Procedure
At the outset I should like to speak about the restructuring of our committee meetings. As agreed at our last meeting a discussion took place between representatives of the various parties to consider how best to expedite the work of the special committee and the passage of the Bill. Agreement was reached on a number of steps to speed up progress and I would like to put these formally to the meeting. It was agreed that the special committee should meet every Tuesday from 4.30 p.m. to 7.30 p.m. If for any reason a meeting cannot be held on Tuesday all possible efforts will be made to hold a meeting on another day of the same week in order to ensure continuous progress.
It was further agreed that the maximum time allocated to any section or group of sections would not exceed three hours. We identified the important sections and we allocated a time of three hours to the debate on those and where we grouped sections we decided to allocate a further three hours to those groups. It was agreed that because of the complex nature of various sections the programme for the next six meetings should be as follows: today's meeting, to complete consideration of section 10 and its associated amendments; next meeting, section 11 and its associated amendments; the following meeting, sections 12, 13 and 14; the following meeting, section 15; the following meeting, section 16; the following meeting, sections 17, 18 and 19. It was anticipated that by these measures, and speedy discussion of relatively technical or less complex sections, that Committee Stage should be completed by the end of May. The intention would be to have Report Stage taken in early June and the Bill to pass before the summer recess. It was agreed in order to avoid unnecessary delay that any Deputy with a specific query regarding any of the amendments which they have tabled could telephone Department officials between meetings who would brief them on an informal basis. I hope that is to the satisfaction of members. If members wish to make any observations on those proposals I will try to deal with them.
I agree with what the Minister has proposed. That framework was a minimum and it will not prevent us making speedier progress on any part of the Bill.
There is one further item I should like to deal with also. Members will recall that at the last meeting I supplied details of the number of place of safety and fit person orders granted to health boards in the years 1985, 1986 and 1987. I have had tables prepared which set out the figures on a health board by health board basis and, with the permission of the Chairman, I propose to circulate them to members and I request that the tables be included in the Official Report of our meeting. I should also like to mention that due to a clerical error there were two small mistakes in the figures I gave on the last occasion. They have been rectified in the tables I am circulating which are based on figures supplied to my Department by the various health boards.
The following are the tables:
Number of Fit Person Orders Granted to Health Boards
|
Health Board
|
1985
|
1986
|
1987
|
|
Eastern
|
51
|
112
|
96
|
|
Midland
|
20
|
20
|
17
|
|
Mid-Western
|
8
|
24
|
39
|
|
North-Eastern
|
11
|
13
|
15
|
|
North-Western
|
15
|
41
|
67
|
|
South-Eastern
|
7
|
3
|
7
|
|
Southern
|
28
|
44
|
52
|
|
Western
|
18
|
23
|
23
|
|
Total
|
158
|
280
|
316
|
Number of Place of Safety Orders Granted to Health Boards
|
Health Board
|
1985
|
1986
|
1987
|
|
Eastern
|
N/A
|
N/A
|
N/A
|
|
Midland
|
31
|
23
|
12
|
|
Mid-Western
|
16
|
21
|
41
|
|
North-Eastern
|
2
|
5
|
4
|
|
North-Western
|
6
|
8
|
3
|
|
South-Eastern
|
—
|
4
|
8
|
|
Southern
|
22
|
41
|
45
|
|
Western
|
18
|
22
|
21
|
|
Total
|
95
|
124
|
134
|
NEW SECTION.
Debate resumed on amendment No. 47.
In page 8, before section 10, but in Part III, to insert the following new section:
"10.—(1) On application to it by a parent (in this Act called the ‘applicant parent'), the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of any child so requires, by order (in this Act called a ‘barring order')—
(a) direct the other parent (in this Act called the ‘respondent parent'), if residing at a place where the applicant parent or the child resides, to leave that place, and
(b) whether the respondent parent is or is not residing at that place, prohibit that parent from entering that place until further order by the Court or until such other time as the Court shall specify.
(2) A barring order may, if the Court thinks fit, prohibit the respondent parent from using or threatening to use violence against, molesting or putting in fear the child and may be made subject to such exceptions and conditions as the Court may specify.
(3) A barring order may be varied by the Court on the application of either parent.
(4) On or before the expiration of a barring order a further barring order may be made with effect from the expiration of the first-mentioned barring order.
(5) If, between the making of an application for a barring order and its determination, the Court is of opinion that there are reasonable grounds for believing that the safety and welfare of any child so requires, the Court may make an order (in this Act called a ‘protection order') that the respondent parent shall not use or threaten to use violence against, molest or put in fear the child.
(6) A protection order may be made notwithstanding that the summons in relation to the application for a barring order has not been served on the respondent parent.
(7) A protection order shall cease to have effect on the determination by the Court of the application for a barring order.
(8) A barring order or a protection order shall take effect on notification of its making being given to the respondent parent.
(9) Oral communication to the respondent parent by or on behalf of the applicant parent of the fact that a barring order or a protection order has been made, together with production of a copy of the order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent parent of the making of the order.
(10) If the respondent parent is present at the sitting of the Court at which the barring order or protection order is made, that parent shall be taken, for the purposes of subsection (8), to have been notified of its making.
(11) An order varying a barring order shall take effect on notification of its making being given to the parent other than the parent who applied for the variation, and for this purpose subsections (9) and (10) shall apply with the necessary modifications.
(12) The Court, on making, varying or discharging a barring order or on making or discharging a protection order, shall cause a copy of the order in question to be given or sent as soon as practicable to the applicant parent, the respondent parent and the member of the Garda Síochána in charge of the Garda Síochána station for the area in which is situate the place in relation to which the application for the barring order is made.
(13) Non-compliance with subsection (12) shall not affect the validity of the order.
(14) A respondent parent who contravenes a barring order or a protection order or, while a barring order is in force, refuses to permit the applicant parent or any child to enter and remain in the place to which the order relates or does any act for the purpose of preventing that parent or child from doing so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or both.
(15) Subsection (14) is without prejudice to the law as to contempt of court or any other liability, whether civil or criminal, that may be incurred by the respondent parent.
(16) A member of the Garda Síochána may, on complaint being made to him by or on behalf of the applicant parent, arrest the respondent parent without warrant where the member has reasonable cause for believing that the respondent parent is committing or has committed an offence under subsection (14) or (15) of this section.".
—Deputy Fennell.
On the last occasion we met we were considering amendment No. 47 in the name of Deputy Fennell and related amendments Nos. 70, 71 and 106.
I should like to make a brief comment. I tabled my amendment because I considered that the Bill was the appropriate place to include an extension of the barring order which only exists at present for married people. I am aware that there is a need for barring orders to protect the children of couples who are not married to each other. That has been explicitly presented to me as causing a difficulty. Barring orders, or similar orders, can only be obtained by the parent of a child applying to the Circuit Court for an injunction. In effect, that injunction has very little power, is not binding and does not have the power of arrest. It is not a substitute for a barring order. I feel very strongly about this. We should not discriminate when it comes to children on the basis of their parents' marital status. The Minister should accept the need for such a provision in the Bill. We have been told that the Law Reform Commission are considering this matter and it has been suggested that we should await their report but I am hoping that the Minister will include such a provision in the Bill. The objective is to try to keep children at home rather than having them taken into care.
I would prefer to reply to all the amendments.
My recollection is that we discussed this matter in some detail at the last meeting. The difficulty of obtaining a barring order where cohabiting couples, as distinct from married couples, are involved was highlighted. The interim report of the Law Reform Commission who studied the problem of child abuse recommended that such a change should be made but at the last meeting the Minister told us that he was awaiting the final report. In order to expedite matters will the Minister indicate when he expects that report to be available? Will he give a commitment to the committee that he will accede to the principle involved in the amendments?
I have no difficulty in acceding to the Deputy's request. We are awaiting the report of the Law Reform Commission, with interest. The amendments before the committee are very technical. Deputy Fennell has put forward a detailed proposal. We dealt with the legal consequences of it on the last occasion. I will give a commitment to the committee that if the amendments are withdrawn we will on Report Stage take into account what the Deputies have proposed and the recommendations of the Law Reform Commission. We can have a further discussion on the issues on Report Stage.
In relation to the report of the Law Reform Commission, is the Minister in a position to say when that report will be available to him? Will it be available before we reach Report Stage?
My information is that it should be ready by Easter. I am hoping that the commission will be able to reach that target.
I do not wish to upset the Minister's prediction but I have been given to understand that it will not be ready until after May. That will create a difficulty for us because we expect that it will be a detailed report. At the one day seminar I attended, the issue of barring orders dominated the debate. I have no doubt that the report, when it is issued, will feature barring orders. I am worried if the Minister says that he will not have his proposals before the special committee complete their work.
We will communicate with the Law Reform Commission and if their report is to be delayed and will hinder the progress of the Bill we will ask them to submit a separate report on this issue.
In that event I will withdraw my amendment.
Amendment, by leave, withdrawn.
We will proceed to deal with the section, and related amendments. I am suggesting that we deal with the section and the amendments and I am asking the Minister of State to open the discussion on the section. Each member will have an opportunity to make a contribution on the section and the amendments tabled thereto. The Minister will be in a position to deal with the points raised at a later stage. I am suggesting that ten minutes before we are due to adjourn I should put the question on each of the amendments seriatim and, finally, on the section or the section, as amended.
It strikes me that there are quite substantially different issues involved. I move amendment No. 48:
In page 8, subsection (1), line 42, after "Garda Síochána" to insert "or a social worker employed by the Health Board as such".
