Special Committee Child Care Bill, 1988 debate -
Tuesday, 27 Feb 1990

SECTION 13.

Mr. N. Treacy

I move amendment No. 73:

In page 10, line 14, to delete "a suitable number of places of safety" and substitute "suitable accommodation".

Amendment No. 73 is consequential on the decision taken during the discussion on section 2 to delete the definition of place of safety and discontinue the use of this term altogether. The term "place of safety" originated in the Children Act, 1908, and was a place where a child could be kept on foot of a place of safety order until such time as the court reached a decision as to whether he should be placed in care on a long-term basis. As Deputies are aware section 11 of the Bill provides for the replacement of the place of safety order by a new system of emergency care orders. As a result it no longer makes sense to continue to use the old terminology, indeed to do so might lead to confusion.

In this amendment it is proposed that each health board would be required to ensure the provision of suitable accommodation for the purposes of this part of the Bill, leaving it to each board to decide on the exact arrangements and type of accommodation to be used. For example, it might place a child in a children's residential centre, an assessment unit or hospital or in foster care depending on the needs of the particular child. Overall I think this more flexible approach would be better for the children concerned.

Mr. Howlin

I have just two points to make. I welcome the amendment as an improvement on the existing section although I do not think it goes far enough — to say "suitable accommodation" and then leave it there. You have to put an obligation on health boards to recognise that there are appropriate needs for children in finding accommodation for them. You have given the options that are open to health boards, but we have not framed the section to state that it will be the responsibility of the health board to find a location for the child which is suitable to the child's needs and appropriate for the child's requirements. It would be a clearer statement than simply saying "suitable accommodation" and leave that hanging there. Suitable accommodation might be defined in different terms in different health board areas and we might find the type of accommodation varies greatly from health board to health board. That is already the way in the provision of a lot of care, and indeed in a lot of services; we do not have a uniform standard throughout the country, health board area to health board area.

Resources and funding would need to be substantially improved if we are going to have suitable accommodation for children in this category. In particular that is so with older children. It is now quite clear that totally inadequate provision exists for children in that age group and there has been some disquiet and controversy over it in recent times. I have two specific questions to the Minister: will he give an undertaking that adequate funding be available to provide suitable accommodation particularly for adolescents; and will he look again at the words "suitable accommodation" to ensure a uniformly high standard and appropriate assessment across the health boards?

Mr. Yates

Over the week-end we have seen the problems in this area exposed. We would accept that places of safety should not include Garda stations and so on and the reality is that there are no adequate residential centres. In recent weeks and days it has become patently obvious, in relation to the events in Dún Laoghaire District Court, that for juvenile girls requiring therapeutic care places of safety are simply not available. In view of the way this problem has been exposed, from the shuffling of the three Departments, which I spoke of at the very outset of this Bill shows the need for a child care authority instead of health boards — but I will come to that later. In relation to this definition of "suitable accommodation"— I urge the Minister to give a commitment on Report Stage to put in section 1 of this Bill, the definition section, what "suitable accommodation" will be. It is quite clear that the Dún Laoghaire District Court justice is not satisfied as to the arrangements that might be considered satisfactory by the Eastern Health Board, and he is absolutely right.

I am also advised that, heretofore, many of these young girls have simply been sent to Northern Ireland because of the lack of centres here. This is disgraceful. Now that we have an opportunity once every nearly 82 years to enact such legislation we should take the opportunity to specifically put an obligation on the Government to provide accommodation for all the different categories of children that require it. This would give children safety from their parents, safety for themselves or a combination of educational, health and therapeutic facilities to tie in with the juvenile justice system.

I do not accept that this is within the ambit of the Department of Justice; it is within the ambit of children, our children, and should come under this legislation. I would like the Minister now to give a commitment that he will, on Report Stage, define what he means here in amendment 73 by "suitable accommodation" by providing that it would be a residential centre of different types, that it would be located in the State, and that adequate facilities would be made available. Otherwise, we would have difficulty in continuing to support bland assertions which, as we found over the week-end, subsequently turn out to be meaningless.

