Special Committee Child Care Bill, 1988 debate

SECTION 14.

Mr. Yates

I move amendment No. 77:

In page 10, line 18, after "appears" to insert "on the basis of its own investigation".

The amendment seeks that the health board would be allowed to investigate cases. The present wording of section 14 is "that where it appears to a health board". For something to appear out of fresh air to the health board is not sufficient. I think they should be given investigative powers to fully deal with this matter and that my proposed wording is an improvement to what is there already.

Mr. Dempsey

I was interested in this amendment and to hear what Deputy Yates had in mind. I think maybe he was being a little bit flippant in proposing it and talking about something appearing out of fresh air and so on. I took this section to mean that if, say, somebody other than the health board approached the health board with evidence that a child was being abused or something like that this section would give them the power to act on that immediately. It appears, to my mind anyway, that if we accept amendment No. 77 that would not be sufficient for the health board to act, that the health board would have to conduct their own investigation, even though some caring organisation or some social worker not employed by the health board, or somebody like that, might produce a report and express serious concerns and maybe give evidence to the health board that a child was in danger. If this amendment is accepted it seems that the health board, even with all that detail and report, would have to investigate it themselves and, in the case of a child that was in danger and in serious danger, the health board might have to wait for six, seven or eight days to compile this report. Maybe I am taking Deputy Yates's proposal up wrong but to me it seems a disimprovement on section 14 where the health board themselves can move quickly or they can move on the basis of a report that has been given to them by somebody in a responsible position.

Mr. Yates

Could I suggest that if the words "where it appears or," were inserted before my words "on the basis of its own investigation"— you would have both. Section 14 which is the beginning of Part IV of the Bill sets out the duties of the health board in relation to care proceedings and so on. I think investigative powers should be included.

Mr. N. Treacy

This section places a duty on a health board to institute care proceedings when it appears to them that a child requires care or protection that they are otherwise unlikely to receive. In reaching this view a health board will of necessity have to carry out certain inquiries in other ways. However, I am sure members of the committee will agree that the health board should also be able to draw on reports or information about the case in the hands of general practitioners, hospitals, schools, voluntary agencies and the Garda, to name but a few. I would be concerned that the effect of the amendment might be to prevent the health board using such reports and information and restricting them to the results of inquiries carried out by their own staff. I do not think that this would be helpful. On the contrary it could seriously hamper health boards in their work and I ask the Deputy to reconsider this amendment.

Mr. Howlin

I read the amendment and thought about it and I found that it actually disimproved the section in as much as it put responsibility on the health board to have their own investigation, and no other mechanism, to be satisfied. I was a little concerned that it might in any way jeopardise the taking of care proceedings. The word "appears" seems to be a little nebulous. I thought it might be a legal word and we seem to be bereft of lawyers today — we are usually chock-a-block with them — but "appears", is it a legal term that is understood in law? If that is the case it is acceptable to me.

Mr. Sherlock

I think the point made by Deputy Yates is reasonable and should be accepted. I do not understand the point that the health board investigation would rule out any other sources. The buck stops with the health board anyhow and will they not have to rely on the other agents or whatever bodies to supply information? I think it is reasonable to accept Deputy Yates's suggestion.

Mr. Yates

The Minister did not answer my point that I was quite happy to insert the words "or on the basis". It answers the point the Minister made, which is not to substitute one for the other, so that hospital reports or anything else could be taken into account. I might just also quote from the Child Care Coalition view of this amendment which is "approve". The amendment appears to clarify the basis of a health board instituting proceedings, that is, in the first instance, and that is the point I am trying to make, that an investigation might not lead to a subsequent care order but that the health board would be obliged to investigate such cases.

Mr. N. Treacy

I submit that this amendment is unnecessary. We could have put in a number of other words but I think they might not give the flexibility that is needed, namely, to enable the health board to deal with any particular situation. I refer the members to subsection (2) of section 3. The functions of each health board are clearly stated there and what they have to do to identify children who are not receiving adequate care and protection. Amendment No. 14 also covers the situation. I cannot accept this amendment as it is too restrictive.

A Deputy

Vótáil.

[Loss of 20 seconds of text due to technical fault.]

Mr. Yates

I see the point Deputy Howlin is making. I admit it could be worded better.

Amendment by leave, withdrawn.

Chairman

With regard to amendments Nos. 78 and 80, the part of these amendments relating to the child care authority is not in order. However, it is in order for Deputy Yates to move the part of the amendments which inserts the words "or approved agency". These amendments may be discussed together.