Amendments Nos. 1 to No. 53 and No. 53 are related and amendment No. 54 is an alternative to amendment No. 53. Therefore, amendments Nos. 48, 53, No. 1 to No. 53 and No. 54 will be taken together by agreement.
Perhaps if I give some information on the section and the effect of it, you will have a better view and you could take your amendments after that.
Before I go into detail on the amendments we are about to debate, I would like to explain briefly the thinking behind section 10 and the part it is intended to play in the overall scheme of the Bill. The primary objective of the Bill is to establish health boards as the statutory child protection agencies. However, no matter how effective the health boards are in this role, the nature of police work is such that the Garda will often be the first to come across incidents of child abuse and neglect.
Section 10 recognises this fact and empowers the Garda in an emergency to intervene and, without warrant, remove a child to safety. However, while this is an important and very useful provision, it is not intended that it should become the normal first step in dealing with allegations of child abuse. The weight of professional opinion is that in the vast majority of cases of child abuse, including sexual abuse, it is not necessary or desirable to intervene instantly and remove the child. The sudden removal of a child from the family home, even if everything there is not as one would wish, is a traumatic experience for the child and indeed the parents. This was made clear by the Cleveland episode. Acting in the absence of firm and reliable evidence can have disastrous results. I would expect that in most cases of child abuse the Garda will not be involved under this section but intervention will be initiated by the health board. This could take a number of forms. The provision of social work support to improve the family circumstances so that the child might remain at home; offering to take the child into care on a voluntary basis; seeking an emergency care order; applying for an interim care order or making application for a care order. It will be for the health board to determine in each case on the form of intervention necessary. I hope that that will give you an overview of what is contained in this section and then we can decide to take the amendments in group form.
If I may come back again? Amendment No. 1 to amendment No. 53 and No. 53 are related. Amendment No. 54 is an alternative to No. 53. Amendments Nos. 48 and 53, and amendment No. 1 to No. 53 and amendment No 54 are related and may be taken together. Agreed.
It strikes me that this part of section 10 and amendments Nos. 48, 53, amendment No. 1 to 53 and amendment No. 54 deal with the role of the Garda Síochána in an emergency situation. I would feel very strongly that the role of the Garda should either be deleted or minimised in the effect of this legislation, in so far as there is a sufficient requirement for the sensitivities of children who are subject to abuse or endangered, in any way, without having the added involvement and fear that a uniformed Garda brings. Where possible, what I am seeking to do in amendment No. 48 is to replace in nearly every case the role of the Garda Síochána by a professional social worker who could deal with the sensitivities of each case and each family. I do not see these type of cases as criminal cases. I see them as family problems and social problems, more to be dealt with by social workers than the Garda Síochána. Perhaps the Minister can clarify whether that is his intention. I was not sure of all the points he made. On a point of principle, to remove the role of the Garda Síochána or that, at least if there is a need for the Garda Síochána, say where an abusive adult is involved, then a Garda would certainly be accompanied by a social worker in all cases.
There are a number of issues obviously that overlap in this whole section. We are all evolving our thoughts on it. I must say that I share the views of Deputy Yates in relation to the primary role of the Garda Síochána. Often they can be seen as a force of the law and would intimidate or frighten some of the parties, particularly children. I would prefer to see the role as one for social workers. I assume there are different levels of intervention. I looked on this level of intervention as being one when there is a report of an immediate abuse and immediate action was required and the person on the spot would be a member of the Garda Síochána. Maybe the Minister when he is responding would elaborate as to the actual role of the Garda. Would a garda have to satisy himself or herself as to the vulnerability of the child? Would he or she act on the report of a social worker or of an employee of the health board in relation to the vulnerability of the child? Would he have to satisfy himself personally in order to comply with this section? Can I refer to the Minister's own amendments because they overlap as well? Amendment No. 52 relates to the substitution of the place of safety for removing the child to safety. What exactly is the import of that? What is the Minister going to achieve by inserting that as a replacement for the understood phrase "place of safety"? Could the Minister elaborate on that?
In relation to my own amendment, No. 54, after I have heard the Minister's view in relation to his own more substantial amendment No. 53, he would seem to indicate that he would regard it as automatic — I am trying to raise various issues in the same contribution — that there would be an application to the courts where a child is taken in under this section. I understood that this would be an intervention level and that there might be an instance where a child would be vulnerable; where the child could be taken out of that vulnerability and no further action taken if the immediate danger passed. There might be a drunken member of the family present. There might be some reason to remove the child without bringing in a more permanent mechanism applying to the district courts for a care order. I saw this as the first level of the various levels of intevention open to the health boards under this entire piece of legislation. The Minister seems, as I understand his own amendment No. 53, to want to have the primary level of intervention on a more establishment basis than I understood it to be, with a virtual automatic application to the next sitting of the District Court unless the child was returned. There are a few points I wanted to make on this section.
We are not discussing amendment 52 in this grouping. We will leave it separate.
The reason I put in amendment No. 54 is that it is fundamentally altered by the Minister's own amendment No. 53. I felt that — and I will try to explain it now — this was a primary level of intervention to protect a child that was assumed to be immediately vulnerable that would not necessarily lead on to a court application. The requirement in section 10 (2) in the original Bill was that there would be a requirement for an application for an emergency care order within 24 hours and I felt that was an unnecessary restriction. There should be a longer period of time and I suggested 72 hours so that, if there was an immediate danger that would take longer then 24 hours to ascertain, the child could be taken away for a period of longer then 72 hours and then brought back without having to apply to the court. What would happen otherwise is that as soon as a child would be taken under this section — because it would be impossible to prepare an application in a period of 24 hours — you would have an automatic application to the courts in every case. I did not think this was necessarily a good thing and a period of 72 hours would leave some period for reflection so that if an application was necessary, it could be prepared rather than have it as an automatic procedure.
I understand from the Minister's new amendment No. 53 he would envisage that there would be a virtual automatic application to the court under this section. That is the reasoning behind my amendment No. 54.
While I am sure we would all agree that the gardaí should have power to intervene speedily to protect children, Deputy Yates's amendment No. 48 and amendment No. 53, seek to go much further and to grant powers to remove children without warrant to individual social workers. I am not sure that this idea would find general public support and I have considerable reservations about it. The removal of a child against the wishes of its parents is likely to provoke an angry and perhaps a violent reaction from the parents. I do not believe it would be desirable to expose social workers to the possibility, if not the probability, of violence. In any event as far as I am aware social workers generally do not wish to have such a power. The gardaí, on the other hand, are used to dealing with violent confrontations. Unfortunately, it is a regular feature of their work. I am strongly of the view that the power to remove a child without warrant should be confined to the Gardaí and I would ask the Deputy to reconsider his amendment.
I have been asked about the role of the Garda. We are dealing here with situations where the social workers may not be readily available. For example, the Garda may have been called late at night to a disturbance in a family home. In such a case the Garda will have to deal with the situation as they find it without the benefit of social workers or other professional advice. As the section is drafted, the garda will be required to satisfy himself or herself that the child is at risk. However, if the disturbance occured during the day and it was possible and practicable to contact the social workers, I would see no objection to this. Indeed it would be very useful and practical that the communication would be made. However, I would not like to create a situation where the Garda would not be allowed to remove a child without the presence of a social worker. We must give the discretion to the Garda in these situations to make up their minds in the best interests of the child.
I would like to deal with my own amendment No. 53. While section 10 has been widely welcomed as a useful back up to the powers conferred on health boards I have received a number of representations about two key aspects of the proposal: first, the 24 hour time limit specified in the original subsection and second, the need to clarify the respective responsibilities of the Garda and health boards in cases dealt with under this section. Amendment No. 53 deals with these points and also seeks to strengthen and improve the section in a number of respects.
It is now proposed in the new subsection (3) that where a garda finds it necessary to intevene under this section, his role would be to remove the child from the source of danger and deliver him into the custody of the health board. All subsequent action — that is notifying the parents if they are not already aware of the removal, deciding whether to apply for an emergency care order and finding alternative accommodation for the child — will be a matter for the health board concerned. This is a clearer and more straightforward procedure than what was proposed in the original subsection (2) of the Bill which would have enabled the garda to seek an emergency care order himself and that it better reflects the respective responsibilities of the gardaí and the health boards.
As regards time limits, I have decided to drop the requirement that an application for an emergency care order must be made within 24 hours. I have done so because there is not always a sitting of the District Court within any given 24 hour period. Instead what is proposed in the new subsection (4) is that an application would have to be made at the next available sitting of the District Court wherever that might be within the district. In some cases the next sitting might be within 24 hours. In other cases it may not be for two or indeed three days.
I will also deal with amendment No. 54 in the name of Deputy Howlin. I hope that this more flexible approach meets the concerns of Deputy Howlin who is proposing in amendment No. 54 that the reference to 24 hours be replaced by a reference to 72 hours. For the reasons I have mentioned I think it would be better not to set down a fixed period. I appreciate what Deputy Howlin has said proposing his amendment. I would like to emphasise that this change is based on practical considerations and that there will still be a strict obligation on the health board to bring the matter before a court at the earliest possible opportunity.
Finally, I might explain that the new subsection (2) has been included for the avoidance of doubt. It is to make it clear that the powers given here to the Garda to intervene to protect children in certain situations are additional to their existing powers, for example, the power to enter a premises and arrest a person assaulting a child or the common law power to rescue children from burning buildings or indeed other hazards. I trust that this clarifies the situation.
