Amendment No. 16 is ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 16 not moved.

I move amendment No. 17:

In page 6, subsection (1), lines 40 and 41, to delete "that he is unlikely to receive unless he is taken into its care" and substitute "where it appears to be in the better interests of the child to do so".

I feel that the primary interest of the child should be the only criterion used. My wording is more positive and the better interests of the child would be served if it was accepted.

The purpose of this section is to provide a statutory basis for what is usually referred to as voluntary care. This is where children are received into care with the agreement of their parents. It also covers the admission of children who have been deserted or abandoned. It is the most common avenue of admission to care. About 65 to 70 per cent of children in care enter into care in this way.

The purpose of the phrase "that he is unlikely to receive unless he is taken into care" is to require the health board, before taking a child into care, to investigate whether the child's need for care and protection can be met by any other means, short of admission to care. For example, it might be that the provision of a home help or social work support would help alleviate family difficulty and render admission to care unnecessary. In the case of an abandoned child the board might try to arrange to have the child looked after by relatives. The phrase acts as a kind of filter to prevent inappropriate or unnecessary admissions to care.

Of course, if having considered the available options, the health board is satisfied that admission to care is the best or only course for the child, then there is no obstacle to this. Indeed, the board would be under a duty to take the child into care in such circumstances. I would be concerned that the effect of the Deputy's proposal would be to remove this safeguard and make admission to care too readily available as an option. This runs counter to the principle of minimum intervention which is one of the cornerstones of our child care policy. In the circumstances, I regret that I will be unable to accept this amendment.

Every proposal put forward so far seems to have met with the same reaction from the Minister, regardless of how well-meaning the proposal seems to be. The blanket refusal of every amendment proposed so far is disappointing. The moot point I am trying to get across is that the interests of the child should be held to be paramount. I certainly accept, and have argued in previous sections, that where a child can remain in a family obviously that should be preserved, but the section, as it stands, does not allow for a situation where a child is, in fact, receiving care and protection, but where the best interests of the child might be served by taking some other course of action. That is the point I want to get across. The best interests of the child should be the criteria and not that the health board has the power to intervene as a last resort where there is no alternative. An application should be made on the basis of what is best for the child and not on the basis of intervention only when there is no other alternative.

There should also be a proposal that the health board should have to show that they can offer better care when they are applying for a care order. I would welcome an inclusion of a clause in this section to require, if there is an application from a health board, that they prove that the protection, care and shelter they are offering is superior to anything else on offer. I want to enshrine here the paramount interests of the child. My amendment achives that better than the existing phrase.

Let me assure the Deputy, and indeed all the members here, that we take every proposal on its merits, and we respect the right of the members here to put forward whatever amendments they see fit.

And then reject them.

I try to outline as clearly and as logically as I can the reasons they cannot be accepted. I have not as yet considered all the amendments that have been put down but I hope some of them will qualify for inclusion. Do not take that as an open invitation to put down more amendments, or anything like that, but Deputies can be sure that we give amendments full consideration. I would prefer to be able to accept every amendment, and let us have common agreement and have the Bill through, but there are certain things of which we have to be careful. There is certain legal advice available; there is certain advice available from the Department and from the Attorney General, and we must take all that into acount.

I want to emphasise again that this section is purely about voluntary care, not care orders. It is for the health boards to decide what is best to achieve in a voluntary manner for the child. The right of the child is of paramount importance. We have all agreed on that and care orders do not come into this section: we will be dealing with them in a later section. They are very clearly defined and we are not going to debate them at this stage. We want to ensure that we do not infringe on either the rights of the child or the discretion of the health board in a voluntary situation, to make whatever decision can be agreed on in the best interests of the child. That is the principle enshrined in this section.

I too would like to think that we would look positively at all amendments before us and treat them on their merits. I would also like to think that perhaps there will be more meritorious amendments before us than this one. There is an implication in what Deputy Howlin is seeking here that the health board should have to demonstrate that it can provide more suitable or appropriate care when applying for a care order. There is a further implication that the health board is in fact incapable and not on top of its job. If we were to accept that scenario, we are at nothing here. On this amendment we are at the nitpicking stage.

I have made the case. I certainly am not nitpicking. It is fundamental that we get it right this time after 80 years. It is important that we deal with this, section by section and line by line. I am still convinced that the phrase I am putting in would better protect the child, which is my only objective in this whole exercise.

Looking at Deputy Howlin's amendment from a grammatical point of view, he probably would need to put in "and where it appears". If the Deputy is pushing the amendment, he would need to amend his amendment to that effect. What the Deputy is proposing is probably putting a greater onus on the health board to decide, in nearly every case that comes to their attention, on the better interests of the child. The Minister's suggestion is probably far more reasonable in the circumstances. Deputy Howlin's amendment, in effect, is asking the health board to be judge and jury. Ultimately, that may be decided by a court. The Minister's phrase "where it is unlikely to receive" would leave it open perhaps to the parents or to some interested parties to decide that the health board did not make a proper decision in a particular case. It would probably be better if the Minister's suggestion was left in rather than Deputy Howlin's.