Mr. Yates

I move amendment No. 78:

In page 10, line 18, after "health board" to insert "or approved agency".

It is fortunate that these amendments should come up at this point because we have already alluded to the position of different Departments — the Departments of Education, Health and Justice. Some people on the opposite side had some savage words to say about Deputy Shatter's remarks. I do not know if they happened to read the front page of the Sunday Tribune, where remarks were attributed to the Minister for Education, where she said, in relation to this specific case, that the child in question required therapeutic care and that that did not exist within the education facilities. In the same article the Minister for Health was reported as having said that he was not aware of the individual case. There was no comment from the Minister of State responsible for child care services.

Mr. N. Treacy

The Minister of State was not asked to respond.

Mr. Yates

The interesting thing is that we have the Minister of State on record on Tuesday, 5 December 1989 when section 3 was discussed. This was in relation to the role of health boards and the liaison between the different Departments. I made the point then and I quote:

All the previous reports on child care services did indicate that one of the problems in deficiencies in the service was a lack of integration between the different Departments involved. To think that this matter could be resolved by the health boards working alone was not the most desirable way to resolve the problem.

I am referring to the Department of Education's role, the Department of Justice, juvenile justice system and the health services. The Minister of State's response was, and I quote:

There is always liaison between the Department of Health and the various other Departments pertaining to matters of common interest whether it be children or whatever. This is standard practice throughout the country and there is cooperation between the various Departments. Legally a particular Department has responsibility for certain matters and, obviously, that is the Department which will make the decisions and implement the decisions taken by the supreme bodies like the courts.

It is quite obvious from the Minister's remarks today that this was all made up and that there is no such liaison. We have had it cruelly exposed over the weekend that, in fact, it is still not decided which Departments will take responsibility for child care services. We have had a shuffling of responsibility. I firmly believe and this was put to the test before in the committee — the Opposition supported it and rightly so — that to put in a compartmentalised way the different roles of three different Departments is wrong.

In my view there is not a good relationship in relation to child care services between the Departments of Education, Justice and Health. The only evidence we have is the latest interdepartmental committee. Both the Minister for Justice in the Dáil today and the Minister of State at the Department of Health said that the Government have made no decision as regards which Department is going to be responsible. In my view it is obvious that we need to set up an approved agency, or the equivalent of the child care authorities, which was the terminology used in the Kennedy report and the task force report of 1970, and so on.

I do not want to rehash all the issues other than to say the events we have heard of today from the Minister clearly indict the lack of liaison, and it shows the facade that was exposed in relation to previous utterances. When section 3 of the Bill was debated in the Dáil Chamber earlier in 1989 we got umpteen assurances from Government Deputies about the working arrangements. Deputy Fitzgerald had particular reassurances for us in this committee about how well the school attendance officers integrated with the health board social workers and how well they all integrated on the ground. This is all nonsense. They are all working in three different parallel lines and there is no satisfactory integration. I need to see no more than the evidence which came to light in the last week.

I ask the Minister to give a commitment to acknowledge the situation is in a shambles. I would ask him to acknowledge that one Department should be given responsibility, and that should be the Department of Health. I would also request that an approved child care authority or approved agency now be set up to deal with the totality of children's problems.

Mr. Howlin

First on the general case put forward by Deputy Yates and one on which we laboured long and hard in the Dáil on a previous section of this Bill before we came into special committee, the principles are still very fundamental to the proper workings of this Bill. I am disappointed that the child care authority has been knocked on the head. We have not got the possibility to restore it at this stage because it would involve a charge on the State. There were also amendments in my name, in Deputy Yates's name and other people's names and they have already been struck down in various sections.

I would hope that what Deputy Yates has said and the events of recent times are not lost on the Minister. It is not good enough and is not acceptable after this time that there should be such ambiguity in relation to child care services. My view is that there should be a Department with specific responsibility for child care. It should have its own Minister of State, with no other responsibilities, for co-ordinating children's affairs. This legislation we are now working on should be the framework for that new sub-department within the Department of Health. Unfortunately, that does not seem to be the way it is going to be. It is going to be everybody pulling in their own direction and we are going to have this multiplicity of responsibility, and where everybody is responsible nobody is responsible. That is what is happening in the case we have discussed and that is what will happen until such time as proper accountability is established. The way to do that is to have the national child care authority, the structure of which could be worked out. Unfortunately that does not seem to be an option the Government are prepared to take on board.

