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Special Committee Child Care Bill, 1988 debate -
Tuesday, 13 Mar 1990


I move amendment No. 92:

In page 11, subsection (1), line 23, after "in its area", to insert "or is returning home from being in care".

This is a technical amendment. The notion behind it is simply to make sure that every child would be covered under the provisions of this section. If a child is returning home after being in care he should have the same cover under this section as others.

I agree with Deputy Howlin that where a child is returning home from having been in care it may be desirable in certain cases that the health board be able to supervise the child's welfare on his return home. In fact, provision for this is already in the Bill. I would refer Deputies to section 19 of the Bill. Paragraph (c) provides that where a court discharges, that is, cancels a care order, the court may go on to make a supervision order in respect of the child. This could be useful in cases where the court considers that while the child should no longer be in care the health board should supervise his welfare on his return home. I hope this meets the point raised by Deputy Howlin and that he will agree to withdraw his amendment on that basis.

Yes, if I am satisfied it does that. It is suggested I should take the Minister's word for it. The notion is that children who have come home from care could be supervised and monitored. It seems to be covered in section 19 and on that basis I will withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 93:

In page 11, subsection (1), lines 24 to 27, to delete paragraphs (a) and (b).

The effect of this amendment would be to greatly reduce the range of circumstances of which a supervision order could be made. In fact, if it were to be accepted, a supervision order would only be available where it is suspected that a child's health, development or well-being might be at risk. It would not be available where it has been confirmed that he had been assaulted, ill-treated, neglected or otherwise.

The amendment seems to be based on an erroneous assumption that, where it is established that a child has been assaulted ill-treated or neglected, the response must be to place the child in the care of the health board. Experience on the ground shows that this is not the case. There are many situations, in which children have been neglected or otherwise, where there is no need to remove them from their homes. For example, the assault, ill-treatment and otherwise may be relatively minor in nature and might not necessitate the removal of the child from his parents. It could be that the perpetrator of the assault or otherwise is no longer living with the child, perhaps because he has been barred from the family home or imprisoned. The health board might be satisfied that, while there had been ill-treatment, etc., there were extenuating circumstances, that it would be better for the child to remain at home under supervision, rather than to be removed from his family.

The whole intention in creating supervision orders is to provide health boards and the courts with an alternative means of safeguarding children, short of taking them away from their parents and families and placing them in care. This is consistent with one of the guiding principles of the report of the Task Force on Child Care services, that State intervention in the lives of children and their families should be at the minimum level necessary to secure the child's welfare. The acceptance of this amendment would take away this flexibility and would substantially reduce the value of supervision orders. I urge the Deputy to consider withdrawing this amendment.

You are perfectly right, Minister, this was the thinking behind it. I must say when I read that section, entitled "supervision order" I was a little bit perturbed that there would be consideration of a supervision order, which means that a social worker or a care worker would visit a home periodically. I really wonder about the sense or wisdom of thinking in those terms. We are talking about a child who has been assaulted, ill-treated, seriously neglected or sexually abused, or the child's health, development or well-being has been or is being avoidably impaired or seriously neglected. Is a supervision order the correct order to use in that event? I think paragraph (c) is perfectly OK, that there are reasonable grounds for believing that the child's health, development or well-being is likely to be avoidably impaired or seriously neglected. By all means if there are reasonable grounds for believing that, yes, then we have a supervision order. This amendment seriously questions whether we are talking about the right order in the context of section 16 (1) (a) and (b) in this event. I am not convinced that we are. The Minister said that experience shows supervision orders are adequate. We would all be in favour of maintaining a child at home if that was possible but I am not convinced it is. I am very worried about this.

There is a certain feeling about this amendment on which we have just had a lengthy argument. The mover of the previous amendment argued that the judge should have the discretion to exercise a supervisory option in an application for a care order, which is a very serious application, in precisely the terms that would apply if the child was being assaulted, ill-treated or seriously neglected. The same person now wishes to delete those terms because the supervisory order is far too insubstantive a mechanism to deal with instances of such serious crimes against a child. It is hard to follow the logic of both arguments.