The important point is that the section is designed to cater for people who are being taken into care on a voluntary basis. That is where the distinction should be drawn. Deputy Howlin's amendment is more in keeping with the section where care orders are to be sought in the courts. In this section we are trying, with the co-operation of the parents, to assist the parents. The section is there to provide care for the child and to leave no stigma or reflection on the parents, for instance, where a parent is ill or some home circumstances prevail so that the child cannot receive proper care in the home. That is what the section is about rather than the more extreme cases where a court order would be necessary. For that reason, the section proposed by the Minister is probably more reasonable, and will probably work in the better interests of the child if it is left as it is. I ask Deputy Howlin to consider that.

My grammar can be corrected, but having reread it, it is quite clear still. The section, if amended would read:

4 (1) Where it appears to a health board that a child who resides or is found in its area requires care or protection where it appears to be in the better interests of the child to do so, it shall be the duty of the health board to take him into its care under this section.

If there is an additional word required, let us put it in, but that does not take away from the thrust of what I want to do.

I honestly believe, listening to the other comments, that the onus on the health board is greater under the existing provision than under the amended provision. The onus on the health board "where it appears to a health board that he is unlikely to receive care" is a value judgment in any event. It is clearer and easier to say "where it appears to be in the better interests of the child". That is a value judgment that the health board are quite competent to make.

What Deputy Howlin has suggested is that in any case where a child might be better off in the care of health boards than in the care of its parents, the board would be obliged to intervene and to take the child into care. This could lead to a sweeping intervention and could result in vast numbers of children being taken into care. For example, if the Deputy's amendment were agreed it might be argued that all children of single mothers would be better off in the care of a health board. This is the difficulty.

I would not argue.

We are not arguing either, but some other body may.

Amendment put and declared lost.

Amendment No. 18 is out of order as it involves a potential charge on the Exchequer.

Amendment No. 18 not moved.

I move amendment No. 19:

In page 6, subsection (2), line 43, after "health board", to insert "without a court order".

Since I tabled this amendment I have heard the discussion on section 4 and have a greater understanding of it. However section 4 (2) has me somewhat puzzled. It seems to me — and perhaps the Minister can clarify this — that if a child is abandoned — left in a toilet in Dublin — and if there is no one claiming parentage or guardianship of that child, and if the health board takes this child into care on a voluntary basis but subsequently, as outlined in subsection (2), a parent wishes to have the child back, then section 4 does not become operative. I wonder is that wise? Should the balance of care of the child not lie with the health board in those circumstances?

I am not pressing this amendment very strongly pending what the Minister might say. It strikes me in terms of having a balance of care for the child, that if the child is unclaimed, abandoned or deserted, it is only proper that even if the parents wish to have her back, they should only do so through a court process. The abandonment of the child should mean that the care of that child falls into the control of the health board. I would be interested to hear the Minister's view on it. Would it be more appropriate to delete subsection (2) as it stands because it seems to confer on parents total rights that may not be justified.

First, it is the responsibility of the local health board where the child is abandoned to take immediate action to look after the welfare and the well being of that child. The Deputy seems to be under an impression that subsection (2), which provides that

Nothing in this section shall authorise a health board to take a child into care against the wishes of his parents. . . .

applies to all admissions to care under the Bill, and he assumes that a health board could not seek a care order unless the parents agreed. Clearly this is not the case. The provisions I just quoted only apply to admissions to care under this section. As I mentioned earlier this section provides for what is commonly called voluntary care. If it is to be voluntary then there must be parental agreement. The only exception is when the parents' whereabouts are unknown, as in the case of an abandoned child. However, the parental veto on admission to care only applies to admissions under this section. It obviously could not apply where the child has been taken into care on a compulsory basis through the courts. There is, therefore, no need for this insertion and I do not intend to accept the proposed amendment.

To seek further clarification on what the Minister of State said, where exactly in section 4 does it say that it is only in circumstances where voluntarily the child is put into care? If you read the last subsection, it does seem to envisage that the operation of this section would arise where a child was found abandoned.

Perhaps if I clarified the entire section, particularly subsections (1) and (2) it may help to clear the situation. The purpose of the section is to provide that in certain circumstances a health board may receive children into care without reference to the courts. It is envisaged that about 75 per cent of the children entering care would be admitted under this section, the remainder under court orders. Subsection (1) imposes a duty on a health board to take into its care any child who requires care or protection that he is otherwise unlikely to receive.

Before taking a child into care under this section a health board would be required by section 3 (2) (b) and (c) to consider whether the child's need could be met by providing the family with social work or other support services or by arranging to have him cared for by grand-parents, relatives or friends of the family. Subsection (2), which is the one we have been discussing, makes it clear that a health board cannot take a child into care against the wishes of his parents or any personin loco parentis, nor can it keep a child in care if they wish to resume care of him. The negative formula “against the wishes of his parents” rather than a positive formula such as “with the consent of his parents” is necessary because in many cases the parents may not be available to give consent, for example, where they have deserted the child. Where parents are available their prior consent will be required under this section. The expression “any person actingin loco parentis” is intended to cover grandparents, relatives, older brothers and sisters or any other person who is caring for the child in the absence of or at the request of the child’s parents. The health board would not be permitted to take a child into care against the wishes of such person.