The ruling in relation to Deputy Yates's amendment makes peculiar reading. If a child care authority is knocked on the head and we leave just "or approved agency', you delete "health board". It does not really make much sense.

Chairman

The wording now is, after "health board" to insert "or approved agency".

Mr. Howlin

I think it is an improvement. It means nothing in itself unless we have an agency that has function and teeth. At least it shows we are constantly looking for it if nothing else and I would hope the Minister would reflect again on the main issue and not try to leave it to the Opposition to circumvent the intransigence now at this stage of a Government Department and indeed of a Government who refuse to accept the weight of opinion from the caring organisations and from anybody who has been involved in investigating the whole issue of child care for ten years now. I still appeal to the Minister to reflect once again on the whole issue of a child care authority

Mr. Dempsey

I thought when we got rid of all our legal friends for this afternoon session we would have a relatively quiet session, but I think they must have been serving a very useful purpose because many members of the committee today have lost the run of themselves entirely.

I refrained earlier on from making an intervention in relation to one of the earlier amendments. The reason I did not intervene in the earlier session is because I hate to see politicians of whatever party — whether they are of my own party or any other party — getting up on the back of somebody else. That is what I feel is going on here today with this unfortunate case which we have discussed at length. I must say I doubt the sincerity of some of the people who are speaking here. I regret having to say that but I feel there is no useful purpose being served in talking about suicides and talking about this individual in the way she has been talked about. I feel very strongly about that and regret it has gone on for so long in this meeting this afternoon.

Deputy Yates was talking earlier about the whole thing being in a shambles. He said that there is absolutely no liaison, there is no co-operation between the various Departments, nobody seems to know what is going on. That is one case. There are thousands of these kinds of cases that have arisen over the past number of years and they have been successfully dealt with, and dealt with compassionately. I hate to see this committee here pursuing such a line. We are supposed to be a committee on child care but many of us have let ourselves down very badly this afternoon.

I want to make a general point in relation to the Child Care Bill, particularly Deputy Howlin's remarks in relation to this child care authority. I fundamentally disagree with Deputy Howlin that this is the Bill we should be using as a vehicle for a child care authority. This Bill deals with the hard case, if you like, where people have to be taken into care. I have no objection to this. There is a lot of merit in the proposal that we should have a look at a child care authority with single responsibility but I do not think this is the vehicle.

I do not think that this is the proper Bill to cater for it. It deals with other things and though it is not relevant to this amendment — and I am sorry to have to say it — I regret the tone of this meeting this afternoon. I hope it will not do irreparable damage to the obvious good work this committee has done and the general spirit of co-operation and the reasonable approach we have all adopted to this. I fear if we continue the way we have been going, we will have nothing but a party political fight from now until the Bill goes through.

Mr. Sherlock

That is a slight exaggeration.

Mr. Dempsey

It may be an exaggeration but I am entitled to my opinion and that is just what it appears to me to be. I do not want to see it happen and would prefer if it does not. It means that this Child Care Bill will not go through the House as quickly as all of us here would want.

Miss Coughlan

Because I would like to be gentle with the Opposition and in the spirit of co-operation and harmony I shall not say anything.

Chairman

And more harmony from Deputy Fennell, please.

Ms. Fennell

In the spirit of co-operation, I would like to say that the reason we keep coming up against this appeal for a child care authority is because, certainly I, as a member of the committee, have people phoning me and writing to me and saying "can you make a special case about so and so". The one thing that comes through again and again is the need for a separate authority. Deputy Yates mentioned the need for a unit in the Department of Health, a specific Minister of State to deal with all issues related to children. In all my time in politics, I felt that need strongly also. I agree with consultation, that you ask groups in the constituencies what they feel about a specific area. We have asked people's opinion about child care and they have all come back and said the same thing. I am not going into the details about what happened at the weekend but we have to accept that it does illustrate a concept or point.

When I was in the Department of Justice working on the Status of Children Act I felt that should have been in the Department of Health, that many aspects of it should have been dealt with in the Department of Health. We are dealing with legislation in a wrong era. In the past, our approach to children was one of punishment. If we think about it, it was the reformatory schools and those dreadful places which were in existence for this purpose. Children were punished for not going to school, children were punished all the time. There was that punishment element to it. We felt, as adults and as people in authority, that we had a right to punish children. That has all changed now. We do not think in those terms. We think in terms of support, therapy, rehabilitation and rightly that if children are presented with problems there has to be a social reason behind it. That should be dealt with in a caring way.

