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

SECTION 16.

Minister of State at the Department of Health (Mr. N. Treacy)

I move Amendment No. 95:

In page 11, subsection (2), to delete lines 34 to 36 and substitute the following:

"(2) A supervision order shall authorise the health board to have the child visited on such periodic occasions as the board may consider necessary in order to satisfy itself as to the".

The purpose of these amendments is to clarify the respective responsibilities of the courts and the health boards with regard to the detailed implementation of the supervision orders. Supervision orders are a new concept to our law. At present, where the welfare of a child is giving cause for concern, a health board may either seek a fit person order to have the child placed in care or else leave him at home and hope that the parents will allow social workers, etc to have access to him. A supervision order represents a compromise between these two extremes. Under it, the child remains at home but the health board is given a guaranteed right of access to him. These amendments seek to clarify the manner in which this access is to be arranged.

Under the present draft the court directs the health board to have the child visited on such periodic occasions as the court may determine. It has been put to me that this is a very cumbersome and unnecessary approach. What would happen if, for example, a court ordered that a child be visited weekly but after one or two visits the health board came to the conclusion that the situation was so serious that he should be visited every other day? Under the present draft, the health board will have no discretion whatever in the matter but would have to go back to court and make a request to vary the terms of the order. This would take time, during which the child could be left at serious risk. Similarly, if a court directed that the child be visited daily, a health board would be enabled to reduce the frequency of visits if the home situation were to improve.

The first amendment, No. 95, seeks to avoid problems of this kind, by providing that the court would grant general authorisation to the health board to visit the child on such occasions as the board consider necessary. This means that the health board would have discretion to decide on the frequency, duration and timing of visits, depending on the particular circumstances of each particular case. The granting of greater authority and discretion to the health board brings with it the possibility of parents becoming aggrieved at what they might consider to be over-intrusive supervision by the health board.

I have decided to make an additional provision in the second of these amendments, No. 96, which would enable parents and persons in loco parentis to apply to the court if they consider that the frequency of visits, etc. is unreasonable. The court would be able to hear both sides and, if necessary, give directions to the health board with regard to how they are to operate the supervision order. These two amendments taken together are a reasonable and balanced response to the concerns which have been expressed to me and will help to ensure the smooth operation of these orders.

Amendment No. 109 is a consequential change in section 19. At present, paragraph (b) of section 19 enables the court to vary or discharge any condition or direction affecting the child who is the subject of a care order, a supervision order or an access order. This form was the correct one when the Bill was originally drafted. However, I am advised that it needs to be changed as a result of the insertion of the new subsection (3) in section 16 which enables the parent or person acting in loco parentis who is dissatisfied with the manner in which a health board is implementing the supervision order to apply to the court. It also enables the court to give such directions as it sees fit as to how the order is to be operated by the board. While such a direction might affect the child concerned, situations could arise in which the child would not be directly affected. What is proposed, therefore, is that the reference to affecting the child be deleted and that the paragraph simply provide that the court may vary or discharge any condition or direction attaching to the order.

Mr. Yates

I am of the view that the courts should primarily decide what is the appropriate level of access by parents to children in care. I think this can only be taken as a package deal. Amendment No. 96 meets with my approval where there is a dispute but in cases of fostering and so on, it will require a lot of resources to implement section 16. In supporting amendments Nos. 95 and 96 and 109, I hope that the Minister will make special arrangements to ensure that extra resources, by way of social workers and facilities, are made available to cater for the transporting of children from one side of Dublin to the other to set up a meeting with the natural parents and so on. A number of social workers and care workers have outlined to me that this does involve a lot of time, effort and so on, and I hope the extra resources will be made available and that the Minister will make a commitment now in that regard.

I welcome these changes. This is a balanced approach and the health boards will have to adopt a reasonable approach as opposed to what is expedient for themselves. They will have to be reasonable to ensure that parents have proper and adequate access to their children.

Mr. Howlin

I must support the amendments because I think they improve what is intended. We are talking primarily about applications made to have a child monitored by the health board. If we are going to have that there must be flexibility devolved on the health board to act in accordance with the best interest of the child as the health board perceives it and I can understand that having a fixed order by the court, which could not be changed without a fresh application to the court, might hamper the devolved function on the health board to monitor the child adequately. For those reasons, I accept the amendments. As we have gone along section by section, this Bill has improved, although it is taking a lot of time. A good amount of my Second Stage speech dealt with resources. If we put this framework in place but do not resource it, we will make a nonsense of all our work and frustrate many people. I am sure, however, that the commitment given by the Minister on Second Stage will be lived up to when the Bill is enacted, and the responsibilities are devolved to the health boards, and I am confident that resources will also be put in place at that time.

Amendment agreed to.

Mr. N. Treacy

I move amendment No. 96:

In page 11, between lines 38 and 39, to insert the following subsection:

"(3) Any parent or person acting in loco parentis who is dissatisfied with the manner in which a health board is exercising its authority to have a child visited in accordance with this section may apply to the court and the court may give such directions as it sees fit as to the manner in which the child is to be visited and the health board shall comply with any such direction.”.

Amendment agreed to.

Mr. Howlin

I move amendment No. 97:

In page 11, subsection (3), line 44, after "attention", to insert "or assessment".

Amendment No. 97 is a technical insertion at the wishes of some of the lobby groups. To make the section clearer it was felt that it would be useful to specify assessment in case it was not encompassed already in the Bill. We simply wanted to make sure that "attention or assessment" would apply in all cases.

Mr. N. Treacy

I agree with Deputy Howlin that where a supervision order is made the court should be able to order that the child undergo assesesment as well as treatment. However, while we tend in conversation to use the word "assessment" when referring to the investigation of alleged child sexual abuse, I am not altogether sure that it is the appropriate word to use in legislation. The dictionary definition of assessment covers such matters as the evaluation of achievement in the educational sense, and the valuation of property or income in the financial and taxation fields. It does not, however, cover what we have in mind here. If Deputy Howlin is prepared to withdraw the amendment I will be happy to look at the wording here again on Report Stage.

