Special Committee Child Care Bill, 1988 debate

SECTION 11.

Mr. N. Treacy

I move amendment No. 58:

In page 9, lines 16 to 22, to delete subsection (1) and substitute the following:

"(1) If a justice of the District Court is of opinion on the application of a health board that there is reasonable cause to believe that—

(a) there is an immediate and serious risk to the health or wellbeing of a child which necessitates his being placed in the care of a health board; or

(b) there is likely to be such a risk if the child is removed from the place where he is for the time being,

the justice may make an order to be known and in this Act referred to as an ‘emergency care order'.".

Section 11 is one of the most important provisions of the Bill and because of that I am anxious to ensure that it covers every possible eventuality. I am advised that there is a gap in the existing subsection (1) and this amendment seeks to deal with it. What I am concerned about are cases where a child is in a safe place such as a hospital or is in the voluntary care of a health board and it is feared that the child would be at serious risk if he were to be taken home. Members of the Committee may recall that, when we were dealing with section 4 which provides for what is generally known as voluntary care, some concern was expressed about the possibility of parents demanding the return of children they had previously abandoned or deserted. In such cases what a health board requires is not so much authority to remove the child from home and take him into care, which is what the existing subsection provides for, but rather an authority to keep him where he is and to be able to refuse a request from his parents that he be returned to them. The existing subsection does not encompass this but it is covered in paragraph (b) of the proposed new subsection. Paragraph (a) is simply a repeat of what is in the existing subsection. I would like to emphasise that, before a health board could obtain an emergency care order on this ground, it will have to show the justice that the child would be at an immediate and serious risk if he were to be allowed to return home. There is no question of giving absolute discretion to a health board to refuse to return the child from voluntary care or to refuse to release a child from hospital.

There are two other technical changes which I would like to mention. The first is that the phrase "a justice of the District Court is satisfied", which occurs in the first line of the original subsection (1), is being replaced by the phrase "is of opinion". I am advised that requiring that the justice be satisfied that the child is at immediate and serious risk is too strict a test in an emergency situation. If it were to be applied strictly it could mean that the justice would be unable to reach a decision on an application for an emergency care order without hearing all the facts of the case. This could effectively set at nought the whole emergency procedure.

What is now proposed is that the justice having heard the evidence supplied by the health board would have to form an opinion that the child is at risk. Obviously the justice would still require that the health board show reasonable cause in support of the application, but it would not be necessary for him to satisfy himself that the child was definitely at risk. This is a matter for a full court hearing at which the parents would have a right to be represented and which would, in accordance with subsection (2), take place within eight days of the making of an emergency care order.

The second change is the deletion of the reference to information supplied on oath by any person. This was inserted here to enable a garda, who had removed a child from his home under section 10, to apply for an emergency care order. As a result of the changes made in section 10 by amendment No. 53 it is now provided that, where a garda removes a child under section 10, all subsequent action, including the question of seeking an emergency care order, will be a matter for the health board. There is, therefore, no longer any need for this phrase here so it does not appear in the new subsection (1).

Mr. Yates

I have no objection to amendment No. 58. It is an improvement on what was previously section 11 (1). It will make it easier for the district justice to determine the issuing of an emergency care order. The second change is simply consequential on removing the Garda from the processing of care orders and we will be supporting it.

Mr. B. Howlin

I welcome the new amendment. It is an improvement on the existing section 11 (1). It is clear and it gives greater flexibility to the district justice and I will also support it.

Mr. Sherlock

I do support it but I only wish the Minister would give as much consideration to the amendments proposed on this side.

Mr. N. Treacy

Thank you very much, Deputy. Your point will be noted.

Amendment agreed to.

Chairman

We now proceed to consideration of amendment No. 59. Amendments Nos. 1, 2, 3 and 4 to Amendment No. 59 and amendments Nos. 69 and 81 are related. Can we take these together? Agreed.

Mr. N. Treacy

I move amendment No. 59:

In page 9, lines 23 to 26, to delete subsection (2) and substitute the following:

"(2) An emergency care order shall place the child under the care of the health board for the area in which the child is for the time being for a period of eight days or such shorter period as may be specified in the order.".

There are two technical changes being made in this amendment. First, the amendment makes it clear that the child who is the subject of an emergency care order shall be placed under the care of the health board involved. While this was always the intention, it is not clearly stated in the existing subsection and I do not think that there should be any ambiguity about it. Secondly, the reference to the child being kept in a place of safety is being deleted. This is being done for two reasons: it is consequential on our decision when we dealt with section 2 to discontinue to use the outmoded term "place of safety" and, more important, I have been advised that that wording could be interpreted as requiring or enabling the district justice to specify the exact place in which the child was to be kept for the duration of the emergency care order. This was not intended and if the subsection were to be read in that way it would create enormous practical problems. For example, if the justice ordered that the child be kept in a certain residential centre and it transpired that the centre had no places available, the health board would have to go back to the court to have the order varied. The new subsection leaves it to the discretion of the health board to keep the child in the place or places which are best able to cater for his needs, which might be a foster home, a residential centre, a hospital or otherwise. I think this is a more practical approach and I hope Deputies will support this amendment.

Mr. Yates

I move amendment No. 1 to amendment No. 59:

In the third line of subsection (2), to delete "eight" and substitute "four".