Not being a solicitor, perhaps the Minister could clarify the point. When you say "make an application to the District Court", does that mean filling out a form or does that mean actually having a hearing, whether it is within 24 hours or 72 hours? To make an application actually means what?
I am not a lawyer either, but I know experts I can consult with if necessary. My interpretation is that an application to the District Court would be a formal application, lodged with the court and it would have to be heard by the court. Just lodging the application would not be sufficient, that would be my interpretation.
As was defined under Deputy Howlin's proposal, the hearing would have to take place within 72 hours or as was previously envisaged the hearing would take place within 24 hours or the next sitting. Are these the choices?
Yes. The application would be made as quickly as possible depending on when the District Court would be sitting. We have been assured——
Does making an application equal a hearing?
It is not just a formal application. You would lodge your application in the court and you would have to present yourself——
It could be a week later.
We have been assured by the Department of Justice that a District Court would be sitting in the District Court area within any health board area within at least three days. We have been assured of that. We would not be talking about a week, we would be talking about one, two or three days.
I am not sure that the original difficulty I had is met by the Minister's amendment either. There are two aspects to it. First, I wondered whether in all circumstances it would be necessary to make application to a court. My difficulty with the 24 hour period was that it might be necessary to remove a child for a period slightly longer than 24 hours but not to make a semi-permanent arrangement to keep them in care. I am a little concerned about any ad hoc arrangement that would not have a judicial judgment on it, so I see the Minister’s fear in this. The new amendment the Minister has put forward would require the application to be made to the next sitting of the District Court which could, as the Minister has rightly said, be within 24 hours. My initial fear is that it would not be possible for social workers to present a cogent case in a period of 24 hours or indeed 48 hours. The best interests of the child might not be served by an immediate reference to the court. The next sitting could be the next day if there was a court sitting. Probably if this amendment was enacted and if application was not made, the child would no longer be in legal custody. Would that be the impact and is that not a great difficulty?
I would refer the Deputy to subsection (4) of amendment No. 53 which states:
. . . the health board shall unless it returns the child to the custody of his parents or a person acting in loco parentis, make application for an emergency care order at the next sitting of the District Court held in the same district court district and it shall be lawful for the health board to retain custody of the child pending the hearing of that application.
In response to what you say, obviously the health board will retain custody of the child pending the hearing, they will make their case and the court makes a decision. If they do not make an application they must return the child to its parents.
It might be in the child's interest not to be returned to the parents immediately, but it might not be possible for the social workers to prepare the case for the court in a period of 24 hours, and that is why I put in 72 hours initially. The import of the Minister's amendment could end up with putting that sort of pressure on social workers, because it says "the next sitting of the District Court" which in some circumstances would be the following day. I am concerned that perhaps the child will have to be returned to the parents, because it would not be possible for a cogent case to be put to the District Court in that time scale. Is there not that danger?
I would be slightly concerned, with the greatest of respect to the Department of Justice, regarding the fact that there would be a hearing within three days in any event. If we take the Christmas period and certainly the month of August — and I stand subject to correction — my understanding of the position is that in certain district court areas there might not be court for seven days, especially during the month of August. I would be concerned about the legality of a Garda Síochána having a child in his care for that period of time. Accordingly, I would respectfully suggest that the section take account of that fact and perhaps provide for a special sitting of the District Court in the event that there is not a District Court sitting within a period of, say, 72 hours.
In my own constituency I know that the level of district court activity in the month of August is virtually non-existent, and if a child was taken into care the day before Christmas Eve, I hazard a guess it would be well into the New Year before the case could be heard. Considering the choice between the original wording — the Minister's suggestion of an application within 24 hours, Deputy Howlin's suggestion of 72 hours and your suggestion of — with the next sitting — I certainly think 72 hours is the best one. That is because it allows a reasonable period of time for the facts of the case to be got together by the social worker. It also ensures that the child is not kept indefinitely in Garda custody without going to the court. I feel it is a reasonable balance. Certainly there should be an obligation to get the case to the court as soon as possible. If the next sitting means in three or four weeks time that certainly is not satisfactory and Deputy O'Donoghue is right in that. The important thing is that, whether it is a care order or whatever, the courts are given the opportunity to adjudicate on all the facts at the earliest possible date. That means that an application should be made as soon as possible. Maybe 24 hours is just not possible, but certainly 72 hours strikes me as being possible. It gets over any weekend difficulty, for example.
I would like to come to the other point the Minister raised in relation to the role of the Garda Síochána. It was certainly not my intention that social workers would have the powers of the Garda to go in and take children and so on, but I believe that where possible, or in nearly all cases, a garda should be accompanied by a social worker. There is no reference to that at the moment. I will be prepared to withdraw my amendment No. 48, if the Minister will give a commitment to put in instead of the words "or a social worker employed by the health board" the words "where possible to be accompanied by a social worker employed by the health board". I believe that would be desirable and it would mean a better liaison between the Garda Síochána and the social workers, because in the Minister's own amendment No. 53 (3) it states: "The child shall as soon as possible be delivered to the custody of the health board". It is obviously the intention that there would be a close liaison between the Garda and the health board. To have a social worker to accompany gardaí would be a step in the right direction.
On the point that Deputy Yates made in relation to the possibility of having a child in the custody of a Garda Síochána for a long period, subsection (3) of the amendment would take care of that, and that is: "That the child shall as soon as possible be delivered up to the custody of the health board." I really do not envisage a child being in the custody of the Garda Síochána for a very long period. The section is one to be welcomed in that there are emergencies where perhaps a Garda Síochána would come on a scene where they would need to bring in the child and there is no social worker or health board official available. Probably the next day, or as soon as possible thereafter the Garda Síochána would give the child into the custody of the health board.
In relation to the point made by Deputy Yates and, indeed, by Deputy Howlin, the point is reasonably well made by Deputy Howlin in his amendment about the problem of the time limit. My experience, like Deputy O'Donoghue, is that there are occasions when courts are not readily available. August is a particular month where in my own district, which is a fairly busy one, there is only a court once every week in the summer period. But I am aware of proposals being mooted in the Department of Justice to shut down a number of the smaller courts around the country and that would probably lead to an even more difficult task of bringing children before courts as soon as possible. There could be some amendment made to subsection (4).
As to the question of making an application, there would be a form, but normally in cases of emergency those forms are handed in at the time. Normally they are not very complicated. It is like a barring order application; they can be filled up in a minute. It is similar in relation to this as well. There will be standard forms made out after the passing of this legislation under regulation, so there will be no problem in the forms being readily available. I would think if a judge knew that it was an application being made under this section, which provides for emergency provisions, he would immediately deal with the case. I do not really foresee a problem in an emergency situation like this where the health board would have difficulty in putting a cogent case together in a short period of time, because normally this, in effect, is an emergency procedure and normally the judge would make an interim determination of the situation. Possibly subsection (4) might be amended in some way just to take care of perhaps a court being held the next day but whether it means putting in a phrase like "after a period of 24 days, make application", I do not know.
Really what I wanted to ask by way of information is whether an application may be made to the court and then is it envisaged that it could be adjourned for a number of days? The biggest difficulty we have with this particular section between all the 24 hours, the 72 hours or the next sitting of the District Court, is that if the next sitting is within 24 hours the health board will not have a chance to prepare a proper case and despite what Deputy Ahern says in relation to this, it is a very, very serious matter. It is an emergency; it will be treated very seriously and the child's position and the family position will be given primary importance but if there is not sufficient evidence there for the emergency care order it could fall. Basically in regard to the 24 hours, it is the shortness of the period of time to prepare a case that is causing the difficulty. If I could be satisfied that the court would have the power to adjourn to a later hearing or for three or four days, then I think probably the difficulties we are facing here might be met.
I was going to reserve any comments I had until I spoke on my own amendment but there are so many points coming out of this debate that one feels the whole thing is too vague. The Minister's subsection (3) is not the answer. For example, maybe late on Friday or on Saturday evening a notice comes to the Garda authorities that there is a problem, somebody investigates and assures himself that there is a problem and he finds it necessary to take a child into care. What does he do then? His next step is to contact the health board as soon as possible, perhaps late on Saturday evening. Unless — as Deputy Yates said — there is a tie up between the social workers employed by the health board and the Garda authorities, where does he take the child? Does he keep the child in the barracks or in a place of custody? I will give an example from my experience and I am only a public representative. Some years ago on a Friday night, a social worker, who is not in the employment of the board now, left a note for a woman saying that she would see her on the Monday morning, but that woman was at that time out on the side of the road with her children. The superintendent community welfare officer had to find that social worker the following day. The children were taken into care. If a garda takes a little child into custody he must have immediate access to the services of the health board and the health board must be in a position to provide accommodation straight away. Then the issue of the court hearing arises. I would support Deputy Yates wholeheartedly on that.
The point I wanted to make has been well made by Deputy Dempsey. This is a very important part of this legislation. Up to the time Deputy Dempsey spoke, the point Deputy Howlin made, and with which I agree, had not got through to us. It is very important that these cases be heard within a short time, but not too soon. I think that is the point because in the interest of the child and of the case itself, the case must be properly presented. I cannot see it being possible to present a case in a proper and adequate manner within 24 hours, We need to look at that aspect of it.