Mr. Howlin

If the Minister agrees to do what I intended, what most of us here would want, I do not understand the resort to dictionaries in relation to a phrase that is very well used in relation to children who are abused. They are assessed on the level of the abuse. The word "assessed" is in common parlance and understood clearly, I think. I do not wish to labour the point but I am not sure whether the Minister will be able to find another more appropriate word. As I said, the reasoning behind putting down the amendment is simply to make it all-encompassing and I do not see why there should be any difficulty in accepting the word that is there.

Mr. Yates

In the existing section 16 (3) I believe there is a gap here where it says that the court can direct that the child be asked to attend for treatment or attention at a hospital or clinic. But assessment would be just as valuable and it seems to me to be an omission. The Minister might suggest what word other than assessment he has in mind.

Mr. N. Treacy

If the Minister had an alternative word in mind he would have suggested it heretofore. The legal people would be better at this than I could even attempt, but I just want to clarify that——

(Interruptions.)

Mr. N. Treacy

There are some good, very positive people here already. If we are to leave in the word "assessment" as proposed by Deputy Howlin, then in the event of a court case it could find another connotation. While I know that what the Deputy wants to cover is the medical, psychological, health, humane situation, we believe that putting in the word "assessment" is undesirable. We are going to see if we can meet the Deputy's wishes by having another form of words or another word in its place. We will do our utmost to fulfil what the Deputy wishes to achieve provided he gives us the opportunity to do so.

Mr. Sherlock

Is the Minister saying that the word "assessment" may not be used, according to the advice he has received, in any situation in health matters or child care and so on, that the word is inappropriate at any time?

Mr. N. Treacy

In the event of a court case the word "assessment" could have other connotations which might perhaps allow for decisions to be taken based on what we would put in here and which might not be desirable decisions. We want to firm it up if we can in a more humane and a more relevant way.

Mr. Howlin

I just see it as a very straightforward position. If my amendment was accepted, the new section would require parents or persons acting in loco parentis to cause the child to attend for treatment or attention or assessment. I am trying to think of another word; if you use the word “investigation”——

Mr. D. Ahern

Examination.

Mr. Howlin

Yes, I think all those words would fall into the category of assessment. I suggest that the word is eminently suitable. I do not see why it would not be suitable. If the Minister refuses to accept the amendment, I will withdraw it and resubmit it. I do not see how a better word could be found.

Mr. N. Treacy

I do not see any limit on them. I am not refusing to accept what the Deputy proposes or what he desires, but our difficulty is that we are obliged as legislators to have it clearly defined. If we do not have it defined and the matter comes to court and "assessment" is the word used, the court will give their interpretation. It would look a bit foolish on our part if it does not live up to what we would aspire it to achieve. Consequently, I am accepting in principle what Deputy Howlin wants to do and I would like more time to try to get some firm definition to achieve what the Deputy wants.

Mr. Howlin

I am very anxious to assist the Minister in that. I am wondering what the courts will define as attention on the same basis. I withdraw my amendment, subject to the right to resubmit it on Report Stage.

Mr. Dempsey

I think what is in mind here is that a full report should be available to the courts when the supervision order is put in place. So perhaps, rather than looking for one single word, we should look for a phrase that will cover it and provide that a full physchological physical report be prepared.

Chairman

The fullest possible report to help the court reach a decision.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 98 in the name of an tAire. Amendment 1 to 98 and 99 are related and may be taken together.

Mr. N. Treacy

I move amendment No. 98:

In page 12, lines 1 to 6, to delete subsections (5) and (6) and substitute the following:

"(5) A supervision order shall remain in force for a period of 12 months or such shorter period as may be specified in the order and, in any event, shall cease to have effect when the person in respect of whom the order is made ceases to be a child.

(6) On or before the expiration of a supervision order, a further supervision order may be made on the application of the health board with effect from the expiration of the first mentioned order.".

Amendment No. 98 is designed to remedy a number of minor technical defects in the existing subsections (5) and (6). The existing draft of subsection (5) provides that a supervision order will remain in force for 12 months but would cease to have effect if the person ceased to be a child before the 12 months had expired, that is, if he reached 18 years or married. There is one change involved in the new subsection (5). This is to make it clear that, while the normal term of a supervision order shall be 12 months, the court may make it for a shorter period if it so thinks proper. The other changes relate to subsection (6). Under the present draft of this subsection there is no limit on the duration of second or subsequent orders.

The combined effect of the two new subsections (5) and (6) is that second and subsequent orders would be subject to the same time limits as initial orders, that is, a maximum of 12 months or such shorter period as the court may direct. Under the present draft it could also be argued that the court is given power to make further orders simply if it so thinks proper. The combined effect of the new subsections (5) and (6) is to provide that applications for second and subsequent orders will have to satisfy the same conditions as in the case of initial orders, that is, the conditions laid down in subsection (1).

Mr. Yates

I move amendment No. 1 to amendment No. 98:

In the second line of subsection (6), to delete "may" and substitute "shall".

First, I think amendment No. 98, is an improvement on the existing subsections (5) and (6). In relation to my amendment No. 1 to amendment No. 98, there seems to be some confusion here in so far as the redrafting is concerned. The original subsection (6) states "The court may on application of the health board extend the term of a supervision order from time to time as it so thinks proper." In those circumstances I was substituting the court "shall" on the application of the health board. The word "may" here has a different meaning to the word "shall", and is not one which I desire. That would mean that the health board would be obliged to make another application. What I was trying to achieve was that when the health board made a second application it shall be granted by the court. I am not going to press amendment No. 1 to amendment No. 98 but I would like clarification in relation to the likelihood of the court granting an extension of the supervision order. Obviously, the court will decide whether a supervision order should be granted, but I felt that there should be an obligation where an extension was sought, that it should be stronger than "may". Perhaps the Minister could outline in the new subsections (5) and (6) of section 16 what that position is.

I will be pressing amendment No. 99, which is that when the supervision order is over the health board, or the child care authorities — as I would have preferred — shall be obliged to return the child to the courts to allow the court to decide whether to revoke or extend the order. I am quoting from the section of the Child Care Alliance data they sent to us. They agree with this. This means that the order will not just lapse and, that a proper assessment will be made to discharge that order. What I am saying is that, instead of just allowing the situation to lapse, a decision would then be made at the end of the supervision order to either clear up that there was no difficulty with the parents or that there was difficulty and that the matter just would not be left in the mid-air on someone's record. I am not pressing amendment No. 1 to amendment No. 98 but I would like the Minister's clarification on the position in relation to extensions arising out of the old subsection (6) that is now changed. I would ask that the determination of orders and the ending of orders would be clarified.