There are a number of different issues here. First, my amendment No. 1 and amendment No. 2 in the name of Deputy Howlin to amendment No. 59 deal with the same issue, the period for which the emergency care order should apply before a more substantial order may be sought. I note that the child care coalition suggest that 14 days is the optimum time, which is something which none of us came up with. I might be amenable to negotiation on amendment No. 1. Perhaps when it is kicked around we can see what is the optimum time period. The second issue is amendment No. 3. It was not my intention that the health board could seek an extension of time periods in order to use emergency powers to keep children in care. I have it in mind that only once could they seek such an extension, in view of a case becoming particularly protracted or difficult, in order to obtain further evidence or because of people who were being difficult. That facility should be there, if the health board need an extension of time it should be granted on a once-off basis. That brings me to amendment No. 69 which is being taken with this. I do not know why they are all being taken together, but amendment No. 69 is something about which I feel-very strongly. It reads: "Where the provisions of this section are availed of written notice of the relevant procedures and rights of parents shall be issued to them at the time the child is taken into care". This is very important because this can overcome many of the problems that can arise. Amendment No. 4 to amendment No. 59, in the name of Deputy Howlin, also covers this area — that a health board shall inform parents of their rights to challenge such an order. This should be done in writing. It is significant that the Minister quoted from the views of the child care coalition; they very strongly favour such a move and I would just like to quote briefly some of their comments in relation to this. First, in relation to amendment No. 3 to amendment No. 59 they feel that one adjournment of an emergency care order should be allowed. Perhaps the Minister could clarify whether one adjournment is allowable under what he is proposing. I feel that one adjournment should be allowed in cases that are more protracted. After that, a hearing for an interim care order should be made, and this will ensure that parents will be notified and represented if they wish. They also state, in relation to amendment No. 69 and to amendment No. 4 to amendment No. 59, that there are many parents who are unaware of their legal rights and need to be apprised of them. It would be the aim of professionals involved with these cases to work with the parents where possible, to return the child to the natural parents informing them of their rights and go some way towards building a trusting relationship between the guardians of the child and the health board by ensuring that the parents do not feel that they are ill-informed or misled. They strongly endorse the view that written notice should be given to the parents. To sum up my position, in relation to amendments Nos. 1 and 2 I am flexible as to the optimum period, whether it should be eight days, 14 days or four days. In relation to emergency care orders there should be provision for one adjournment for there to be an interim care order and at all stages for there to be written notice, as outlined in amendment No. 69, to the parents in question. In view of the fact that the profesesionals are in favour of it and the parents are obviously in favour of being informed of their rights, there should be no argument about amendment No. 3 and amendment No. 69, and perhaps we could agree that. I will come back to amendment No. 81 later. I do not know why this is being taken. It is a whole new issue. I know it is linked with the interim care order, but is it a new section 15 that is being proposed? Yes? I think that should be taken separately.

Mr. Howlin

My amendment No. 2 to amendment No. 59 reads:

In the third line of subsection (2), to delete "eight days" and substitute "twenty-one days".

There are a number of issues involved here, so I will go through them seriatim. First, I again welcome the general tidying up in subsection (2) of section 11 and the new wording the Minister has put forward. The place of safety modifications are an improvement on the old section. I welcome that. We then get down to a couple of cogent issues. One is in relation to the period of time. In the Minister's amendment there is a period of eight days. Deputy Yates put forward an amendment actually to reduce it to four days, and I was of the opinion that it should be increased to 21 days. One item — and it is linked into the multiplicity of orders as well — is applications for emergency care orders. I would not see it as the desirable thing that people would go repeatedly back seeking extensions for emergency care orders. There should be a reasonable period granted in the first instance for a full application to be researched. I am informed that many applications for emergency care orders will take a considerable time, for preparing detailed reports or investigations. Frequently it is not possible to have them within a time scale of eight days; much less so I would imagine then to have them in the period of four days. In order to avoid requests for extensions, I felt that a period of 21 days or shorter should be specified. Twenty-one days is a reasonable time lapse and that is why I put forward the period of 21 days. I notice, that the professional care worker suggested a period of 14 days, and if the Minister would suggest putting in a period of 14 days I would have no fundamental objection to that. There is a certain arbitrariness about trying to pick an optimum date. I feel that a period of eight days is too short and I do not think that should be reduced further.

My second amendment to amendment No. 59 — amendment No. 4 — reads:

In the fourth line of subsection (2), after "order." to insert "A health board shall inform parents, or a person acting in loco parentis, of a child the subject of an emergency care order, of their rights to challenge such an order.”.

This is fundamental; there should be no objection to this. I am not sure why the Minister did not include it in his redrafted amendment, and I link it to amendment No. 69 in the name of Deputy Yates. It should be in writing so that there would be no ambiguity about it after the event. Parents have rights in relation to matters like this. Many parents would not be aware of their legal rights and they would need to be advised of them. Most professional care workers would feel that that would be important. Deputy Yates again quoted the comments of the professional Coalition. On page five of their submission on the Child Care Bill they said that they would strongly agree with this amendment. I hoped that would find favour with the Minister. That is all I have to say until we discuss section 15, which we might do in a minute.

Mr. O'Donoghue

I can appreciate the concern of Deputy Yates and Deputy Howlin in relation to amendment No. 4 to amendment No. 59 and amendment No. 69. I feel there is a serious practical difficulty here. I am thinking of the situation where, perhaps, the child is homeless and where the danger the child faces does not come from his parents or from people who are in loco parentis and where it is not possible to obtain the names and addresses of the parents or those actingin loco parentis. For that reason, these amendments would pose an enormous difficulty for a child who is homeless, where the danger to the child is from outside the family and where it is not possible to trace either the parents or people acting in loco parentis. While I appreciate the spirit of the amendments this gives rise to an enormous practical difficulty.

Mr. D. Ahern

In relation to the first element of the amendment, that is, the time and duration of the emergency care order, I am looking at the recommendations of the Law Reform Commission. They feel that eight days is sensible, although they feel that there may be some need for extension. I feel eight days is probably the best period given the fact that a lot of courts meet weekly and there would probably be a difficulty in getting courts available in relation to these applications. We have to bear in mind at all times that this is an emergency procedure and 21 days would be way out of line. Four days is probably too short to enable people to get together the information they would need, I think eight days is probably the best. In relation to the point of reporting, I agree entirely with my colleague, Deputy O'Donoghue, that there would be a difficulty. In many of these cases I have become aware of in my practice there sometimes has been difficulty locating one or both parents. While the Constitution does guarantee the rights of the parents, sometimes it is not that easy in practice. I do feel that there should be some onus on the authorities to inform, ultimately, the parents or guardians. The Minister is suggesting we leave it that they notify the parent or parents of the decision in relation to the emergency care order and that is probably the best way of going about it but, there may very well be a difficulty if there is an onus on them to notify the parents prior to making the application that this emergency application may not be made.

Miss Coughlan

My opinion is that an emergency could cover 14 days but definitely not 21 days, and I would say that eight days would cover an emergency care order and if there is a difficulty the interim care order mentioned in amendment No. 81 will cover a continuation. I am saying that eight days would definitely be a practical and sensible solution.