I have a few concerns about some of the issues that have come up in the debate. I would like to refer to amendment No. 48. The suggestion is that a social worker should be involved at the time a member of the Garda Síochána is going to take a child into custody. Such a move is very traumatic for the child. Think about the effect on the child if a member of the Garda Síochána alone, in uniform, with all the threatening element that that implies goes to take the child into custody. Would it not be a good idea to have a social worker in attendance to whom the child could or would relate more easily? The child will certainly never forget the element of a uniformed garda, I know there is a later amendment dealing with the code of practice for the Garda Síochána, training, etc. If the Garda Síochána cannot go in plain clothes, having a social worker in attendance might be the answer.
I support the point made by Deputy Fennell and expressed by other members here, too. In an emergency or a crisis in, say, the middle of the night, it may be difficult to get a social worker. We would like to include provision to deal with that but there could be difficulty if we made it too inflexible. I agree that anything which can be a cause of trauma for the child should be eliminated.
The time element is crucial, and not alone a matter of making sure that the time is not too short or too long. British commissions have reported on this. If the police alone or the social workers alone are involved they have to take on the sole responsibility if they do not have the time to consult with others. That can be a deterring factor when the responsibility is not shared and parents might take an action. The Cleveland findings reveal that ample time is necessary for consultation between the various agencies such as police, medical — obtaining medical reports of previous abuse, may entail getting in touch with a hospital or a general practitioner — plus the social worker and the health board. It has been found that even from a shared responsibility point of view and to get the best case presented on behalf of the child, sufficient time is necessary for consultation and shared conferences, so to speak. I agree with Deputy Howlin. Even if the District Court is sitting within a day or two we should not be rushed into taking proceedings.
Deputy Dempsey and Deputy Jacob have covered the main point I wanted to make. I had a concern in relation to the mechanism that would operate once a member of the Garda Síochána had taken a child into custody. I agree with the Minister that it would be inappropriate in an emergency where a child was deemed to be at risk and where it came to the notice of a member of the Garda Síochána that a social worker should be deployed to do that work. I do not think it is appropriately a social worker's function to go and take a child away from parents.
I agree with Deputy Fennell that it is very traumatic. It is a very sensitive time. There is the danger that one or other of the parents, feeling that they are being deprived of a member of the family or that a member of the family is being removed from them in a forceful way, could resort to violence. In such circumstances it is absolutely essential that a member of the Garda Síochána be present.
Nevertheless, I see a problem as outlined by some Deputies, and Deputy Dempsey has referred to the central point. What happens if a member of the Garda Síochána has the child in his or her custody at the beginning of a weekend? I see a problem there in relation to subsection (3) of amendment No. 53. I would like that to be addressed further. I would not see it as appropriate that a member of the Garda Síochána should have in his or her custody for a weekend a young child, or indeed for that matter a teenager, in such circumstances. A great deal of training and skill are required to deal in a caring and sensitive way with such cases. I am not saying that gardaí are not capable of being caring, but is the skill available to them that would be available to other professionals? That is a concern I would like to outline. I also take the point Deputy Dempsey referred to. Is it possible to make an application to court and have it deferred? I would like to hear further about that. The point Deputy Dempsey made is a very good one. If that mechanism could be applied — I do not know if it is legally possible or if the courts would allow it — it might get over the problem Deputy Howlin has. If an application could be lodged, if it could be deferred and in the meantime the proper professional team could come around and consider it, the problem he outlines might not necessarily be a problem.
There is a very fine balance between the period required to prepare a case and the period within which the case should come before the court. It is more or less accepted that there are situations where a case need not come before the court for a period of seven days. My personal view is that that would not be acceptable. Even if the Garda handed the child over to the health board immediately, I do not believe it would be acceptable for a health board in that situation to have the child in their care for seven days without making an application.
In that case the view might be taken that the Garda in that situation were exercising a judicial function, by handing the child to a health board for a period of seven days. I would strongly urge that the section be amended to include a provision whereby there would be a special sitting of the District Court within a period of 72 hours of the child being taken into care.
I will try not to repeat points made already because there is a growing concensus in the contributions. Initially I indicated I wanted to speak in relation to the comments of Deputy Ahern because I felt he was implying I took him up wrongly that there was going to be some automatic nature about the court dealing with cases like this. They talked about a standard form. The courts would deal with these in a very careful way because we are talking about the custody of children which is a very fundamental point of law and a constitutional point. The courts would be very careful in how they adjudicated so it would be very important that a cogent case be made and that a proper assessment of the circumstances by the health board be available to the court. I would like to see in the section, if the Minister is redrafting his amendment, a requirement for an assessment and recommendation from the health board to accompany any such application. It is understood but maybe it should be spelled out when an application for an emergency care order would come before the District Court. I strongly take up the points of Deputy Jacob in relation to the need for expediency, but not undue haste, and for getting the balance right. There is a growing concensus about the 72 hours. I also take up very strongly the point of Deputy Fitzgerald in relation to training. There is not sufficient training within the Garda Síochána and I would hope that it would evolve that specialists would undertake this, possibly banghardaí who would be trained specially to deal with such cases sympathetically and properly and who would wear plain clothes when dealing with cases of this kind. I happen to believe that women in circumstances like that would act more sensitively and would be less intimidatory.
To refer directly to the notion of a deferred court hearing, I do not know whether that advances too far down the road. Is it then required by the next sitting of the court? We still have all the same difficulties in relation to whether that period would be too long or too short. It certainly would not be too short after the first hearing. Having listened to the argument I am of the view that the Minister's more comprehensive amendment No. 53 is desirable. But there should be provision within his amendment for a definite requirement of 72 hours rather than the more open requirement of the next sitting of the District Court.
This section is an emergency section and we should bear that in mind when we are talking about making cases to the court in relation to it. That is because it is to deal with a problem that might arise during the night, and the danger that if a decision is not made in relation to a child, the situation may regress. The section is based on the concept of an immediate and serious risk and it is only at that stage that the Garda could become involved. The point about the weekend, raised by Deputy Sherlock, is very relevant but whether it is relevant to the legislation is another matter, because it is more an administrative problem as to whether the health board are available at a weekend. We cannot put into the legislation that the health board have to have someone available at weekends. In relation to this area, in my experience down the years the Garda are always aware of the social workers in the area. They have notified social workers from the health boards over weekends that there is a problem in a certain family and the social workers are able to intervene. Whether they have the right from a legislative point of view to intervene is another matter but they do.
The point in relation to the next sitting — we are all a bit wary of this — perhaps it could be amended to read something like "make an application at a sitting of the District Court as soon as practicable thereafter." It is possible for the Garda to call a district justice late at night and to say there is an emergency. It could be dealt with in the district justice's sitting room that night if necessary. I would be slightly reluctant to tie us down to particular periods because that is often found unworkable. Each case is distinct and it is possible that because of the legislation someone might have a difficulty. I would be more inclined to say "a sitting of the District Court as soon as practicable thereafter" given the fact that they are emergency proceedings. The Minister and his officials should have another look at this in view of the near unanimity among us that there is a difficulty in relation to the making of these applications. The other point is that the district justice would be entitled to adjourn an application if he or the health board felt, or if somebody involved felt, they did not have enough information. These are ex-parte applications, in other words interested parties involved do not have to be notified. I am wondering if there is anything further that might take care of that point. Perhaps, someone who is a guardian of the child would be notified in some way.
The discussion over the last 40 minutes has been quite comprehensive and we can see that there is broad consensus across the floor. While I would be ad idem with amendment No. 48, we on this side of the House have got to accept the reality of the voting figures. I think that at all times it is to be recommended that the social worker would be involved from the initial point and that we would have the type of liaison the previous speaker spoke of between the Garda Síochána and the social workers of the health board. My experience is that social workers within health board areas are working around the clock. Like a member of the Garda Síochána or a sitting justice, as has been referred to earlier, social workers are known to be on the scene at all hours of the night in the event of an emergency. We are dealing with a situation where the child must take pride of place. Having stressed the importance of having the social worker involved, I would hope that the Minister might consider an amendment at Report Stage that would involve the social worker in the legislation.
I am a little concerned at the Minister's amendment No. 53, subsection (3), stating that, where a child is removed by a member of the Garda Síochána, that child shall, as soon as possible, be delivered. I hope that "as soon as possible" would be forthwith because, as stated by Deputy Sherlock, there are no facilities available to the Garda Síochána for keeping in their custody a child as envisaged under this section. I would hope that the child would immediately be placed under the care of the health board officials. If we were to take Deputy Yates' amendment, it would be read into the legislation that the social worker would be involved immediately and that once any danger in the form of physical violence had passed, the social worker, the employee of the health board area, would be in control and would have custody of the child.
The third point relates to the District Courts hearing. I think there is a broad agreement that given the manner in which District Courts hearings take place, the scheduling and the future rationalisation of District Courts as adverted to by the Minister for Justice in recent times, we will not have a situation where the next sitting of the District Court will be the next day, the day after or, indeed, in two or three days' time. We may have that at the moment, but we have to look at what is going to happen in the District Court areas. With the rationalisation as proposed, we will possibly have District Court areas with one or two sittings per week. It is important that we bear in mind what previous speakers have said. Perhaps the Minister would come back at Report Stage with an amendment that would satisfy the spirit of what Deputy Howlin is speaking about not having the court hearing too early and yet having a court hearing that would be at the next available opportunity after the expiry of 24 hours. Indeed, if it happens in August, then there is no problem bringing an emergency application before a district justice within a period of 48 hours. The length of time between the taking of the child into custody and the court case must be as short as possible, otherwise we are in danger of having a constitutional difficulty in so far as the child is in custody without a court order having been made, and it is in everybody's interest that that court order should be made as quickly as possible.