Where a health board considered that a child needed to be in care but the parents or personin loco parentis would not agree to place him in care voluntarily, the board would have to seek a court order to have him placed in care. Similarly if the parents wished to resume care of the child and the health board considered that this would not be in his best interests, the board would have to seek a court order to authorise it to retain the child against their wishes. I hope that helps to clarify the matter.

Only in part, we will come back to this child who is left abandoned in a toilet in Dublin. If the child was taken into the care of the health board under section 4, and if subsequently an older brother or some one actingin loco parentis was to claim that child, would the health board automatically have to give back that child or would they then have to take care order proceedings under another section? Surely there should be protection for the child in so far as it would be up to the parent or the person acting in loco parentis to establish to the court that they were worthy of taking the child back into care and that the child would not, as outlined in subsection (2), automatically go back to that person.

If Deputy Yates' suggestion were to be adopted it would give a judicial function to a health board and I do not think, in a matter as serious as this, you could contemplate doing such a thing.

As regards what Deputy Yates said initially that the balance of care should be with the health board, I am not a legal representative but I think that would also cause constitutional difficulties. We talked earlier about the primacy and the paramountcy of the parents in cases like this. The second point the Deputy made was that the child should only be given back by court action. I do not think any of us would envisage that a child who was abandoned could be handed back automatically if the parents turned up at a health board door or at a home and said they wanted the child back. At the same time I am sure the health board would establish quite clearly that the child was going back to a proper home. A young woman having given birth may suffer from post-natal depression and may do things she will regret later. In those circumstances it would not be right to automatically have to go through a court procedure to get her child back. Deputy Yates' amendment will add a lot of complications to the section and therefore, it would be better to leave it as it is.

I look forward to the Minister's explanation of this point. There is a lot of merit in what Deputy Yates said. While none of us would want to devolve on the health board a judicial function — that would be in violation of the Constitution — there is a case to be answered here. If a child was taken into care under this section and if somebody presented themselves at the door of the health board would he automatically get custody because there would be no longer any legal right for the health board to maintain the child in custody? I know it is within the ambit of the health board to apply to a court for a care order, but in the meantime the child is handed back to somebody who has abandoned it. Surely there should be some holding power at least, until some judicial authority makes the decision. There should not be an automatic requirement that the health board relinquish care under this section.

I realise that Deputy Yates is very concerned about children who are abandoned, but from a practical point of view if we take away the legislative and judicial role, a health board would never give back a child who was abandoned if the parents were seen to be unfit. We must ascertain why the child was abandoned in the first place. As Deputy Dempsey said, many young women who have had children have panicked. This is not a huge problem but when it happens; these women suffer psychological traumas. The health board could not and would not drag a woman like that through the courts just because she panicked. She may get support from the health board or, from a psychological point of view, from social workers and her parents but a wide perspective has to be taken into consideration. The health boards, despite what many might think, are very caring institutions and have worked very well regardless of the fact that no new legislation in this area was introduced since 1908. It would be a stranglehold on the health board if they had to go to court every time a child was abandoned. This section also includes children whose parents are ill or where there has been a death in the family. A health board would have to ascertain, and be able to follow up, the problems that would come to the fore if a child was abandoned. They would not want to leave a woman in limbo by not following up the case.

Deputy Yates' amendment is reasonable. From my experience with health boards, some people can become too involved in a case and many times they do not make a balanced judgment. I believe a person with judicial standing would make a much better evaluation of some of the facts.

Everything that needs to be said about this amendment has been said. I support it. The explanatory memorandum on section 4 is quite explicit and I do not think there is any dispute about the voluntary taking into care of a child but I am not entirely happy about the procedure with regard to abandoned children, specifically abandoned babies. We have all seen cases and newspaper headlines about babies who are abandoned after birth and one can only feel compassion and the need to support the mother in those instances, but what procedure exists for returning the child, who would be in the care of a hospital or other institution for some time, to the custody of the mother? In most instances the mother might have panicked because she did not have any support but in other cases there could be outright rejection. In the interim period what is the procedure for giving this child, usually a very vulnerable baby, back to the care of the parent? Perhaps the Minister would explain.

Deputy Yates' amendment has aroused great contributions and I appreciate them. Deputy Coughlan interpreted and dealt with the matter very well. If a child is abandoned it is the responsibility of the health board in whose area the child is abandoned to look after the well being and welfare of that child immediately. If a parent or parents come forward it is up to the health board to establish the bona fides and the suitability of those parentsvis-�-vis the return of the child to them. That can be done by voluntary arrangement between the health boards and the parents. If they return the child to suitable parents and they are satisfied with their bona fides, there can be voluntary agreement vis-�-visthe supervisory role of the health board, accessibility and the visiting opportunities of health board staff to see the child at any time they so wish. On the other hand, if the health board are not satisfied they can resort to applying to the court. If there is sufficient pressure from parents whose bona fides have been established and the health board are not satisfied with their suitability to return the child, they have the option of going to the court and getting an order, whichever order the court deems to be suitable on the occasion taking into account the wellbeing and the welfare of the child. That is the system that will operate as a result of this Bill.