As regards the information to parents, everyone here would be of the opinion that parents must know and be informed of their rights. As Deputy Ahern said, there are situations where, if parents, or people acting in loco parentis, knew there was going to be an emergency care order taken, they could take the children away, not only out of the jurisdiction of the health board area but also out of the jurisdiction of this country. This has happened on several occasions and we all know the type of difficulties we have all found ourselves in. Once an emergency care order has been taken and a decision taken that the parents must be informed of their rights, and if a new order is made, parents must be informed of the way it works. There would be just one reservation. If people were to be informed of an emergency care order, it really would not help a child who would find itself at risk. An emergency care order would be used more extensively in child abuse and child neglect. They are just a few comments.

Mr. Sherlock

I do not know that I have any great views on whether it is eight or four days, but I would be inclined to agree with the four days. On the other issue I find it very difficult to understand the Deputies on the Government side. When this Bill is enacted you must try to understand what will happen where an emergency care order is being made. You must consider the situation where a parent or parents are involved. I do not agree with Deputy O'Donoghue. Perhaps he would explain that this legislation does not necessarily mean that it shall, but if it is not desired by parents, if parents desire to be informed, that is the issue. The least that must be done is to inform parents of their rights. As outlined in the document which we have, and there has been plenty of experience of this, the most important thing is the relationship that is built up between the parents and the social workers. I feel very strongly on that question. I believe there should be provision for informing parents of their rights. That is the least that must be done.

Mr. Jacob

On the time factor, there seems to be a portrayal of a wide span of opinion from Deputy Yates' four days to Deputy Howlin's 21 days. The professionals suggest 14 days and the Minister is talking about eight days. Obviously we are talking about balance here, about striking a balance, and the discussion is obviously very helpful. I would tend to agree with the eight days suggested by the Minister. Deputy Yates found difficulty with the fact that amendment No. 81 was being incorporated with the other amendments, but I think it is appropriate because there is a mechanism introduced in amendment No. 81, by way of the interim care order, which can give a further eight days should the original eight days, as deemed appropriate by the Minister, not be sufficient, and if further time is needed, that mechanism can be called into force. Therefore, it is quite obvious why the decision to have amendment No. 81 discussed with amendments Nos. 59 and 69 was taken.

With regard to the notification to parents, I feel very strongly about this. We cannot have anything haphazard here. It has been said that parents have rights and I would endorse that view very strongly. There has to be written notice to parents. There is no point in notifying parents verbaly or, as has been known to happen, a little note written and sent to parents. It is very important that parents are advised. It is important that the matter be more formalised and, as I say, I would feel particularly strongly that we would follow that procedure.

Mr. Howlin

There are two issues that we seem to have focused in on. One is the length of time and some people felt that my proposed 21 days was too long. I would be guided in a practical matter like this by the views of the professionals. They have suggested 14 days and I would have no objection to that. I hope the Minister will accept that. My view of 21 days would be to avoid the necessity of repeat applications. I think you are going to have that because you are not going to have the evidence. It is all very well for us to say that it can be done in eight days, but the courts sit once a week and the practicalities never quite measure up to that as when it happens on a weekend there are difficulties getting information or the social worker dealing with the case is sick. You are going to have circumstances when the eight days will simply not be long enough. "21 days or such shorter period as may be specified" would have satisfied everybody and would not have required the repeat applications to the courts that are envisaged in amendment No. 3 to amendment No. 59. I am sorry that that does not seem to be gaining favour.

In relation to the other probably more important aspect, the rights of parents, I do not think there is any cogent argument from the other side of the House in relation to the matter. The only argument put forward by Deputies Ahern and O'Donoghue is that it would not always be practical to do so. Quite frankly, there are many provisions that we legislate for that might be administratively difficult or awkward, but that does not stop us from doing what is right. Parents have rights, vulnerable parents might not always be aware that there are procedures and amendment No. 4 to amendment No. 59, in my name seeks to advise parents, or those acting in loco parentis, of their rights to challenge such an order. It is not to give them notice that they should flee the country, as suggested by someone, it is to let them know that they have legal rights in law to challenge an order made under this Act. It is fundamental that that should be done and I hope that that notification would be in writing. If it would help the practising lawyers on the committee whose assistance from the practical perspective is always welcome, maybe the Minister would agree to accept the spirit of the amendment in my name and put in after “parents, or a person acting in loco parentis” the phrase “as far as practicable”, or “where practical”. If that would help to get over the difficulties of practicality, I would have no objection to that.

Mr. N. Treacy

Subsection (2) of section 11 provides that an emergency care order may remain in force for not more than eight days. Amendment No. 81 is being specifically debated here to take account of the concerns of Deputies about the short time limit, which I will deal with later. Deputy Yates' amendment No. 1 proposes that this time period be reduced to four days, although he goes on in amendment No. 3 to propose that the court could grant an extension for a further four days. Deputy Howlin, on the other hand, in amendment No. 2 seeks to extend the duration of the order from eight to 21 days. I have to say that for different reasons I will not be able to accept either of these approaches.

Could we deal first with Deputy Yates' proposals? I cannot agree to a reduction in the duration of an emergency care order for four days, even allowing for the possibility of an extension of the order for a further four days. While I accept that we should keep to a minimum the length of time that parents may be deprived of their children and vice versa, we must at the same time be careful not to make the time limits so short as to render the order unworkable. I am concerned that a four day order is too short and would be almost inoperable in practice. This is because there can occasionally be gaps of several days between sittings of the District Court. This is particularly so at Christmas, Easter and during August. The problem is that if we change to a four day order and there is no sitting of the court on the fourth day, it would not be possible for the health board to apply for an extension of the order for a further four days and presumably the child would have to be allowed to return home to whatever danger he or she had been removed from just four days previously. I am sure that this is not what Deputy Yates intends, but I am afraid that this could be the effect of his proposals. Perhaps Deputy Yates might reconsider his amendment in the light of what I have said.

I would now like to turn to Deputy Howlin's proposal, that the duration of an order should be increased to 21 days. While I appreciate Deputy Howlin's concerns about the difficulties which a relatively short period of eight days might create, nevertheless I believe that it would not be desirable and might, indeed, be unconstitutional to increase the period from eight days in the way that he has suggested. Let me explain my reasons for saying this. An emergency care order represents a significant intrusion in the life of any family. It deprives the parents of custody of their child and deprives the child of contact with his parents. What makes an emergency care order different from, say, a care order is that it can obtained ex parte, that is to say, the parents might not be told in advance that an order is being sought. They might not be present when the application is being heard and they might have no opportunity to argue against the making of the order. It can be seen from this that an emergency care order is, in every sense of the word, an emergency device. It is designed to permit the immediate removal to safety of a child who is suspected of being at risk until the case can be considered in more depth by the court.