On the other point that has been mentioned by Deputy Fitzgerald, there is no problem having a district justice grant an emergency care order and putting back the full hearing of evidence for a period of four or five days. In the meantime, the child remains in custody and I suppose what is in force is an interim care order. I do think there is scope for tightening up amendment No. 53 in order to accommodate Deputy Howlin and Deputy Yates.
A few points occur to me. In the urban areas, the gardaí normally arrive in the white heat of battle, whereas social workers normally act on more considered information that would be at their disposal. I did not realise until I listened to Deputy Sherlock that health boards do not, as far as I know, have an after hours duty officer who can be contacted in an emergency. It is something as Minister of State at the Department of Health you may take a look at some time.
I have listened with great care to the very committed, sincere and varied contributions on this section. We are dealing with Part III, which is the protection of children in emergency situations, and all the sections should be taken in totality because they are all interlinking and refer to one another. Section 11 covers a lot of the points that have been raised.
I would like to return to a point which was raised earlier by Deputy Howlin. When the application is made before the court, whether it be 24 hours, 72 hours or whatever other period, the health board will have to satisfy the court that the circumstances mentioned in section 11(1) apply. It will not be necessary to satisfy the court beyond all reasonable doubt; it will merely be necessary to demonstrate that there is a reasonable cause to believe that the child is at risk. I do not believe this places too much of a burden of proof on social workers. In any event, I do not think that we could have a child detained in care against the parents' wishes without some evidence being brought forward. Section 10 deals with an impromptu, grave, urgent, current situation. That is the whole thrust of the section.
With regard to the possibility of an adjournment or a deferral, my understanding of the situation is as follows: the garda removes the child in an extreme emergency, perhaps in the middle of the night, and as soon as possible the child is handed over to the health board. There is a strict obligation on the health board to apply to the court as soon as possible for an emergency care order under section 11. At that stage, the health board must satisfy the justice that there is reasonable cause for concern. If the justice is satisfied, he grants an emergency care order; if he is not satisfied, the child must be released forthwith.
I accept that section 10 is going to give rise to the need for closer co-operation between the Garda and the health boards. It may be that the health boards will have to provide social work cover late at night or over weekends, perhaps on an on-call basis, as the chairman and others have referred to. There are informal arrangements of this kind in place at present for place of safety cases, but these need to be strengthened and formalised. These are operational matters which my Department intend both to follow up and, indeed, to firm up with health boards as soon as the Bill is enacted.
Deputy Flanagan has talked about the importance of delivering up the child forthwith. It would be our intention that the garda or gardaí involved would deliver up the child immediately or as soon as possible. Some very good examples have been given by Deputy Sherlock and others of particular situations. I would refer Deputies to the recent weekend when a child was abducted in Norway and came across the Continent of Europe into Britain, across Northern Ireland and ended up in Wexford. The gardaí apprehended the man involved, with the child, in Wexford and both the man and child were detained overnight in Wexford Garda station last Saturday night. The health board officials, and particularly the social workers, were called in on Sunday and they took care of the situation immediately thereafter. So, we have these ad hoc arrangements. We do intend to firm them up as soon as the Bill is passed and to tidy up the situation. Our desired objective is to ensure the importance of the child and that the child is put into proper safe care with the health boards as quickly as possible. The advice received from the Department of Justice in general is that a sitting of the District Court would be available somewhere within the district within two or three days, or at the very maximum, seven days. In the light of what has been said I would be happy to have further inquiries made and, if necessary, bring forward a further amendment later referring to special sittings of the court. I will come back with that at Report Stage if you are satisfied with it.
I will withdraw my amendment on that basis.
From what the Minister has said, I think he has made the case for the shortest possible interim period because presumably when one speaks about the preparation of the case by the social workers to the court it is not as if they are looking for a care order, they have only to ask for an emergency care order. Therefore, I still think we are really talking about whether it should be 24 hours or 72 hours. I agree with the point that there should be a special sitting if so required, but it should also be within a certain time limit because we are effectively talking about a limbo period where there is no emergency care order. I do not think there would be that much preparation on that in comparison to what would be necessary for a social worker to obtain a care order. Therefore, I accept the point the Minister is making but if he does ask for a special sitting of the District Court along the lines requested by Members of the Committee, I ask the Minister to ensure that that will still be within a time period and a period of 72 hours needs to be inserted there.
In relation to the point about the social worker with the gardaí, I take it that there is an ad hoc relationship between social workers and gardaí but I do not think it is unreasonable for us to ask if it goes a little beyond ad hoc, in so far as we would insert the words “where possible” that the gardaí would seek to have a social worker with them. It would clearly show in terms of what has been said about the emphasis this Committee want to put on cases, that they would be accompanied. So I, too, will withdraw my amendments in order to expedite matters. But I would ask the Minister to consider that and that it would still take account of the point made about it not being possible to get one in the middle of the night. In terms of a code of practice I would ask that it would not just be left to a garda. You might have a particularly hot headed garda who might have had a particularly tiresome day and he might be only too happy to rush in, whereas if he discussed the matter with the social worker there might be a different attitude. Where possible a social worker should be engaged and it still would not overcome the practical difficulties that the Minister has outlined.
To respond to Deputy Yates, section 11, subsection (3), covers some of what the Deputy talks about, but we do not visualise that it is necessary to insert that in the section 10. We are fully aware of the very important constitutional situation pertaining to the protection of a person's home, the right of entry to that home, the rights of the parents, the paramount importance of the child and all that has to be taken into account. No matter how hot-headed a garda would be, he would have to take into account the fact that he was dealing with a very serious situation, and if he rushed into something that would take some time to deal with, he would be one of the principal characters in having the matter dealt with legally and properly.
We desire that the child would be immediately handed over to the health board and that the order would be sought in the courts as quickly as possible. I would suggest, however, that it is dangerous to put in 72 hours or 24 hours because that just may not be feasible or practical for many reasons, the district justice could be sick, or anything could happen. Suppose the period is 73 hours and somebody says sorry, you are one hour late. What happens then? I believe that nobody should be given the latitude to drag out a limbo period and hold a child in custody while other situations are developing. I think it would be dangerous and I would recommend that we would not impose a situation by putting in the 72 hours or thereabouts; perhaps we could put in five or seven days. I would not want it to go beyond seven days; at the very worst, the maximum period would be seven days. It is dangerous to write in hours and it is dangerous to write in a few days. We must give time to make sure the law is implemented, that the best evidence is available, that everybody who should be there to make a proper adjudication and to give a proper considered judgement in the best interests of the child, is available. It is dangerous to tie our hands, particularly to a time factor. However, in view of what has been said I will look at it for Report Stage from the point of view of the court and from the other points raised.
In relation to the specific time limits in the Bill that is something I adverted to earlier. It brings to mind a case where a man succeeded in getting off a very serious rape charge because under the legislation dealing with majority verdicts being brought forward by a jury, they were required to spend two hours in the jury room on their decision. In that particular case his defence lawyers were able to show that they spent one minute and 56 seconds in the jury room deciding the issue and because of that he got off.
Mr. Chairman, I think we have come a long way from the initial 24 hours in the Bill and it is a good thing that we have come together to re-focus on the issue. There is some merit in what the Minister is now proposing. I have said that I will withdraw my own amendment No. 54 — I presume that the Minister will press his amendment No. 53 — on the understanding that the Minister will look again and reflect on the implications of subsection (4) and that on Report Stage, if we so wish, my amendment can be resubmitted. I am sure Deputy Yates would have in mind that he could resubmit his amendment in some other form, possibly stitching into the legislation the accompanying nature of a social worker where practicable.
In view of what the Minister has stated that he is going to come back on Report Stage — obviously the question of timing is important because we are dealing with an emergency care order. To suggest that an emergency care order can be sought within seven days is not an indication of an emergency. Therefore, we have moved from the next sitting of the District Court and from the 24 hours. The Minister is not putting a limit of 72 hours, he is talking about three, five or seven days. Let us have an indication of what we are talking about. If it is an emergency, the emergency care order has to be sought within a period of 72 hours.
I do not want to draw this matter out. I thought I had clearly illustrated that we want an immediate decision, an immediate handover of the child by the gardaí to the health board authorities, an immediate application by the health board to the court for the order. We may not get the best decision if there is a time limit. It may not be possible to make an application within 24 or 72 hours as we may not get a court sitting within the specified time. There could be a technical situation which might create a problem and at the end of the day we might not be serving the best interests of the child. We recognise the rights of the parents and the need to have everything above board. However, we are dealing with an emergency and I am absolutely satisfied that the Garda Síochána, the health boards and social workers have the ability to put a case together quickly. We will have another look at the situation based on the request of the Members present. If amendment No. 53 is accepted I will look at the totality of the contributions and the proposals of the amendments and come back on Report Stage about what we think are the best proposals available taking into account members' wishes.
If we pass amendment No. 53, then it is understood it will be amended further on Report Stage to help to solve the problems to which we alluded.
We will come back with proposals on Report Stage based on the existing amendment No. 53.