I believe that there is endless evidence and arguments there to say that we do need to take all children's issues and put them into the Department of Health and have that Department dealing with all of this. That may not be directly related to the amendment before us but I have to say that is the one issue that comes before us again and again from people who are concerned. They feel we should give one Department sole responsibility for issues related to children. When we are talking about children, we are talking about people over 14. Let us know where we stand on issues.

Mr. Shatter

I want to support very strongly the case for a child care authority. I said earlier today that I also believe all of this should fall under the aegis of the Department of Health. Because the Department of Justice has so many different responsibilities in the security area, in relation to Anglo-Irish matters etc., I do not believe it has the time or indeed the available people for the necessary commitment to approach things on a co-ordinated basis. We are into crisis management too frequently in this area.

There is not an overview and I know Deputy Yates has read into the record the Minister's comments of 5 December 1989 where he is praising the great co-operation between the three Departments. I would have to say to Deputy Dempsey I have no desire to see anything other than decent legislation on the Statute Book but it is disingenuous to say some of us are trying to use an issue that occurred last weekend and that we are not serious about it. I have been serious about this issue for about 20 years and I believe part of the job was done by the Fine Gael-Labour Government and the second part of the job needs to be done.

Fianna Fáil have been in office now for three years and the bottom line is that the job is not being done. We had a Children's Bill that was not enacted before 1987; it took until 1988 to get this Bill in. The original Bill had some defects in it; this Bill had a lot of good things in it but there are a lot of gaps in it. The task force on child care recommended the establishment of a child care authority. This is the Bill in which we should be providing it because if this Bill is not a vehicle to establish a child care authority, I do not know when we will next have legislation that would be a vehicle for it.

If anything, the events of the last few weeks in Dún Laoghaire are not unique; it is just that a district justice stood up against the system and, for once, cried "stop". Other district justices, faced with the problems that District Justice Wine had to confront, have, possibly, in the past simply dismissed charges and a child has been left wandering homeless in the streets and no doubt, has ended up in trouble with the law at a later stage or been taken into care. Possibly other events have happened which you would describe as sensational if I referred to them, but which people who work in the Simon Community and others witness on a regular basis.

We need a child care authority to ensure that the type of co-ordination that is sadly missing is there to ensure that there are not children who are falling through the administrative, the bureaucratic and the political black holes that develop in these areas. I had hoped that what we have seen in the last few weeks might have resulted in the Minister having a different view of the need for a child care authority because, clearly, the view was that such an authority was not necessary when this Bill was first published.

It is a very serious amendment because such an authority has a role in ensuring co-ordination. It would also be able to take an overview so as to ensure that when we do pass the legislation it will work, and to ensure that the resources and services that are necessary to make it work are put in place. That is a serious business, because all too frequently we pass legislation for the optics, the political optics become too important too frequently in the Oireachtas. We say things and we pass legislation and give the appearance that we have actually done something useful and then we do not provide the resources. It is all public relations hype but this Bill is not public relations hype. Let the Minister not misinterpret me. I know he is serious about this Bill and I do not want to become party political in any sense about that. We are serious about a child care authority, it is not a party political issue and it should not be.

Experts who looked into the need for such an authority back in the late part of the 1970s and produced the child care task force report made it quite clear that there was a need for such an authority. I was one of the people in 1973-74 involved with the free legal advice centres on a voluntary capacity and involved with the campaign for deprived children and as chairman of the campaign for deprived children at that time I highlighted the need for such an authority. It was very welcome when the task force produced the recommendation and it is unfortunate that in this legislation we are not implementing that recommendation.

Mr. N. Treacy

I have listened with much interest to the contributions of various members. At the outset, I want to say that I stand over my statement on 5 December 1989, that we have that co-operation. If you read it carefully, you will see that it was not make up stuff as Deputy Yates said, and that I do not just make up things as I go along. I speak on the facts based on the information and knowledge available to myself in the Department of Health. I talked about liaison which currently exists and I would appeal to members not to blur their vision and to have total objectivity for this Bill.