I believe that it is vitally important and, in the interests of natural justice, essential that a court hearing at which the parents would be entitled to be present or represented should take place at the earliest possible opportunity. This view was strengthened by remarks made by Mr. Justice Keane of the High Court in 1986. This was a case in which a married couple sought the return of their child who had been taken from them under a place of safety order, which is the currently available order for removing children in emergencies. In the course of his judgment, Justice Keane declared:

Any statutory scheme which did not keep to a minimum the interval of time which may necessarily elapse between the removal of a child from his or her parents and the determination of its future custody by the court would constitute in my view an impermissible violation of the rights of parents.

The case being DC v Midland Health Board, 1986, No. 424 S.S. More recently there has been another High Court judgment which has re-emphasised the necessity of dealing with these matters promptly. I refer to a judgment of Mr. Justice Barron on 6 November 1989 in the case of the State, F, v. the Superintendent of Ballymun Garda Station. In that case the judge indicated that where a child is taken into care under a place of safety order, which is what the current emergency order is called, the matter should be brought before the court again within eight days.

However, I am very conscious of the practical difficulties which might arise from the eight day limit. In many cases the health board would simply not be in a position to proceed on the eighth day with an application for a care order or a supervision order, which is what they would have to do as the section is now drafted. In other cases it might not suit the parents that there be a full hearing on the eighth day if, for example, they were missing and could not be contacted, or had not been able to arrange legal representation for themselves. Following consultations with the parliamentary draftsman a formula has emerged which attempts to reconcile the apparently conflicting requirements of natural and constitutional justice and these practical considerations. This is to create a new form of order to be known as an interim care order which would, in effect, bridge the gap between the expiration of an emergency care order and the hearing of an application for a full care order or a supervision order.

In subsection (2) it says:

An interim care order shall require that the child named in the order be placed or maintained in the care of the health board (a) for a period not exceeding eight days; or (b) where the health board and the parent or person acting in loco parentis consent, for a period exceeding eight days.

That is how I read the amendment.

Mr. N. Treacy

Since we could not see clearly what the Minister's intention was, I do not think it would be fair that we should just arbitrarily leave it to a judge to make that decision. I think the views of the Minister and of the Oireachtas should be clear in this section. I would suggest that that section be rewritten. In relation to the question raised by Deputy O'Donoghue I presume, he has accepted that under section 15 (3) it would be practicable to give advice to parents or those acting in loco parentis for an application for an interim care order. I am sure he can explain why it is practicable to give them notice when applying for an interim care order, but it would be impracticable and difficult to give notice if you are applying for an emergency care order. I am sure that will be very interesting to hear.

Mr. O'Donoghue

You will have to——

Mr. Yates

Deputy Howlin is correct. What would happen if we could not find these parents? I raise the question also about subsection (3) because of the last six words "except where the justice otherwise directs". Is it open to the justice to direct that the parents not be notified? Could the assumption be made that he did not have to seek the consent, in so far as this is so highly ambiguous that the Minister has given us two interpretations. In the latter he is now saying consent is required. My literal reading of subsection (3) of amendment No. 81 is that the application for this interim care order or for the extension of it shall be made on notice to a parent having custody of the child. Is it open to the justice to direct that the parent not be consulted or could the justice construe that from subsection (3)? That would put us back to the Minister's first interpretation that it is not open-ended.

Whether there is a consent of the parents or not the point for having some time limit on an interim care order is something new and is a new state of limbo for children to be held in. It is up to us to define the outer parameters, and whether there is consent. It is not fair to children that they should be kept indefinitely in this situation. The type of care or the placement of the children that is optimum for that child or found to be in the best interests of that child should be determined within a reasonable period of time. Given that you can only get an interim care order having first got an emergency care order, and you can only get an extension if you have originally got an interim care order, a period of 16 days has already elapsed. In the case of a further extension, under my original amendment No. 59 there would only be one extension allowed. There should certainly be an outer limit of an extension of two to three weeks because I do not think it is desirable whether there is consent or not. The way this is drafted it could be interpreted by legal minds in different ways as to whether the consent was required.

Mr. N. Treacy

To clarify the situation, I would have to agree with Deputy O'Donoghue. We must read the lot in tandem. We are looking for an interim care order for a period not exceeding eight days, or where the health board and the parent or person acting in loco parentis agree or consent, for a period exceeding eight days. Any such period may be further extended in like manner on the application of any of the parties, if the justice is satisfied that this is necessary in the best interests of the child. That is clear. I have no desire to have a conflict or ambiguity or vagueness in any legislation. Before we come to deal with section 15 in its entirety, I will be submitting this to the parliamentary draftsman to clarify the situation to ensure that there is no doubt about it.

On Deputy Yates's question, a health board seeking an interim care order or an extension of an order will generally be required to give advance notice to the parents. However, the justice will be able to dispense with this if the parents are missing and cannot be contacted. If it is proven to the satisfaction of the justice that the parents are missing and not available, then he may direct that a decision be taken based on the non-availability of the parents. I hope that clarifies the position.

Mr. Yates

If those are the only circumstances where a justice can otherwise direct, in other words, if it is not possible to trace the parents or those acting in loco parentis, it should be stated. If that is acceptable as a phrase, I do not see why that cannot be incorporated into what is being proposed by Deputy Howlin in his amendment to amendment No. 59. What I am proposing in amendment No. 69 is that if you accept the principle of giving written notice to people, except where the justice can otherwise direct for example, homelessness or untraceable parents, that should be used as a basis for all aspects of section 11 of the Bill.

Mr. N. Treacy

It is not as simple as Deputy Yates says. You must give some discretion to the justice and you must take into account every eventuality that we may not contemplate today or consider or anticipate. For example, where the parents are seriously ill and not in a position to communicate, that has to be taken into account. Maybe by defining it we would exclude certain situations. That could create major conflict in law and getting the right decision but the section as drafted is tight and we should allow that discretion and trust the law, and the justice, to make the proper interpretation thereof.