Miss Coughlan

I said on Second Stage that I would look for clarification from the Minister in relation to what Deputy Yates and Deputy Howlin have said and ask him to specify what exactly a place of safety is. Each health board have their own child care authority or child care team and they all have their own ideas about what exactly a place of safety would be. There is definitely a difference between rural and urban. I hope that all health boards would have a uniform system because, for several years we have all come across the problem where one or two people have found themselves slotted between Department of Justice, Department of Education and Department of Health. When we are considering the legislation in front of us we can express our concerns, but we are strangled at the moment and cannot do anything about it. It is good to see that Justice are thinking about changing their juvenile justice system and that is something I would like to see happen as quickly as possible.

On section 13, would the Minister clarify as best he can the types of facilities that would be made available for children who would need a place of safety if at all possible.

Mr. Shatter

I welcome the fact that the Minister's amendment has given us an opportunity to discuss what we mean by "suitable accommodation". It should be said that the debate we are having results from the tragic ongoing case of this teenage girl who has come before Dún Laoghaire District Court, and we would not be having it if it was not for the courageous approach taken by District Justice Wine in Dún Laoghaire District Court. He should be congratulated for the stand he has taken. The applications which have been made to him on successive occasions in the court have been simply to dismiss the charges brought against this girl and leave her at risk in the community. He courageously refused to go along with that, faced with a girl who was apparently prepared to try to take her own life. The authorities were sitting doing nothing and if not for the courageous approach taken by the district justice this young girl might no longer be alive. I do not believe it is any exaggeration to say that. I have been appalled at the manner in which the Department of Education, the Department of Justice and the Department of Health have sought to disclaim, individually, responsibility for the care of this young girl. She has been in some sort of departmental black hole where each Minister has found the problem too hot to handle.

It should not have been necessary for this matter to come before the District Court in Dún Laoghaire on what I calculate to be nine separate occasions so far. The Minister might clarify for me, as I just do not understand, why the health board did not intervene at an early stage. I fully accept that, if the Director of Public Prosecutions indicated that there was no criminal case to be processed, that, in a sense, ended the Director of Public Prosecutions' involvement. But here was a teenage child clearly at serious risk, a child clearly in serious need of medical help as well as accommodation. If the 1982 Act was inadequate to tackle the problem, as I believe it is, it seems to me now, in the context of this girl's case, the current Bill we are dealing with may not be totally adequate either.

I do not understand why the Eastern Health Board some weeks ago did not move to have this girl made a ward of the High Court and, under the wardship of the court, provide care for her. I do not understand that. There has been no public discussion of this angle on things and it appears now the health board are finally getting themselves involved. I appreciate the health board do not have the type of secure facility that may be required. I know there is a problem here, but there is no reason why the health board could not have intervened a number of weeks ago to have this young girl made a ward of court, to have taken the burden off District Justice Wine. The matter would have been brought into the civil family law area of the court's jurisdiction, rather than being dealt with through the criminal processes. A courageous district justice refused to give in to the authorities. That deserves to be said. The Minister may respond to us and say we are taking a liberty on this amendment in raising this issue, but this legislation is about children and, of course, the defect in it is that it does not address the juvenile justice area at all and what we have seen on exhibition to us. It is relevant to the place of safety order, and I will come back to this in a moment. What we have seen on exhibition in this case is the arrant nonsense of three different Government Departments having responsibility for children. The Task Force on Child Care in 1980 recommended this responsibility be in one Government Department and we are still not doing that in this Bill. That is why this Bill is grossly defective. We will see similar pass the buck operations in the future.

