We begin today with amendment No. 82.
We begin today with amendment No. 82.
I move amendment No. 82:
In page 10, before section 15, to insert the following new section:
"15.—(1) All reports of assessments carried out by health board personnel and their conclusions shall be made available to the relevant child's parents.
(2) Where there are video recordings compiled by the health board in a case, these will be made available to the parents of the child and their legal representatives.
(3) It shall be the duty of any court in the course of its proceedings to view all video recordings referred to in subsection (2).".
This amendment deals with care orders and the circumstances whereby courts will adjudicate on the granting of care orders. This Bill has progressively dealt with all the different emergency situations, emergency care orders, while children are held in care, the subsequent interim care order situation and so on. We are now getting to the stage that the future welfare of the child is going to be decided. I think it is very important that justice is seen to be done and that the rights of parents are preserved. It is very important that parents know exactly what the allegations against them are. Therefore, what I am seeking to ensure in amendment No. 82 is: firstly, that all reports and assessments carried out by the health board and their staff and the conclusions would be made available to the parents, so that they would clearly know what the allegations were and how those allegations were arrived at; secondly, that video recordings would be made available to the parents; thirdly, that the court would have a duty to examine any such video recording material. All of this would advance the cause of natural justice. It would not impinge in any way on our collective view that the rights of the children are of paramount concern. I note that the child care coalition approve of amendment No. 82. I quote:
In terms of natural justice it is important and necessary for the parents of the child to have access to all the valuable reports and legal evidence that is being presented against them.
The case is self-explanatory and so I urge the Minister to accept the amendment.
Minister of State at the Department of Health (Mr. N. Treacy): As a general principle I think it is entirely reasonable that parents whose child is the subject of an application for a care order should be informed of the reasons for the application and of the evidence on which it is based. To do any less than this would in my view be contrary to the basic principles of natural justice. Parents against whom allegations of abuse, whether it be physical or sexual, have been made or who it is claimed are unfit, unsuitable or inadequate to continue to have custody of their children, must be given an adequate opportunity to prepare their side of the case. The Supreme Court has recently underlined the need for parents to be given details of the case against them and to have time to prepare their defence. For example, the case of The State v. G and Others, ultimately gave rise to the need to enact the Children Act, 1989. The Supreme Court held that the solicitor acting for the parents should have been given, in good time before the trial, reports or summaries of the evidence which was to be given by or on behalf of the health board. Furthermore, the court held that the solicitor should have been given an opportunity to view a video recording of an interview with the child conducted by a medical practitioner involved in investigating the case.
It is clear from this that the highest court in the land has ruled that parents or their legal advisers, who are involved in child care proceedings, already have a right of access to medical or other reports and, where they exist, to video recordings which are to be used by the health board in support of its application. That is the case even if we were not to give statutory expression to it in this Bill. I accept, however, that it may be desirable to make specific reference in the Bill to the availability of reports, so as to put the matter beyond doubt for the future. While I am in agreement with the broad thrust to what Deputy Yates is trying to achieve, I am afraid that I cannot support the amendment in the form before us. It seems that in some respects it goes too far and in others not far enough. An example of where I think the amendment goes too far is subsection (3). This would seem to oblige the court not merely to view video recordings of interviews of which evidence is given before the court, but also to view videos of interviews which nobody intends to give in evidence before a court.
There may be cases where it would be quite properly agreed by the health board, the parents or their representatives that there is no need for the court to view a particular video; it might be agreed that it would only be necessary to give the court a brief summary of the video. Subsection (3), as it now stands, could have the effect in some cases of obliging the court to spend time unnecessarily viewing videos which do not need to be viewed. I see no value in imposing a sweeping requirement like this on the courts.
On the other hand, the amendment does not go far enough, in that it refers only to assessments carried out and video recordings compiled by health board personnel. Thus it would not cover reports prepared by, for example, consultant medical staff employed by any of the voluntary hospitals, or to video recordings compiled in the units for the investigation of alleged child sexual abuse at Temple Street Hospital and Crumlin Children's Hospital, since the staff there are not health board employees.
In view of what I have said I suggest that Deputy Yates might consider withdrawing this amendment. I propose to have consultations with the Attorney General on the matter and if necessary I will bring forward a suitable amendment on Report Stage.
To make a general point first, I accept fully and support the amendment. I think the case has been well met and well made by Deputy Yates and accepted by the Minister. I am a little taken aback that when there is such a clear case for an amendment to be inserted into the legislation, when the Minister is in agreement, and when there is an obligation on us to comply with the terms of the rulings of the highest courts of the land, that, if the exact form of words are not acceptable, the Minister would not have his own amendment to Deputy Yates' amendment.
This committee has worked quite well. We have sat for an inordinate amount of time. All the amendments have been before us for some months. When we reach amendment after amendment the Minister simply says he accepts the spirit of the amendments but he wants a different form of words. He asks us to please withdraw our amendments and we will come back to them later. It must be remembered that he had ample time to draft his own amendments to tighten up the wording where he felt it was inadequate. I feel the Minister is doing a disservice to the committee by taking that attitude. I hope that if he accepts the principle of an amendment at future meetings and he obviously has greater skills available to him from the parliamentary draftsman and the Attorney General's office he will have the new form of words before us. Then we, as a committee of Dáil Éireann, can make an ajudication on it on Committee Stage. It is a disservice to the committee to ask us simply to withdraw amendments because of a technical form of wording when the Minister had ample time to improve it once he accepted the principle of the amendments. I have to express my disappointment on that. I restate my support for the very acceptable and laudible principles in this amendment.
I am very disappointed that the Minister does not see fit to accept amendment No. 82. In relation to subsection (3) he said that not all video recordings would be necessary. Any other wording would be fraught with difficulties because if we were to say that all relevant video recordings were to be viewed, who would determine what is relevant and what is not, and what substitute wording would you use? I make no apology for saying that the court should study all the relevant documentation before deciding what is of the most profound importance in a child's life. It is only reasonable that the justice would make the effort at looking at all the material. In relation to subsection (1), if he is saying that the report says medical personnel would not be included in the way it is, I question that because it is the intention that all personnel would be included. I am not averse to putting in all health board and medical personnel.
Again, I am faced with the difficulty that if I press this to a vote I cannot retable it on Report Stage and, therefore, it is Hobson's choice. I support what Deputy Howlin says because I think it is unfortunate that we do not have an amendment from the Minister along the lines of his preferred wording. We are just waiting on a wing and a prayer and hope that something will come along at some stage. The only circumstance in which I would withdraw the amendment would be if I was given a definite commitment that all of these essential points, all the reports and assessments, would be written into this Bill in terms of being available to parents — the same would apply to video recordings — and that this new legislation would impose an obligation on the judge to view such video recording material. As I said, I would consider withdrawing this amendment to expedite business if that specific commitment could be given.
Let me respond to my two colleagues. First, we have more than a wing and a prayer and we have tons of hope. Second, in response to Deputy Howlin, I am here representing the Government. The Bill is a Government Bill to which Opposition Deputies have an opportunity to table amendments. We respond to those amendments as we see fit, we provide an opportunity for everybody to discuss and debate the amendments before us and then we try to arrive at a consensus. We do not want to come in with any predetermined amendments to an amendment which might stifle debate or restrict an opportunity to provide the best possible legislation. I could adopt a negative attitude but I thought I had justified my action by the two clear illustrations I gave. In view of the amendment and the contributions made, I am prepared to have discussions with the Attorney General and come back on Report Stage with what I would hope would be a suitable solution that will encompass what we all desire, that is the best possible legislation. I do not want to be negative and to rule out amendments but it is very hard for the Minister, the Government and this side of the House, to be successful without co-operation. We are giving Deputies every opportunity to debate amendments and I have said that before Report Stage we will have consultations with the highest law officer in the land. I do not think that could be fairer. I am disappointed that it has not been accepted in that spirit.
I move amendment No. 83:
In page 10, before section 15, to insert the following new section:
"15.—All parents shall have the right on a request made to the court to have a separate independent assessment carried out on the child where the assessment of the child by the Health Board is in dispute.".
This is extremely important in my view. What I am proposing is that where there is a dispute in relation to the evidence put forward by the health board or the case presented by the health board, that all parents, guardians or those who have custody of children would have a legal right to a separate independent assessment by another professional in the field with suitable qualifications.
The background to this amendment is that there have been court cases — celebrated cases — where care orders were subsequently found to be invalid; putting it bluntly, in a minority of cases, the health board personnel, for a variety of reasons — perhaps some of them were acceptable and others were not, were over-zealous but got it wrong. It is vital in terms of ensuring justice for parents and for the future welfare of children, that a second professional opinion be obtained so that the courts can determine what is a just solution to whether a care order should be granted; the health board's opinion could be reinforced by another opinion saying this child should be brought into care, or there would be a conflict of expert opinion. Some of these matters are entirely subjective when there is limited evidence to go on. I refer to the child care coalition where they say that this amendment gives parents the right to have a separate independent assessment and should be of assistance to both the court and the parents. This will make the working of this adjudication on care orders fairer and would give parents the opportunity of having their layman's opinion, their inexpert view, either validated or invalidated. It must be borne in mind that there are cases where a personality clash develops between the individual social worker and the parent or parents and the relationship between the two parties breaks down irretrievably. In such cases a second professional opinion could only benefit the child. I am not seeking to take from the role of health boards; I am not trying to undermine the role of social workers but rather I am trying to perfect justice. This issue is fundamentally important and it should be conferred as a legal right on parents.
