to place a time limit on it? We can either decide on it now or leave it until the beginning of the next meeting.

I propose it be left to the discretion of the meeting at the time.

Chairman

Is that agreed? Agreed.

Progress reported; Committee to sit again.