Mr. Howlin

I welcome the substitute subsections (5) and (6). They are tighter than the old subsections, particularly subsection (6). They are clearer and better for that and I would support them. Deputy Yates is not pressing his amendment, I understand, so I will not comment on that. I do not know whether it is in order to comment on amendment No. 99. I think there is merit in looking at some mechanism to actually bring a conclusion to a supervision order. It should not just run out of time and somebody discover that that is the end of that. There should be some requirement to have an end assessment, but I am not sure whether the form of words used in Deputy Yates' amendment in relation to "shall be obliged to return the child to the court" would be the mechanism I would use for that. Perhaps the health board would be obliged to report to the court with a report, an assessment, on the child at the expiration of the supervision order. I would prefer that the obligation would be on the health board to supply to the court an assessment so that the court would know exactly how the child has fared and whether there is any further danger or risk involved for the child.

Mr. N. Treacy

The effect of amendment No. 1 to amendment No. 98 would be to impose a binding obligation on the court to grant a further supervision order, where this was applied for by a health board. The court would have no discretion in the matter and, in effect, it would be required to simply rubber stamp the application of the health board. Such a provision would, without question, be unconstitutional. It is contrary to the separation of powers between the legislative, executive and judicial branches of Government, laid down in the Constitution. It would remove judicial discretion from the court and, therefore, I would not be in a position to accept it.

There is a similarity between amendment No. 99 and amendment No. 94, which we dealt with earlier, in so far as this amendment also proposes to transfer discretion from the health board to the court. In the Bill as originally drafted and in my amendment No. 98 it is provided that it is for the health board to decide whether to apply for a further supervision order when the term of an existing order expires. The effect of this amendment would be to take this decision away from the health board. Instead it is proposed that the health board would be obliged to go back to court so that the court could decide whether to make a further order. I do not believe that such a change is necessary or desirable.

It is the health board that would have to implement a supervision order and, as a result, it is in the best position to judge whether it is necessary to seek a further order. For example, the situation in the child's home may have been improved to the extent that the board is satisfied there is no longer any need for health board supervision. In such a case, under my proposals the health board would not have to take any action when the supervision order expires. Under the Deputy's proposals, on the other hand, the health board would have to go to all the trouble and expense of going back to court, which would probably involve serving summonses on the parents etc. Then, at the end of the day, the court could decide not to make a further order. The arrangements we have in the Bill as proposed to be amended by amendment No. 98, are the normal provisions that apply to the extension of orders in family law cases and I see no good reason to depart from them.

Mr. Yates

I think it is appropriate that if the court makes any order, be it a supervision order or a care order in relation to a child, that such would be on the record of that child. I do not mean in a sense of a criminal record, but it will be known and certainly as regards the parents it will be known. I would think it is entirely appropriate that a subsequent proper assessment takes place of the child. It could well be the case that at the end of the supervision order the health board would be satisfied, but not to refer the matter back at all and just let it lapse could lead to certain difficulties in that you could have a stop-go situation whereby, if there was a change of staff in the health board dealing with a particular child's case, it would be allowed lapse. Then someone new would come along and take a different line of action and seek, perhaps, to get a different order at at later stage and so the problem cases could recur. I do not think the court and the whole system of administration can wash its hands and let the thing lapse.

Deputy Howlin suggested another procedure which is some form of report. That would certainly be worth considering but just to say that if the health board is satisfied that is the end of the matter as if the court had no jurisdiction over it strikes me as unusual. I would certainly ask the Minister to consider this again. I think that if you are giving, in the first instance, so much discretion to the court to decide what is the best interest of the child, it would seem to be only reasonable that after a period which is a maximum of a year, and it is most likely to be a lot shorter than that, the court could have some say in it again.

Mr. Flanagan

I would like to support the amendment. I think Deputy Yates has made a very reasonable case as to the necessity for such an amendment. You are dealing with a situation where, obviously, the interests of the child are paramount. We are all agreed on that. You are dealing with a situation where, at the expiry of a period of 12 months or less, we are going to have a limbo situation or we are going to have a situation where the health board, in their wisdom decide they are not going to apply for an extension, so let us meet with the parents, bring the child back — a simple court application. I do not accept the point the Minister made about the expense or, indeed, the delay, or the trouble in terms of serving notice of application etc. I think it is a fairly simple procedure. The applicant goes into the court, meets the presiding justice, the person who granted the order in the first place, and indicates that at the end of this assessment period, he is looking for a positive discharge. It would certainly engender a feeling of good will between all parties on the basis that if the order is not going to be extended, then the child is going to be returned absolutely into the hands of its parents or guardians. In that case I feel we are dealing with a situation which will be of great benefit to the child. The parents will also benefit because they will have received a vote of confidence from the health board.

Otherwise, you are dealing with a situation where there is no application to extend. The parents are in a situation where they are not sure whether the health board are going to bring in an application. If the health board do not and if a period of more than 12 months elapses, the parents may be left again in a situation of uncertainty. At least if we have this positive discharge everybody knows where they stand. I think it is logical, it is reasonable and more than anything else it would appear to be very much in the interests of the child.

Mrs. Fennell

I support this amendment absolutely. I think if it is necessary to get a supervision order circumstances which make that necessary could take longer than a year to be verified. I feel it would only be in the best interests of the child that it is brought before the court again because of a few things. It means it is not left to the vagaries of changing personnel in the authority or among the child welfare workers. Also it brings a degree of discipline in this, so that one is reasonably sure there will be continuity and that there will be on a regular basis a review of the operation of the supervision order. I see absolute merit in this amendment and I would ask the Minister to seriously consider it.

Mr. Jacob

I see this amendment as taking away the discretion from the health board and that is where the expertise lies in making the assessment at the end of the period. There is flexibility there to go back to the courts if necessary having made the appropriate assessment, without an obligation to go back. I think the Minister has made this point and made it well and I think that should be accepted. It is a very logical point and it is very easy for me anyway to rationalise. I thought this was going too well, Chairman. We were going very well through amendments Nos. 95, 96 and 97 and I was going to compliment you and everybody concerned on the speed of the business today. However, it looks like we are getting back to our old modus operandiagain. I was going to say tricks, Chairman, but I am sure that would not apply. I would have thought the Minister has made this point well. We are talking about the flexibility here with the health board personnel where the expertise lies, and I would be happy with that.