Mr. D. Ahern

I agree with what the Minister said. It would be wrong to tie the justice down to particular instances. The way it is drafted is best. Going back to Deputy Howlin's amendment No. 4 to No. 59, all it is saying is that the parents should be advised of their right to appeal. An emergency care order is not asking that they be informed that an emergency care order application is to be made. It is subsequent rather than prior to the event. It does not cater for a situation where the parents could be missing. The approach of the Minister, "except where the justice otherwise directs.", is the best way of dealing with those situations which can come up from time to time.

Mr. Howlin

I am inclined to accept that we are not going to nail down all our thoughts clearly in any legislation. I accept that there will be exceptions where the parents cannot be found. It would be wrong to have a loophole in the law, when people would say there was not proper notification, so the section could not be operated. It should be left to the discretion of a justice to make that decision.

With regard to the logic of the informing of parents of their rights, I explained already that it was in relation to the right of appeal. When a child is taken under an emergency care order it is not going to be the subject of any great battle in a District Court. It is an emergency care order de facto. They are going to have a case put and an order given on a temporary basis for a period of eight days. Parents who are vulnerable and who may not be aware of their legal rights should be told what their legal rights are, subsequent to the emergency care order being given. If there is a necessity to put in “where practicable” or where the justice directs, in relation to my amendment, to bring it in line with the Minister’s amendment in relation to an interim care order, I will accept that. It is in our best interests to keep this legislation tied into the constitutional rights of parents. I do not see why the principle does not apply to both the emergency care order and the interim care order as in the Minister’s amendment.

Mr. N. Treacy

I accept that we must keep to a minimum the length of time the children are held under interim care orders. We must bear in mind that child abuse cases are invariably complicated. It may not be physically possible for the parties to proceed with the case after one or two weeks. They may need more time to summon witnesses, obtain medical reports, seek legal advice and so on. I think we would be ill-advised to specify a maximum period for an interim care order as Deputy Yates has suggested. This must be left to the discretion of the justice. If one of the parties is dragging its heels, the justice can refuse to renew the order and allow the child to return home. To deal with the points that have been raised pertaining to the written notice, particularly in regard to section 59, amendment No. 59 and amendment No. 4 thereto, I have considerable sympathy with what the Deputies are trying to achieve, but I do not believe that this is the best way to deal with the matter.

To take Deputy Howlin's amendment, we would all agree that it is right and proper that parents or persons in loco parentis should as far as possible be informed of the right to challenge the emergency care order. However, there can be situations in which this may not be possible. For example, in the case of a foundling the identity of the parents may not be known. In cases of child abuse the parents may have fled to avoid prosecution. It may even be that the parents do not have the mental capacity to understand the nature of legal proceedings. The amendment does not allow for the type of situations I have mentioned or any others that might arise. If we were to enact it in the form in which it is before us, and a health board were unable to contact the parents, the danger is that all subsequent action in relation to the child could be invalidated because of the failure of the board to adhere to the proposed statutory requirements. Similar considerations arise in relation to Deputy Yates’ amendment No. 69. I agree that it would be desirable that parents be given a written explanation of the relevant procedures. Indeed, my Department are already engaged in consultations with health boards on devising leaflets and other explanatory material for the parents of children in care. However, I would be reluctant to accept this amendment because it might not always be possible to furnish parents with such a notice at the time the child is taken into care, as this amendment would require. The danger is that such failure could invalidate all subsequent action. I suggest that the Deputies might consider withdrawing these amendments and leave matters of detail like this to be dealt with either in the new rules of court, which will have to be made when the Bill is brought into force, and to which section 63 refers, and by good professional and administrative practice.

Mr. D. Ahern

Following on from the Minister's point in reply to what Deputy Howlin said on section 15 (3), where he agreed that the discretion of the judge should come into play in relation to the various instances there, the Deputies own amendment would, in fact, put another onus of proof on to a health board in a subsequent challenge to an emergency care order. That might cause difficulty. It might, in fact, lead to the striking down of an emergency care order because the health board could not inform and could not prove that they had informed the parents. Again I would say to the Deputy that if we are giving discretion to a judge, we should not tie down the proofs into the legislation. Probably it would be better if that were left out altogether.

Chairman

Deputies, looking at the clock, I see that we have 13 other amendments for discussion today. I suggest that we curtail discussion and that amendment No. 59 has been discussed adequately.

Mr. Howlin

On my own amendment, I have withdrawn amendment No. 2 to amendment No. 59 but on amendment No. 4 to amendment No. 59, may I ask the Minister whether he will be willing to come back on Report Stage? He has accepted the principle in relation to interim care orders. The words of the amendment I accept, are too tight, and it needs an "out", whether it is by way of the formula of leaving it to the district justice or "where practical" or some other form of words. Would the Minister look at that again and come back on Report Stage? If that is the case, I will withdraw the amendment.

Mr. N. Treacy

Yes, I will look at it again and I will come back on Report Stage.

Mr. Howlin

In that case I will withdraw amendment No. 4 to amendment No. 59 as well.

Amendment No. 1 to amendment No. 59, by leave, withdrawn.

Amendments Nos. 2 to 4, inclusive, to amendment No. 59, not moved.

Amendment No. 59 agreed to.

Chairman

Amendment No. 157 is related to amendment No. 60. Can we discuss both of those amendments together? Agreed.

Mr. N. Treacy

I move amendment No. 60:

In page 9, subsection (3), lines 31 and 32, to delete "(including any building or part of a building", and substitute "specified in the warrant (including any building or part of a building, tent, caravan or other temporary or moveable structure".

There are two technical changes involved in this amendment. This subsection enables a justice who has made an emergency care order to issue a warrant to the Garda authorising them to search for the child and deliver him or her up to the custody of the health board. Any legislation which permits entry to premises, particularly dwelling houses, must be carefully framed, having regard to Article 40.5 of the Constitution which states:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. As a result, it is not constitutionally permissible to issue blanket warrants giving the Garda power to enter any number of dwellings. Instead, the particular dwelling or dwellings must be specified in the warrant. This is not clear in the present draft of subsection (3) and while I am advised that it would be so interpreted by the courts, I do not think that there should be any doubt about it. The first change I am proposing, therefore, is that the subsection be amended to enable the justice to authorise the Garda to enter, if need be by force, any house or other place specified in the warrant. The second change is that I am taking the opportunity to extend the list of different types of accommodation that may be entered to include specific reference to tents, caravans and other temporary or moveable structures. I might mention that I intend to move a similar amendment when we reach section 32 which deals with the powers of the Garda to recover children who have been unlawfully removed from care. Amendment No. 157 on page 23 of the list refers to this.