There is no point in basing the legislation on a particular individual, on a particular case and on any particular situation. We must legislate for everybody and for the general situation. I am not going into that situation because that case is before the courts, except to say that whatever duties are imposed on my Department we will respond to those duties and responsibilities in a very positive manner and in a very quick fashion. We will execute the responsibilities that are placed on us and will continue to do so. I have the utmost confidence in the quality of the staff in the Department, in the positive approach they have adopted, in the co-operation and advice they have given to successive Ministers, to the present Minister and Minister of State and to various other Departments. That co-operation and liaison is there with Departments and it is as a result of the input we have that decisions are taken and are being taken. We are not intransigent on any matter.

Deputy Yates has made the point in his original amendment which has been ruled on — it cannot be accepted — and I will respond to the acceptable amendment. It is obvious we need somebody in control and with responsibility and it is obvious that the health board should be the body. If we have a child care authority and an approved agency, how many groups or bodies are we going to have in charge? We are clearly placing responsibility for child care on the health boards, clearly defined by statute, clearly defined in law and here we are legislating so that they will have that responsibility.

As I mentioned earlier, the purpose of this section is to impose a clear statutory duty on health boards to institute care proceedings where this appears necessary. This is fully in keeping with one of the primary objectives of the Bill, which is to establish the health boards as our statutory child care and child protection agencies. This amendment, on the other hand, proposes that the duty to take care proceedings in appropriate cases would be vested in the health boards and in other agencies at the same time. I do not believe this is desirable. In the first place I am not aware of any agency, and I presume the Deputies have in mind voluntary agencies, that would have the necessary staff or expertise to take on such a difficult task. Neither am I aware of any agency that has indicated its desire to perform such a role. The proper investigation and management of child abuse demands clear lines of responsibility and accountability. This can best be obtained by placing the statutory responsibility, clearly and unambiguously, on the health boards. I would be concerned that this amendment could lead to confusion and a blurring of responsibility and for that reason I regret I will not be able to accept it.

Mr. Yates

We need not have a too protracted discussion on this but there are some fundamental points here. First, I disagree with the Minister. I believe the evidence of the weekend highlights a practical example of what can go wrong. What went wrong was the provision of residential accommodation was shuffled between three Departments. The Department of Justice said it was the Department of Education and Education said it was the Department of Health. That is on the record and that is bad liaison and is unacceptable. That is not political. It gives me a little touch of nausea, to put it mildly, to hear from Deputy Dempsey that what we have listened to this afternoon is some sort of party political broadcast from the Opposition. The reality is that every time we have a roll call vote politics come into play. We are all professional politicians, we make no apology. We make our livelihood out of having points of view and that is the way we operate. I often find that is the last line of defence when you are not arguing in favour of three Departments. You are not saying we should keep things as they are, your last line of defence is that we are being political. That is no defence to the substantial argument that is being made.

There is a completely different ethos between the Department of Justice and its attitude to the juvenile justice system and the Department of Health and the way it regards children. That is the fundamental dichotomy that needs to be addressed by the Government and they have failed to do it so far. What I originally proposed in amendment No. 3 in relation to a child care authority and what I meant by an approved agency — the Minister made reference to voluntary agencies — was:

Representatives of the health board concerned, as well as representatives to be appointed by the Ministers for Education and Justice so as to ensure a co-ordinated policy approach between the Departments of Health, Education and Justice in the provision of child care services.

That was tabled almost a year ago and that is exactly what we on this side are talking about, a co-ordination between the different Ministers. It is not true to say, as the Minister said, that this Bill solely deals with care orders and the responsibilities of the Department of Health. Section 57 of this Bill — Abolition of Death Sentences for Crimes Committed by Persons under 18 years of age, section 58, Sale of Solvents — are not health issues. Neither is the amendment of section 17 of the School Attendance Act, 1926. These are all fundamental issues to children and they should be put under one Department. We should deal with this issue in this Bill, as recommended in the Kennedy report and in the task force report. This is central to the heart of this Bill. There are two issues in this Bill. One is the legal changes we need to make to protect children. The other is the way the Government respond to the needs of children on a day-to-day basis. Central to the second aspect are the structures. We on this side have a clear view of what needs to be done. The Minister has said that the Government have still not come to a decision. When they are about to make a decision on who is responsible, they do not seem to have a view or a preference that the Department of Health should be in the vanguard.

There is such a gulf of opinion here that we may as well put it to a vote and dispense with it as there is a need to move on. It is not true this is a cosmetic exercise and to question the sincerity of the motives of this side of the House when these are issues that were on the record before the Dún Laoghaire incident is disingenuous.