The Deputy is not being fair. We are talking about a supervision order standing on its own and not as provided for in section 15 (5) which deals with the application for a care order. It is a totally different argument. This amendment deals with a supervision order on its own and proposes that if the court deems it suitable to make a care order the justice or the court will be empowered to make such a decision. That is not provided for in the existing section 16 (5) which deals only with a supervision order.

If in reading section 16 (1) (a) and (b) we lay the emphasis more on the words "has been" rather than "is being", we might have the key to these paragraphs. I believe any member of this committee, or indeed any member of the public, would be absolutely shocked if they knew a child was being assaulted, ill treated, seriously neglected or sexually abused or that a child's health, development or well-being was being avoidably impaired. If that was going on at present and a health board looked for a supervision order in those circumstances we would all be shocked. Perhaps we should place more emphasis on the "has been" in that kind of situation because, as the Minister said, maybe the person who was perpetrating the ill-treatment, assault, etc., has moved out of the house and only visits occasionally. That is the sense in which we have to view this section.

If we remove "is being assaulted" or "is being avoidably impaired or seriously neglected" from these two paragraphs it might make the section a little clearer. I would be shocked if a child was being assaulted, ill treated, seriously neglected, etc., and a health board did not look for a supervision order. I take it that this section refers more to a history where the health board are anxious that such a thing should not happen again and they have their suspicions that maybe it might start happening again where, say, a person comes back to the home or to the area.

The point I wanted to make has been made by my colleague. Perhaps Deputy Fennell has, unwittingly, taken the view that the health board would not take a wise course of action in cases like this. After all, it is the health board who will be taking the initiative here. If they seek a supervision order under section 16, surely it would be on the grounds that the best course of action is to seek such an order as distinct from a care order so that the best interest of the child would be served. On the best professional advice available they would seek a supervisory order rather than a care order. With due respect, I cannot see the logic in what the Deputy is saying.

It would not be right to allow the health board to have a shilling each way, which is appropriate enough with the week that is in it. The health board should be obliged to make their decision whether they are going to apply for a supervision order or a care order. I am sure that if, in the course of the evidence in relation to a supervision order, it arises that there was a necessity for a care order the application would be made by the health board to the court for a care order. It is best, in the interests of clarity and on the evidence that is to be presented before the court in matters of such grave importance, that the health board should have the evidence — be it in relation to a care order or a supervision order — and then make their choice. If the evidence is such that a care order is warranted there is, of course, nothing to prevent the health board seeking such an order.

Two matters arise here. Deputy O'Donoghue raised an important point. Section 16 allows the court, where there are a whole series of possible scenarios, as set out in paragraphs (a), (b) and (c), the discretion to make a supervision order in the type of circumstances to which the Minister referred. For example, even though something may have happened in the past, home circumstances changed and the person responsible for the abuse has been barred, the court may still feel there is a need to provide some supervision.

The reason we wanted to delete section 16 (1) (a) and (b) was that there was a view that the order a court should apply for, where there has been sexual abuse, assault or serious ill treatment of the child, is a care order — it should not become the norm to look for a supervision order in those circumstances — but where the changed family circumstances are such or the evidence falls short of proving that level of seriousness, there should be a supervision order option under section 15 (5).

If we delete the word "seriously" from section 16 (1) (c) and just refer to "neglect", I could envisage a whole series of possible circumstances, such as those as outlined by the Minister, under which it would be justified for a health board to look for a supervision order but in which there would be no possibility of them getting a care order. We took the view that if a situation arose under section 16 (1) (a) and (b) the normal application should be for a care order and if a situation arose under section 16 (1) (c) there may be some circumstances where it would be appropriate to seek a supervision order, but the norm should be to seek a care order. That was the thinking behind the amendment.