There can be little doubt but that parents already have the right to arrange medical, psychiatric or psychological assessments of their child if they dispute the findings of assessments carried out at the request of the health boards. In practice, arrangements are made by health boards on request to facilitate parents in obtaining second opinions if they wish to do so. This practice has grown up without any specific statutory backing and I am not aware of any cases in which parents were denied the opportunity to have such assessments carried out. If, however, a health board were to refuse to facilitate parents in this matter, there are already adequate remedies available elsewhere in the Bill to deal with the situation — for example, the new subsection (6) of section 11 inserted by amendment No. 67 — which we agreed earlier — would allow parents whose child is in care under an emergency care order to apply to the court for permission to have a medical or psychiatric examination carried out on the child. Amendment No. 81, which we agreed at our last meeting, confers a similar right on parents of children in care under interim care orders. It is clear that there is no obstacle to parents arranging their own assessments either on an informal basis, by simply requesting the health board to facilitate them, or formally by seeking a direction to that effect from the court. In view of this it seems that this amendment is unnecessary and I do not propose to accept it.
I support the amendment. The only reason the Minister has given for opposing it — he accepts the principle — is that the right already exists in practice and it has grown up in practice. If it is accepted that the parents have that right, it should be spelt out in relation to each section because each section deals with a different procedure. I do not see any reason why it would not be accepted. The Minister has given none other than that the practice is there and that there is recourse in other sections of the Bill to vindicate the rights parents have to an independent assessment. This should be spelt out clearly.
I am very disappointed yet again in the Minister's approach. He made the point that in practice this is not refused. I would also say that, in practice, it is not always the case that a separate assessment is obtained and in many of these cases parents are terrified of the authority of the health board. They are unused to court surroundings and the emotional and psychological circumstances are very upsetting, to put it mildly. It often happens that unless statutory rights are laid down justice will not be fully served. Should it be made public, that the Minister was refusing to accept and incorporate into the Bill this legal right of independent assessment it would be seen as unacceptable to the cause of those parents.
I intend to press this to a vote. There are a number of areas where we are told that things are standard practice and then we have individual cases highlighted which show that exceptions to the rules can take place in a number of different areas of child care. I do not accept the Minister's assurances and it would be much better if this committee took this matter in hand by legislating for it. I will, therefore, be pressing this amendment.
I thought I had made it quite clear that the right is there in practice and that we have not known of any case where parents have been refused the right to have an independent assessment. Above all, it is enshrined in the Bill already — the new section 11 (6), which we agreed in amendment No. 67 puts it into the Bill. I do not see the reason or the logic in repeating that in the Bill. As far as I am concerned I cannot understand what Deputy Yates means when he says that if it is made public it will be perceived as the Minister denying a right to parents. I have no intention of denying any right to parents. As a matter of fact the case I have put up strengthens the hand of parents. They request the health board to carry out an independent assessment and when they refuse, they then go to court informing the court of the situation and make a subsequent request.
The new section 11 (6) will strengthen the parents' hand and it will, more than protect their rights. I cannot understand what Deputy Yates means about the matter being made public. We are in public session in a public committee discussing public law. Anything we do here is public and there is no getting out or getting in about it.
We are putting forward what we think is the best legislation. We have agreed that the rights are there already. This operates in practice and strengthens the hands of the parents, particularly in view of the fact that the courts have the right to direct the assessment on request being made by the parents. Consequently I will be unable to accept the amendment.
On amendment No. 67 to section 11 (6) (a), where a justice makes an emergency——
Would I be right in saying that that applies exclusively to emergency care orders?
In amendment No. 81 we have extended it to interim care orders.
We are seeking to extend it to care orders.
We have put it into amendment No. 67 for an emergency care order, we have put it into amendment No. 81 for the interim care order, and you are requesting that it be given before the care order is made.
It could easily happen that you would have neither an emergency care order nor an interim care order, and that the case would develop that there would just be a care order. Therefore, the protections you would put in place for those others should equally apply to a care order.
The court would be the final arbiter. It will interpret the situation and any time an application is made, I am quite confident that the court would take all the facts into account. We cannot be seen to dictate to the court. We have to give them some flexibility in their interpretation of the law.
I was reading the other sections already debated and in each case it specifically says "where the justice is adjudicating on a specific application, either an emergency care order or an interim care order". As Deputy Yates rightly said, there could be a situation where there would not be these interim stages and there would be an actual application before the court for a care order. This, because of its permanency, is of much more serious consequence to child and parent than either of the other procedures we have dealt with. It is absolutely unacceptable to me that we put in a requirement that parents would have access to independent assessment for a temporary arrangement, such as an emergency care order, but that we would not automatically put in that protection or option for parents in relation to the permanent determination of a child's future. That strikes me as totally illogical. I would ask the Minister to reflect again upon it.
Both amendments he referred to have no bearing on the care proceedings as such. I would hope that this amendment could be incorporated to make sure that whatever the ultimate authority of a judge to make a determination, the view of the Oireachtas that the parents have this right would be enshrined in the procedures for all care orders.
Deputy Yates — and I hope the Minister will agree with me — has highlighted the fact that the former amendments cover emergency and interim care orders. I also want to support what he and Deputy Howlin said, that is, that we are talking about an order that will have long-term and serious implications.
I would like to make two points. The Minister said that if we continued to put in such affirmative and decisive amendments, we would be dictating to the courts. If that is alleged — it is never an argument if the case is good anyway — then it is an argument that could be used with regard to the emergency and the interim care orders. We are dictating to the courts there as well. Surely, we have the same right to dictate to the courts — if that is the Minister's perception — in a situation where, in fact, it could even be more serious for the child and the parents. This legislation is, firstly, to protect the rights of the children and then to give due consideration to the rights of the parents. I contend that not alone the courts should be dictated to but that legislators should be dictated to and influenced by those two fundamental facts.
I would put it very strongly that this amendment should be accepted to affirmatively allow parents to realise that they have such a right to make such a request. As has been said before, and as we all know as legislators, a great number of people are intimidated, lack information or feel threatened, by court procedures. The more affirmative, the more direct and the more supportive we can make it for people applying to the courts, the better the legislation.
Could the Minister outline where in amendments Nos. 67 and 81 there is anything remotely resembling the words in amendment No. 83. My understanding of amendment No. 67 is that it states what directions the justice may or may not give. It deals with access, addresses and locations, medical treatment of the child, etc.; these are all things the justice may or may not do. I am talking about a situation prior to the case getting to court where they want a second opinion.
The Deputy seeks in amendment No. 83 to have a separate independent assessment and I say the court may direct the medical or psychiatric examination or treatment of the child to be a similar assessment. They are very close.
I am making the point about what the judge may direct and the rights of the parents prior to the case coming before the justice.
There is no doubt that the need for this amendment has been shown. Because of the dispute about it being necessary in all the different orders, would it not be a good idea to have one basic provision saying that no matter what orders were being sought, the right of the parents to have an independent assessment would hold good for all of these orders? I am not convinced that it is included in the other orders. It is a serious matter and we should not pass over it lightly. It should not be an issue about whether we have a vote. It is important that we tease it out and realise that it is a necessary requirement.
I want to refer to the explanatory memorandum which says that a care order will remain in force until a child attains the age of 18 years unless it is successfully challenged by the parents and discharged by the courts. It is important before a decision is made to take a child out of the custody, care and love of its parents that every possible means of giving the rights to the parents to establish their position and case should be availed of. I ask the Minister to reflect again on what has been said. Earlier on I looked at the other two amendments but I did not find a provision similar to what is being sought under this amendment. It is a matter we should approach with caution.
I wonder if the point raised by Deputy Yates is covered by section 15 (2) which says: "In the exercise of its jurisdiction under this section the court shall have regard to the rights and duties of parents . . .". Does that cover the Deputy's point or could the section be extended by adding the phrase "including the right to an independent assessment"?
The Minister's original defence was that he had already provided for this in amendment No. 81, but from my examination I am not satisfied that parents will have this legal right at all. Deputy Fennell is right in saying that we need to include this right. The Minister said "we could not dictate to the court . . .". That was an appalling statement. Courts are there to interpret what the Oireachtas decides is best, and that is their sole job. It is not their job to make the rules as they go along; it is our job to make the rules and their job to interpret them. I make no apology for saying that that is our job and the basis of our work.
I believe the Minister will, on reflection, find that his brief on this matter resembles a ship which is taking water rapidly. Before this ship goes under altogether he should accept our point in principle and come back on Report Stage and say that parents will have this legal right and they will be advised of it. That would put the matter beyond all doubt. If the Minister gives such a commitment I will accommodate him by withdrawing amendment No. 83.
I suggest that it is a matter for us to make the laws and for the court to interpret those laws and make rules pertaining to them. If our legal friends confer with us I am sure they will confirm that that is the situation. In the vast majority of cases an application for a care order would be preceded by an emergency care order or an interim care order or perhaps both. In those cases amendments Nos. 67 and 81 provide for assessments.
Will they be independent assessments?