(Interruptions.)

Mr. Dempsey

Directly in relation to what we are talking about here, I am a little bit lost as to why this particular amendment would be pushed because, what we are talking about is giving a supervision order for 12 months. The health board is not just going to get the supervision order and then do whatever they have to do once a week, or twice a week or whatever, and then suddenly let the thing lapse after 12 months, as seems to be implied and have no ongoing assessment. What will happen under the supervision orders as I understand it is that there will be a continuous assessment of the situation and that the health board will be varying their visits, etc., up to the 12 month period. They will have an opinion formed well in advance of the 12 month period whether they need an extension of the supervision order. If they need it, then they will make the application to the courts and the courts will decide on that. It will be the health board who will make the application, not the courts. The courts will only make a decision on the basis of the report supplied by the health board. If the health board have formed the opinion by the time the 12 months are up that the situation has improved and that there is no need for a supervision order, I cannot see any merit whatsoever in bringing parents, children and everybody else back into the traumatic situation of having to go to court to have this discharged. I cannot see any logic or merit in that argument.

Mr. O'Donoghue

I am glad Deputy Yates withdrew amendment No. 1 because I, too, believe that there was a grave danger here in that it purported to confer a judicial function on a health board.

With regard to amendment No. 99, I think there is a danger of confusion here as to the roles of both the health board and the courts. The discretion in relation to the application is vested in the health board; the discretion in relation to the making of the order is vested in the court. Clearly, that is as it should be. Accordingly, in relation to the renewal of an application, the discretion should clearly rest again with the health board, because it is the health board which in its discretion would have decided in the first place whether to make an application. If the health board subsequently feels that there is a need to make a new application then I feel sure it would exercise its discretion in the best interests of the child, making his or her interests paramount. If a court should decide that a supervision order, for example, should exist for six months under subsection (5), it is very difficult to see the logic of Deputy Yates' amendment which would require the health board to bring a child back into court, even though the court had already decided that the supervision order should only last for a definite period of, say, six months. Clearly, there is illogical confusion here.

I feel that if the court has decided on a shorter period then it would clearly be a matter for the health board to make a new application in relation to the matter. To do otherwise, it would appear to me, would require the health board to bring a child back into court even though the court had already decided that the supervision order should only last for a given period. It appears to reveal an inconsistency in logic and would be undesirable.

Mr. Howlin

I have two brief points to make. One is in relation to the new subsection (6). I am rereading it so that I understand it fully. There is no implication in that that a second supervision order would be the extent of it, or is that the case? There is scope, I take it, that, where a third supervision order would be required and a fourth, that would be possible. It says "On the expiration of a supervision order a further supervision order may be made". There is no implication in that that one, and only one extra one after the first, would be made. Could that be clarified?

In relation to amendment no. 99, would the Minister reflect a little bit because very valid points have been made on both sides of the argument so far. Would the Minister think again upon the requirement, possibly by way of ministerial amendment on Report Stage, to put some requirement on the health board to bring back a report to the court, as I suggested? We have a duty to make sure we legislate to the best possible degree to protect the child. That should always be our paramount objective. If we are to be excessive in any way, we should be excessive to protect the child. If a supervision order is for three months, and at the end of it, a report — it could be a three page report — from the health board is presented to the court so that the court can be satisfied that the child no longer needs supervision and that can be formalised and finalised, I think that would be a fair compromise on that amendment.

Mr. D. Ahern

In relation to the first point made by Deputy Howlin, I, too, had a slight problem in relation to subsection (6), but on reading it in more detail it would appear that there is a possibility of getting a third supervision order. It says "With effect from the expiration of the first mentioned order"— that is in that subsection. I think that takes care of that and that it would be possible in that event to have three or more supervision orders.

In relation to Deputy Yates' amendment, looking at it from a practical point of view, I do not feel that it would be possible to bring a child into court on the expiration of an order at every given instance because, as Deputy O'Donogue said, where it is only a small order for three months, there may be a difficulty in that sense. It is for a definite period, but also there is a possibility, as Deputy Flanagan mentioned, of bringing it back into the same District Justice who made the order originally. It is possible that the District Justice may not be available and this does happen from time to time. Cases are put back down the list until that particular District Justice is available again. There are cases in ordinary District Courts dealing with ordinary matters which are adjourned, adjourned and adjourned until the particular District Justice who originally had seisin of the case is available, and again that could cause in the intervening period a confusion as to whether the supervision order should be extended. I am not sure about the policy of having the child brought back into court on the expiration of every order but I do feel from a practical point of view there could be a difficulty in that regard.

Mr. N. Treacy

In response to Deputy Howlin, pertaining to subsection (6) there is no limit as to the number of supervision orders that can be given. Once an application has been made an order can be reapplied for and can be extended if necessary.

The position in relation to extensions is that it would be a matter for the court to decide in each case whether a supervision order should be extended or not. I am not in a position to give any indication as to the likelihood of extensions being granted. It would be a matter for a judicial consideration and decision having regard to the particular circumstances of each case. What we are proposing in subsections (5) and (6) are substantially the same as the procedures that are already in place in relation to barring orders. A barring order made in the District Court lasts for 12 months. At the end of that period the order lapses unless the spouse who initiated the original order seeks to have that order extended. If the spouse decides not to apply for an extension there is no need for any further action to be taken in the courts. We have adopted the same approach here. If the health board feel an extension is required they can apply for it; if not, there is no need to make any application. We are anxious to avoid creating situations in which children and parents would be brought before the courts unless it is essential to do so. What we are talking about is a situation where at the end of the 12 month period the health board have reached the conclusion that there is no need for the order to be extended. In that situation there is no good reason for bringing everyone back before the courts again. If, on the other hand, the health board believe that a further order is desirable it is open to the board to apply for one. I think this is a reasonable approach and I see no reason to depart from it.