Deputy O'Donoghue made a worth-while point which I do not think can arise under the section as currently worded. The Deputy said that during the course of a court hearing on an application for a supervision order something may emerge which indicates that the situation is far more serious than was originally thought which would warrant the making of the care order rather than a supervision order. Would I be correct in saying that if an application is made under section 16 the only option the court has is to grant a supervision order, but if it is made under section 15 it can grant a care order or, because we still have the section 15 (5) pending Report Stage, a supervision order? If we retain section 16 (1) (a) and (b) there is a need, even when a health board apply for a supervision order, to give the court the option to make a care order. If we take paragraphs (a) and (b) out of section 16, then that may not be a necessary option, but I do not think that option exists currently under section 16. It is just a question of getting the sections interacting in a logical way to avoid a multiplicity of court applications because as things stand at the moment if something particularly serious arose under an application under section 16 the health board would have to start all over again under section 15. Just as I was complaining earlier, if they did not succeed in getting a care order and if we took out subsection (5), they would have to start all over again under section 16. That is not in the interest of either the health board or the parents involved, because neither wants to continue to litigate. It is certainly not in the interest of the child. There is a need to sort out the interaction between the sections but the reason for deleting paragraphs (a) and (b) from section 16 is not inconsistent with wanting to retain subsection (5) in section 15.

The grounds for the care order or the supervision order are set out very clearly in paragraphs (a), (b) and (c). However, I wonder if they are adequate to deal with other situations which may arise and I would like to be advised on this matter. I take it that when you are talking about care order's that would apply also to foster care. Take a specific situation where a person has a child but does not have security of tenure where he is residing and finds that he cannot any longer occupy the accommodation which he had previously. The health board, in those circumstances has to step in and, as was the case recently, takes the child into care. Are those circumstances provided for adequately in paragraph (c)? I know certainly the other paragraphs are specific about neglect and so forth but I would be concerned about the situation I have set out as to whether it is provided for adequately.

I agree, Chairman, that we have to get the sections to interact properly. To reflect on the intent of each section is what we are trying to do. Deputy Shatter said that, if the subsection (5) remains in the previous section 15, then the courts have an option and, by implication, it is better to have the option than to simply go for a supervision order under section 16. That would worry me because we certainly should not in any way give an encouragement to apply for care orders unless there are absolutely clear reasons for that application. That was the point I was trying to make.

In relation to supervision orders, they are obviously of a different degree and level of importance. There might be a case, for instance, where a child had been assaulted and while the situation seemed normal enough the health board felt that monitoring was required; they would apply then under the existing section 16 for that. There should be that flexibility and, again, it would be determined by the health board in the first instance whether they should apply for a care order or a supervision order.

I would prefer, as I said, the primary decisions on the application to be made by the health board and its personnel. Again, I would be worried if it was felt that because there were more options or more flexibility, the options to apply for a care order would be made lightly if there was not an absolutely copperfastened argument to be made that a child should be taken into care. That is such a serious step to take.

I note that the professional child care coalition are in favour of leaving in paragraphs (a) and (b). While I do not think we should slavishly follow what they say, I feel, on balance, it is probably best to leave it in, to leave the two in. This is something I do not want to be going back to in section 15. It occured to me when we were discussing it that if the Minister leaves it in the judge would make a supervision order under section 16 in respect of the child if he thinks proper. In my opinion, that particular subsection does not actually list out the type of grounds upon which he would have to make the supervision order. This may very well be the reason why the two are coinciding, section 16 and section 15, under subsection (5) of section 15. The court, in my opinion, would have to take into account all the provisions that are quoted in subsection (1) of that particular section. I feel it is probably better to link in the two. I take Deputy Shatter's point about someone applying for a supervision order and then it is felt that perhaps it is a case for a care order. There may be a difficulty there and there may be a need for an amendment somewhere else in the legislation to take care of that.

I think Deputy Dempsey probably put his finger on it when he said the rationale behind this section is to deal with a case where a serious neglect or assault took place on a child previously and while the health board are satisfied it is not now taking place they want to keep an eye on it. I think that is probably the rationale behind this section. If the Minister is looking again at my original point about section 15 (5) there might be a need to tie in the conditions upon which, or the grounds upon which, a court decides that a supervision order is necessary. Maybe we feel the judge should have extensive powers with regard to granting a supervision order, without tying him down to a specific instance. I think, however, there should be some time given to that point.

I cannot feel easy about those two qualifying provisions being in section 16. It quite specifically says the child has been or is being assauled, is being ill-treated, is being seriously neglected or is being sexually abused. The phrasing is the same as section 15 at the start of paragraphs (a), (b) and (c) and I think you would literally have to have a live-in supervisor if that was the case. I do not think it is appropriate that a supervision order should be considered in those circumstances. I have read the coalition of social workers' comment on it and I am very much swayed by what they say, usually, because they are working on the ground and they know the realities of life.