Perhaps at the discretion of the courts. There could be cases where there would not be an emergency or an interim order and we have not specifically provided for assessments in those cases. The vast majority will be emergency or interim care orders and the care order will be a small percentage. I am prepared to analyse this issue to see if the statistical situation is what we project it to be. I am prepared to have further consultations with the Attorney General on the matter. I will give this matter very careful consideration as a result of the very spirited and impassioned pleas that have been made and I will come back on Report Stage with what I hope will be a suitable alternative.
The Attorney General is going to be a busy man——
He is busy.
——after this Committee Stage. We have dealt with two amendments which will be referred back to him. I believe that, around this table, there can be universal acceptance of the principle involved. There is no difference of opinion on it. All we seek to do — I suggest we have consensus on it — is to insert into the Bill the clear view of this committee that parents should have a right to independent assessment. If the Minister states that is what he wants to do and agrees to do it that will end any difficulty we may have. The defence he has used for resisting this section by reference to previous amendments has already been shown to be fairly thin. He should accept that graciously and come back with a form of words that will enshrine the principle in all applications to the court under every section.
The Minister's response to this very important principle has been unsatisfactory. He has promised to consult but he has not promised to enshrine in the legislation the right of parents to have a separate, independent assessment, other than that which is the basis for taking the care order in the first place. We believe this provision should be extended across the board to all such care orders and supervision orders as well. There is no reason why it should not deal with applications under section 16 as well. I should like the Minister to accept the point at least in principle. I would not like him to come back on Report Stage and say "I did not promise you I would do it". It is a question of whether the Minister is serious about this or whether he is trying to buy some peace.
I believe all of us would much prefer if the Minister was compassionately moved to accept this principle this afternoon and not add to the workload of the Attorney General. The Minister indicated that he would look at the number of cases that might possibly be influenced by the inclusion of this provision. Law is not based on statistics; it is based on the principle of protecting, even if it is only one person. Even if the Minister does not accept this amendment he should not be influenced by statistical evidence. This principle should be enshrined in our law because, as Deputy Fennell said, we are dealing with the long-term implications for a child in care. Maybe the Minister will relent at this stage and tell us he is accepting the amendment in order to save the Attorney General work.
Parents may keep getting independent assessment carried out by professionals who say their child was abused but eventually one professional may be in doubt about whether the child was abused. I am just outlining the situation. Principles are wonderful things and law is very important if it is right. I am prepared to have further consultations on this and to come back with an amendment on Report Stage. That is as far as I am prepared to go.
I move amendment No. 84:
In page 10, subsection (1), line 38, after "the child." to insert "The court may adjourn the proceedings to allow the child to be seen and assessed prior to a decision of the court. The court shall seek to co-ordinate all the necessary information on the child through the child care authority and where necessary arrange for a further assessment.".
This amendment is to enable the judge in the court to be satisfied that he has the maximum information at his disposal, before reaching a verdict in any particular case. Line 38 of the Bill says that the court may make an order in respect of the child. It does not deal with the situation whereby he is 90 per cent sure of what course to take but just wants to be satisfied in regard to one other fact. Since this was tabled the interim care order, an entirely new concept, has been introduced. I suppose it could be argued that the interim care order would be sought instead of this. That is not quite the case in so far as, in that case, it would be where the health board was not satisfied it had enough information. What I am now seeking to do is to allow the judge to say that he is not entirely satisfied but that he does not want to turn down the application for the care order. In other words, it allows the court to have all the required information and assessments on the child, so that the most informed decision as regards the requirement of the child can be made. On that basis and on that basis only can a care order be granted. This gives the judge, as opposed to the health board, more flexibility. The interim care order, I would argue, gives the health board more flexibility to get its case together having taken a child into emergency care. This allows the judge to be totally satisfied.
Clearly there are two parts to this amendment. The first relates to the power of the court to adjourn so that the child can be assessed. There can be no doubt about the power of the court to adjourn proceedings where it considers this necessary. There are many reasons why an adjournment might be necessary in care proceedings. It might be, as is referred to here, to allow an assessment to be carried out. It might be to allow time for medical reports to be completed. It might be to facilitate the summoning of witnesses or to await the outcome of related criminal proceedings. The danger with this part of the amendment is that, by picking out one particular instance in which a court may adjourn, it could cast doubt on the power of the court to adjourn for any other reason. Therefore I have reservations about the first part of the amendment. The second part of the amendment deals with the co-ordination of information and the arranging of further assessments. As a matter of principle, I have to oppose the suggestion that the court should be required to co-ordinate information through the health boards. The courts are and must be seen to be impartial and independent in the exercise of their judicial functions. It would be completely improper to require the court to co-ordinate its activities through the health board or, indeed, through any other person or body. It is now a well established practice in both criminal and civil cases that the courts can adjourn proceedings and request that medical, psychiatric or psychological assessments be prepared. This will remain the case when this Bill is enacted. In all the circumstances I do not propose to accept this amendment.
The Minister made two points. First, I think he slightly misinterpreted the point about co-ordinating information through the child care authority. In some cases there might be no-one else to co-ordinate it, because we are talking about a situation where there are no family courts or children's courts. There are district courts and there may not be the resources to co-ordinate anything through any other body. We would argue very strongly and I think all the Opposition parties believe firmly that there should be a children's court with a child advocate available, who would be the ideal person to co-ordinate all the necessary information. However, I take the Minister's point that the wording could be improved. Again on the adjournment because something has become the practice, that does not mean that tomorrow morning we could have a case where a parent would dispute an adjournment. It is only common sense to set out in the Bill the parameters within which the court should work. I would not consider this the most important of my amendments, but the Minister should consider bringing forward some amendment on Report Stage that would enable justices to do what is outlined in amendment No. 67. I would like to see the justices having a number of courses, as outlined already in discussion available to them before they make a final decision, particularly in relation to part III, the medical and psychiatric examination or in relation to any other aspects they are not happy about. For example, it could arise that, instead of sending a child into care they could send him to an uncle or put the child in the care of an older brother. They might well decide that they need further information on that particular person to act as a guardian or inloco parentis. That facility should be made legally available and I would be prepared to withdraw amendment No. 84 if the Minister would ensure that that flexibility would be available to the judge.
I accept the Minister's logic on this amendment. It would be my belief that the court would always have the power to adjourn a case and seek whatever further information it required to make the proper decision. I am not sure whether it is helpful to specify a particular case, for fear of implications that there could not be flexibility in other instances. The point in relation to the court seeking information is very well made. Unfortunately, we do not have children's courts nor any proposals in this Bill to establish them. We do not even have a commitment from the Minister that a subsequent Bill will issue to establish such courts, and until they are established we are not going to have an ideal situation in the regular courts. I hope, however, that there would be specific training for justices and so on. I do not want to stray from this amendment, but I accept the Minister's logic that it would not be desirable to proceed with this amendment now.
I appreciate the very logical acceptance that Deputy Howlin has put forward and I would like to allay Deputy Yates's fears. I would refer my colleagues to section 15 (6). Subsection (6) enables the court to give interim directions as to the care and custody of a child pending a decision on an application for a care order. In many cases the court will be able to reach a final decision on the first hearing of the case. The health board or the parents may seek adjournments to prepare their evidence or to respond to points made by the other side. The court may wish to have social inquiry or medical reports prepared before coming to a decision. This subsection enables the court to give directions as to the care and custody of a child in the meantime. The court could decide to leave the child in the custody of their parents with or without the right of access by the health board, place them temporarily in the care of the health board or direct that they remain in the care of a health board if they were already in such care, for example, if the application for a care order had been preceded by an emergency care order. I direct the Deputy, again, to subsection (5) of section 15 which empowers a court hearing an application for a care order to make a supervision order instead of making a care order or until the court reaches a decision whether to grant a care order. I think both of those should clarify the matter.
It is proposed to take amendments Nos. 85, 86, amendment No. 1 to amendment No. 87, 108, 110, 111, 113, 114, 115, 118 and 122 together for the purposes of discussion. Is that agreed? Agreed.
I move amendment No. 85:
In page 10, lines 39 to 42, to delete subsection (2).
Amendments Nos. 85 and 108 are minor technical amendments which are required in order to make way for amendment No. 110 at page 18 which proposes an entirely new section providing that the court shall regard the welfare of the child as the first and paramount consideration. Deputies will recall that it has already been agreed on amendment No. 14 to insert a similar provision in section 3 which will require health boards to regard the welfare of the child as the first and paramount consideration. I think it is desirable that the same duty should be placed on the courts when dealing with proceedings under this Bill.
In the present draft, section 15 (2) requires the court in exercising its jurisdiction under the section to have regard to the rights and duties of parents and the natural and imprescriptible rights of the child. Following consideration of points made during the Second Stage debate and in representations I have received from various bodies involved in child care I have come to the conclusion that this does not go far enough. Hence, I have put down this amendment which involves four important elements. The first and most important is, as I have said, that the court will be required to regard the welfare of the child as the first and paramount consideration. I believe that this specific reference to the paramountcy of the child's welfare will be generally welcomed. The courts will be required to weigh up the rights and duties of parents and the rights of the child in deciding how best the welfare of a child can be protected. Where the welfare of a child is, in the court's opinion, inconsistent with the continued operation of the normal rights of parents the court will be able to make various orders under this Bill to suspend or otherwise circumscribe the parents' rights in order to secure the welfare of the child.