Mr. Yates

I have no difficulty with this. It deals with an emergency situation. I would think that it would highlight the need for a code of practice. However if the Garda are given these powers to burst into a place and knock down the tent or whatever it might be, there should be a code of practice. If it is in the interests of protecting children, I have no objection to the amendment.

Mr. Howlin

I support the amendment.

Amendment agreed to.

Chairman

We will proceed now to consider amendment No. 61 in the name of Deputy Yates.

Mr. Yates

I move amendment No. 61:

In page 9, subsection (3), line 34, after "board." to insert "The District Justice shall be empowered to substitute a member of the Garda Síochána by a designated social worker on the warrant".

Chairman

Amendments Nos. 64 and 65 are related and may be discussed together by agreement. Agreed.

Mr. Yates

I move amendment No. 64:

In page 9, subsection (4) (b), line 41, after "available" to insert "or where the urgency of the case warrants or where there is a doubt as to the jurisdiction".

This deals with the situation where there may be some technical difficulties in relation to the hearing of a case and, apparently, the only circumstances that are covered at the moment are the non-availability of a district justice. We are seeking to clear up another doubt that might arise. Amendment No. 64, as far as I am concerned, is to facilitate the hearing of emergency care orders. It would strike me as quite sensible and I hope the Minister will be as quick to accept it as we have been to accept some of his.

Mr. N. Treacy

There are two elements in this amendment. I am advised that both of them are adequately covered by other provisions of this subsection. The first element is the reference to where the urgency of the case warrants. The whole purpose of subsection (4) (b) is to provide a mechanism in cases of urgency where the justice for the district is not readily available. The remedy provided is that the order could be obtained from any other justice. Thus urgent cases are already covered by the existing draft and there seems no need for this additional phrase. The second element is the reference to a doubt as to the jurisdiction. I presume this was intended to deal with cases where it might not be clear which justice should deal with the case. Any such doubts have been resolved by amendment Nos. 62 and 63, which provide that the order is to be made, either by the justice for the district in which the child resides, or the justice for the district in which the child is at the time being. As a result of these insertions, there will always be some justice who will have authority to act, so I cannot see how doubts could arise about jurisdiction. In view of this I see no reason for making this amendment.

Mr. Yates

This is the case if a particular district justice who would normally hear the case has some problem, any district justice could hear the case instead, who is suitably qualified. I think it is important. I support the original section 11, subsection (4) (b), but I feel that, at worst, it will reinforce the fact that what the Minister has alluded to is already there and, at best, it will clear up any doubts that I still have. There could be cases where there is doubt about the jurisdiction. I note Amendment Nos. 62 and 63 attempt to deal with this but there could be an emergency situation in which the time limits that we have already spoken of could be up. That could be because of holiday periods, Christmas periods, weekends or whatever. With a whole number of different circumstances why a particular judge would not be available, we should have the maximum flexibility, so that any district justice could hear the case, within reason. What we are proposing here is sensible and I will be pressing it.

Mr. Howlin

I am fully in support of the thrust of what the Minister wants to achieve here and I welcome the section which enables any justice to hear an emergency care order, if the justice assigned to the particular area is not available. When you are talking about an emergency care order it is vital to ensure that there would always be a justice available. It would seem to me that the extra words that Deputy Yates proposes to include in the subsection would, in no way, detract from the comprehensiveness of it. Even if it might encompass an area that we do not foresee, I do not see any good reason for not including it. The fact that the Minister feels that the situation is already watertight might not necessarily be good enough. The notion is that there would always be a justice available to hear an emergency care order. This is the impact of the subsection, that is what we all want to achieve. If the extra words that Deputy Yates wants to include actually strengthen or copperfasten that provision, I do not see why we should not include them.

Mr. Sherlock

In page 10, lines 1 to 5, to delete subsection (6) and substitute the following:

"(6) (a) Where a justice makes an emergency care order, he may, of his own motion or on the application of any person, give such directions (if any) as he thinks proper with respect to—

(i) whether the address or location of the place at which the child is being kept is to be revealed to the parents of the child, or either of them, a person acting in loco parentis or any other person;

(ii) the access, if any, which is to be permitted between the child and any named person and the conditions under which the access is to take place;

(iii) the medical or psychiatric examination or treatment of the child.

(b) A direction under this subsection may be given at any time during the currency of the order and may be varied or discharged on the application of any person.".

This amendment contains a number of important changes which were sought in some of the many submissions which I received. In the existing subsection (6) the justice is given power only to direct that the address of the place where the child is being kept should not be revealed to the parents of persons acting in loco parentis. This has been replaced by paragraph (a) (i) which enables the justice to direct that the address should not be revealed to the parents or either of them, to a person in loco parentis, or to any other person. The reference to either parent is to deal with cases where it might be desirable that one parent be informed, but not the other parent. For example, if one of the parents was alleged to have abused the child, it might still be desirable that the other parent should know where the child is.

Paragraph (a) (ii) is new. It enables the justice, either at his own discretion or on application to him, to give directions as to whether access is to be allowed between the child and any named person. One can envisage situations in which it would be in the child's interest to continue to have contact on a supervised basis with his parents, even though it may be alleged they may have neglected him. Similarly one can for see cases in which it would be desirable that the child have access to one parent but not the other, or that other persons, such as grandparents, siblings or relatives should be allowed to visit the child. The new paragraph will permit any of these arrangements if the justice considers that it is in the child's interests.

Paragraph (a) (iii) is also new. It will enable the justice to authorise the health board to have a child medically or psychiatrically examined or treated. This has been inserted at the request of health boards, social workers and others. They have pointed to the difficulties that can arise when a child is in care on suspicion that he has been physically or sexually abused and the parents refuse to consent to have the child medically examined. It is also along the lines Deputy Yates was seeking in his amendment No. 46.

Finally, paragraph (b) provides that a direction in relation to any of these matters may be given at any time while the emergency care order is in force and may be varied or discharged.

Mr. Yates

I support amendment No. 67. It is important that the justice have the maximum discretion over these issues and that he can specify in the order exactly what arrangements should be made in terms of addresses, medical examinations, and so on. We will be supporting amendment No. 67.