Mr. Yates

First, I would like to bring to the attention of Members the circumstances in section 16 (1) whereby a supervision order would be sought and in paragraphs (a), (b) and (c) it is clearly set out that it must be a very serious circumstance. It is not something that is done lightly. With every other type of order, emergency care order, care order, it will come up again before the court: either the child will no longer be a child, or the child will be released from care, or the child will be maintained in care. In the same grave situation we are happy just to let it go when it comes to supervision orders. There is no accountability subsequently to the court. Not only do we have a situation which has been outlined already in relation to changing personnel in the health board, but what if a third party, a neighbour or someone like that, feels very strongly that the supervision order should continue and the health board, perhaps does not feel so? What would happen in those circumstances? Should there not be the opportunity for another party to give evidence to the court, knowing full well that it would come up for review again? Supervision orders are entirely new. It is new territory we are covering. We are asking that it be entirely left up to the health board as regards what would happen, and that there would be no role for the court, whatsoever, except where the health board seeks an extension.

It strikes me that orders like this should not be allowed to lapse when the same criteria, more or less, apply as to whether a supervision or a care order should be sought by the health board. That strikes me as simply remarkable. I very much regret that the Government side are not accepting this. Various other compromises have been put forward, so that there would be a reporting mechanism to the court. I do not accept that this has been examined in sufficient depth. I am anxious to make progress. Perhaps the Minister might consider some further compromise on the matter.

Mr. N. Treacy

The health board will apply for a supervision order to the court. If the court is satisfied, that supervision order will be granted for a period up to 12 months. If the health board feels it is desirable to apply for a further supervision order for a further period, it will go back to the courts to do so. If they are satisfied at the end of the original period which was granted by the court that things are in order, there is no further need to bring people back to court to clarify a situation. I do not think that a court will make any decision until it has all the facts before it. When it has all the facts and the full information it will make a clear decision. Based on the health board's involvement in monitoring the situation, a final decision evolves. I think that is pretty satisfactory.

Mr. Flanagan

Could I put a point to the Minister? I do not wish to labour the point but we have a situation under the Minister's amendment No. 98 subsection (6) that is obviously meaningless, because an order can be made by the court which can last for a period of 12 months or less. If Deputy Yates' amendment was accepted at the end of the period at least there would be clarification and certainty. But under the situation without the amendment, the period of 12 months or the period of the order might elapse, no application is made to the court, the health board decides not to do anything for the moment but after a period, say, of 12 months and two weeks, a fresh application can be made. In effect, the amendment limits the extent of the order to 12 months, but there is nothing to stop the board coming back 12 months and two weeks later saying that it needs to make an order. Under Deputy Yates' amendment at least there is certainty. Without an amendment of that type there is an uncertain situation and that is my fear.

Mr. Yates

It is all very well to presume that the health board is in an even-handed position in relation to all of these matters but it is very probable that it will be totally under-resourced and totally understaffed and it will probably have to deal with the worst cases of child abuse under its care. That probably will deal with care orders and the most extreme orders. Say if the circumstance arose that the CEO of the health board literally did not have enough social workers to carry out, as is said in section 16 (1), periodic visits; or, if he was so strapped for cash that he realised that he just did not have enough social workers and care workers to implement the order of visiting three times a week supervising a particular case. What could he do in those circumstances? As we have seen in many other areas of health care he could not seek to renew the supervision order but did not have enough evidence to get a care order. In those circumstances the health board might not pursue it, but that does not mean to say that a supervision order should not be pursued. At the end of the day it should be a matter for the courts to decide.

We have had some very amazing cases highlighted, due to lack of resources and lack of proper planned provision for child care. The scenario I am painting is not as unlikely as it may seem at first sight. If the courts are to be given an initial adjudicating role, and if they are to have an adjudicating role all along the way with every other type of order, I cannot understand how we should depart from that role of the courts in relation to ending supervision orders.

We will be pressing this to a vote. I would have been happy to withdraw this if the Minister was even prepared to consider what would be the ending process as opposed to just letting it lapse and having no checks or balances in the system. If the Minister will do absolutely nothing I am given no choice but to press the amendment.

Mr. Dempsey

In relation to letting it lapse, when the case is put to the court the court will make a supervision order for a specified period, a period, I presume, that the court would deem necessary to judge how the case is developing and at the end of that period the supervision order will be terminated. That is a very definite thing. If the health board are not satisfied that everything is in order they will and can apply for a further supervision order. The situation referred to by Deputy Flanagan can arise. Even if we allow the court to decide at the end of a supervision order that they adjudicate, two, three or four weeks later if something happened you would be back in the court again for a care order or an emergency care order.

Mr. Flanagan

If something happens. Under the situation at present something need not happen.

Mr. Dempsey

What I am saying is that even at the moment you do not need to go to the court, nothing happens. But if you have to go into the court, everything is in order and the health board make a report to the court that they are satisfied to let the supervision order lapse or terminate, something can happen within two, three, or four weeks afterwards just the same, whether or not there was a court case.

Mr. O'Donoghue

I feel that we must assume that the necessary resources will be made available to implement the Bill, otherwise we are all wasting our time. Deputy Yates' argument is very akin to making the argument that if a court, for example in a barring order situation, bars a spouse from the home for so many months, the court should then, at the expiration of that term, seek to see whether its own decision was correct or incorrect. I think you would agree that that would be a most unusual situation.

It has to be remembered that the court is not making an order in this instance on its own motion, but is making the order at the instigation of a complainant, in this case the health board. If we follow that to its logical conclusion and the court is obliged to look at its decision again after the expiration of the period of its order, clearly there would have to be a complainant. If there is no complainant, clearly the likelihood of the court extending the order further is virtually negligible. The health board would, of its own volition, in its discretion under the Minister's section, decide whether it is going to apply for an extension of the order. If it were to decide not to do so then there is little point in the court reexamining its own order, because there would be no complainant to make the argument to the court.

Mr. D. Ahern

I feel this amendment is not necessary. Everybody around the table here has agreed that the interest of the child should be paramount. I feel that this would be an unnecessary stricture put on the procedure. If we have the interest of the child as a paramount consideration, we should, as far as possible, not bring the child back into court, as would be envisaged under this section. For that reason I would be against it. Throughout this legislation we should, as far as possible, endeavour to keep the child out of a court situation.