The second element in the new section is that the courts will have to take into account as far as is practicable the wishes of the child before making any decision in a case, and that particular wording was an attempt to balance this constitutional conflict between the rights of parents and the rights of children. This is particularly important in the light of the fact that the age up to which children may be the subject of child care proceedings is being raised from 16 to 18 years. However, courts will also be expected to listen to the views of younger children provided that they are of sufficient age and understanding to make their views known.
The third element is that unlike the present provision in subsection (2), which only applies to applications for care orders, the new section applies to all proceedings under the Bill in relation to the care and protection of children. This includes applications for emergency care orders, interim care orders, care orders, supervision orders, and access orders under section 17. It also applies to appeals and to proceedings in relation to the variation or discharge of orders. This is an important change and will help to ensure a degree of uniformity by the courts in dealing with the different types of orders and applications under the Bill.
Finally, it is proposed that the new section will form the basis of an entirely new Part V of the Bill entitled Jurisdiction and Procedure. The following existing sections will also be included in the new Part:
Section 20: Jurisdiction.
Section 21: Hearing of proceedings.
Section 22: Power to proceed in the absence of child.
Section 23: Prohibition on publication or broadcast of certain matters.
Section 24: Presumption and determination of age.
I will also be proposing later that section 63, which provides for the making of special rules of court, should be moved to the new Part.
As I said earlier, amendments Nos. 85 and 108 are minor technical changes which are needed to make way for the new section being inserted by amendment No. 110. Amendments Nos. 111, 113, 114, 115, 118 and 122 are largely consequential on the creation of a new Part V of the Bill, dealing with jurisdiction and procedure. These sections will be included in the new Part V rather than in Part IV as heretofore, hence the need to change the reference to "this Part" to read "Part IV". The opportunity is also being taken to insert a reference in each of these sections to Part III.
The effect of this will be that the various provisions of these sections, in relation to the hearing of proceedings, the power to proceed in the absence of a child, prohibition on publication and broadcast of certain matters and presumption and determination of age, will apply to proceedings under Part III in respect of the making of emergency care orders. This is a desirable change and will ensure that the various safeguards contained in these sections will apply to children in respect of whom emergency care orders are sought and made. It will be noted that while the amendments to sections 20, 21 and 22 are identical, the amendment to section 23 — amendment No. 122 — is slightly different. In this case it is also intended to delete the cross reference to section 11. This is because section 11 is contained in Part III and is, therefore, already covered by the cross reference to Part III.
As I see it, the difficulty here is that the conflict of the rights between parents and the rights between children and the constitutional position of those rights is something that I would like to refer to. I believe that the Minister's amendments arise out of constitutional considerations and defects in the original Bill which has now been substantially rewritten in view of what some of us said on Second Stage. I want to make my position and that of my party quite clear here. We are in favour of having the welfare and the best interests of the child as the primary and paramount consideration above all other rights. I want to make that quite clear. Nothing the Minister has said — and he has not given a defence of what he has said so far — indicates that the welfare of the child is the first and paramount consideration.
Let us turn to amendment No. 110, new section 20 which reads:
In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall — (a) regard the welfare of the child as the first and paramount consideration,
In my view we would need a constitutional referendum to assert that. We would be in favour of such a referendum. In my view Articles 41 and 42 of the Constitution confer, on parents "inalienable and imprescriptible rights" and similar rights with regard to the education of children. Article 42 confers similar rights on children but I wish to refer to two Supreme Court cases that dealt with this issue. One was in March 1985, the case of MC and MCv. KC and AC and An Bord Uchtála, and in the unanimous verdict they stated:
The State cannot supplant the role of the parents in providing for the infant the rights to be educated conferred on it by Article 42(1).
My advice is that this case showed that the court could not constitutionally decide the issue of custody solely on the basis of what course of action is in the best interests of the child's welfare. Therefore, in my view, what is proposed here is not constitutionally permissible and will be open to challenge.
To establish the second case: the first case had taken place and the judgment of the Supreme Court on 22 June 1977 in Jv. D where, in my view and the advice available to me says that it seems the rights of children are subservient to the inalienable and imprescriptible and permanent rights of the parents. You will be aware that emergency legislation had to be rushed through in 1989 because fit person orders were found to be invalid, even though they had operated for some time. The only reason that had gone ahead was that in many cases where there is the likelihood of a constitutional challenge, these cases are not heard for fear of the Act being found constitutionally unsound, and the cases are settled by agreement. While I think this is a worthy attempt to come to grips with this Bill, it is certainly open to challenge and I feel it will have to be looked at again. This is of profound importance now.
The other amendments moving sections to the new Part V, or between Part III and Part IV, are not of much consequence.
In relation to amendment No. 85, I consider that is going even further. I would like to ask the Minister to clarify this point. If the wording of section 15 (2) was arrived at after the most detailed examination by the Attorney General's Office and was an attempt to balance this constitutional conflict between the rights of parents and the rights of children, I want to know what legal advice has turned this totally on its head and led to it being deleted and different wording being introduced. Obviously, there has been a change in the legal advice. I am certainly not opposed to the intention but I would need to be satisfied. Certainly, I want to put it on record that I do not want to go into this and find within six months of the enactment of the Bill that it is held to be constitutionally unsound resulting in us having to bring forward emergency legislation simply because the wording was not thoroughly researched. Before I can accept this, I should like an assurance as to the legal advice the Minister obtained.
We are at a very important stage of the Bill and we have had a lot of debate in relation to the conflict that will arise between the rights of children and the rights of parents when it is determined that the best interests of the child is not for the child to remain with the natural parents. We had a long debate on that when the emergency legislation on place of safety orders was before the Dáil and I voiced my concerns at that stage. Quite frankly, I totally endorse what the Minister has said in relation to the intention. I accept, and support, his intention that the paramount right should be the right of the child and the good of the child. It is a courageous change for the Minister to move on that path. In the juggling act between two rights which would be envisaged at some stage to be in conflict, it is important, indeed incumbent on the Oireachtas to actually decide whose right should be foremost.
I have no doubt that this section will be the subject of close scrutiny if it is enacted. I have no doubt that there will be those who will wish it to be referred to the Supreme Court for testing and I certainly would support that reference. Ultimately, that would be a matter for the President and the Council of State. It is constitutionally the prerogative of the President alone, having consulted with the Council of State, to refer it and I would welcome such a reference. It is important that after decades of vacillation on this subject we actually decide the issue and allow the matter to be taken out of the area of legal speculation and to be defined by the people by way of referendum, if that is necessary and found to be so by the Supreme Court. By way of a side comment, I should like to say that I fully accept that there have been cases in the past where health boards did not move speedily to seek legal protection for children because of the possibility of a conflict and a constitutional challenge to their rights. It is important to grasp that nettle now. If, after 80 years, we are going to enact legislation to bring us well into the next century that is rooted fundamentally in the rights of children, as a Child Care Bill must be, then let us be courageous enough to see that that is what Dáil Éireann does.
I applaud and support the Minister for the changes he has brought forward. The new section 20 is courageous and brave and I will support it wholeheartedly. If downstream it is constitutionally suspect then let it be referred to the Supreme Court. If need be let it be referred to the people for determination and let us wholeheartedly fight to ensure that the basic bedrock of this Bill is the rights of children.
Like Deputy Howlin I would like to say that to me this is one of the most important sections in the Bill. It gets to the whole nub of where we as a nation are going in relation to the care of children. The message should go out loud and clear from this Committee that the welfare of the child is the first and paramount consideration. That principle was embodied in the Guardianship of Infants Act, 1964, and, while there had been a lot of discussion at that time and since in regard to its constitutionality, the scales have fallen very much in favour of the rights of the child. We are here today to discuss the care of the children and we should bear that in mind all the time.
The Supreme Court decision in KCv. An Bord Uchtála really capped and decided the whole issue in my opinion as regards the balance between the welfare of the child and the rights of the parents. This Bill involves the State and health boards where the parents are not taking care of their children. It is only in very exceptional circumstances that we are allowing State agencies to become involved in loco parentis. I compliment the Minister on rephrasing the section because the first proposal from the Minister was somewhat vague and, indeed, with all due respect to Deputy Yates, his amendments to it did not help. The Minister’s amendment is one which will stand the test of time and I have no doubt, like Deputy Howlin, that if it is put to the test in some constitutional action subsequently it will, like the decision in KCv. An Bord Uchtála, come down very much in favour of the paramouncy of the welfare of the child. I wholeheartedly recommend the amendment.
I too welcome this amendment. I can see Deputy Yates' very interesting point, that it may be necessary to have a referendum. However, my view is that it would not be necessary because the section is quite specific. It refers to having regard to the rights and duties of parents and goes on to stress the rights and duties of parents under the Constitution. The Constitution is considered and taken into account in the section. The section regards the welfare of the child as the first and paramount consideration and states that in so far as it is practicable due consideration in regard to the age, understanding and wishes of the child must be taken into account. It has to be remembered that the paramouncy of the child relates to proceedings being taken under the Act and does not in general terms give the child paramouncy. The paramouncy is given only in relation to what the Act deals with which is child care. To that extent I would take the view that there would not be a necessity for a referendum though nobody could be definitive on that. I would support the call for the referral of the Bill to the Supreme Court.
First, I welcome very much the wording of this section because it is the bedrock of this Bill putting the rights of children first. We have all been aware that this is an area where there could be conflict. As Deputy Yates pointed out, the imprescriptible rights of parents under the Constitution have been tested and the rights of the children have been devalued. However, I agree with Deputy Ahern when he says that it should go out from this Committee that the paramount rights of children are to be enshrined in this legislation.