The Minister has an amendment in front of us detailing suitable accommodation, and in the Dáil today we heard from the Minister for Justice of the long-term plan to provide accommodation. I think there should be a definition in the Bill of what the Minister means by suitable accommodation. This amendment deals with section 13, and it is relevant to the provision of places of safety. I appreciate that this amendment is limited to that, but in my view when you are dealing with suitable accommodation not just by way of place of safety orders or in respect of permanent care orders under this legislation, and when we are dealing with it in the broad spectrum of providing for children at risk, whether they come to the notice of the authorities through the civil family law care process, through the criminal process or otherwise, all this should fall under the aegis of the Department of Health. We should never again see the appalling, callous piece of political buck passing that has been on view in the last few weeks between the Department of Education, the Department of Justice and the Department of Health who have been very slow to intervene. All I can say is long may we have more district justices like District Justice Wine, and indeed District Justice McDonald who was placed in a similar position in the last few days when he had to look for care for a young boy. We are placing our district justices in an impossible position. We are asking them to deal with children who could just as easily come under the care provisions as under the criminal provisions in circumstances where we do not have the facilities to care for these children and where we are maintaining a facade that we care for these children. It is a miracle that this young teenage girl has not succeeded in taking her own life. If something as tragic as that occurred, it would put a very particular political responsibility on the shoulders of Ministers who have tried to avoid dealing with this problem in the seven or eight weeks it has been seen and dealt with in Dún Laoghaire District Court.

Mr. Sherlock

The case cited makes it imperative to have the Child Care Bill enacted as quickly as possible because all over the country there are obviously such cases, and one has experience of the problem the parents have to contend with when they have problem children. I want to make sure that "to make arrangements with the managers of children's residential centres or with other suitable persons" is easily understood, and I would like the Minister to explain in what circumstances "the health board shall provide". Is it envisaged that the health board will be setting up their own residential centres? In what circumstances does he envisage that "the health board shall provide"?

Mr. L. Fitzgerald

I should convey my concern too about the present cases. The present procedure seems most unsatisfactory. I feel we are witnessing an administrative jigsaw or see-saw of some kind where appropriate placement cannot be provided and could not have been provided immediately, as I believe it should have been in this case. I do not know whether some of the points raised by Deputy Shatter and Deputy Yates are outside the scope of this Bill, but I have a feeling they are, and as the Minister is here, he knows more about that than I do. I would appeal nevertheless that he convey our concern to the appropriate authority. I am not in any way apportioning the blame. The justice has identified a very serious problem. He has been unable to interpret or identify a provision or an appropriate placement. The responsibility is not immediately obvious. I do not know if responsibility in the future can be encompassed in a Bill like this. If it can, I appeal to the Minister to consider it on Report Stage. If it cannot, then I think all we can do here is to convey our serious concern that the situation drifted on. I feel very anxious that that should be placed on record here.

Mr. N. Treacy

At the outset, a number of people questioned the term "suitable accommodation", and I have said in my initial response that we wanted to remove this terminology "place of safety" and use "suitable accommodation". I would like to clarify that "suitable" here means suitable for the needs of the individual child concerned.

Mr. Howlin

Should that be stated?

Mr. N. Treacy

I do not think it is necessary to state it clearly. I am going to elaborate and I hope this will clarify it. Obviously the needs of individual children vary and what is suitable for one child may not be suitable for another. We must place some trust in the professionalism, the competence and commitment of the social workers and others who will deal with the individual children concerned. I would not agree with Deputy Yates that suitable accommodation could only be residential accommodation. In some cases foster care might be the best and most appropriate placement. In others it might be a special school, in others a hospital, in other cases residential accommodation, and so on. We cannot legislate for individual cases. We must leave discretion with the professional staff on the ground. They need flexibility.

However, that is not to say that we cannot have minimum standards. On the contrary, the Bill enables the Minister to set down minimum standards of care and accommodation. I would refer Deputies to sections 27 and 28, for example. I would also refer to section 52 which enables the Minister to give directions to health boards in relation to the performance of their functions. This could, if necessary, be used to specify minimum standards for the purposes of this section.

I appreciate the Deputy's interest in the provision of proper accommodation and facilities for young female offenders and others and the lack of this facility was considered by the interdepartmental group on the administration of justice. Their report, which I expect will be submitted to Government in the coming week, makes a recommendation that such a facility should be made available as soon as possible. I am pleased to be able to say that the Government, in advance of consideration of the full report, have given approval as a matter of urgency for the provision of a special centre for 20 to 25 girls which will take up to eight girls for remand and assessment, provide long-stay accommodation for 12 girls and contain a small number of places, not more than five, for secure use as needed. Acquisition of the necessary site and planning work will commence immediately and building will be put in hand at the earliest possible date.