Mrs. Fennell

I am looking ahead to section 19, dealing with the discharge or variation of orders. It deals with changing the order, the court on its own motion or on the application of any person but maybe I should not be jumping ahead. I will leave it until we come to it.

Amendment No. 1 to amendment No. 98, by leave, withdrawn.

Amendment No. 98 agreed to.

Mr. Yates

I move amendment No. 99:

In page 12, between lines 6 and 7, to insert the following subsection:

"(7) On the expiry of a supervision order the child care authority shall be obliged to return the child to the court so as to allow the court to decide whether to revoke or extend the order.".

I would like to change the words "child care authority" to "health board".

Chairman

Is it agreed that "health board" be substituted for the words "child care authority" on line two.

Amendment amended by leave of Committee.

Amendment, as amended, put.

The Committee divided: Tá, 6; Níl, 8.

Tá

• Fennell, Nuala.
• Shatter, Alan.
• Flanagan, Charles.
• Sherlock, Joe.
• Howlin, Brendan.
• Yates, Ivan.

Níl

• Ahern, Dermot.
• Fitzpatrick, Dermot.
• Coughlan, Mary.
• Jacob, Joe.
• Dempsey, Noel.
• O’Donoghue, John.
• Fitzgerald, Liam.
• Tracey, Noel.

Amendment declared lost.

Section 16, as amended, agreed to.

NEW SECTION.

Chairman

Amendment 100. Amendments Nos. 102, 103, 104 and 105 are alternatives and amendment No. 120 is related. Can we take amendments Nos. 100, 102, 103, 104, 105 and 120 together, by agreement? Agreed. The adoption of amendment No. 100 would mean the deletion of section 17 of the Bill.

Mr. N. Treacy

I move amendment No. 100.

In page 12, before section 17, to insert the following new section:

"17.—(1) Where a child is in the care of a health board under a care order, the board shall, subject to the provisions of this section, allow reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child.

(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—

(i) make such order as it thinks proper regarding access to the child by that person, and

(ii) vary or discharge that order on the application of any person.

(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child's welfare, may—

(i) make an order authorising the board to refuse to allow a named person access to a child in its care, and

(ii) vary or discharge that order on the application of any person.".

I received more submissions and representations in relation to section 17 than about almost any other section of the Bill. The main concern expressed to me was that the original draft of section 17 might have resulted in all questions about access to children in care being drawn into the court system. I have to say that this was never our intention; rather, it was envisaged that in the normal course arrangements for parents and others to visit children in care would be made with the relevant social worker. However, where it was not possible to reach agreement on access it would be open to the aggrieved party to seek the court's direction in the matter.

The purpose of this amendment is to remove any doubts that may exist about this and to make it clear that questions of access should as far as possible be settled by discussion and agreement between the professional staff involved, generally social workers, and the parents of the child and that the courts should only become involved as a last resort where such agreement cannot be reached.

Another view which was put to me is that there should be a presumption of access in favour of the parents unless the courts decide otherwise. I notice the Law Reform Commission reached a similar conclusion in their consultation paper on child sexual abuse. In this amendment I have sought to give effect to this by creating a presumption in law that parents whose children are in care should have reasonable access to them unless the court decides that access should be limited for the sake of the child.

If I could turn to the details of the amendment, subsection (1) sets out the general principle that health boards will be obliged to grant parents and other interested persons reasonable access to children in care under care orders. This is wide enough to cover access by grandparents, brothers and sisters, other relatives as well as friends of the child. Subsection (2) provides that any person dissatisfied with the arrangements made by a health board for access to a child may apply to court and the court may make such order as it thinks proper regarding access. In doing so the court will, of course, be bound by amendment No. 110 to regard the welfare of the child as the first and paramount consideration. There is also provision for the variation or discharge of any access order.

Subsection (3) provides that a court on the application of a health board may authorise the board to refuse any named person access to a child if this were necessary to safeguard or promote the child's welfare. Again, any such court order may be varied or discharged. I would envisage this provision being used in a very small minority of cases, but it is important that the court should have power to authorise refusal of access where a child would otherwise suffer harm. I think that what is contained in the amendment is a much better arrangement than what was originally proposed and that it takes account of the points raised by Deputies Yates and Howlin in amendments Nos. 102, 103, 104, 105 and 120. I hope the amendment will be supported by all sides here.

Mr. Yates

I have a slight difficulty here in relation to amendments Nos. 102, 103, 104 and 105 which deal with a section that is all but gone. To see what is still there and what is not there is just like hitting shadows that might not be there. If I could just outline some of the points, in relation to the words "of its own motion", what we had envisaged there is that there would be an advocate for the child attached to the court. I would like to ask the Minister if that would be a social worker. Does he accept that? Of course, that would involve additional resources.

Secondly, in relation to amendment No. 104, that "any person" be deleted and that we would be more specific by putting in "a parent or a guardian of the child," that is commonsense. What we would like is that there would be two sets of straightforward procedures. In the first procedure, if there is a good relationship between the parent and the health board personnel, that they can agree arrangements for access. Those commonsense, flexible, verbal arrangements can be adhered to. Where there is a dispute, that is where the health board seeks to deny access or to limit access to the natural parents, we would like that there would be a fair hearing by the court to adjudicate on what is in the best interests of the child and what is fair and consistent with fair play to the parents. Amendment No. 105 seeks to do that. It would not be necessary for the court to try every case as in relation to details of access, but that where there is a dispute the health board may make such arrangements as it deems necessary. So, the provisions of the existing section 17 would only apply where there is a dispute, but otherwise there would be the maximum level of flexibility and commonsense.

In relation to amendment No. 120, which is being grouped with this, which is section 23, this says that:

Where a child is in care it shall be the duty of the health board to allow the child maintain contact with his brothers, sisters, relations and friends and to facilitate visits of the parents should the child so wish.

I believe it is very important here that the child in care would not lose its family links. If there is one abuser in the family, one adult, it would be totally wrong and damaging to that child if the other relatives and friends of the child lost contact because the child was in care. It is very important that the Minister accepts amendment No. 120 and, perhaps, he could outline to me whether that is the case, that brothers and sisters and uncles and other relatives and grandparents would still have access to the child.