Having discussed these two sections together and seeing the need for a degree of flexibility perhaps to leave it possible for the court to make a decision on either a care order or a supervision order is the way to approach it. I have to say that may be the case even in the event that a child is being assaulted, ill-treated, etc. At the moment there is no such thing as a supervision order. There is no way a social worker can be given a right by the court to go in. All I can say is that we would be better off with this than we are at the moment. I am still unhappy with it and I would prefer if the supervision orders dealt only with paragraph (c) and not necessarily with sexual abuse or ill-treatment.

Listening to Deputy Fennell earlier I have to say I agree with those things she said here. I would certainly go back again to what Deputy Dempsey said and I believe the words "is being" should be deleted from all subsections in section 16. I would appeal strongly to the Minister to look at that.

That would substantially change it. I think that is a very good suggestion in the context of the different amendments that are flying round and the proposals to delete it. Certainly if the Minister was prepared to consider that I would be quite happy not to press the amendment at this stage. We could come back to it on Report Stage. I think the words, "is being" make it look a little odd that someone would be looking for a supervision order in those circumstances.

I support that view.

I am a substitute for Deputy Barnes in case you are wondering why I am here, Chairman.

We are delighted to welcome you, Deputy Owen.

We seem to be nearing a compromise. Certainly the removal of the provision requiring proof that a child has been assaulted is very good, but what I am concerned about, and this point may have already been raised by other members, is the difference between a care order and a supervision order and the length of time each of these lasts. A care order can remain in force until a child reaches the age of 18, whereas a supervision order can only apply for a period of 12 months. One of the fears I have is that while section 15 interacts with section 16, the reverse is not true. I would be a little nervous that at some stage concerned and caring social workers would baulk at removing a child from its parents and opt instead to apply for a supervision order. It is a very serious matter for a social worker to remove a child from its parents until they reach the age of 18, which might be 12 or 15 years down the road. A social worker might opt to apply for a supervision order as this would give them the opportunity to re-examine the case after a period of 12 months. I realise a care order can be discharged by the court if circumstances change. Quite clearly, if the Minister is prepared to delete the words "is being" we will have reached a satisfactory compromise. This is a very sensitive matter for social workers whose job it is to decide whether a child should be separated for a very long time from its parents, perhaps for a period of up to 12 or 15 years or longer.

The whole purpose of section 16 is to provide an alternative for the health boards and the court, in appropriate cases. I fully agree that if the abuse or neglect was serious a care order would be appropriate, but as I said earlier, there are degrees of abuse and neglect. If the neglect is not so serious to justify taking the child into care this would allow the court to make a supervision order instead. Section 16 provides an option. As there is no obligation on the health board to use it I think it should stand as it is.

To respond to the point raised by Deputy Sherlock, if a family find themselves, through no fault of their own, in difficulty in caring for their children, it is open to them to request the health board to have a child taken into voluntary care under section 4 of the Bill. The question of legal proceedings against the parents would not arise in the kind of cases referred to by Deputy Sherlock. A number of pleas have been made to have this matter reconsidered. While I would find it difficult to delete any of the words, I am prepared to reconsider the provision, have further consultations on it and come back on Report Stage to see if we can improve it.

Is the amendment being withdrawn with the liberty to re-enter it on Report Stage?

It is. We will withdraw it in the hope the Minister can come back to clarify the sections.

Amendment, by leave, withdrawn.

I move amendment No. 94:

In page 11, subsection (1), line 33, to delete "child." and substitute "child, having due regard to the wishes of the child where possible. If the court deems it is more suitable to make a care order the justice of the court will be empowered to make such a decision.".

The first part of this amendment refers to the court having regard to the wishes of the child and is already dealt with in the new section to be inserted by amendment No. 110 which requires the court to give due consideration, having regard to his age and understanding, to the wishes of the child. As amendment No. 110 has been accepted by all sides the first part of the amendment is unnecessary.