Miss Coughlan

Deputy Yates has not listened to some of the sentiments on this side of the House which would be that we also feel there should be later — but not in this legislation or perhaps in conjunction with it — a marrying of the authorities. Maybe the Deputy did not listen to what has been said.

Mr. Howlin

Make me good, Lord, but not yet.

Miss Coughlan

Not necessarily. The way we are going now it is going to be another 80 years before we get it passed.

Mr. Sherlock

May I make one brief comment. I am a member of a health board and also of a community care subcommittee of that board. I am trying to visualise a situation if this was enacted tomorrow and the chief executive officer of the board was told you have a responsibility. I can tell you this and I have no doubt about it, we would have the same situation existing and in the future as we do now. This will mean nothing because without a child care authority the health board is going nowhere in this legislation. There are no good grounds being put forward why a child care authority should not be established. The emphasis is on the health board. Would it be the psychiatric services committee or which of the subcommittees of the health board would be responsible? A child care authority is inevitable to make the sections of this Bill workable.

The Committee divided: Tá, 4; Níl, 5.

Tá

Howlin, Brendan.
Sherlock, Joe.
Shatter, Alan.
Yates, Ivan.

Níl

Coughlan, Mary.
Fitzpatrick, Dermot.
Dempsey, Noel.
Treacy, Noel.
Fitzpatrick, Liam.

Amendment declared lost.

Mr. N. Treacy

I move amendment No. 79:

In page 10, lines 19 and 20, to delete "that any of the conditions mentioned in paragraph (a), (b) or (c) of section 15 (1) exist and”.

This amendment it to correct a drafting error. Section 14 imposes a statutory duty on a health board to apply for a care order or a supervision order as it considers appropriate whenever the need arises. While section 14 contains a reference to section 15 (1) which sets out the grounds on which a care order may be sought, there is no corresponding reference to section 16 (1) which sets out the circumstances in which a supervision order may be made. This could lead to doubts as to what is intended. I am advised that rather than inserting a reference to section 16 (1) it would be better to have no cross-references so that the revised section would simply read as follows:

Where it appears to a health board with respect to a child who resides or is found in its area that he requires care or protection, that he is unlikely to receive unless a court makes a care order, or a supervision order in respect of him, it shall be the duty of the health board to make application for a care order or a supervision order as it thinks fit.

Mr. Howlin

Could I make a comment on section 14 because it is the enabling section involving a duty on health boards to take proceedings. It is unfortunate that we are not establishing in this Act family courts. It is regrettable that the opportunity of this Bill is not being taken to take child care issues out of the normal court procedures. That case is being well made. It is important to restate it now. The existing court structure is not the appropriate place to hear matters relating to children. That has been stated in the task force and its recommendations are there. There is no mention in this Bill of the intention to establish family courts. Perhaps the Minister feels that would be appropriate for another Department. That is part of the dichotomy we have already laboured on to the nth degree at this stage. As long as the court system in relation to children is a matter for the Department of Justice and care proceedings are a matter for the Department of Health, there will be people falling through the gaps and it is a pity.

Mr. N. Treacy

The matter of the courts can be discussed at section 20 later.

Amendment agreed to.

Amendment No. 80 not moved.

Section 14, as amended, agreed to.

NEW SECTION.

Chairman

Amendment No. 81 is a substitute amendment. In view of the fact that this is a substitute amendment some additional discussion is in order.

Mr. N. Treacy

I move amendment 81:

In page 10, before section 15, to insert the following new section:

"15.—(1) Where a justice of the District Court is satisfied on the application of a health board that—

(a) an application for a care order in respect of the child has been or is about to be made (whether or not an emergency care order is in force); and

(b) there is reasonable cause to believe that pending the determination of that application the health or well-being of the child so requires,

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

(2) 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,

and an extension or extensions of any such period may be granted (with the consent, where an extension is to exceed eight days, of the persons specified in paragraph (b)) on the application of any of the parties if the justice is satisfied that this is necessary in the best interests of the child.

(3) An application for an interim care order or for an extension of such an order shall be made on notice to a parent having custody of the child or to a person acting in loco parentis except where the justice otherwise directs.

(4) Where an interim care order is made, the justice may order that any directions given under subsection (6) of section 11 may remain in force subject to such variations, if any, as he may see fit to make or the justice may give directions in relation to any of the matters mentioned in the said subsection and the provisions of that section shall apply with any necessary modifications."