It is very easy to clamour for facilities and resources and to say that the need has been there for years. This Government have put this legislation before us for consideration. This Government are taking decisions vis-�-vis child care matters. This Government will, and are, providing resources for them and I do not think anybody can say that we have neglected that area. I do not wish to go into the details of any particular or individual case but with regard to the need for interim arrangements to deal with the particular case which has been raised by the Deputies, and which has been the subject of much publicity, the resolution of that case is now a matter for the court and the assessment as to what interim arrangements would provide a basis for a satisfactory resolution is obviously a matter for the court.

Discussions are at present taking place between officials of my Department, the Department of Justice and the Department of Education as to what options may be open and the intention is that the health board representative will advise the court without delay as to what arrangements are possible. I consider it best that I simply acknowledge that the matter of departmental responsibility clearly must be settled once and for all and that this should be done without delay. The process of doing so is well under way at Government level right now

In response to a specific point made by Deputy Yates, I want to correct certain reports that have appeared in the media and make it clear that my Department are not aware of any child in care having been sent to Northern Ireland for residential care. In the specific case referred to here, some consideration was given to the possibility of doing so but it was found not to be legally possible.

Mr. Yates

I listened with interest to what the Minister for Justice said in the Dáil in relation to this specific matter. It is obvious now from the Minister of State's elucidation of this that it involves planning, tendering, construction and staffing, and that it will be at least a year before this new residential centre is a reality. If we are to go by Wheatfield or any other examples it could be four or five years.

The immediate need is not being met. I am getting back to amendment No. 73 here. It is all very well for the Minister to say this is a matter for the courts, but the courts can only act and operate on the basis of the law that the Oireachtas enacts and if we say that suitable accommodation is to be provided, what is "suitable accommodation"? In Justice Wine's view, what was being provided was unsuitable in terms of the community. In my view a bed and breakfast facility, paid for by the Eastern Health Board, is totally unsuitable. I am advised by the professionals in this field that such juvenile female offenders have been sent for therapeutic care to Northern Ireland in the past. It may not have been considered an option in this particular case but certainly that has been the case heretofore. That is because there is no equivalent of Trinity House for females in this country as there is for young male offenders. That is an unacceptable situation. I do not wish to delay the committee unduly with this particular thing. In regard to the definition of "suitable accommodation" would the Minister bring forward a provision on Report Stage that would allow a more detailed option to be given to the District Justice as to where the child may be placed. Let it be a hospital, a residential centre or foster care, it should be defined. In my view that would eliminate the legal limbo that has arisen in this case.

Mr. Shatter

I do not want to be unnecessarily difficult with the Minister and, like everyone else, I want to get on with processing this Bill. One would be left breathless with indignation if one — certainly who has been involved in this area for so many years — listened to what the Minister said. I would be less than honest if I did not express my frustration and incredulity. This Bill was published in May 1988. It was November 1989 when we finally started processing Committee Stage. It is now just about ten years since the task force on child care reported and talked about the need for single ministerial responsibility. The Minister is telling us today, in response to this case which has been going on for weeks, that the question of departmental responsibility between the Departments of Education, Justice and Health is something that is now being worked out, because they have to try to work out which Minister is responsible. We had the extraordinary operation over the weekend of different Ministers, either doing radio or television interviews or talking to Sunday papers, disclaiming personal responsibility for their own Department's involvement with regard to this child. This was presumably in case a disaster took place and the child succeeded in committing suicide, so they could wash their hands of responsibility and pass it to a colleague.

I find it extraordinary that it is nearly two years since this Bill was published, ten since the task force on child care produced their report. The Minister is now telling us that there is now some thinking going on between the Departments of Justice, Education and Health as to who is actually responsible for children in the position of the tragic young teenager who has been coming before Dún Laoghaire District Court. That is a classic example of muddled thinking — the most charitable comment. One would expect that this case going through the courts for the last few weeks — if no one had addressed the issue up to now in the Department — would have resulted in someone very early in January addressing the issue in each of the three Departments. It seems to me that without the persistence of Justice Wine they still would not be addressing that issue.