The Bill is very long and complex and it is very hard to take one section without also taking others. The section we are dealing with covers the voluntary situation. I would like to refer to section 11, amendment No. 58, paragraph (b) which reads: "there is likely to be such a risk if the child is removed from the place where he is for the time being,". If the health board is satisfied that the parent or parents are fit people the child could be allowed to return home. If the health board deem the parent or parents not to be suitable or fit people, then the health board could either seek a care order under section 15 or, if the safety of the child is in doubt, seek an emergency care order under section 11. Section 11, amendment 58, paragraph (b) proposes to enable the health board to keep the child in the type of circumstances Deputy Yates referred to. I hope that helps to clarify the matter.

I think the Minister has missed the point I tried to make earlier. This section caters for abandoned children. If an abandoned child is brought into care under section 4 it is a requirement under subsection (2) that he be handed back forthwith as soon as a parent or somebody actingin loco parentisarrives at the door of the health board. We know that it is the prerogative of a health board to apply to the courts under section 11 for an emergency care order or for a care order in the normal way, but that is not the point. The point is that if somebody has been abandoned and is taken into care under section 4, is it right that we would make it a binding legislative fact that the health board must hand over the child because they cease to have legal authority to hold the child in care under subsection (2) if this subsection is enacted?

Notwithstanding the other options that are open to the health board which you have outlined and we have acknowledged in advance, it still is a requirement that the health board would no longer hold the child in care. There is no holding order until such a determination is made. Under subsection (2) the health board would cease to have legal authority to hold the child if a parent arrives.

I support what Deputy Howlin says. I have listened carefully to what the Government side have said. Deputy Coughlan said the health board would not release a child. The Minister of State said the health board would establish the bona fides of the parents. I would just like to read what this section says:

nothing in this section shall authorise a health board ...... to maintain him in its care under this section if his parents or any such person wish .....

The health board does not have any choice in this matter. They have absolutely no discretion. The section states that if it is the wish of the parent then they cannot maintain that child in their care.

The Minister has made reference to amendment No. 58. That of course is what I am trying to do because I am saying "without a court order". It is such a court order I have in mind that would subsequently facilitate the continuing of the child in care. I do no think that in the case of abandonment as Deputy Howlin has outlined anybody has the right to automatically obtain the child back and that is the automatic right conferred in section 4 (2). There is no point giving me assurances about what would actually happen and saying everybody is really very sensible about this. We can only deal with what we are legislating for. If we were the legal representatives of the parent in question seeking to get the child back, we would be quoting to the Justice or to the health board what is in the Act and not what assurances we are getting here today.

The subsection is badly worded. It gives absolute rights to parents. If the Minister would be prepared to reconsider this at Report Stage I will not pursue the matter now. I feel there is a point of substance here.

I share the view expressed by the members of the Opposition that subsection (2) would seem to contradict the powers given or the requirements and obligations established in the first part of that section. I cannot see why there would be an objection to include in it an amendment along the lines proposed by Deputy Yates, perhaps with specific reference to the powers conferred in later sections. Without that the section may undermine the powers given elsewhere.

In the case of a child taken in under this section, where there has been no need initially to take an order because there has been an absent parent or whatever, there are many parents who will wish to resume care of their children and who may neglect them as they have in the past and it will be necessary to establish their bona fides for releasing the child back into their care. To prevent this being the kind of loophole Deputy Yates refers to, it would be desirable to have this amendment included in this section. I hope the Minister will take up Deputy Yates' suggestion.

A point of information, are you anticipating that a court order will have to be taken out on every child who is abandoned. It appears that it is going to be a compulsory order as opposed to a voluntary one.

To clarify that: as I understand it, section 4 (2) gives an automatic right to a parent or somebody acting inloco parentis to resume the care of that child and there is no way the health board can do anything. The section specifically states that if it is against the wishes of the parents the health board cannot maintain him in their care. I feel that is going too far. What is required is to put a check in the system so that the best possible decision can be made in the best interests of the child.

I may not be veryau fait with the workings of amendments, but the amendment with all due respect is not doing what it is supposed to do.

That was the very point I was going to come in on. While I have some sympathy with the arguments made by the people on the opposite side of the table, I feel that the subsection as it stands places an automatic right on the parents to get back the child in that type of situation. Deputy Yates' amendment without a court order does not take care of the situation because at that stage the health board would have to go to a court or a District Justice and perhaps there would not be one available at that time.

One has to refer to Part III and the protection of children in emergencies. It may well be that in that Part there is not a proper section to take care of the child who may be abandoned in a toilet in Dublin. Section 10 gives provision for a garda to take the child into safety and then provides for an application for an emergency care order to be made. The health board has to go to a District Justice to get that, but there is the intervening period when the child is taken in by the health board. Under the section as it is, or even as it would be when amended, there would be a time lag. That would cause the problem. I suggest that the Minister and his Department consider introducing an amendment to take care of that situation.