Following some concern expressed by Deputies at our last meeting about aspects of amendment No. 81, I have had consultations with the Attorney General and, as a result, I have circulated a substitute amendment No. 81. Before I explain the amendment in detail, it might be helpful if I began by reminding Deputies of the need for and the purpose of this amendment.

Section 11 provides that an emergency care order will remain in force for not more than eight days. As I explained at the last meeting, a number of recent judicial pronouncements seem to indicate that it would not be constitutionally permissible to extend this period beyond eight days. Under the Bill as originally drafted it would have been necessary for a health board to proceed with an application for a care order or a supervision order on the eighth day. As was pointed out at the last meeting, a health board might simply not be in a position to proceed with a full hearing of the case on the eighth day, perhaps because it was awaiting the results of medical, psychiatric or psychological assessments or because it was having difficulties in making contact with the parents of the child. Furthermore, the parents might not be anxious that the full hearing should proceed at that stage if they were, for example, awaiting a second opinion on medical or other tests. The purpose of this amendment is to provide a breathing space for all the parties concerned to complete their preparations before the case goes to a full hearing while allowing the child to remain in care temporarily if the justice considers that this is necessary in his interests.

Subsection (2) deals with the duration of such an order. This was the aspect that gave rise to some controversy at our last meeting. The subsection has been amended in the light of some of the points raised and in order to clarify what is intended the substitute amendment now makes it absolutely clear that an order can be made for a period up to eight days, or if the health board and the parents or persons in loco parentis agree, for a period in excess of eight days. It also provides that the justice may extend the duration of the order on one or more occasions as he thinks necessary and that such extensions may be for eight days or for any period in excess of eight days providing that in the case of a period over eight days the consent of the health board and the parents or persons in loco parentiswill be necessary.

What I am trying to say is this; where does it suit a health board not to seek a care order and to keep going back for interim care orders? The last day I argued for some sort of maximum outer limit. That has still not been accommodated and that is an interim care order would not be longer than 40 days or 50 days at the very outside. I do not think interim care orders should be used in an interim situation. They should not be used as a substitute for care orders, that is the point I am making. I am still not clear about when he applies for a twenty day order. The longer it goes beyond eight days the more tempting it is to go for a second interim care order rather than a care order. My question is twofold; on the second interim care order can they apply for any length of time if consent is withheld? Is it true that every eight days it will come back to court, provided consent is withheld? Therefore, what about the outer limit?

Mr. N. Treacy

I will respond to that. It is true that there is no express or stated limit on the number of extensions that may be granted or on the length of time that a child may remain in care under an interim care order. The reason for this is that child abuse cases, particularly cases involving child sexual abuse, are extremely complex. It may be necessary for the health board and the parents to obtain medical, psychiatric and psychological assessments on the child. In some cases it may even be desirable to obtain second opinions on these assessments. All this may take some time. It seems to me desirable in the child's interest that the parties should be given time to complete their preparations so that the court can make its decision based on the best available evidence.

I do not believe it would be helpful to impose an arbitrary limit on the number of extensions that may be granted. We must leave this to the good sense of the justice dealing with the case. In exercising his discretion as to whether to grant extensions, the justice would, of course, have to have regard to the constitutional rights of the child and of the parents. Thus, while it theoretically possible that an interim care order could continue indefinitely, in practice this would not happen. This is because a justice could not continue to grant extensions without limit particularly if it was clear that the health board was being negligent in not completing its preparations for the case. In that situation the justice would be bound to have regard to the constitutional right of the parents to custody of their child and the right of the child to the company of his parents. In view of this I am satisfied that the absence of a stated time limit will not result in children being kept in care indefinitely. I have just noticed a spelling error in subsection (2) (b) of amendment No. 81. It is just a matter of reversing the letters.

Amendment agreed to.

Chairman

The time is 6.45 p.m. Does the Chair detect a demand from the committee to stop at this stage and reconvene next Tuesday at 4.30 p.m.? The meeting will be in room 114 rather than in this room. A large delegation from Italy will require this room next week.

Mr. N. Treacy

Could I respond to that by saying I am absolutely delighted we are returning to Room 114. It was the area I felt we should always have met in and I hope when we locate there on a temporary basis next week it may become our permanent home.

Chairman

I am informed that it is purely a temporary arrangement.

Progress reported; Committee to sit again.

The Special Committee adjourned until 4.30 p.m. on Tuesday, 6 March 1990.

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

SECTION 14.

A Deputy

Tá

Níl

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