To summarise the position, basically I believe the new section 17 as outlined in amendment 100 is an improvement. I would like to see the question of a child's own advocate attached to the court being adopted and thereby accepting what Deputy Howlin and I have outlined in amendments Nos. 102 and 103, that is, that there would not be the situation that the health board could take upon itself to deny access totally to the child, for whatever reason, and that access would be automatically granted. I think that would be very wrong and very upsetting to the child.

Mr. Howlin

I am not surprised the Minister has received a lot of communications and representations in relation to this section. Obviously, the whole area of access is very important. I consider the redrafted new section a very good one and I welcome it very much. It is a vast improvement on the existing section which, even after the amendments we have tabled, would be a very inadequate section.

The underlying principles which, I think, are very important to restate, seem to be well encompassed in the new section put forward now by the Minister. One is that parents and families, and I think the Minister stated that brothers and sisters and extended families and grandparents, would have access to children as an automatic right. It would be a devolved duty on the health board to give them that right, except in circumstances where, by order of the court, that right in the interests of the child would be denied.

The second principle is that the issue of access be arranged out of court in the vast majority of cases and that is a good idea. The courts would then be an appeals mechanism where disputes would arise. They would then arbitrate and make a binding decision, with the child and the wellbeing of that child being the primary and paramount consideration. For all those reasons I support the new section and welcome it heartily but perhaps I could seek some clarification from the Minister in relation to it.

On the point where the duty is devolved on the health board to allow reasonable access, again where the word "reasonable" is defined in law, it is not a law officer who would be deciding on the matter but a health board official. In relation to matters like this, health boards differ as we have reason to know in recent years. I would like the Minister to think out the position, whereby the function of ensuring "reasonable access" to the child by his parents and family, would be devolved upon the health board. It should be clear that the intention of the Oireachtas in this regard is that they would have very frequent access. I hope the word "reasonable" is adequate enough to underscore and make that matter clear beyond doubt.

In relation to Deputy Yates' amendment No. 120, that amendment puts it beyond doubt and for that reason I welcome it. Where a child is, for instance, an abused child and the abuser is a member of the family, it is a very well accepted principle that the child should not be the one who is punished by being taken away from his family, his friends, his relatives and his extended family. The whole concept of the abuser being the one who should be punished and suffer should be the focus and the abused should have the disruption to his life as limited as is practicable. For that reason I think there is a very strong case, notwithstanding the clear intent in the Minister's new section, to also include Deputy Yates' amendment No. 120 and I support it on that basis.

In relation to the rest of the amendments Nos. 102 to 105, including my own amendment No. 103, they are no longer relevant. I think the basic principles are well encompassed in the Minister's new amendment. I would also support the notion, as I have done in the past, of an advocate for the child in a case like this. Perhaps that is envisaged by the Minister and perhaps he would comment on those points I have made.

Mr. Shatter

I just have one or two worries about the mechanics of the Minister's amendment. I can see what the Minister is getting at and I think in a number of instances he will have an agreement about access. I think also if extended family, relations, aunts, uncles, grandparents and so on want access it should not have to be on a basis of everyone trooping into court. However, the mechanics of this worry me somewhat. Let us take what will happen under the legislation.

A care order will be made by a district justice and the child will be taken into care we will assume, in this instance. We will then have to consider the parents and other members of the family. The mechanics of what you had in the original Bill would have enabled the court, as I understand it, to have made an access order at the conclusion of the court proceedings if there was not an agreement on access that the parents and the health board had reached in the event of a care order being made. The mechanics of what we now have with the Minister's amendment are somewhat different. You would have a care order made and the court could not embark on an access hearing. It would then be left to the health board at its discretion to determine what is parental access or other access. If the parents or other family members were unhappy they could then institute a new court application and go back to court to have the access matter dealt with. The point was well made a short time ago by Deputy Ahern.

The problem with people going back to District Courts is that you can never be sure that from one end of the week to the next that the same district justice is going to be sitting. It is the way the system works. Initially it would seem to me that the only district justice who could properly embark on any access hearing would be one who had made the original care decision. That is because he would have made a decision on the matters in dispute between the parents and the health board and would be familiar with the family background. It would be most undesirable that if an access arrangement that was satisfactory was not agreed, the health board and the parents might find themselves back in court three, four or five weeks later. They could be in front of a different district justice who might have to embark on hearing the entirety of the background all over again, without having any knowledge of the case at all. It would seem to me, Minister, that there is a real problem in the mechanics of working this.

I think it may require further thought on Report Stage and it may require a linkage of a different nature. It may be a question of when a care order is made that there would be a provision in the legislation to the effect that if access, following the making of the care order, is not agreed between the parties, an initial access order will there and then be made. Access can always be varied by agreement between parent and health board and, indeed, it is always open to the health board to agree to give access to other relations.

I am just looking at the mechanics of the way it works at the moment. In the Guardianship of Infants' Act a husband and wife may have a contest over the custody of a child. The court hears the entirety of the hearing and at the end of it awards custody to one or other parent. If they are an estranged couple, one or other estranged spouse gets custody. Having familiarised itself with the background, the court then makes an access order if there is not agreement. I think there is a mechanics' problem here in the way the new section 17 would operate in practice. It would seem to entail two separate court applications, the access application only being made if the health board does not reach agreement with the parent. Certainly it seems to me that that agreement does not have to be reached at the time of the individual care application. I am saying this to be helpful. I think there is a mechanics' problem in this and we have to overcome it.

In regard to a health board who wish to take a child into care, we all know how the courts work. If a care order is made I do not see why an attempt cannot be made to reach agreement initially with the parents and the health board on the morning or afternoon of the case in the court building, the judge adjourning the case for 20 minutes or half an hour to see if an access arrangement can be agreed. He might hear another case while the parties are talking to each other and then if the parents and health board cannot reach agreement the judge who was there that day and heard the case makes the initial access order. That is the most practical procedure. I do not think it can operate that way as the section is currently phrased. It is a question of looking at it again before Report Stage.