Mr. Fitzgerald

Am I correct in interpreting your amendment as actually strengthening the rights of parents rather than otherwise? Maybe I am misinterpreting this and, if so, enlighten me. According to the section nothing is this section shall authorise the health board to take a child into care against the wishes of its parents without a court order. Does that mean that in the absence of a court order there is absolutely no discretion whatsoever? The deletion of "without a court order" surely by implication, would allow an interim period for discussion and negotiation. You may question the sentiments expressed on this side by some of my colleagues in relation to establishing the bona fides and the process by which the interim could be dealt with where, say, somebody is taken into care, abandoned, then the parents or personsin loco parentis arrive on the scene and wish to claim back the child. What we are all concerned about is what happens in the interim? I am not too sure that the amendment does not strengthen the hands of the parents even further.

Without referring to other sections in the legislation — we should concentrate on section 4 (1) and (2) as we have attempted to do — the Minister has not allayed the fears on this side of the table that there is a clear inconsistency. Under section 4 (1) we see it as the duty of the health board to take certain children into care, the abandoned child or the child for whom the parents have not shown the necessary care and attention, yet under section 4 (2), irrespective of the bona fides or the behaviour of the parent, once they can establish that they are the lawful parents or somebody actingin loco parentis they can have the child removed from care forthwith. There appears to be a clear inconsistency between subsection 4 (1) and subsection 4 (2) and I think there is an element of protection being offered in the amendment. The explanatory memorandum states specifically that section 4 should cater for children whose parents are unable to care for them. We are dealing on the one hand with parents who are clearly unable to care for their children and on the other, we are giving power to the parents under section 4 (2) to automatically remove the children from care. I believe there is an inconsistency here which the Minister has not fully come to grips with. I hope before we leave this section that he can explain why a certain consistency which should be in section 4 clearly is not there.

I am convinced that what Deputy Yates amendment is setting out to do is achieving the opposite. Subsection (2) as amended would read:

Nothing in this section shall authorise a health board without a court order to take a child into its care . . .

This, of course, would make it incumbent on the health board to obtain a court order prior to taking a child, even in a voluntary situation, into its care. That would defeat the objective which Deputy Yates seeks and if he wishes to press an amendment in this regard, it is quite clear that that wording would have to be changed substantially. It would have to be changed to provide that the health board could exercise what I can only describe as a judicial function; that is, the health board would effectively make interim care orders. In my view, without in any way exaggerating it, that would decidedly affect the fundamental rights of the family, the parents and people who arein loco parentis. Without doubt that would be unconstitutional. The only people who can make care orders are the courts and to suggest that a health board should be allowed make a care order would be to transfer a judicial function to a health board. That has never happened in the history of the State and I do not think it would be a good thing to start now. The amendment defeats the Deputy’s stated objective and would confer a judicial function on a health board. That would almost definitely be deemed to be unconstitutional by the very courts from whom we would be taking that function.

The waters are beginning to be slightly muddied. The issue which is attracting a growing consensus is that we do not wish to have a situation where an abandoned child is taken into care under section 4 of this Bill and is automatically handed over forthwith to anybody arriving at the door of the health board and saying: "I am the legitimate parent", with no other discretion by the health board but to hand the child over. That is what we want to avoid. I do not think we want to give judicial or quasi-judicial roles to health boards. The best way to achieve that would be if the Minister were to bring in his own amendment on Report Stage because I am not convinced that Deputy Yates' amendment achieves that objective. Obviously the net point of the amendment I would urge the Minister to bring in would be to allow the child to ramain in the custody of a health board pending a judicial decision on the best interests of the child.

I am not as up to date as I have been at other times on this issue having been asked to stand in at short notice, but one of the problems in this section is that we are trying to achieve two things which may need to be dealt with separately. The first is the abandonment or serious neglect of a child by an absent parent who may return. It seems that you are also trying to include the voluntary situation where a parent would hand over a child because they are unable to care for it for a period, they might wish to have the child returned to them at any time they request. It is quite clear that they are entitled to have their child returned and that they are reasonably caring parents or personsin loco parentis. This section seems to be trying to do two or three things which I consider might be achieved in separate sections requiring different responses. How one copes with the abandonment situation is not clear. Perhaps the Minister would clarify if this is the area that deals specifically with voluntary placing by parents of a child in care. I think it would be helpful if the two areas were dealt with separately by the Minister on Report Stage and in this way we may be able to get over a lot of the problems that have emerged here.

The Bill has to be taken in its totality. We are dealing with the voluntary care aspect in section 4. What we are saying in section 4 — if I could give a synopsis of subsection (2) — is that a health board cannot take a child into its care against the wishes of its parents or of any person actingin loco parentis, or to maintain him in its care under this section if his parents or any such person wish or wishes to resume care of him. We are talking about the voluntary situation where parents, in agreement with the health boards, have agreed on a voluntary basis to allow the health board to take care of the child.

If a child is abandoned the responsibility clearly rests with the local health board to look after the well being and welfare of that child. There is no such thing as automatic return of that child to its parent or parents unless the health board is absolutely satisfied that that person is a fit person to take charge of that child. Deputy Yates claims that the parents have an automatic right to resume custody of the child. This is not the full picture. We are talking about a voluntary situation because this section must be read in the light of later and other provisions in the Bill.

Under section 11 the health board can seek an emergency care order where there is immediate and serious risk to a child. Under section 15 a health board can seek a care order. If a parent seeks the return of a child and the health board is concerned that the child might be abused on his return home, the health board have to refuse to return the child and immediately apply for a court order authorising it to keep the child in care.