The second part of the amendment seems to envisage giving the court the power to make a supervision order even though the health board had not seen fit to apply for one. I am not sure that this would be a good idea. As far as I am aware, the general practice in legislation is that where an application is made for a particular type of order the court may grant that order or, alternatively, an order of lesser significance. Generally, however, the court is not permitted to make an order of greater significance than the one sought. Similarly, in criminal cases where there is a prosecution for, say, murder, the court can convict on the lesser offence of manslaughter but not the other way around. I see no reason to depart from that general practice here.

Under the Bill the decision on whether to apply for a care order or a supervision order is vested in the health board. In reaching its decision the board must take into account a wide range of factors including the nature and severity of the abuse or neglect and the risk of a recurrence, having regard to the guiding principle laid own in section 3 that it is generally in the best interest of a child to be brought up in his own family. In deciding to seek a supervision order rather than a care order a health board would have to satisfy itself that the risk to the child is not such as to necessitate the child's removal from his home and that there is a good relationship between the board staff and the parents so that it would be possible to supervise the child at home. In coming to this conclusion, the board may well have had discussions with the parents who may accept that their previous conduct in relation to the child left something to be desired and that health board supervision would be helpful for them and for the child. I think the parents would feel justifiably aggrieved if when the application for a supervision order went to court, the court decided to make a care order instead. On balance, I think the decision to seek a care order or a supervision order should remain with the health board. For these reasons I do not propose to accept this amendment.

I thank the Minister for his reply, but I would like to advert to his reference to aggrieved parents. The extent to which we aggrieve parents should not matter if the evidence presented on the situation of the child is sufficiently grave as to require the making of an order. Indeed, it is immaterial. In any case where the court makes a decision in the best interests of the child there will be aggrieved parents. My view is that it is too bad, if action has to be taken. It is very important that the provisions of section 15 be all-embracing. In relation to an application for a supervision order, I had not been aware that, no matter how grave or awful the evidence may be, the court can only make a supervision order — a care order would have to be applied for separately — and not an order of greater significance. However, in relation to an application for a care order, an order of lesser significance may be made. Is that the rule?

That is the case in practice.

Since what we are proposing in the second part of that amendment cannot be done we have to withdraw it or let it fall, but certainly this makes me realise just how important it is to very carefully examine the previous section so as to ensure that the provisions are sufficiently flexible to enable a supervision order to be made if a care order is deemed unnecessary. Again, I am concerned that a health board will instead of applying for a care order, where it is absolutely necessary to do so, look for a supervision order.

I think the Deputy has summarised the situation very well. I am satisfied that the health board will go for the most appropriate order depending on the gravity of the case. I do not think we have to worry on that score. I am sure that if the board feel it necessary to apply for the most powerful order available, or a lesser order, they will make that application based on the information available to them. The normal practice of the court is that you can get whatever order you apply for, or a subsidiary or lower order, provided the information is strong enough, but you cannot move upwards. That is the normal situation.

Is Deputy Fennell withdrawing Amendment No. 94?

Yes, but I have grave reservations about that section. I would ask the Minister to take account of the views that were expressed.

Is the Minister saying that if a care order is applied for you can "phase it down", but you cannot "phase up" a supervision order? That means that the whole process has to start again, and a judge could refuse a supervision order. Could he give a ruling that, in his view, a supervision order is not sufficiently strong and advise that they look for a care order?

The court could make a decision but, unless it is incorporated in the Bill, that flexibility is not given to the judge. He could not revise it upwards. An application comes before him for a particular order and he is entitled to give that order or a lesser order.

But not a higher order?

Is the Minister saying if it was in the Bill then the judge would have to be bound by that? Is there any precedent for a similar provision in a Bill?

There is no precedent that we are aware of.

I would be concerned that a caring social worker will decide to put forward a request for a supervision order. If the powers that be are not satisfied that this child should be taken from his parents until the age of 18, because there is enough evidence for a care order, and they might get their supervision order, are they stuck with that at the end of 12 months? Are they allowed return and look for a longer term care order? I would be afraid for the child who is being seriously abused that they would get a supervision order which is not worth the paper it is written on because they should have got a care order in the first place, but for the wrong reasons, or for reasons done with the best will in the world, they get it wrong. I believe the same flexibility should be available for a judge to say — as he can in a care order — that it is appropriate in this instance for a supervision order to be given and not a care order. He should have at least the right to say it is appropriate to start the procedings again and look for a care order.