Mr. Shatter

May I perhaps raise a point on this amendment? The initial application is going to be made ex parte. You can get an emergency care order on the application of the health board representative without the parents being present. The court will make that order knowing only what they have been told by the health board at that time. The likelihood of provision being made for access when that application is made is probably minimal. What we are talking about is an eight day period in which a child is in care.

What I am concerned about is the difference between what the legislation says and the practical reality of the way the courts operate. Could the Minister explain how this is envisaged? Will parents make an application, for example, to the court for access if they learn their child has been taken into care? Day one, the child is taken in, and there are eight days to run. On day two they want their child to see them; they want to have access to him. What procedure will be employed? Will the parents be able to make an ex parte application to the court for access? What notice will they have to give to the health board? If the notice had to be of a lengthy nature it would defeat the purpose of this section.

If we are dealing with a District Court that only sits in a particular location, maybe once a week; what is going to happen with jurisdiction? If you deal with a District Court that takes care cases on a Friday afternoon and does criminal law and civil actions for the rest of the week, what priority will the parents be given, in practice, if they want to go into that District Court? Will they have to serve some sort of form on the health board? Will it be sufficient for them to get the health board on the phone and say: "At 2 p.m. tomorrow afternoon we are seeking access to our child" How does the Minister envisage this working in practice? I fully support what the Minister is after in this. I do not want to be misunderstood. It is of vital necessity that we have provisions that where children are taken into care they are not willy-nilly simply cut off from parents. I think that where a health board make a mistake it must be a terrifying experience for a child to be taken out of his home and put with strangers for eight days without access to mother or father. That is probably one of the most appalling things that a child could experience. I want to find out from the Minister how this is going to work in practice.

I want to raise another issue with the Minister because I have come across this in practice and it is very important. We cannot address it the way this amendment is phrased. Could I ask the Minister to consider dealing with this on Report Stage as well? You may have a number of different possible scenarios. You may have a scenario in which both parents have been ill-treating a child and the view of a court might properly be that it is in the child's interest that there is no contact between the parents and the child during the eight day period. When we head into these types of problems we tend to lose sight of the relationship that the child has with its extended family. There may be brothers or sisters in their late teens or early twenties who would like to see the child who has been taken into care. Should there not be some provision whereby the court can actually allow the adult brother or sister to have access to a child? There may be grandparents. Some children have closer relationships with their grandparents than they have with their parents, particularly if they are children from an abusing family. If the parents are cut off, should this provision not be broader? I am anxious to ensure that it can be practically put into operation.

Secondly, when we are talking about access, for far too long in the child care and in the general family areas, we have assumed that the only access orders the court need ever make are for parents. There are grandparents, uncles and aunts. I am not suggesting that the court would make a series of access orders for every member of the extended family; that is obviously not a possibility for an eight day order. There may be people other than the child's parents that the child should have contact with, particularly if the parents have been abusing the child and the child should not see the parents. I would like you to come back on that in the context of dealing later in this legislation with access following permanent care orders being made. We need now to look at access not simply being confined to parental access. It should include aunts, uncles, grandparents or extended family. We are now catching up with the job that they have done in other countries over the last 25 years. It is interesting to look at the recent English legislation. It makes express provision for access by other members of the extended family in certain circumstances. We need to get that right here as well.

Mr. Howlin

I must say that I agree with the generality of the amendment in the Minister's name. It is important that discretion would be left to the justice hearing the particulars of the case. I am not sure if it is possible to provide for all the eventualities that will occur in cases like this, but we are talking about an emergency care order here which has a life of only eight days, and although I accept that it would be traumatic for any child to be removed from his parents even for a period of eight days, I feel that if parents, having been properly briefed of their rights to appeal feel aggrieved by the emergency care order, they would seek a hearing of the District Court if they wanted to appeal. It would be open to the district justice under this new section to hear it in a week.

Mr. Shatter

I am sorry Deputy to interrupt. If you are going to appeal the matter you are going to appeal it to the Circuit Court. There is no reality of appeal because the appeal would never be heard in eight days. What I am looking at is the practical realities as opposed to what the legislation says. There is no possibility that there will ever be an appeal heard under this legislation in regard to emergency care orders. The way the courts operate, it will not happen. That is my experience.

Mr. Howlin

The Deputy would be more familiar with the workings of all courts, much more familiar, than I. The provision that we are enacting is to grant a mechanism for appeal — hopefully when the Minister comes back on the amendment — that parents will be notified of their rights to appeal and hopefully that they will have access to the Circuit Court actually to have an appeal heard if that is right, and if they feel aggrieved in a case like this. We can lose sight, in the legalities, of what we are about here. What we are about fundamentally is protecting children. If a health board apply for an emergency care order it is to be assumed that there is very good reason that the child should be taken into care on an emergency basis. Eight days is the period that we are settling on. The justice under this section has the right to grant access to any named person, member of the extended family, brothers, sisters or anybody else. I understand the difficulties that have been alluded to, that all the facts of the case might not be brought before the justice when he is making the decision in relation to the emergency care order because it is made ex parte and the family side might not be put. I am not sure how you would devise a section that would allow a mechanism for everybody to have their say and a very careful judicial decision made in relation to who should have access and who should not have access for an order whose validity will last only eight days. That is particularly so in the case of a rural area, where you have one sitting of the district court in a week, and there will be periods where you will not have a sitting in the period of a week. The proper balance is being struck by this section and I will support it.

Mr. Dempsey

In relation to this section, I welcome what the Minister is trying to do here. A couple of points were made by Deputy Shatter in relation to access by the extended family or brother or sisters or anything else, but that is covered in the amendment proposed by the Minister. On access to the child or the location of the child, that information can be given to either parent or a person acting in loco parentis or any other person. I take the point Deputy Shatter is making and I think it is to be welcomed that we would look a little bit beyond what we normally look at in these cases.

The Minister spoke earlier on in relation to the rules of court. He said that certain procedures could be worked out and so on when the rules of court were being discussed. I wonder if some of the points raised by Deputy Shatter could be dealt with in the discussions, and the rules of court in relation to this particular section as well. I notice that it says under paragraph (b) that a direction under this subsection may be given at any time during the currency of the order. I took that to mean that it would not necessarily have to be an appeal to a court or anything else, that there might be some rules drawn up or some regulations drawn up, whereby a person could apply directly to a district justice rather than going through the court.