They have no legal authority in the meantime.

Is that not exactly——

In view of the fact that the courts can decide on the issue under section 11, the child is illegally held by the health board.

I do not accept that. You are segmenting part of a section of a Bill to construe a particular situation. What we are saying is that under the voluntary care agreement, nothing that is voluntary can be imposed by the health board. They must make use of other provisions in the Bill to ensure that the rights of the parents in a voluntary situation are taken into account and are recognised. In response to Deputy Yates and others who are concerned, I will definitely give this further consideration, look at it on Report Stage and report back to you or, alternatively, if we feel there is any need to make any change, we will come back with that change. I will certainly give it further consideration. I want to emphasise again, the voluntary care situation. In the case of voluntary care, where there is common agreement between the parents and the health board, the rights of the parents must be taken into account and the child must be returned if they so desire. Alternatively, if the health board feels that the parents are not fit people to have the child returned, they have a right under other sections of the Bill to apply for certain orders. The child is in their care and shall remain in their care until the court decides otherwise.

To assist you in this matter, Chairman, I will withdraw amendment No. 19, but if the Minister does not retable it on Report Stage, I will table an amendment along the lines he suggested. While, in my view, it is desirable and is provided for that, in the instance of bereavement or illness, a child is voluntarily submitted to care, it is only right that if those circumstances change the parent could have the child back. In my view, subsection (2) does not deal comprehensively with the case of an abandoned child and if you say subsection (2) does not apply to the abandoned child, my amendment on Report Stage would provide that subsection (2) will only apply where the child is handed in voluntarily and not in any circumstances of abandonment. It is in plain English here that the health board has no right to maintain the child in care if the parent desires to have the child returned to him. That could not be more clear-cut here. I will leave it at that. We have discussed this very comprehensively but I will be asking that subsection (2) only apply to the voluntary care areas — in other words, in the case of the voluntary consent of the parents to put the child in care.

It seems that things would be greatly helped if our understanding of the limitations of the application to this section was clearly stated in the amendments. It is very common in Bills where one section is conditional on another series of sections to refer to them at that point. For example, the Minister's reply to Deputy Yates seemed to say exactly the content of Deputy Yates' amendments. He said we have to take this section in conjunction with the rest of the Bill which allows the health boards to take children into care in certain situations. What we are saying here is commonly done in Bills where one provision, if interpreted on its own, might be seen to undermine all the powers given elsewhere in the Bill. Deputy Yates suggested looking at this and we hope the Minister will do as he said. We will be watching with interest at Report Stage.

This section deals with the statutory duty of a health board and refers to what their duties are in relation to children in their area who may require protection. It is probably more a drafting problem that this subsection has been put in here. The draftsmen may have intended to take care of the situation where there is an abandoned child or the child was taken into care in a voluntary situation, and they feel that the parents need to have some input as to whether the child should be returned to them. I think it would be better dealt with somewhere else in the Bill — perhaps a section dealing particularly with voluntary taking into care. Perhaps the Minister would look at that between now and Report Stage and perhaps deal with it elsewhere in the Bill and leave the duties of the health board to be specifically dealt with in this particular section.

The amendment is withdrawn with liberty to re-enter at Report Stage.

Amendment, by leave, withdrawn.

We are now dealing with amendment No. 20. It appears that amendments Nos. 21, 23, 24 and 25 are related and, with the agreement of the committee, I suggest that we take amendments Nos. 20,21,23,24 and 25 together.

I move amendment No. 20:

In page 6 subsection (2), line 44, to delete "his parents" and substitute "a parent having custody of him".

We are discussing five amendments together. They are technical and are necessary primarily to take account of changes in the law following the enactment of the Status of Children Act, 1987. However, they are also needed to deal with cases where married parents are separated from each other.

The first two amendments, Nos. 20 and 21, relate to subsection (2). That subsection makes it clear that a health board cannot take a child into care under this section against the wishes of his parents or cannot retain the child if his parents wish to resume care of him. One of the effects of the Status of Children Act is that the word "parents" here automatically includes the natural father of a child whose parents are not married to each other. In the context of subsection (2), this would mean that a health board would have to comply with the wishes of the natural father with regard to whether the child should be received into or remain in care even if the father was not living with the mother and had no legal rights over the child. Clearly, this is anomalous and leaves open the possibility of vexatious objections by a natural father against the placement of a child in care or demands by him that the child be discharged from care.

There is a further difficulty in relation to parents who are married but have separated. If one of them had been awarded custody of the child by the courts, the existing draft of subsection (2) would require the health board to comply not alone with the wishes of that parent but also with the wishes of the parent who had been deprived of custody. This makes no sense and could place the health board in an impossible situation. What is proposed in the first amendment, therefore, is that the health board would be prohibited from acting against the wishes of the parent having custody of the child. In the case of a child whose parents are not married, this would generally be the mother although it could be the father if he had been awarded custody by the courts. In the case of a married couple who have separated, the health board would be obliged to comply with the wishes of the partner having custody but not of the other partner. Where both parents have custody of the child, be they married or unmarried, the rule of construction that the singular imports the plural means that the health board would have to comply with the wishes of both of them. The second amendment is consequential, changing a reference to "his" parents to "that" parent, that is the parent having the custody.