The final point I would like to make is that in the original 1985 Bill the Department put in 72 hours. In the 1988 Bill it was brought down to 24 hours, and now the Minister is saying up to seven days. This does not make sense. That is the position in terms of amendment No. 53. It seems to point to extraordinarily oscillating views in the Department before the Minister's time. There is a case for specified hours——
The Department have been consistent in that originally there was a proposal for 72 hours. The proposal now is for 24 hours. I said seven days in response to the situation. I was only throwing up a period of 24 hours, 72 hours, five days and seven days. It is dangerous to create a situation whereby, for one reason or another, we define in hours what is to be done. We will look at it again and come back with the best proposals possible for consideration on Report Stage.
I suggest that the best possible thing is to define the words "emergency order" in the Bill. If that is not done the words "emergency order" and the timeframe within which there is an emergency order would ultimately be decided by the Supreme Court.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 9, subsection (1) (a), line 2, to delete "and" and substitute "or".
This amendment is seeking a very minor change. In the case where a garda has reasonable grounds for believing a child is being assaulted, ill treated, neglected or sexually abused the word "or" is to be substituted. There is always the possibility that if a garda is called it is because there is a problem. At that particular time an offence may not have occurred but he might have reason to believe that there was an immediate and serious risk to the health and wellbeing of the child. For that reason I ask that amendment No. 49 be accepted.
Deputy Sherlock seems to be saying that at present a child has to be assaulted, ill treated, neglected or sexually abused and must also be at immediate risk to his health.
I am at variance with the view of the Deputies. The use of the word "and" is quite deliberate. Briefly, the section provides that where a garda believes that a child has been or is being assaulted and that there is an immediate and serious risk to his health or wellbeing, the garda may take the child to safety. The purpose of this dual test is to guard against the possibility of inappropriate or unnecessary intervention by the gardaí. For example, it could happen that a child had been assaulted by a stranger and was recovering in the safety of his own home. In such a case the child would not be at an immediate or serious risk and there would be no need for intervention by the gardaí. If, however, the word "or" was to be inserted instead of the word "and" it would open up the possibility however remote of unnecessary interference in this child's life in such cases. We must be careful to guard against that situation and this is why we want the dual test to be there.
I would be inclined to agree with the Minister that this is an emergency section and the onus in relation to it is being put on the immediate and serious risk element of the abuse. With regard to section 15 dealing with care orders, there are a number of alternatives as to when the court is satisfied that the child is neglected and so on. That is why the Minister is insisting on the word "and", to bring in the immediacy of the situation.
I do not accept what the Minister says. If a garda turns up in a house and sees a child battered and bruised and the adult says he is at no further risk, that the guard has to be satisfied that the child must be under further potential risk strikes me as quite incredible. In any of these cases professionals have to make judgments. If they see that a child is being assaulted, ill treated, neglected or sexually abused surely that is adequate? The Minister is saying that they have to make judgments about paragraph (b) and that paragraph (a) is a justification for a member of the Garda Síochána acting in terms of looking for emergency care.
I am at a loss to understand the reasoning of Deputy Ahern. Certainly there are provisions in relation to applications for a care order that we will be dealing with when we reach section 15. That is a judicial process. We are talking about an emergency process here where a child is at risk. We are arguing fundamentally about how convinced the garda has to be. A garda is an experienced trained officer of the law and I do not think that we need obstruct him with so many hurdles. The garda would judge instantaneously whether the child is vulnerable and at risk. Before a garda can legitimately take a child away from a place of danger he must be satisfied he is entitled to do so as otherwise he could face a challenge to the legitimacy of his action. The criteria in either paragraph (a) or paragraph (b) would certainly satisfy any reasonable person. If the child has been assaulted, ill treated, neglected or sexually abused, certainly that child should be taken into care. If the member of the Garda Síochána has reason to believe that the child is at immediate and serious risk to his health or wellbeing, surely that is a reasonable ground for taking the child away from that immediate danger? I do not understand the logic of requiring a series of hurdles to act on an emergency basis. We are not talking about justifying someone being taken into care on a long-term basis. We are talking about removing a child from being vulnerable and we should not put too many hurdles in the way of the garda taking the child from that danger. I must say that I do not understand the logic of the Minister's resistance to the suggestion of the word "or" in this case.
The Law Reform Commission's report agrees with the immediate and serious risk element in the legislation in section 10. This is an emergency situation and we are dealing in semantics whether we use the word "and" or "or". If a garda sees a child has been assaulted, it would be obvious to him that there is an immediate risk and, therefore, in that instance he should act.
The last point made makes the argument being put forward by the other side so ridiculous that it hardly warrants a reply. The Minister referred to a situation where the child might be assaulted by some outside force and would be in the safety of their own home. Is it not just as likely that it could be in the safety of their own home that the assault would have taken place? If that is the more likely scenario, judging from the experience all over the country, the point, therefore, is that the garda is alerted. He comes on the scene and if that has happened, then paragraph (b) is superflous because he must act according to his duty and take the child into care or custody. The question that arises is that he may arrive at the scene and at that stage the child might not have been ill-treated, neglected or sexually assaulted, but he has good reason to believe that it could happen in the circumstances and he sees that there is an immediate and serious risk to the child. If we put in the word "or" that will enable him to act in those circumstances. That is all that is being requested in this amendment.
I suggest that either we should not have paragraph (b) at all or it should be changed according to the amendment. The garda will have discretion in this instance to decide when he sees evidence that the child has been assaulted, ill treated, etc., to remove the child as an emergency measure from the source of that abuse. If he has to stand and make a decision about whether the situation presented to him suggests that there is an immediate and serious risk to the health or well-being of the child it will tie his hands considerably. Further if the amendment is accepted, will the garda have to make an immediate decision? Will that not be very difficult for him? The implications of paragraph (b) will be even worse, and they are bad whether the amendment is accepted or not.
I am inclined to agree with Deputy Sherlock's argument that there is a need for "or" rather than "and". My reading at the moment is that the child has to have been assaulted, ill treated, neglected and sexually abused — any or all of those things has to have happened — and there is an immediate risk. In fact, the child has to be bleeding, bruised or assaulted before paragraph (b) can come into effect. I have often heard of cases where a mother realises there is a huge threat perhaps from a drunken husband who is about to assault her or her children. She may even have locked herself and her children behind the door for a certain length of time. The assault may not have yet taken place but there is certainly an immediate and serious risk that it will. Therefore, "or" has to operate in such a situation not "and", otherwise you are saying that the child has to be assaulted. Situations can arise where the garda can make a proven consideration based on evidence that there is an immediate and serious risk to the child. Take the case of somebody drunk and threatening either sexual or physical abuse; you have to have paragraph (a) operating before paragraph (b) comes in, whereas paragraph (b) should stand on its own. Deputy Sherlock's "or" would cover that emergency which can arise.
Section 10 (a) is very explicit: a child has been assaulted, is being assaulted, ill treated neglected or sexually abused. A garda comes on the scene, he has to make up his own professional mind, make his professional judgment and assess the situation. If, as Deputy Yates said, this child has been assaulted, of course, the garda has to investigate the matter to see how the child was assaulted, who assaulted the child, when the child was assaulted and to get the maximum information he or she can. We are including paragraph (b) as a qualification that there is an immediate and serious risk to the health or well-being of the child. Suppose the child has been out on the street and has been involved in a fight with another child of the same age and the garda comes to investigate, is he to take the child away? He may do. I go back to my original statement on this section. I thought I had clarified the position that the gardaí are only involved in emergency situations and that we did not want them initiating child care cases. That is a matter for the health boards. The first step in dealing with allegations of child abuse would be taken by the social workers and not by the Garda. The corresponding provision in the Children (Care and Protection) Bill, 1985, proposed that a garda could remove a child if the child had been assaulted or otherwise or if the child's immediate safety required it. This was widely criticised by social workers and other professional people and, indeed by many people throughout the country. They feared that it was open to abuse by the Garda who might be tempted to use this section to detain children engaged in joyriding, cider parties or other antisocial activities on the basis that their safety was at risk. This was one of the reasons a dual test was introduced when this 1988 Bill was being drafted. Consequently, we believe it is important to have the dual test there and that leaving paragraph (a) on its own, without the covering of paragraph (b) leaves the situation, as far as we are concerned, open to abuse and unnecessary intervention. We think it is vitally important that the two be taken in tandem.
Section 10 starts by saying "Where a member of the Garda Síochána has reasonable grounds for believing that". Taking the Minister's supposition that if the child fell off his BMX bicycle, broke his nose or scarred his face and the garda said that the child had been assaulted and should be taken into care, of course, that would not happen. The garda will see if the child has been abused. If he is satisfied that the child has been assaulted, ill-treated or neglected he has to satisfy himself that whoever did it will do it again before he can take him in. As Deputy Howlin said, someone might well say: "I was drunk when it happened last night but it will not happen again. I am sober now". We should tilt the law in the direction of protecting the child rather than giving the benefit of the doubt to the potential abuser.
If we take the circumstances where a garda is advised that there is a problem and he sees that the child has not been assaulted, ill treated, neglected or sexually abused, as is defined clearly for him under the Act. The garda realises now that there is bedlam and he could be told by one or other of the spouses that it is a family row. What then does the Minister see as the role of that garda? Should he turn away from the problem?
The Minister has made the point very well that the gardaí are not the people to initiate these proceedings. I would be worried that this section would give the gardaí very immense powers which might apply to other areas not really relevant to the subject we are talking about. It is quite possible that the gardaí could abuse this section to take care of other problems they might have — maybe they are not able to arrest a person for some reason and they then advert to this section. I feel that if a garda was aware of this section and decided that he had reasonable grounds that there was an immediate and serious risk to the health of a child he could take the child in for any reason at that stage.