Let us follow the line Deputy Howlin mentioned in referring it to the President for referral to the Supreme Court. If there has to be a referendum on it, let it be. I do not know whether there could be a further Supreme Court judgment where the common good section in the Constitution might be in favour of the children. That is something they would have to make judgment on. I do believe that if certain sections of the Constitution, particularly in an area of such incredible importance, have to be tested, even to the extent of having a referendum, we must ensure the protection of the rights of the children. We are taking responsibility in this legislation for them. On the whole, we the committee are in agreement that if this has to be tested, so be it, but there is no way it should be diluted or that children should feel threatened because it has not been tested.
I would like to welcome this new section also and I concur with the views expressed by all. I think we have a very basic need written into the Bill and that a lot of the issues we have been debating and a lot of the things we have been looking for will flow from this. This is a very fundamental need. Many people have said — I am not sure if the Minister said it — that if put to the test it would be proved in the positive. I do not like it if we put legislation on the Statute Book thinking it might be put to the test, and that we would wait and see, because too many cases could have been decided before the test was completed. It would be very irresponsible to leave legislation as loose as that. Unless the Minister can tell us — and I am sure he will be able to tell us — the opinion on which this wording and this section is based. I believe this is something that should be referred to the Supreme Court for decision to consolidate this position, so that it can never be changed.
In legislation like this, we are going to gradually erode the kind of positions or rights or power positions that are in the Constitution that many of us would feel are undesirable, or not as desirable as they should be. I am thinking of another "sacred" area I came across in the Status of Children Bill. I am not sure I have the details right but a long time ago we dealt with the constitutional family, the family based on marriage. When we were drafting the section dealing with succession rights for the children of parents not of a marriage, the question was asked if we gave these children rights to succeed, would that not be diminishing the position of marriage and of couples and children of a marriage? At that point — and I cannot give you the exact reference — I know there was a Supreme Court opinion that said that you could not. I think Supreme Court Judge Brian Walsh said that you could not uphold the constitutional marriage by reducing the rights of children of an innocent party. I welcome this. It is a very good move. I commend the Minister for bringing it forward but I share Deputy Yates' caution and uncertainty because we cannot pass into law a provision that if tested would lead to so much distress and unacceptable decisions.
Deputy Yates' amendment has two legs. In amendment No. 86 he is proposing that the child should be a party to the proceedings and have a right of appeal against the decision of the court. I was wondering what was the Minister's attitude to that. I then looked at section 22 (2) where the child requests the right to be present at the hearing. I also see that in the Law Reform Commission report they recommend that there should be an appointment by the justice, in some cases, of an independent representative of the child when, in the opinion of the justice, this appears necessary in the interests of the child. I have a niggling problem with regard to the views of the child and the rights of the child, particularly an older child, I think most of us around the table would do. The Minister has put in subsection (2) of section 22, but is there any more beefing up of that? There may very well be amendments that I have not seen.
I would like to thank all the Deputies who have spoken so eloquently on this group of amendments, particularly on this very important amendment. The proposed reference to the welfare of the child is modelled on similar provisions in section 3 of the Guardianship of Infants Act, 1964, and in section 2 of the Adoption Act, 1974. I would like to quote the relevant provision from the Guardianship of Infants Act, 1964:
Where in any proceedings before any court, the custody, guardianship or upbringing of an infant or the administration of any property belonging to, or held in trust for, an infant, or the application of the income thereof is in question, the court in deciding that question shall regard the welfare of the infant as the first and paramount consideration.
For a number of years some lawyers and other commentators expressed doubts about the constitutionality of section 3 of the 1964 Act, on the basis that it was alleged to offend against the guarantees to respect parents' rights contained in Articles 41 and 42 of the Constitution. The matter was finally resolved in 1985 when the Supreme Court delivered a unanimous judgment in a case known as KCv. An Bord Uchtála, 1985 ILRM 302. The Chief Justice declared that section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in section 2 of the Act in terms identical to those contained in Article 42.1, is to be found within the family unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and continue to fail to provide education for the child for moral or physical reasons. That judgment now constitutes the authoritative judicial pronouncement on the balance to be drawn between protecting the welfare of the child on the one hand and defending and vindicating family rights on the other. The proposed amendment will fall to be construed in a similar way. Thus the courts would be permitted to place children in care against the wishes of their parents only in exceptional cases where, for example, the parents have neglected or ill-treated their children or where there are other compelling reasons why the welfare of the children demands that they be removed from their family. This approach finds support in Article 42.5 of the Constitution which requires the State as the guardian of the common good in exceptional cases where the parents for physical or moral reasons fail in their duty towards their children to endeavour by appropriate means to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child. I hope that will help put the situation in context.
Would the Minister like to add anything in relation to the advice he got on the matter, specifically referring to how he came to redraft the Bill?
As I indicated when we were discussing amendment No. 14 which inserted a similar provision in section 3 of this Bill, the provisions in relation to taking children into care have been very carefully drafted in the light of the relevant constitutional provisions in recent judicial interpretations. Article 42.5 of the Constitution expressly provides for intervention by the State where parents fail in their duty towards their children. The Supreme Court has ruled that while there is a constitutional presumption that the welfare of the child is to be found within the family this may not always be the case and there may be exceptional cases where children would be better off if they were removed from their parents. It is for these exceptional cases that we are trying to legislate in this Bill.
Part IV of the Bill envisages that care proceedings will be taken only in exceptional cases where the parents have failed to care for their children and where there are other compelling reasons why the welfare of the child was not to be found within his family. I do not, therefore, anticipate any constitutional difficulties with the provisions of the Bill and I am confident that they will, if challenged, be found to be in conformity with the Constitution.
I thank the Minister for that because that answers the questions that have been raised. However, I do not share the Minister's confidence that it is constitutionally immune from challenge. I would like to make a few points in relation to the discussion. First, our approach was to set out in amendment No. 198 to the preamble the exact rights of children. I am a little surprised that amendment was not taken with this group of amendments. This is based on the United Nations Charter of Children's Rights and sets out specifically some of the areas that have been referred to where the community interest overrides the family interests and so on. I would like the Minister's response to that.
I think we are entering the wheel of fortune area here. We do not know what the position will be after the passage of this legislation. We know the intention of the Minister and of the Committee, but I would like greater assurances that there was some definitive explanation why the wording originally proposed in subsection (2) to meet Article 42.1 is now no longer necessary. Words originally submitted arising out of the March 1985 judgment are now no longer valid; yet we have no judgment to contradict that. I think these are assumptions that have been taken, perhaps on the grounds of expediency, or perhaps for very good reasons, but the Minister has not come forward with a new legal case, a new judgment from the Supreme Court, no new legal interpretation that would invalidate this earlier opinion. The State cannot supplant the role of parents in providing for the infant the rights to be educated under Article 42.1.
I would like to refer briefly to amendment No. 86 in my name because I understand that if amendment No. 85 is passed, No. 86 automatically falls. I would like a substantial response from the Minister on amendment No. 86. What we are proposing is a more clearcut way of dealing with the problem. My amendment reiterates that the child's welfare and considerationsvis-ï¿½-vis the child should be paramount in the exercise of the court’s jurisdiction. More specifically we are trying to include that the child be a party to the proceedings and have a right to appeal a decision of the court. This is very fundamental. We envisage under childrens courts and under family courts, that there would be specific rights of the child, rights of their own advocacy, rights that a judge could utilise to ensure that the best interests of the child were preserved. I would be sorry to see amendment No. 86 fall because I think it is no less open to constitutional question than amendment No. 110 — and I think it is more specific to the fact that in a particular court case, it affords better protection to children. In relation to amendment No. 110, who defines “in so far as practicable” and “give due consideration”? Who defines how much consideration is “due consideration”? In other words, is a child of 15½ years to be given less consideration than a child of 16½ years? As we all know people mature at different ages. In other words, what I am saying is the language here is very vague indeed and I am afraid that a coach and four will be driven through it, or different judges could give different interpretations of the same law.
I do not wish to impede this particular change, I do not have a mind to oppose it, but I would like to see amendments Nos. 86 and 198 incorporated into the Bill. As I said, we do not intend to oppose this but I would like some assurance from the Minister other than blandly saying we are satisfied that everything will be all right in the Supreme Court. I would like some assurances that when this legislation is duly processed through both Houses, it will be given some scrutiny so that when it is actually put before the courts it will be reinforced by having been referred.
Deputy Yates asked why we did not consider amendment No. 198 in the context of these amendments. We are precluded by Standing Orders from considering anything in the preamble until we conclude the deliberations on the Bill proper. Consequently I could not encompass amendment No. 198 for consideration at this time.
As regards amendment No. 86, we have dealt with the first part of the amendment regarding the paramountcy of the child's welfare in the discussions on amendment No. 110. The main proposal in the second part of the amendment is that the child shall be made a party to the proceedings. What has to be borne in mind is that children who are the subject of care proceedings may be no more than a few weeks, months or years old. Figures available to me indicate that almost 80 per cent of children in care were admitted before they reached the age of seven years. It does not appear to make any sense to make young children such as these parties to complicated legal proceedings, even children in their mid- to late teens are likely to be totally bewildered by the legal process. The best way to ensure that the interests of the child are protected and respected is to impose this duty on the court.