Amendment No. 23 proposes a consequential change in subsection (3). That subsection requires the health board in caring for a child under this section to have regard to the wishes of his parents. For the reasons I have outlined already, this is being amended to read "a parent having custody of him". As I have explained, this could be one or other parent, or both parents, depending on the circumstances of the particular case.

Amendments Nos. 24 and 25 propose consequential changes in subsection (4). That subsection places a duty on health boards to attempt to reunite with his parents a child who is lost or whose parents are missing or have abandoned or deserted him. It would be absurd if a health board were under a statutory obligation to place a child in the care of a person who is not legally entitled to custody of him; for example, a natural father who had no rights in relation to the child or a parent who had been deprived of custody by the courts. The amendments, therefore, limit the duty imposed on health boards by amending the references to parents to refer only to the parent having custody of him. I hope my colleagues will agree with these proposed amendments.

Just a few questions of clarification on this. When you refer to "that parent" in the situation of, say, an unmarried mother who is co-habiting with a man where no custody order has been granted, would it apply in all circumstances that the mother would be "that parent."? What rights would the other parent have if they disputed custody in those circumstances?

Secondly, where there is a custody dispute pending, and you are substituting "a parent having custody of him", for "parents", who would be considered the parent in that circumstance or would you, in effect, have to get the consent of both parents? A final question, it would strike me when you say "a parent having custody of him" that that would apply to foster parents and I would like to know if there is a separate definition for foster parent or whether your change would confer new rights on foster parents than heretofore.

There could be some problems with this amendment. I think it is a very difficult area in which to draft legislation. I am just questioning the area of custodyvis-�-vis guardianship. In many instances we know that custody is given to a parent for reasons not based on the relationship between the parent and the child and I can see a situation where legal custody is granted to perhaps the mother who for some reason would not be in a position to care for the child, whereas the other parent would be in a very good position to develop a relationship and have custody of the child and to have a point of view and the right to be heard on this. I suspect it will be very difficult legislation to enforce and that it is going to be a minefield for legal action. Perhaps the Minister could give us some clarification on natural guardianship and custody in relation to this amendment.

This section does not deal with foster parents. It deals with the natural parents not the foster parents. In most cases the rights of the mother would have to be taken into account, with the natural mother usually looking after the child. In the case of the cohabitee, it would depend whether the male cohabitee was the natural father of the child before any of his rights would be taken into account. In most cases custody would be granted to the natural mother: if the court had taken a clear decision it would be the decision of the court to grant custody of the child and, of course, the health board would have to take into account at all times the suitability of the parents to have charge of the child, and if there was any doubt about it, it would be a matter for the court to make a decision.

I know that either Deputy Yates or Deputy Fennell raised a very complex legal question on a custody order pending but not decided. That would be a very difficult situation and I would not be able to give a legal answer to it, but in my opinion if the custody order was in a higher court the lower court would have to wait until the decision was taken, and in the meantime the health board would surely be responsible for the well-being and care of the child. I would see that as a clear situation. Perhaps it might be a legal minefield, but the amendments we propose to the section are really to clear up any legal minefield that might be created. By deleting the word "parents" and substituting "the person having custody of him" it makes the position absolutely clear that the parent having custody of the child is the person to whom the health board would be returning a child. I hope this helps to clarify the matter.

On a point of information more than anything else, does the word "him" refer to a male or a female child?

Under the Interpretation Act it means both.

Amendment agreed to.

I move amendment No. 21:

In page 6, subsection (2), line 46, to delete "his parents" and substitute "that parent".

Amendment agreed to.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 7, subsection (3) (b), line 6, to delete "his parents" and substitute "a parent having custody of him".

Amendment agreed to.

I move amendment No. 24:

In page 7, subsection (4), line 10, to delete "his parents are" and substitute "a parent having custody of him is".

Amendment agreed to.

I move amendment No. 25:

In page 7, subsection (4), line 11, to delete "his parents" and substitute "that parent".

Amendment agreed to.

I move amendment No. 26:

In page 7, subsection (4), line 14, after "interests" to insert ", giving due regard to the wishes of the child".

Briefly, amendment No. 26 the last one on section 4, seeks to insert a provision in section 4 (4) where the child "has been deserted or abandoned, the board shall endeavour to re-unite him with his parents or, if that is not possible, to arrange for him to be looked after by a suitable person, where this appears to the board to be in his best interests". I think it would be useful to insert the provision having due regard to the wishes of the child.

We covered some of this ground last week, and some members felt that the last person to be consulted should be the child in so far as they had no idea as to their best interest and if they did they should not be believed because they were irresponsible and so on. I do not hold that view. While at the end of the day it would be a matter for the board, or more likely the court, to decide what is in his best interest, I think there should be an onus to have some consultation with the child to establish what is his preference, whether he is going to be looked after by a suitable person, whoever that might be, or be reunited with the parent, or kept in a residential centre or sent to a foster parent or whatever. Now that we are talking about redefining the term "children" to cover persons up to the age of 18 years — we are not talking about infants — the older children should be asked their opinion and their wishes should be taken into account.