Mr. Shatter

If I can just be helpful to the Minister and say that I accepted the wording of the amendment where it says that access can be given to any named person could cover the people I am talking about. What I am concerned about is that, in practice, the courts identify access as being simply to parents. It might be no harm to have some provision in this section which would say to the effect that any named person does not confine access simply to parental access, there can be such other persons as the court deems appropriate in the interest of the child's welfare. That is the point. I accept the wording provides for that. I think the district courts are used to making access orders only for parents and they are likely not to look beyond that. We should encourage them to look beyond that in appropriate cases. They will always be appropriate.

Mr. D. Ahern

I would agree with Deputy Shatter. On reading this section, it is obvious that it includes many people other than the parents but if the application is an ex-parte application, there is no one there to plead on behalf of the other persons. I think it would be important that it would in some way be specified that people, other than the parents, would be included.

Looking at amendment No. 68, there is a new subsection being proposed by the Minister and that probably takes care of the first problem adverted to by Deputy Shatter, and that was the difficulty of having the availability of a District Court. The order according to this amendment would remain in force until the next sitting of a court whenever that would be. The Deputy's point was in relation to the application and that there would not be a District Court available within the period.

Mr. Shatter

My point was that you might have the District Court sitting only for one week and for one day in the week you get your order made that is going to remain in force for eight days. There might not be a court to which the parents can go to get access during that period. Amendment No. 68 is about allowing the order continue for an extra day or so, keeping the child in care. It is not about providing for the making of the access application. As I understand amendment No. 68, it would not deal with the problem I outlined.

Mr. N. Treacy

I thank the Deputies for their general welcome to this section. I appreciate that Deputy Shatter has raised some very interesting points and they merit serious consideration. This is a complex situation. Deputy Shatter admits himself that paragraph (a) (ii) as proposed by amendment No. 67 covers the people he is speaking about and the named persons could include grandparents, aunts, uncles, brothers, sisters or whoever else. The practical implementation of it is very difficult and I will only try to put before you how I think it may be possible to implement it. It may be possible, as a result of guidelines which we will draw up and discussions that we will have, that perhaps the health board when they apply for the emergency care order ex-parte they would name people who would have access to the child. Perhaps they do not and the following day, somebody wants to see the child, either the parents, relations or a responsible person. They consult the health board and the health board advise them of their rights — if they do not already know them — and they tell them that they have to seek an application from the court. This could lead to some problems. As Deputy Shatter and others have pointed out, the court might not be sitting within the period after the emergency care order or interim care order has been granted.

Some points of detail may have to be dealt with by the rules of court. As a result of what Deputy Shatter has raised I am now going to have another look at the matter and I will try and report back to you either later on at some other relevant section or perhaps at Report Stage to try to solve and clarify the situation and get the lines of communication correct.

Amendment agreed to.

Mr. N. Treacy

I have been giving further consideration to amendment No. 68 in the light of our discussions at the last meeting on amendment No. 53. Deputies will recall that subsection (4) of amendment No. 53 provides that where a garda has removed a child to safety and delivered him into the custody of the health board, the board is required, unless it returns the child to its parents, to apply for an emergency care order at the next sitting of the District Court. A number of Deputies expressed concern about this and pointed to the long gaps that can occur between sittings of the court, particularly during holiday periods in rural areas. I gave an undertaking that I would look at this matter again before Report Stage. In view of this I have decided not to proceed with amendment No. 68, which would have allowed an emergency care order which was due to expire on a day on which the court was not sitting to remain in force until the next sitting of the court.

In view of the concerns expressed about the use of this type of formula in amendment No. 53, I do not think we should insert it in section 11 until my Department have had an opportunity to consult further with the Department of Justice about the whole question of court sittings. I am, therefore, not proceeding with amendment No. 68 so that the question of court sittings for the purposes of both sections 10 and 11 can be looked at for Report Stage.

Amendment No. 68 not moved.

Mr. Yates

I move amendment No. 69:

In page 10, between lines 5 and 6, to insert the following subsection:

"(7) Where the provisions of this section are availed of written notice of the relevant procedures and rights of parents shall be issued to them at the time the child is taken into care.".

Mr. Howlin

On this amendment, it is linked very much to my own amendment No. 4 to amendment No. 59. I withdrew my amendment on the basis that the Minister was going to look at it and come back to it. Is the import of actually voting on it now that we have no prospect of coming back and considering it? The Minister's difficulty with the section was not the right of parents to be notified but the actual form of words that we were using to make sure that it would not be a loophole, in advancing a care order, that they could not find the parents and, therefore, that the care order would be invalid. I was hoping the Minister would come back on Report Stage with a form of words accepting the principle that would allow us to have the written notification, but would allow the order to be valid notwithstanding the unavailability or the uncontactability of parents.

Chairman

Deputy Howlin, even if we do vote on Deputy Yates' amendment, it will not preclude amendment No. 4 from being discussed on Report Stage.

Question put: "That the amendment be made".

The Committee divided; Tá 5; Níl, 8.

Amendment declared lost.

Tá
Bradford, Paul.	Howlin, Brendan.
Shatter, Alan.	Yates, Ivan.
Sherlock, Joe.

Níl
Ahern, Dermot.	Fitzpatrick, Dermot.
Coughlan, Mary.	Jacob, Joe.
Dempsey, Noel.	O'Donoghue, John.
Fitzgerald, Liam.	Treacy, Noel.

Chairman

We now proceed to consideration of amendment No. 70 in the name of Deputy Yates. We have already discussed this in conjunction with amendment No. 47.

Mr. Yates

This is withdrawn, subject to the final report of the Law Reform Commission. Amendments Nos. 70 and 71 are the same. The Minister is most likely to agree if the Law Reform Commission accept it.

Amendments Nos. 70 and 71 not moved.

Section 11, as amended, agreed to.

Progress reported; Committee to sit again.

The Committee adjourned at 6.50 p.m. until 4.30 p.m. on Tuesday, 27 February, 1990.

Special Committee Child Care Bill, 1988 debate - Tuesday, 20 Feb 1990

SECTION 11.

Special Committee Child Care Bill, 1988 debate -
Tuesday, 20 Feb 1990