That is a very sad commentary on this Bill in dealing with the concept of suitable accommodation. It indicates that, despite this Bill being in front of us, the Department of Health and other Departments are still unclear as to exactly what their responsibilities are towards children. Taking the question raised by Deputy Howlin with the Minister, on the assumption that we will take on board the Minister's amendment, I think the definition of "suitable accommodation" should certainly, on Report Stage, be said to refer to accommodation suitable for the needs of the particular child. I am not confident that the accommodation will not be simply what one or other Department thinks is suitable and which may not be suitable at all. We should define it. I would say to the Minister that "suitable accommodation" could include various types of accommodation. It could be residential accommodation, it could be a secured accommodation, it could be foster care.

This committee can talk about this for the next three months and we can pass this Bill but the Departments and the Ministers concerned should work out what their responsibilities are. I urge the Minister to take a message from this committee that I hope we could all agree with on an all-party basis and which is not politically contentious. The message, I believe, should be that responsibility for this entire area of children's law and children's services, be it in the context of the criminal or the family civil law area, should vest in the Department of Health. Let us get rid of these simple differing responsibilities with a grey area between them, which results in the tragedies being acted out in Dún Laoghaire District Court that we have seen in the last few weeks.

Mr. Howlin

I do not want to go over ground already covered and I will not specifically mention the case that I skirted around in my initial contribution on this section, but there are two fundamental questions I asked that the Minister has not addressed. One is to restate why we are not inserting in it "suitable accommodation", taking account of the needs of the child at the time? The second is to give us an assurance that resources will be provided to the health boards to provide this accommodation, because it patently does not exist now, particularly in relation to adolescent children. Those two assurances are needed. We also need a tighter definition to ensure the uniformity that Deputy Coughlan also referred to, because I would be gravely worried that what would be suitable to one health board would be quite different from what another health board would deem suitable.

Miss Coughlan

Listening to the opposition benches, I sincerely hope that the political contentions which Deputy Shatter has spoken about are not going to appear here in the Committee, because I thought that we had done pretty well and run very smoothly in trying to have this Bill initiated and passed. This "specific" has now caused us to be political, which is something I do not like to see. If Deputy Yates could build a centre for juvenile delinquent girls tomorrow he would be a brave man and I would like to see him do it, but it might not be suitable. I think we have had progress and have gone beyond the ambit of what we are speaking of here in touching on suitable accommodation. What was said in the Dáil today should be welcomed and we will keep a watch on it. I will be one of the people who will make sure that the Minister for Justice has no delays in getting it prepared and having the building finished, and we will invite you to the opening.

We have all been skirting around everything, and resources seem to be what we are worried about. As legislators we are all here because we are interested in the welfare of children and the smooth passage of this Bill. Fine Gael had it for a long time and we have it now. We have made progress, let us forget about the past and go on from here. The Minister has taken on board the fact that we are worried about resources, that a health board might be unable to provide what would be termed suitable accommodation according to the needs of the child that would come before either a court, a health board or whatever. That is the fear of everyone and the Minister is well aware of it. Deputy Howlin's problem seems to be in clarification or specifying. I do not know whether specifying what exactly accommodation should be, residential or foster care, would be of any help.

Mr. Howlin

What I am getting at is that I think we should write into the section that suitable accommodation means accommodation suitable and appropriate to the needs of the child at that time rather than what some health boards might find suitable — if it has four walls and heating that is suitable.

Miss Coughlan

It is the vagueness the Deputy is speaking of in relation to that. I would hope that professionals would always be able to ascertain what exactly suitable is. Everyone is entitled to their opinion. I would hope that from the legislation it would be assumed or — perhaps, assumptions are dangerous too — that it would be known what exactly would be suitable accommodation according to the needs of the child.