My amendment No. 110 requires the court to regard the welfare of the child as the first and paramount consideration and to give due consideration to his wishes having regard to his age and understanding. This seems to be a more realistic and practical approach than what is suggested in the amendment. It is also an approach that has proved its worth over many years in the context of disputes as to custody or access of children under the Guardianship of Infants Acts and disputes about whether children ought to be adopted under the Adoption Acts. I hope this clarifies the situation.
I have been listening to some of the discussion with interest. The Minister, of course, has a difficulty in this. The difficulty is that we are all trying to predict how the Supreme Court might view the particular section. The section is drawn up to give it the appearance that the welfare of children is going to be the first and paramount consideration. It is very easy to fall into the trap of believing that the section is going to have that effect. It seems to me from the welcome given to the section that people are of the view that, in making a decision about a child, it would be the welfare of the child which will be regarded as the first and paramount consideration. If you look carefully at the section you discover that is not really what it says at all. That is certainly not the way the courts are going to apply it in the light of the current constitutional thinking, as the Minister explained it in the KC and AC versus An Bord Uchtála case. The key words in this section are not simply the welfare of the child. The key words are in the first part which says: "In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall . . . .". The key words are the "rights and duties of parents".
In the context of parental rights, the KC and AC case did not give the constitutionalimprimatur to the idea of the welfare of the child being regarded as the first and paramount consideration in disputes between a married parent or parents and a third party; in this case it would presumably be a health board. What the court said was that everyone will assume, because of parental constitutional rights that the welfare of the child coincides with the child remaining in the care of parents unless one of two things is established: either there were compelling reasons which indicate that the child should be removed, or exceptional circumstances which indicate the child should be removed. The exceptional circumstances are basically those in Article 42.5 of the Constitution where there is talk of a failure of physical or moral capacity.
There really is something of a problem here. I want to be fair to the Minister here, but I think his amendment is responding to some of the criticism voiced on Second Stage when it was said that we should place children in a position where their welfare is regarded as the first and paramount consideration. In so far as the legislation can improve the position, I would regard the replacement of subsection (2) with the Minister's new proposed section, as it will apply, as a welcome development. Nevertheless, the problem is that the Government are trying to avoid properly confronting the issue. I do not mean this in a mean way, because I do think the Minister deserves to be praised for introducing the section, but there is a problem. The problem is the way the courts will interpret it. They will not interpret it that the first and paramount consideration in all cases relating to children is the child's welfare. It cannot be constitutionally interpreted that way because in the case of KC and ACv. An Bord Uchtála the compelling reasons and exceptional circumstances provisions apply and the welfare provision is watered down by the courts having to have regard to the rights and duties of parents. If the Minister did not have that provision in the section, I would have absolutely no doubt that the section would be unconstitutional. If district justices try to interpret this as meaning that the first and paramount consideration is the welfare of the child simpliciter, or if the courts take the view that that is the way it should be interpreted, then equally it would be unconstitutional.
We have something of a conundrum. We have an Oireachtas Committee where it appears to be agreed on all sides that the welfare of the child should be the first and paramount consideration. This does not seem to be a matter of political contention. The Minister's concern is to protect the welfare of children and our concern on this side is to protect the welfare of children. The problem is that we are labouring under a Constitution passed in 1937 when there was a great public consciousness of parental rights but less regard paid to children's rights, and less debate about the need to protect the welfare of children. It really comes back to a very basic problem — unless the Government are willing to grasp the nettle by proposing constitutional changes which would result in amendments to Articles 41 and 42 of the Constitution to clearly enumerate the rights of children and to get us out of this difficulty created by the thinking of the 1930's, this section will not fully protect the welfare of children, because there may be circumstances where it is clearly in the interest of the child's welfare that he be taken into care or provided with a foster home; but the circumstances may be such as not to be compelling or they may be such as not to be exceptional within the constitutionally defined terms in the KC and AC case.
I would suggest that if we have all party agreement, this is an issue that needs to be dealt with. We are told there is going to be a presidential election next November — whatever about local elections, the Government cannot get out of holding a Presidential election, unless they are going to amend the Constitution — why not grasp this nettle and use this Presidential election not only to hold the local elections at the same time but to bring before the electorate necessary constitutional amendments that are not contentious but would provide a modern constitutional framework for the protection both of family rights and of children's rights. There is a need for this to provide a degree of clarity as to what children's rights are. I would urge that we use the opportunity of the Presidential elections to have such a referendum because one of the reasons we are having this debate and that different members of the committee can put different interpretations on this section is that the section has to use ambiguous language such as "having regard to the rights and duties of parents under the Constitution or otherwise" and then goes on to talk about welfare. The section has to use ambiguous language so that there can be a debate as to whether it is constitutional if we are to protect the welfare of children. I do not think it satisfactory that, as legislators, now that we recognise there is a problem in this area, we should continue to pass legislation that is deliberately ambiguously phrased so the judges are left in a position where we all hope they will interpret it constitutionally.
Equally, it would be a tragedy if, after all the years that have passed since the task force report on child care was produced and all the time we spent dealing with this Bill, we simply left it up in the air to be dealt with possibly by the Supreme Court at some stage, or by the District Court after we have gone through the process of enacting this legislation and having to wait a number of months for a Supreme Court decision to clarify how they are to apply it.
I do not believe the legal position is as clear as the Minister of State says. I understand this is drafted in the way it is to try to ensure constitutionality. It will not result in the welfare of children being regarded as the first and paramount consideration in disputes between parents and health boards. If the aim is to achieve that we need a constitutional amendment. If the aim is not to achieve that and if we know we cannot achieve that, we should be honest enough to say it.
It used to be said that if somebody came up against an intractable problem we would appoint a committee and we might discuss it. It now seems that the panacea for all ills is to have a constitutional referendum. I say that facetiously but with all due respect to what Deputy Shatter has to say because there is no doubt that in this section the Minister is walking a tightropevis-ï¿½-visthe welfare of the child, the rights of the parents and the duty of the State.
Article 42.5 of the Constitution allows the State to enter into the place of the parents where the parents fail in their duty. The section as phrased by the Minister is probably very well put together in that it provides that the court in the exercise of its jurisdiction shall have regard to the rights and duties of the parents. Ultimately the court will decide on the facts of each case where the duties of the parents end and where the duty of the State comes in in relation to the child. There probably is a slight conundrum in that the thinking nowadays is that the welfare of the child is to be first and paramount. It might cause a constitutional difficulty.
The KC case, a very recent case, more or less set the ground in this whole area for the paramountcy of the welfare of the child for all future cases in this area. I have no hesitation in saying that if we pass this section it would stand the test of time and would not be found unconstitutional, but that is my own opinion. People around this table may have different opinions and, of course, people outside may have different opinions but I think in the circumstances when we are walking a tightrope it is the best solution possible.
The Deputies will be aware, of course, that Governments that grasp constitutional nettles sometimes get severely stung.
The batting average is not good.
Uniquely Fianna Fáil Governments avoid getting stung. At least some other Governments are occasionally willing to grasp the nettle.
It cannot be stressed enough that the paramountcy of the welfare of the child is confined in this Bill to proceedings before a court under the Bill. It does not give children paramountcy in other areas of activity, it just relates to care proceedings. It is confined to care proceedings. Naturally, the section must have regard to the rights and duties of parents under the Constitution or otherwise and it does, but the paramountcy of the welfare of the child is confined to care proceedings before a court under this Bill. To that extent it is my personal view that it could not be found to be unconstitutional.
Is that decided?
Deputy Yates, without laughter, please.
I wish to come back to the Minister's comments on Amendment No. 86, the second half. He said the first half was dealing with the same grounds as Amendment No. 110 and I appreciate that. It provides that: "The child shall be made party to the proceedings and have right to appeal the decision of the court.". This would provide for the first time for the child to have his own solicitor appointed. This is very important. I regret that simply because of the wording of the Bill Amendment No. 86 will fall because of its attachment to section 15 (2). That is not procedurally totally fair in so far as there is a separate issue at stake. The right to a solicitor to be appointed to a child is different from the paramount rights of a parent versus a child. I ask the Minister to consider this. The Minister made the point that this may lead to certain complexities. Amendment No. 110 in paragraph (b) provides that the court shall: "in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child". When the child can accurately reflect what is in his best interests surely that is only reasonable. I have in mind teenagers and the fact that this Bill now deals with people up to 18 years of age. In those cases this would be a valuable insertion into the Bill. We are not going to square the circle of whether this is constitutionally infirm or whether it is open to challenge. We have had different legal interpretations, one of which is that it does not move forward very much at all so that is just a wheel of fortune. The latter part of amendment No. 86 is a different issue and I ask the Minister to independently accept that.
It is regrettable that the Bill does not provide for separate legal representation for the child. On the basis that Deputy Yates will not be able to pursue this amendment probably on Committee Stage we should come back to it on Report Stage. We constantly protest our concern about children, yet visably, as politicians in the Oireachtas, there is a lot that needs to be done that has not been done. This Child Care Bill is only a small portion of it done. In the context of care proceedings it has now become quite usual in a number of other European countries, and in other countries outside Europe and even among our neighbours in England as well, that you can have an official solicitor or someone appointed in particular cases to represent the views of children. The need for a children's advocate was also raised by the task force on child care. I would like to get the Minister's specific response to that aspect of Deputy Yates' amendment, because situations can arise where, for example, the parent may be of the view that a child should remain at home and the health board may be of the view the child should be taken into care. A lawyer acting on behalf of the child, having independent assessments carried out, may have a totally different view. It may very well be correct, for example, that the child should neither remain in the care of the parents nor go to the care of the health board, and should be placed in the custody of some other relative who is willing to care for the child. That view cannot and will not be represented under the procedure that we are going to prescribe in this new Act. I urge the Minister to consider that where it is appropriate a lawyer should be appointed to act on behalf of children, or a children's advocate system should be established. There is a variety of ways in which this can be done. Courts can deem it appropriate in particular cases that the child be separately represented.