I was a bit concerned about this until I became aware of the assault charge process. I am familiar with what Deputy Barnes was talking about — there are cases in this city, and indeed I am sure throughout the country, where children are under threat — but, thinking about it in the context of the system whereby there is an assault charge facility, I am anxious to hear of specific cases where an assault charge would not apply.
May I give an instance? I have been told by women who have young daughters approaching nine, ten or 11 years of age that sometimes they have had to make a decision and try to move the children out of the house — sometimes they cannot do so — because they know from experience, which they cannot now prove, that the husband is going to come back drunk that night and will attempt to rape those children. That is putting it very basically but there is evidence to show that it happens. A child in those circumstances is very much at risk. If no assault has yet taken place, the child is not being assaulted and the mother has no evidence to show that the child has been assaulted in the past because that evidence is no longer there, but the garda can reasonably believe that that is going to happen, he must have the flexibility and the right to take and protect that child. I am not exaggerating when I say that that is what happens in certain households. If you tie one clause in with the other the garda will not have power in those cases but if you leave the words "or there is an immediate and serious risk" then he can use his judgment. It must be remembered that the garda has got to find proof afterwards — we have just spent a lot of time talking about that. The garda cannot take action without being able to justify why he has done it. Further evidence would be collected within the 72 hours, for example, the mother or a social worker may be able to present evidence that the child was either molested or an attempt was made to molest the child and the wife and garda base their fears on that. Does the Minister know what I am getting at? I am worried that if the child is not bleeding and assaulted the garda will have to say: "I am sorry, my hands are tied; I know your husband may try to beat, physically assault or sexually abuse your child but quite honestly I have not got the power to do anything". That is what worries me about this section.
Deputy Barnes has made the case perfectly. Surely the whole thrust of this legislation is to protect children. That is what we are about. We are dealing with a section which provides for an emergency intervention which is the first level of intervention — there are other levels which we will deal with in subsequent sections. We are talking about children who are vulnerable. The onus on us must be to prevent harm coming to these children if that is an option open to us. If we are putting in a clause, as appears to be the case, that we can only act after a violation of the child, that is not good law. The only real argument I have heard against the inclusion of "or" is that we cannot trust the Garda not to abuse the power but I do not accept that. We must legislate to protect the child. We must, if we can, intervene before harm is done and not be put in a straitjacket where no action can be taken to protect the child until he has actually been assaulted, hurt, neglected or abused.
To deal with the point raised by Deputy Ahern in relation to the possible abuse of the power and the suggestion that the gardaí might take children into custody for whatever reason they want, we have already dealt with the fact that forthwith the child would be put into the custody of the health board. It is not a matter of normal Garda custody; the child would be handed over to the health board instantly and, as Deputy Barnes has rightly said, the case would have to be defended within a very short period subsequently if there is an emergency care order brought before the District Court. There are adequate safeguards and there should be no error on the side of protecting the child.
I come back to the point of giving excessive power to the Garda who are not trained in this area. There could be instances under this emergency provision where children are taken out of homes without any reference to the parents and the parents may very well be aggrieved that their child is taken without yea and nay to them. We should be very careful when giving excessive power to people who are not trained. This brings to mind the problem which arose in the Cleveland case. The Law Reform Commission report states at paragraph 221:
We have no evidence of excessive use of place of safety orders in this jurisdication. Nevertheless experience abroad suggests the need for safeguards to ensure that the making of such orders never becomes a routine matter. One of the major problems in the Cleveland episode was the over-deployment of emergency care orders. They were applied for far too readily and in a number of cases were used in the first stages of management and intervention in situations where there was no immediate danger to the child.
We should bear that in mind when we are talking about giving excessive powers to a garda who most likely will not have training in child care. By putting in "or" we would be giving them that power and that would be very dangerous indeed.
I still recognise that there is a problem here. From observations in certain parts of the city I am aware that there are occasions — not very often — where there is difficulty in relation to this matter and where it is perceived by either parent that there is risk to a child or children. I do not know what the answer to this is or how the Bill should address it, but having heard Members from the other side speak about the either/or situation, I am not entirely happy that to substitute "or" for "and" is necessarily the answer. I do not know what the answer is but as one Member of the committee, I am not convinced that the arguments advanced would necessarily, meaningfully and responsibly respond to that dilemma.
I have listened very carefully to the contributions and can sympathise with various sides of this argument. On balance, it has to be remembered that an emergency power is being given to Garda Síochána to act without a warrant. For a garda to act without a warrant there would have to be, in my view, very serious and grave reasons why he would take a child and, as soon as possible, put the child into the care of a health board. However, I do have a question for those who would argue for the word "or", and I think it is a fairly important question. Could you please explain, in order that I can make up my mind on this, why there would be a necessity for an emergency care order if there was no immediate or serious risk to the health or well-being of the child? Surely, if there was no risk to the child following the event the argument could be validly put that one would be as well off adopting the normal application procedure. My understanding of the reason behind seeking an emergency care order is that the child is at risk but if there is no immediate and serious risk to the child, inserting the word "or" here is like closing the stable door after the horse has bolted.
If I might take up that point: Deputy O'Donoghue has effectively argued for the deletion of paragraph (a) and just to have paragraph (b) there. He is asking that if there is a risk, then is that not enough? You could also make the point that if a child has already been abused that in itself is enough.
I find it very ironic that earlier I raised the point that hot-headed gardaí should be accompanied by social workers. Now we are told that gardaí cannot be trusted in these cases and that their judgment is questionable if we give them too many powers. Our views about the gardaí have come full circle. One minute they cannot be trusted to be given a free hand with the law and the next we are told that if a social worker cannot be got they can proceed.
What I am saying is that if there was a social worker to consult in all cases that would be a positive improvement, and I have made that point. The Minister is going to try to deal with that. I think what is being said is — and I think the Minister mentioned this — that because someone was a suspected joyrider, and the gardaí would use the provisions of this section to take someone into care, this provision should not be put there. I totally reject that because the reality is that no sooner has the garda got the child, then he has to explain to the health board why he is taking this child. He also has to explain why the health board should take him or her into custody, and the health board has to prepare a case for an emergency care order within 24 or 72 hours or seven days, or whatever we might decide. This garda will have to stand over and justify his actions to the health board because they will have to take the proceedings, not the garda.
There has to be a case for obtaining the emergency care order, so the garda will not be able to turn around and say: "I really suspect him of joyriding." If that happened, the health board could say: "This has nothing to do with child care services". The supposition that the Garda are going to be so unreasonable and will find so many defects in other elements of the law that they would rely on this, is just stretching fantasy a bit too far. Instead we should err on the side of protecting the child.
Before the Minister replies I would draw your attention to the time. We want to finish section 10 by 7.30 p.m.
First the example I gave was not just my example or the Department's example. We had very strong representations from many bodies, particularly the Irish Association of Social Workers, who clearly illustrated what could happen. We felt, on balance that the information we got and the proposals before us were so important as to warrant the dual test. Deputy Sherlock gave an example and posed a question. He said there could be a case where there had not been assault, ill treatment or neglect of a child but if that is the case I have to ask if we have an emergency, and should it be open to the garda to intervene and remove a child from his home against perhaps his own wishes — that is the wishes of the garda or the wishes of the child. He asks what would be the role of the Garda and what would the Garda do? It would be my opinion that the professional judgment of the garda has to take its place. He will have his own balanced view and if he feels that no assault has taken place but that there is an immediate risk he will obviously alert the health board and the social workers. He will obviously observe the situation and what may happen. Absolutely, of course, he has to use his judgment. He is going to liaise with the health board; the social workers will move in if there are children at serious risk, and they in turn, will call the Garda if they need them. There is no doubt about that. I would be concerned about going down the road suggested by Deputy Barnes. She seems to be suggesting that the Garda should be able to intervene not where an emergency exists but where there is a possibility that there may be abuse. This seems excessive and might not stand up to constitutional scrutiny. I would remind her that we are talking about the child within the Constitution. I would remind the Deputy that the Garda cannot arrest people because they think they might commit an offence. I am just telling the Committee the parameters within which they must operate.
The same principles must apply here. We are talking about an emergency when the Garda are involved and the role they must play, and we are talking about the parameters within which they must operate. It is important to have this balanced situation.
I consider this to be of the utmost importance. I may be going down a road but this is not a fairy tale. Women tell me the reality of their lives and their children's lives. I am delighted that the Minister is aware of what I am talking about which is a threatening situation, where there is no evidence an assault has taken place, but there are more than reasonable grounds that it will take place if that child is not removed. If we must have paragraph (a) before we can advance to paragraph (b) then we are saying to the children, "I am sorry but you have to prove you were beaten." Like rape victims and battered wives who have to show that they were bleeding and almost hacked to death before anybody would believe them. There is a difficulty here and we have all said this. None of us wants the rights of parents or the family to be impinged upon to an unjust degree but the difficulty for family law — and this is something the Department of Health and the officials are very aware of — is that as of now our great difficulty is that the Constitution leaves more to the rights of the parents and the offending people than to the children who need to be protected. From the beginning this Bill must err on the side of the child, because of their vulnerability and the lack of rights. Indeed, the Constitution denies them those rights as of now and there may even be constitutional difficulties in this Bill but this Bill still should protect the children. They should not have to show evidence of their suffering, rape or molestation where there are enough grounds to show that such offences will happen if the children are not removed. I say that in the most serious of ways and I know nobody disbelieves me. What I am saying is that if paragraph (a) has to come into effect before paragraph (b) can follow, we are saying that children have to be assaulted before the Garda can take action. There are emergency situations, and that is what we are talking about. Remember the Garda and the social worker and the family will have to prove their case and they will always have to justify their actions.