Mr. L. Fitzgerald

I was taken aback by the outburst from Deputy Shatter. His allegation that Ministers were preparing the ground to wash their hands of any accountability in the event of a suicide was, I thought, a little bit sensationalist. To re-echo the sentiments expressed by Deputy Coughlan, I thought we had got away from that kind of approach. I found recently that the exchanges were very constructive and positive. If members on all sides had queries to make or reservations to express, we were feeling quite free to express them in the belief that a healthy, positive exchange was in the interests of coming out at the end of the day with the best possible legislation. If the division lines are being drawn clearly again we will not be doing it in the interests of children but in the interests of political opportunism. I would not like to see political opportunism creeping in.

Deputy Howlin may have grounds for some concern in relation to the words "suitable accommodation." I always understood the adjective to mean appropriate to the needs of whoever it would apply to. That was the literal definition I always had of "suitable". Perhaps the Deputy would elaborate on what he sees wrong with the term "suitable". Is it not, in accordance with his interpretation, meant to refer to what is appropriate in each situation.

I was heartened to hear the Minister inform us that the Minister for Justice has made an order and issued instructions within his Department to prepare proposals for the immediate development of appropriate facilities for girls who are before the courts. I welcome the announcement that that is going to proceed speedily. We have had evidence of a muddle in recent times as to who is responsible or accountable for particular isolated cases. Those who are loudest and most critical in this regard should not forget that there have been previous Governments under which this situation existed.

Mr. N. Treacy

I am very disappointed at the attitude adopted by opposition Deputies. I have been more than generous in my response on this section, particularly in dealing with an individual case that I did not want to comment on because it is before the courts. Deputy Shatter talked about my contribution being accepted by him with indignation, frustration and incredulity. He talked about a Kennedy report being published over ten years ago and nothing being done. I want to point out to Deputy Shatter — I regret that he is not present — that his party has been in Government for more than five of those ten years, that they had the opportunity to prioritise this situation and they did not do so. They did not put forward legislation or provide resources. An accumulation of problems that have occurred over the period have now to be dealt with. Today's announcement by the Minister for Justice is a milestone. We are providing the resources for the necessary facilities. Deputy Shatter's statement that three Ministers are washing their hands, based on a danger that an individual may commit suicide, I regard as totally offensive. It is a very serious statement. It is unfair that it should be made in this situation in a committee that is doing its best to deal positively with the legislation before it.

With regard to the point raised by Deputy Howlin regarding suitable accommodation, we cannot legislate for the particular, we must legislate for the general. We must ensure that facilities and resources are made available. We must allow that the flexibility is there for the professionals to decide in each individual case what is suitable. We must accept decisions from the courts and whatever directions we get on any particular case. That will be done. The amendment before us gives us the best balance between the individual needs and the general welfare. I ask the committee to accept the amendment.

Mr. Howlin

Lest we lose sight of reality when we are rushing to our political barricades it must be said in reply to the Minister in relation to previous governments and no action being taken on child care that the Children (Care and Protection) Bill actually got to a special committee as advanced as this one before the fall of a previous Dáil although no action was taken on it by the 25th Dáil. In fact the genesis of the Bill before us and its predecessor that collapsed with the 24th Dáil was the tribunal set up by an illustrious predecessor in the Department of Health who passed to his reward last week, Brendan Corish. That should be acknowledged.

Chairman

Now that the Bill has been set in its historical context, I would like to take this opportunity to apologise for not calling Deputy Dempsey who indicated he wished to speak.

Amendment agreed to.

Mr. Yates

I move amendment No. 74:

In page 10, line 15, to delete "Part." and substitute "Part, on a 24 hour basis.".

We need not spend unduly long on this. What I was seeking to do here was to ensure that where children are held in emergency places of safety it would be just overnight and that more appropriate care would be found after that by the relevant authorities. I was seeking to keep that period to the minimum and to put a degree of urgency on the provision of proper accommodation.

Mr. N. Treacy

As I indicated on amendment No. 73, this section imposes an obligation on each health board to provide or ensure the provision of suitable accommodation. A health board would be under this obligation at all times and there is nothing to be gained by inserting a reference to 24 hours. I regret, therefore, that I cannot accept this amendment.