I am not suggesting that is necessary in all cases. Indeed, it would not arise in the majority of cases. There will be cases in which it could very well arise and in which, if we are truly serious about protecting the welfare of children, it would be in the interest of children, it would that such separate representation take place. It has been found necessary in a lot of other countries. It seems to be something that we are ducking confronting and dealing with in this Bill. As this Bill has taken eight years to get to where it is at this stage from the 1908 Children Act, if we do not deal with this issue now it certainly will not be dealt with this side of the year 2000.
Before I call Deputy Byrne there are two points I want to make. Firstly, Deputy Yates can introduce his amendment on Report Stage. Secondly, it is now 6.30 p.m. and we proposed to finish at 7 p.m.
I think it would help if one was a lawyer or, better still, a constitutional lawyer at these meetings. I am substitute for Deputy Joe Sherlock and I have not had the continuity that most members would have had. I do not wish to sit here and say nothing in the light of what we have heard. It is very important that we address the question of the needs for constitutional amendments and constitutional change. I would not run away from the need for a referendum to be held in conjunction with the presidential election. If all of these hours are spent debating a Child Care Bill and the key elements are found to be inadequate or not capable of standing up in law, then I suggest that we, as politicians, will have failed in our task miserably. There is no doubt in anybody's mind that 1937 and the pressures that were about then in the drawing up of the Constitution and the relationships between families, parents and children are very different from what they are today, and so is the role and power of the Church. One has only got to read the newspapers. Things have reached quite a frightening stage. We are reading in today's newspaper of children rambling our streets at the age of nine years. Justices are sending children to St. Michael's in Finglas and the children are being dropped off outside the doors to be let walk the streets. There is desperate need for immediate resolution of the questions hanging over this Bill, as to whether the welfare of the child is of paramount importancevis-ï¿½-vis the rights and duties of parents. To conclude the question of whether there is such a serious debate, if nettles have to be grasped, then we should seek an amendment of the Constitution by way of referendum.
There was criticism about the whole referendum and the position of Government, but we have started out here today on the basis that there was unanimity around the table. If there is unanimity amoung Fianna Fáil, Fine Gael, The Workers' Party and The Labour Party — I am not quite sure of Independents — then there should be no problem in winning.
I wish to respond to Deputy Yates and Deputy Shatter, firstly on the additional points they raised pertaining to the position of a solicitor. The idea of authorising the court to appoint a solicitor or other person to represent the child's interest is at first sight attractive but it is not itself without difficulty. If, as would generally be the case that the children are too young or immature to grasp the situation or to express their wishes, how could any other person properly represent them? Is it not likely that such a person would merely express their own views of the situation, which might or might not coincide with what was in the best interest of the child. These are just some thoughts that strike me about this idea. I am, however, aware that the Law Reform Commission have indicated their support for such a development in a consultation paper on child sexual abuse. I would prefer to await their final report before reaching a conclusion on this matter.
I also welcome the further contributions on the constitutionality of section 20. There is no simple division between the rights of parents and the rights of children. As I have often said before, they are two sides of the same coin. A parent's right to the custody of a child is matched by a child's right to the company and protection of a parent. Improper interference with one means improper interference with the other. Any consideration of the welfare of a child must take into account the totality of rights existing between the parents and the child. Regard must also be had to the duties of parents, with these being measured against parents' behaviour in any individual case. This section requires the courts, having taken all these factors into account to regard the welfare of the child as the first and paramount consideration, while the rights of parents and children in relation to each other must be respected. A court, in any case, where it feels that the welfare of a child can only be protected by the removal of the child into the care of the health board, will have to take proper steps in accordance with the provisions of this Bill to ensure that the child's welfare is protected.
Our Constitution has served us exceptionally well. It has been the basis of our laws and has given tremendous protection to us as a people, to our families, to the individual citizen and to our children. From the advice available to me from the Attorney General, I am satisfied that this section as drafted will sustain any possible constitutional challenge.
In relation to the representation of children at care proceedings, I take the Minister's point about preferring to leave the matter over until the commission finally report, but they do suggest that perhaps a panel of lawyers would be made available to represent children. I am not so sure whether that would be a practical solution, particularly down the country; it may very well be a practical solution in Dublin, but not necessarily down in the country.
I very much take the point the Minister made in relation to Deputy Shatter's amendment, that it would be impractical to make a child of six months a party to the proceedings and you would have the situation where lawyers would in effect be making the decisions for that six month old child if the child were party to the proceedings. I have an niggling problem with children in the region of 16, 17 plus,vis-ï¿½-vis their possible attendance at court and representaiton in court and I feel that the Minister and his Department should address their minds to some way of solving that problem.
We are taking the amendments. We have not yet dealt with the section itself.
I move amendment No. 87:
In page 10, lines 43 to 46, to delete subsection (3) and substitute the following:
"(3) A care order shall commit the child to the care of the health board for so long as he remains a child or for such shorter period as the court may determine and the board shall, for the duration of the order—
(a) have the like control over the child as if it were his parent; and
(b) do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare;
and shall have, in particular, the authority to—
(i) decide the type of care to be provided for the child under section 25;
(ii) give consent to any necessary medical or psychiatric examination or treatment with respect to the child; and
(iii) give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable him to travel abroad for a limited period.
(4) Any consent given by a health board in accordance with this section shall be sufficient authority for the carrying out of a medical or psychiatric examination, the provision of medical or psychiatric treatment, the issue of a passport or the provision of passport facilities, as the case may be.".
The purpose of this amendment is to clarify the powers of health boards in relation to children who are the subject of care orders. In general it can be said that the effect of a court order placing the child in the care of a health board is to suspend the parents' right to custody and to place on the health board responsibility for the day-to-day care of that child. To properly discharge this responsibility a health board must have the capacity to respond to the needs of the child.
While a health board clearly cannot have all the powers of parents since the rights of the parents are merely suspended not terminated, it should be in a position to promote the child's general welfare. Under the present draft a health board is said to have the like control over a child in care under a care order as if the board were the child's parents. I believe that some clarification of this is desirable in order to remove doubts as to the powers of health boards to promote the welfare of children in their care.
The first part of the new subsection (3) repeats what is contained in the existing subsection (3). It provides that a care order shall commit the child to the care of the health board while he remains a child, that is until he is 18 years or marries, whichever is the sooner or for such shorter periods as the court may decide.
Paragraph (a) repeats the existing provision of section 15, subsection (3), giving a health board like control over a child as if it were its parent. This means that the board is required to feed and clothe the child, to send him to school and to carry out the normal day-to-day tasks of parents. It does not, however, mean that the parents lose all their rights when a care order is made. The parents remain guardians of the child and retain certain rights, for example, the right to decide issues in relation to the child's religion and education.
Paragraph (b) is new. It states that a health board shall do what is reasonable, subject to the provisions of this Act, in all the circumstances of the case, for the purpose of safeguarding or promoting the child's welfare.
It would be impossible to list all matters likely to require decision or action by a health board in relation to a child in its care. Hence the general nature of this provision. There are, however, two important conditions attaching to this general authority. A health board may only do what is reasonable. Secondly, a health board must not offend any other provision of this Bill, for example, the requirement imposed on it in the new section 3 (2) as inserted by amendment No. 14 to have regard to the rights of parents. Thus a health board would not be permitted to take actions or decisions that could not reasonably be regarded as necessary to safeguard or promote the child's welfare. Similarly a health board could not override any rights which the parents continue to have despite the fact that their child is in care. While it is not possible to list all matters likely to require a decision on the part of health boards there are three matters which merit specific mention.
Paragraph (b) (i) provides that a health board may decide the type of care to be provided for a child, for example whether to place him in foster care or residential care. While no specific doubts have been raised about a health board's existing power to take such a decision I feel that it is best to put this matter beyond doubt.
Paragraph (b) (ii) authorises a health board to give consent to any necessary medical or psychiatric examination or treatment with respect to the child. This is to ensure that a child has access without delay to any necessary medical attention if his parents are not available to give consent.
Paragraph (b) (iii) authorises a health board to consent to the issue of a passport or passport facilities in respect of a child under a care order but only for a limited period. This is to enable children who are the subject of care orders to travel abroad for medical treatment or on school trips or holidays. Health boards often experience great difficulty in tracing parents of such children and in obtaining consent for these trips. The absence of such a provision at present can mean that a child who is living with a foster family is unable to accompany them on a foreign holiday. Subsection (4) provides that a consent given by a health board under subsection (3) shall be sufficient authority for the person acting on that consent, for example the passport office in issuing a limited passport
I welcome some aspects of amendment No. 87. On Second Stage I specifically referred to the words in subsection (3) "have the like control over a child as if it were a parent" and asked what would happen when they went on a school trip or on a foreign holiday, who would be responsible for the child, the health board or the parent, and if there was a critical operation for a child and there was a question of risk, who would authorise whether it would go ahead or not. I am glad to see that this is now being clarified.