The Garda have a number of powers under other legislation which will enable them to intervene in the areas Deputy Barnes is talking about. We are talking about the civil law; this is not the criminal law. The Garda are normally involved in criminal law where they can arrest someone if there is a suspicion that a crime is going to be committed. We are dealing here with the area of civil law. I again come back to the point that one is giving to a garda who is not trained in this area incredible powers to take a child out of a home just because he decides that there is an immediate risk. It does not matter if the child is to be brought to a health board or whatever. He is detaining a person, he is taking control of that person, and that has very grave implications for our Constitution. If that provision were included I could see that that section could raise a difficulty if there was a constitutional challenge because we are giving the garda the right to make a judge and jury decision in each instance and I do not think that is correct.
All I ask is that the committee consider the implications for a child who is possibly open to abuse. There is a traumatic implication involved as well. That is the side I am pleading.
On a point of order, there are substantial amendments to be dealt with on this section and we have spent over half on hour on this particular one. We are not going to change people's views and I think it should be put to a vote.
We are taking this in isolation as if the garda was acting on his own without any back up from the health board. I refer Deputies to section 11 which will allow the garda to inform the health board, to allow the social worker take the necessary action to protect the child. Deputy Ahern's interpretation is absolutely correct, we cannot have an open ended situation for the garda to be involved in. These provisions are there for a specific reason — to protect children; and if they feel there is somebody at risk they can call in the social workers who, under section 11 can take the necessary action.
I do not wish to labour the point but I could not let the Minister's reply pass without comment. The Minister says the garda can contact the health board social worker. Say there is an incident at 11 p.m. or 12 midnight and the garda is called to that home, if there is no evidence that anything has happened but there is the likelihood that it could happen, what does he do? He walks away and tells the health board that something might happen in that home and that they had better be on the look out. That is not good enough if we are serious.
Amendment put.
The Committee divided: Tá, 6; Níl 7.
Tá
- Barnes, Monica.
- Flanagan, Charles.
- Fennell, Nuala.
- Sherlock, Joe.
- Howlin, Brendan.
- Yates, Ivan.
Níl
- Ahern, Dermot.
- McDaid, Jim.
- Fitzgerald, Liam.
- O’Donoghue, John.
- Fitzpatrick, Dermot.
- Treacy, Noel.
- Jacob, Joe.
Amendment declared lost.
I move amendment No. 50:
In page 9, subsection (1) (b), line 3, after "health" to insert ", welfare".
I know that if the last amendment was not accepted this one will not be accepted either. I am very anxious to have some discussion on amendments Nos. 55 and 56 so I will withdraw it.
I would respond to Deputy Yates and surprise him by saying that in view of the fact that he has withdrawn it I intend to incorporate it on Report Stage. It will be necessary to move a similar amendment to section 11 (1), line 19, and I will do the same thing there.
I am delighted the Minister is prepared to include the welfare of children.
I said that in view of the fact that the Deputy has withdrawn it I would be prepared to bring back an amendment on Report Stage to incorporate it provided we were prepared to move another amendment incorporating the situation on line 19.
Do I take it that it will be identical. It will be in the same place and the same wording.
It will be virtually the same, very close to it.
It either is or it is not. If it is identical it is agreed. I am quite happy for the Minister to table it.
Amendment, by leave, withdrawn.
Amendment No. 51; amendment No. 52 is an alternative. Amendments Nos. 51 and 52 will be taken together by agreement.
I move amendment No. 51:
In page 9, subsection (1), line 5, to delete "may, without warrant, take the child to a place of safety" and substitute "shall, without warrant, have a right of entry and may take the child to a place of safety having due regard to the wishes and best interests of the child".
I am prepared to rephrase amendment No. 51. Having looked at it again the wishes of the child could be anything but certainly they should have due regard to the best interests of the child. I would be anxious to press that aspect of it.
There are two aspects to amendment No. 51. The first is that a garda should have a right of entry without warrant in exercising his powers and the second is that he should be required to have regard to the wishes and best interests of the child. With regard to the first element, I would refer Deputy Yates to amendment No. 53. The proposed new subsection (2) provides that the powers given to a garda under subsection (1), which we are dealing with at present, are without prejudice to any other powers the gardaí possess. This is a reference to the powers which the gardaí have under both the common law and the various statutes. Under the common law the gardaí already have power to enter dwellings or other premises without warrants in certain circumstances and for certain purposes. These are to prevent murder; where a felony has been committed; where a felony is about to be committed unless it is prevented; or to apprehend an offender running from an affray. These circumstances are sufficiently wide to cover most forms of serious child abuse and I do not believe it is necessary to make specific reference to powers of entry here. The second difficulty I have with amendment No. 51 is that it seems to make no sense to empower a garda to intervene while at the same time expecting him to have regard to the wishes of the child. What would the garda be expected to do if the child did not wish to go? This would place the garda in an impossible situation and for all these reasons I cannot accept amendment No. 51.
On amendment No. 52, this is a technical change deleting the reference to a place of safety. It is consequential on the decision taken during our consideration of section 2 to discontinue the use of this term. Under the revised draft the garda will simply be required to remove the child to safety. In accordance with amendment No. 53, which we will be dealing with shortly, all actions subsequent to the child's removal will be a matter for the health board.
I still think there should be an onus on the Garda to have regard to the best interests of the child. It is not an unreasonable request. Certainly I would ask the Minister to consider that on Report Stage.
I am prepared to do that but that was not the amendment before us.
We are making some progress. Already at line 5, page 9, the member may without warrant take the child. To have entry is reasonable, but how do you take a child unless you have entry?
The other powers that the gardaí have under common law and various statutes are adequately covered.
Why does the Minister object to clarifying this so that there would be no doubt about the garda's power in this regard? Is there some difficulty in giving him the specific power as envisaged by the amendment? I do not understand why you would rely on this old power under existing statute rather than specify the power we want him to have, and that you want him to have.
The suggestion that a garda should have a greater right of entry without warrant could give rise to difficulties in view of the constitutional guarantee that a citizen's dwelling is inviolable. Article 40.5 of the Constitution states: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law." The Supreme Court in the case of the People v. O’Brien 1965, Irish Reports 142, held that this provision does not mean that the guarantee is against forcible entry only. The court held, and I quote: “The reference to forcible entry is an intimation that forcible entry may be permitted by law but that in any event the dwelling of every citizen is inviolable, save where entry is permitted by law and, if necessary, such law may permit forcible entry.” It is clear from this judgment that we must be very careful and, indeed, cautious in granting powers of entry to the Garda, particularly where this power is to be operated on a purely discretionary basis without warrant. What Deputy Yates proposes is that the Garda be given power to enter family homes without warrant in a very wide range of circumstances. I would be concerned that this could lead to excessive and mistaken intervention by the gardaí, resulting in great distress for the families affected. I am not sure that the general public would support the idea of the Garda being able to enter any family home unless the grounds were much more clearly defined.
I am very unhappy that I will not get time to debate amendments Nos. 55, and 56. I would like to ask that they be given ten minutes each. This is our first meeting under the time limit. I am all for expediting discussion of the Bill but I would much rather if there was a time limit on each amendment so that we could comment on each one. By virtue of the fact that amendments Nos. 55, 56 and 57 come at the end, we will not get time to discuss them.
I did propose at the beginning of the meeting that we structure the meeting in such a way that every amendment could be dealt with and so leave the final ten minutes to wrap up, if there was to be a vote or a division. Would you like to try that method for the next day?
Are we losing a half an hour today?
We are losing a half an hour. We started 15 minutes late. You can have the first 15 minutes to deal with some of these the next day. Is that agreed? Agreed.
I want to discuss the question of doctors having to report cases that come to their attention and there is the question of Garda training and a code of practice for the Garda.
Amendment, by leave, withdrawn.
I move amendment No. 52:
In page 9, subsection (1), line 5, to delete "take the child to a place of safety." and substitute "remove the child to safety.".
Amendment agreed to.
I move amendment No. 53:
In page 9, lines 6 to 15, to delete subsections (2) and (3) and substitute the following:
"(2) The provisions of subsection (1) are without prejudice to any other powers exercisable by a member of the Garda Síochána.
(3) Where a child is removed by a member of the Garda Síochána in accordance with subsection (1), the child shall as soon as possible be delivered up to the custody of the health board for the area in which the child is for the time being.
(4) Where a child is delivered up to the custody of a health board in accordance with subsection (3), the health board shall, unless it returns the child to the custody of his parents or a person acting in loco parentis, make application for an emergency care order at the next sitting of the District Court held in the same district court district and it shall be lawful for the health board to retain custody of the child pending the hearing of that application.”.
Amendment No. 1 to amendment No. 53 not moved.
Is amendment No. 53 agreed?
Yes, subject to the promise that we will get proper time limits.
Amendment agreed to.
Amendment No. 54 not moved.
That leaves us to discuss amendments No. 55, 56 and 57 next day. Did I hear a proposal that we give ten minutes to each of the amendments at the beginning of the meeting the next day — a total of 30 minutes? Agreed.
Progress reported, Committee to sit again.
The Committee adjourned at 6.50 p.m. until 4.30 p.m. on Tuesday, 20th February 1990.