Mr. Yates

I will withdraw this amendment because I do not want to spend an unduly long time at it. As usual I disagree with the Minister but I will not delay the committee.

Amendment, by leave, withdrawn.

Section 13, as amended, agreed to.

NEW SECTIONS.

Mr. Yates

I move amendment No. 75:

In page 10, before section 14 but in Part III, to insert the following new section:

"14.—It shall be an offence for any person to conceal a child who is the subject of an emergency care order.".

This is a very simple amendment. It asks that it would be an offence for anyone to conceal a child from an emergency care order. It would deal with kidnap situations, it would deal with parents who would deliberately try to circumvent the law or circumvent the authorities where the safety of a child was an issue. I feel that should be an offence and I so move.

Mr. N. Treacy

Where a child who had been placed in care under an emergency care order is unlawfully removed by a parent or other person, the primary concern of the health board is that the child be found and returned to care as quickly as possible. Section 32 empowers the Garda to search for a child who has been removed from care and to return him to the care of the health board. When we reach that section I will be moving amendments Nos. 156, 157 and 158 which seek to strengthen the section and, in particular, extend it to cover children who are the subject of emergency care orders. I think that is the best way of dealing with cases of abduction of children in care and I am not disposed to the creation of offences as suggested here.

We must bear in mind that no matter how unfit or unsuitable a parent might be, the removal of his or her child into care is a traumatic experience. Parents will react in different ways to this; some may react by abducting the child in care. Where this happens I think our approach should be based on sympathy and understanding, rather than imposing criminal sanctions. Provided health boards have the powers to recover the child, which they will have when section 32 is amended, I do not believe we need concern ourselves with the criminal law. I hope that on this basis the Deputy will agree to withdraw this amendment.

Mr. Yates

I think there is a difference here between power to pursue the matter and to recover a child and to have a deterrent placed on parents that says it is an offence to conceal a child. I think they are two separate points and, therefore, I will be pressing the amendment.

Mr. Shatter

Could I very briefly raise something here? I would agree with the Minister that where appropriate he should keep the criminal law entirely out of this particular area, but you do have one very real problem. For example, currently if there is a custody dispute over children in the Circuit Court or in the High Court and if a parent does not comply with orders made, the parent is in contempt of court and can, in effect, be jailed. That is a residual power that is very rarely used, but it is there so as to ensure that if a child's welfare is at serious risk there is some court remedy available to protect the child.

If we take the Minister's amendment, and the Minister may correct me if I am wrong in this, it is giving the Garda powers to search for a child and ascertain his whereabouts. If you do not ultimately have an offence provision, could I ask the Minister to clarify what the position would be if a court has made a place of safety order in respect of a child, the Garda search for the child and cannot find the child and the parents are concealing the child's whereabouts and the place of safety order has been made because it is believed the child is at risk. It may be that the parents are concealing the whereabouts of the child because finding that child might prove the child is at risk. For example, the child might be seriously injured or suffer very serious bruises and the parents may have been anxious to ensure that the child is not made available to the authorities until the child has no visible signs of, perhaps, an assault.

Whereas the ideal is always to keep the criminal law out of this, there may be a necessity for a residual provision here. There is a similar residual provision in the 1981 Courts Act, in so far as I can recall, where it amended the Guardianship of Infants Act, 1964, to allow the District Court make custody orders in disputes between parents. It made it a criminal offence for a parent not to comply with a custody order made by the District Court, because the District Court does not have the power to commit for a contempt of court.

I share your view that in 99 per cent of cases the criminal law has no role here, and should not have a role. I think, however, to ensure in that 1 per cent of instances where a child may be at serious risk and where a parent will not say where the child is, there may be a need to create a form of offence. It may be that you may not want to take this particular amendment on board; you may want to look at it with a view to Report Stage. I just raise that issue with you and, perhaps, you might be able to respond to the scenario I have suggested that could arise, where a child could not be found but there was a serious belief the child was at risk.

Mr. N. Treacy

In response to Deputy Shatter, where a care order has been made and is not honoured, the people who do not honour it, the parents, would be in contempt of court and it is my understanding that anybody in contempt of court, no matter what the situation is, is liable to prosecution.