Mr. Fitzgerald

I should like to point out to Deputy Yates that his recollection of what was said by this side in that context is rather flawed. I will bring to his attention my repeated assertion that the Minister's clause in that context was quite reasonable that, where it is considered reasonable and wise, a child should be consulted. I did not at any stage invoke the old authoritarian vogue, although Deputy Fennell did seem to suggest that that was what I was doing, but I want to assure and reassure Deputy Fennell I had no such intention. I merely caution against an over-indulgent disposition to run into consultation with children, or indeed teenagers, on each and every occasion. That is all.

As an experienced parent with a very indulgent attitude towards children, I think they should be consulted. It is far healthier. I have consulted my two children aged three and a half, and six and a half on whom in my family or my husband's family they would like to be looked after in the event of our passing away. They have very clear views on it. I think that would make a great difference to them and on how they would cope with a very difficult situation of separation. I think it is a hundred times more necessary in the case of the child who is going through the trauma that would be involved in cases that we will be dealing with under this legislation.

I think we are only coming to terms with how hostile everything about family law and the way in which we deal with these problems is to children. Even social workers, nurses and the set-up in the health boards are very uncongenial to children. In a Children's Bill it is terribly important that we break new ground and that wherever possible we should include this type of thinking in the way in which we deal with children. I certainly would support this amendment and the important and, I hope, recurring principle of this Bill.

I welcome very much this amendment. Since the person who will be most affected is the child, it is a prerequisite that if the child is old enough to express an opinion due regard should be given to the wishes of the child. This is part of most progressive and modern thinking. The Victorian notion was that children should be seen and not heard. They were not allowed to have an opinion until such time as the were adults and suddenly at adulthood they were supposed to make fundamental decisions. We have long since removed ourselves from that sort of notion. The Minister should accept this very positive amendment.

Like Deputy Flaherty I have got two children. I come from a very working class background. There are two sides to my family tree, one of some poverty and the other of extreme wealth. I would be not quite convinced that a child's choice in all occasions to move in with the wealthier side of the family would necessarily be the opinion that should be accepted by the health boards.

You would like to consult them though?

I believe that mature kids should be consulted. At what stage do they retain any form of veto over the decision as to who should look after them?

I must say that this amendment has led to a lot of enjoyable exchanges between the members. I can visualise Deputy Byrne's uncle coming with sweets and the children being very pleased with the uncle with the packages. We must refer back to section 3 where we inserted a new provision. We have agreed section 3. I refer to amendment No. 14 paragraph (b) (i) and (ii). It states that "having regard to the rights and duties of parents, whether under the Constitution or otherwise a health board shall regard the welfare of the child as the first and paramount consideration and in so far as is practicable give due consideration having regard to his age and understanding to the wishes of the child". We have already agreed that and inserted that to take into account what Deputy Yates proposes. That provision applies automatically to the actions of a health board under this section so it is not necessary to have it included here because automatically they are obliged under section 3 to do this. Consequently, I would respectfully suggest that Deputy Yates would withdraw the amendment because it is not necessary to include it. Automatically, the health boards are obliged to take into account the wishes of the child in so far as is practicable.

Is this not a case where more than any other you are not into the legal area, you are looking about, possibly among the family for a suitable home. In more than any other matter it is the one where the child would have a view that might be of significance and of relevance and hence would warrant a specific input from the child.

I suppose it depends on the point of view that you take. If you are looking into the family tree or into the family structure to see where you can find an alternative for the child, obviously the child would have a view but, on the other hand, in a number of other issues such as abuse or anything like that, the child's wishes would have to be taken into account there. In whatever context you take it, the wishes of the child is of vital importance. The welfare of the child is of paramount importance and the boards are obliged to take that into account when they are making a decision. Consequently, it is unnecessary to insert it in every section.

I take the Minister's point. I withdraw the amendment.

Amendment by leave withdrawn.
Section 4, as amended, agreed to.

One further point, is it agreed by the committee that we meet again at 5 p.m. next Tuesday, 12 December?

That is a very awkward time for many people, particularly for me.

I guess the Deputy is speaking in the particular.

A Deputy

As opposed to the general.

Deputy Lee will have to persuade the committee because they agreed on that date after much discussion at the opening meeting a fortnight ago. I understand the Deputy's difficulties.

I have not been on a special committee before and I am wondering how soon we will get the reports of the committee. Is there a long delay in producing them? It would be helpful to have them and I hope we can get them as quickly as the Dáil reports.

Are you talking about the record?

Yes, the record of the committee.

That matter will be taken up.

My information is that they take longer than the Dáil reports to produce, in fact some weeks more. There appears to be a different priority placed on them.

Is there any way we could get a draft of the reports? Could we request that the question of making them available sooner, the same as the Dáil reports, be looked at?

We will see if we can have drafts of the reports by next week.

In regard to what Deputy Fennell has requested, I would like to ensure that at least when we return after Christmas reports of all the meetings we have had to-date will be available to us. That is vitally important.

Progress reported; Committee to sit again.
The Committee adjourned.