In the context of what Deputy Owen is raising in section 16 (6), an application can be made by a health board to extend the term of a supervision order "from time to time if it so thinks proper". The previous section provides that a supervision order should be enforced for 12 months only. I presume it is envisaged that a health board could come back looking for extensions, in effect, every 12 months and the Minister might just clarify if that is the case. On what basis will such extensions be granted? An identical problem could arise here as arises with barring orders. A District Court barring order is enforced for 12 months and a wife, who is being battered, can come back to court and look for a further 12 months' order. Many judges take the view that, unless there has been a battering incident during the 12 months of the original barring order, they cannot renew it. Is it envisaged that simply because a health board still has worries about a child, a supervision order can be extended, or will there have to be proof that during the 12 months period the child is again being abused, assaulted, or ill-treated?

Subsection (6) does not seem to provide any criteria that will guarantee that further supervision orders will be made where they are necessary. I am sure the 12 months is mentioned because the Minister has been told by the Attorney General's office that the District Court is a court of limited jurisdiction and a supervision order, therefore, should not be for more than about 12 months. It would seem there is no particular reason in the context of supervision orders why subsection (5) could not provide for supervision orders to be made for up to two years. That would simply be a limited order; it is not a penal order. I think that would be quite proper within the District Court jurisdiction and it might at least mean that you can have supervision orders for a period up to two years, with possible extensions thereafter. That might ensure that there is some clear over-view of how the family is functioning. I think 12 months may be too short.

The coalition of care workers say it is always useful to have astute regard to the wishes of the child and that should the situation warrant it and a care order is more appropriate then the court should have the authority to make a care order rather than a supervision order — and say: "made on separate application". They understand what we are getting at. I would concur with that.

I will comment on what Deputy Shatter has said. It is all well and good about extending a supervision order, but my concern is if a supervision order is the wrong order to start with, extending it for another 12 months is not worth anything. You have to have the correct order to start with. Even if this section 16 contained a clause that would allow a judge to make a judgment that a supervision order is not the correct order and recommends that appropriate action be taken to proceed to get a care order, that would give the person the right to seek a care order.

I would like a point clarified, because I am getting slightly confused. Does the fact that a court makes a supervision order automatically exclude the health board coming back in three months' time if there are a number of incidents and following up with, say, an emergency care order or a care order? Is it precluded from doing that? If it does, I can see the point that is being made, but if it does not, I think that will answer the queries.

In response to Deputy Shatter we will be dealing with the points raised in amendment No. 98. In response to Deputies Fennell, Owen and Dempsey, the child care coalition recommendation takes it into account when they say "made on separate application". There is nothing precluding a health board coming back within a month, if they so wish, to make an application for a higher order based on the gravity of any situation, or more information coming to hand. There is nothing whatever to stop them and that is the point being made there — that they must make a separate application for it.

So there is no time limit on it. If it is found the next day or three days later——

They can come, of course.

I withdraw the amendment.

Amendment, by leave, withdrawn.

We have dealt with amendment No. 94 to section 16. Our next meeting will be on the 27 March 1990.

During the Easter Recess we should try to do three consecutive days' work on this to gallop through it, because it is slow and it is becoming tedious for us to try to deal with it.

The Deputies may gather their thoughts before 27 March.

We could do a tremendous amount of work if we just sat down and worked consistently at it for a couple of days.

It looks as though we will be meeting on 27 March. We have got as far as amendment No. 94 today. Can we finish section 16 the next day and finish sections 17, 18 and 19?

We have been more than resonable in allowing flexibility on time but we are now each week leaving a section uncompleted even though we had scheduled to complete it. I would like that on the next occasion we would conclude this section and adhere to the agreed schedule.

We are honoured this evening in having the Assistant Secretary of the Department of Health, Mr. Donal Devitt, with us. I am sure the Committee would like to join with me in congratulating him on his recent promotion.

We wish him well in his very arduous task and extra responsibility.

Progress reported; Committee to sit again.
The Committee adjourned at 6.25 p.m. until Tuesday, 27 March 1990.