Mr. Shatter

The District Court does not have a contempt of court jurisdiction. That has long since been established. If the District Court makes an order in civil proceedings, unless there is specific criminal offence created in legislation a district justice cannot commit someone for contempt of court. It is not a power that vests in the District Court and there is a serious doubt, although it is happening in practice, whether it properly vests on the Circuit Court either. It is a High Court jurisdiction and it certainly does not vest in the District Court. There is a doubt about it in the Circuit Court but, in practice, it operates. It is something you may want to look for Report Stage.

Mr. N. Treacy

The amendment I propose gives the power to the Garda to search for the child and to deliver that child to the health board. In view of what has been said, I am prepared to have another look at the situation and consider it for Report Stage, after having had various consultations and ensuring that we can define clearly the role of any particular court and what response there should be to that role.

Mr. Shatter

I think you may be able to copy the provision into this Bill. It has been inserted in relation to the Guardianship of Infants Act for District Court proceedings. I think if you have a look at that you may find a very similar provision and it would provide a protection and uniformity of approach as well with regard to children.

Mr. N. Treacy

On the basis that I will examine the case in detail vis-�-vis all the courts and the jurisdictions and the situations——

Mr. Yates

The specific issue is that it would be an offence to conceal a child. That is a very simple principle and that is what I am seeking. If you intend to bring that forward, I certainly accept that my wording could be substituted by something else. Would you accept in principle that you would make it an offence?

Mr. N. Treacy

While you propose in your amendment that it would be an offence to conceal a child, you do not say that there is an appropriate penalty or whatever. In order to clarify the whole situation I am prepared to have another look at it.

Mr. Yates

I am perfectly willing to accept that all the wisdom on the matter is not contained in my amendment No. 75, but what I am suggesting is that there is a principle at issue here that it be an offence. You said in your first response that you did not wish to bring the criminal code into it. I disagree with that. I think it should be an offence and I think it should be known and social workers should be able to tell parents that it is an offence, so that they know exactly where they stand. I do not think there should be any ambiguity about that. I took it from what you said earlier that there was a fundamental disagreement with what we were saying and, therefore, I was pressing it to a vote but are you now suggesting you are in favour of my point? I do not want to withdraw the amendment on the basis of a misunderstanding and then find that we have not resolved the issue.

Mr. N. Treacy

Ambiguity is not one of my strong points. I want to be absolutely clear that I am not saying it is an offence. I have pointed out the traumatic situation that exists when a child is removed and the different reactions there can be of an individual to a particular situation. However in view of what has been said and in the interest of putting the best possible legislation on the Statute Book I am prepared to have a look at the whole situation.

Mr. Yates

I will accept what the Minister has said in good faith. I think there is a principle at stake but I will not delay the Committee.

Amendment, by leave, withdrawn.

Chairman

We now come to amendment No. 76. Unfortunately, Deputy Sherlock, I have to rule this out of order under Standing Order 123. The cost of the provision of a scheme of legal aid established by ministerial regulation could only be met by the Exchequer and, accordingly, the amendment must be ruled out of order as imposing a potential charge on Revenue under that Standing Order.

Mr. Sherlock

I am very disappointed at your ruling although I accept it. With this legislation which we are preparing for enactment I think it is imperative that parents and children have access to legal aid, advice and information. The lack of resources in the existing civil legal aid scheme effectively means that parents and children do not always have legal representation. It is also necessary to have clear regulations for the section to the benefit of the health boards, parents and children. I ask the Minister to give some consideration to this because there are people out there who will wish to avail themselves of the legislation and who will need legal aid, advice and information.

Mr. N. Treacy

The legal aid situation got a very strong airing last week and as we have provided £425,000 above the 1989 provision for legal aid I think in that——

Mr. Howlin

We should not go into that — you are on thin ice.

Mr. N. Treacy

It may depend on the weight of the body on the ice.

(Interruptions.)

Mr. N. Treacy

I am not prepared to go into it any further.

Amendment No. 76 not moved.