I move amendment No. 1 to amendment No. 87:
In the third lime of subsection (3), after "determine" to insert "having regard to the natural and imprescriptible rights of the child".
This deals with the matters to which we were referring earlier. This would be to reinforce the rights of the child's best interest as set out in the Constitution. I think that would be an improved wording and I would ask the Minister to accept amendment No. 1 to amendment No. 87.
Overall I would say that there will be other areas that will arise that have not been thought of here, the most bizarre circumstances. I would hope that in the actual practical working of this the parents would be consulted where possible. This came up before — what do you do if the parents cannot be traced? In such cases you have to do what is practical. In general terms I support this and I would hope that the day-to-day working of it would involve the reasonable working out of what was in the child's interest between the health board and the parents.
I have considerable worries about an aspect in this amendment. I have no argument with the issuing of passports to foster parents, that can be very important. It has been an on going difficulty and problem. Generally speaking, I have a query about paragraph (b) (i). It seems to me that in the Supreme Court case judgment was delivered in July and November of 1989. The Supreme Court took the view, and they did it under a particular wording of the Children Act, that it was not open to a health board even if it did have statutory powers to take a child into care, to simply determine where the child should be placed or how the child should be cared for. I would have some doubts about the constitutionality of subsection (b) (i) and ask the Minister to get advice about that before Report Stage. It would seem to me that if a decision is made by a court that a child is taken into care, the health board is going to have to tell the court the option as to where that care is to be, whether it is to be foster care or residential care.
I could certainly see challenges arising at some future occasion to the general placing of a child in the care of a health board, with the health board being able to switch the child from residential care to foster and back to residential care, that is, without a court having been informed and without the parents having any input or observation on the manner in which the child is being cared for. It is a natural part of the guardianship right the parents will retain, that they will be entitled to know whether there will be a change in the manner of the caring for a child who has been placed with the health board and they should have a right to make an input into that decision-making process. The Supreme Court at some stage may require that.
I am trying to be helpful here. I am saying to the Minister that there may be a problem with that. I do not disagree. In essence there is a variety of different types of care that may be provided for a child. First, you have to tell a court the type of care one intends to provide and if it changes from that, some court decision may be required.
I would also take the view that if the child is experiencing problems in foster care and the health board makes a decision, the child should be taken out of that foster care and possibly placed in different care. The parents should be informed of that and again they should have an input into the decision-making process. If I misunderstand the impact the section will have, I am sure the Minister will advise me of that. I see a problem with this amendment in isolation unless I am failing to see an interaction with another section.
Paragraph (b) (ii) is ringing considerable alarm bells in my own head. It is linked into (b) (iii) and subsection (4) which reiterates parts of this. It seems to me that that is depriving parents of guardianship rights. I would take the view that if a child is in the care of a health board and does require urgent medical care and if a parent is not available to consent to medical treatment, of course, a health board in that situation must be able to consent to medical treatment. That is not what the section says. The Minister explained it as applying in that type of situation. The Minister said that the health boards have to act reasonably. It seems to me that that section, taken with the new subsection (4) will give blanket permission to health boards to make all decisions about medical care for a child and to make decisions about psychiatric treatment. I would think that if you are talking about preserving guardianship rights it is one of the fundamental rights of guardianship that a parent can decide about medical care or psychiatric treatment for a child. If a parent does not agree with the health board's decision, it should be left to a court to determine what should be done based on the welfare of the child, particularly in a non-emergency situation. If an emergency health care, say an emergency operation, a very simple case, an appendicitis operation, is required and the parent is not there to consent, of course, the health board must have the authority to consent.
I would have considerable concern, particularly in the light of some of the things that I have seen while wearing my lawyer's hat. I would have very grave concern that a social worker dealing with a family, having taken a child into care, might take it on herself or himself on behalf of the health board to decide that a child should have some ongoing psychiatric treatment without the parents having any say in that at all. I would have grave reservations about that. For example, let us envisage a situation for a moment where a social worker is of the view that a child is being sexually abused, where the child has been taken into care and where the parents go on denying abuse and the child tells the social worker that he lied originally, and tells things, for example, like: "Daddy did not abuse me". Could that social worker decide to commit that child to ongoing psychiatric treatment until the child's story coincides with what was originally said?
I recognise that where a child is in care and emergency medical treatment is required the health board should be in a position to give their consent. If you are talking about ongoing psychiatric treatment or other medical treatment, normally I would suggest that the parents' consent should be required. I believe constitutionally it is necessary. Where it is not forthcoming, it should be left for a court to decide on the basis of the welfare of a child whether particular medical care or psychiatric treatment should be provided.
One of the reasons we are taking so long on this Bill and the Committee Stage is so protracted is the uncertainty of every section in relation to the Constitution and in relation to the impact it is going to have, because it is very hard to quantify for every eventuality. In general terms we know what we want to achieve but how to actually frame that into legislation obviously poses great difficulty.
I would reflect on the concerns expressed by Deputy Shatter and they are quite reasonable if that is the impact of the Bill. However, in the generality of the section I must say I think it is a much clearer section than was the previous section 15 without this amendment. Many of the care workers who had been involved with the children for a very long time were unclear of exactly the parameters in which they worked. While they did in fact apply for passports in the past and did sanction medical treatment in the past in some circumstances, it was not clear always that they had the actual power to do that. It is important that the specific authority would be given to them so that there would be no ambiguity about it subsequently. All in all, I think the amendment is a good one but I would welcome, certainly, the Minister's response to the specific points raised by Deputy Shatter, which would not be the intent of this committee. I wonder, has it been considered by the Minister and his Department already?
In relation to Deputy Yates' amendment to amendment 87, I think it was Deputy Byrne who said you have to be a constitutional lawyer to operate on this committee with any effect and perhaps that is right. I wonder, are the natural and imprescriptible rights of the child written down in cogent fashion for a lay person to read and understand or would they need to be defined and what exactly are the rights that are referred to by Deputy Yates in the amendment?
First, in response to Deputy Yates, we have taken his amendment in conjunction with our discussions on the composite group of amendments we have been dealing with earlier. I would refer the Deputy to subsection (2), amended section 3. What the Deputy is hoping to achieve in his amendment to amendment 87 should be contained in the totality of that section. I hope that will satisfy what he proposes.
In a direct response to Deputy Shatter and Deputy Howlin, the Supreme Court judgments last year were based on the then existing law, that is the Children Act, 1908. Some doubts were cast on the power of a health board to place a child with foster parents or in residential care because of the absence of a specific statutory power for health boards to do so. However, that matter was cleared up in the Children Act, 1989, which gave health boards clear powers to place children in foster or residential care or to make such arrangements as are in the best interests of the child. This Bill ensures that there will be no doubt about the powers of health boards to decide on the type of care that should be prescribed for a child in the future.
I do not believe any constitutional difficulties arise here. The courts alluded to the fact that the 1908 Act did not confer these powers on the health boards. The Children Act, 1989, clarified that situation and we are embracing it here in the Child Care Bill, 1988. With regard to paragraph (b) (ii), the reason we have brought forward this provision is that difficulties have arisen where children in care required relatively routine surgery, for example, an appendix operation and other minor surgery and parents were not readily available to give consent. In those cases health boards experienced great difficulty in getting the medical people to proceed with operations without parental consent, even though on many occasions they were only minor procedures. We are trying to eliminate this problem and we trust this will clarify the situation and ensure that proper medical treatment requiring immediate administration will be possible as a result of this section.
Deputy Shatter raised some interesting points arising from his experience of representing parents. I would be prepared to withdraw amendment No. 1 to amendment No. 87 to facilitate the expeditious handling of this if he would consider rewording some aspects with particular reference to those under paragraph (b) (i) and (ii). The Minister might also consider psychiatric assessments and treatments under (ii) and we could make progress. I also suggest that we sit for an extra hour or two as we got through very few amendments this evening. We agreed that section 15 would be completed at this stage.
I would like to make a point. I was at the meeting on State-sponsored Bodies since 2 o'clock, and then I came here. I have had nothing to eat all day.
I have a difficulty as I am committed to chairing a public meeting outside politics and I could not stay.
I have no difficulty in reconsidering this section to see if we can firm up the wording in any way, if that is what Deputy Yates desires. If members have the constitution and stamina to stay on, I have no difficulty in staying either but I take into account that other people have commitments. It is coming towards the time when it is natural and normal to break and we can conclude very shortly. I do not think there is any point in staying for an hour or two as we would not do justice to the Bill in that time.
We have stuck rigidly to what the various groups agreed to so far. We should have a discussion on section 15, as amended to tease out one or two things. I was going to suggest that we agree to continue section 15 into next week having got this amendment out of the way. We can still make speedy progress next week. I came late this evening and Deputy Timmons substituted for me. This is the main section under which children will be taken into care. It merits giving it a little bit more time next week when we might get rid of it and other sections which we agreed we would cover next week as well.
We had agreed to discuss section 15 today and section 16 the next day. I propose to wrap up section 15 the next day early on in the meeting, say, in half to three quarters of an hour. I do not want to be rigid on that or to constrain discussion because it is an important Bill. Is there agreement on those rough outlines? Agreed.