I understand the Minister's comments that he has received a lot of representations about this section. I do not know from whom they come. I do know that as the current law operates the whole area of access to children being taken into care is totally unsatisfactory, because the parents do not have a proper means of dealing with it presently unless they bring Guardianship of Infants Act proceedings. But I also know that some social workers would like to fully control this in a way that may not always be in the interests of the children or of the parents or the extended family. Some social workers are unhappy at the idea of the court, having made a care order, interfering in making access arrangements. I take the view that it is in the interests of the welfare of a child taken into care to maintain relationships with family. Of course, there will be circumstances where there is an abusing parent and it is in the interests of the child's welfare that the contact between that parent and the child be either temporarily or permanently ended or that, if there is access, it would be of a supervised nature. With the mechanics and procedures of the courts, I do not think this section is going to work in the way intended.

Mr. N. Treacy

I think subsection (1) is very clear and that it has given parents, grandparents, brothers and sisters and other relatives and friends of the child access to that child. It also gives the opportunity, in subsection (2), for any person who is dissatisfied with decisions taken by the board to apply to the court and then the court is given discretion to make its orders, to vary or discharge them, and to do what it thinks, based on the information before it.

The effect of amendments Nos. 102 and 103 would be to prevent the court taking a decision about access of its own motion — that is, at its discretion — without being asked to do so by the parties to the proceeding. I have accepted this approach in amendment No. 100 under which the court cannot take decisions about access at its own discretion but only where it is requested to do so by some party.

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 in itself without some difficulty. If, as would generally be the case, the child is too young or too immature to grasp a situation or to express his wishes how could any other person properly represent him. Is it not likely that such a person would merely express his own views of the situation which might or might not coincide with what was in the best interests of the child. These are just some of the thoughts that strike me in this situation. Before we reach a final conclusion on this matter, I would prefer to await the final report of the Law Reform Commission, who have indicated consideration of such a development in their consultation paper on child sexual abuse.

The effect of amendment No. 104 would be that only a parent or guardian of a child could ask the court for directions in relation to access. I could not agree to this. It would exclude grandparents, older brothers and sisters, other relatives or friends of the family from applying for access. It is not difficult to envisage situations in which it would be appropriate and desirable for such persons to be granted access. I would not favour imposing any restriction of the kind proposed here.

I accept the principle contained in amendment No. 105 that the courts should only be involved in questions of access where it has not been possible for the parties to reach agreement. My amendment No. 100 gives effect to this approach.

On amendment No. 120, I agree that a health board should be required, subject to the best interests of the child, to allow a child in care to maintain contact with his brothers, sisters, relatives and friends, and to facilitate visits of his parents. This is the basis of amendment No. 100, which envisages access between the child and his parents, members of his family and anyone else with a genuine interest in his welfare. I had thought that amendment No. 100 covered all that is proposed in the other amendments. Consequently, I hope that we will be able to accept my proposal contained in section 17, amendment No. 100. I think I have covered all the points.

Mr. Shatter

I am afraid the Minister is helpless, in that the briefs he is given do not always anticipate the points that are going to arise. The point I was making was on the mechanics of the thing. When a district justice makes a care order, in the way section 17 is now worded, when a child is taken into care it will be at the discretion of the health board to provide reasonable access; and if the parents are unhappy with it they will then have to go back to court to look for an access order; or if the extended family are unhappy they will have to go back to court. I was making the point that that would seem to mean two separate court hearings without the district justice who originally determined the care issue being automatically involved in making an access order. There might have to be a complete rehearing, and in the mechanics of the way the courts operate the better approach would be to have a provision which, once the care order was made, would enable the district justice to adjourn the matter, either for that day or until the following week if the same district justice is sitting, so as to ascertain whether agreement is reached about access; and, if it is not, the district justice who has made the original care order would be sufficiently well informed to make the access order without having a rehearing of the evidence with possibly a new court and a new justice.

Mr. Yates

In relation to amendment No. 120, there is a slight difference between people having a right to access and the duty being placed on the health board to maintain contact with the wider family. Amendment No. 120 is very specific, in that the onus would be on the health board to do that, so that the family contact would be maintained; whereas the question of correct access for the parents and perhaps the potential abuser or the alleged abuser would be in a different category. That links in with the definition of amendments Nos. 104 and 120. What I am asking the Minister is to do more than guarantee the rights of the wider family and to say that part of the responsibility of the health board for children in care would be to promote contact with the wider family.

Mr. Sherlock

Is the use of the words "should the child so wish" superfluous there, if you are so concerned about access and parental access?

Chairman

I take the point.

Mr. Dempsey

I think the point Deputy Shatter is making is reasonable but I wonder if it is it covered in amendment No. 67. That relates specifically to emergency care orders. I think we had a similar amendment for the other care orders where a justice may at the time of making an emergency care order give such directions as he thinks proper. Does that cover the point?

Mr. Shatter

That just covers emergency care orders rather than when the full care order is made. That in a sense highlights the anomaly further, because the justice is empowered to do it in the emergency care order situation; but you would have to come back another time in the case of the ordinary care application if it is successful.

Mr. Dempsey

Something similar.

Mr. D. Ahern

The point made by Deputy Shatter is well made. I am just wondering, on reading this section, if on the actual day of the making of a care order, perhaps the justice's attention would be drawn to the fact that, under the legislation, there is the possibility of access being required. Having made the order on that particular day he would then, obviously, ask the health board who were present in court what the situation was regarding access. If the health board at that stage say "We have agreement" then there is no problem, but if they said "We have no agreement" it would then probably be up to the judge to adjourn the case for a couple of minutes or whatever so that the question of access could be decided upon. Then this section would come into play and any person who was dissatisfied with whatever arrangement was made on the day between the parties could come back into court the same day and apply for access and the judge would decide the matter. Probably a better way to get around the problem would be if there was another subsection saying, on the making of a care order, the judge should have power to make access. But putting that in would take out subsection (1), the relevance and the inclusion of which are allowing for agreement to take place, I do not see that the problem that Deputy Shatter raises is entirely ruled out by section 17 as amended.

Mr. Shatter

Very briefly, what Deputy Ahern is saying is that the problem is subsection (2). It seems to me the District Court could only have jurisdiction to make an access order, if a person establishes he is dissatisfied with the arrangements made; those arrangements are probably not going to be made by a health board on the day of the hearing. In these circumstances, if the health board do not make arrangements there are no arrangements made yet to be dissatisfied with. That is the problem and the original section 17 did not create this problem, because in the original section 17 the court could grant an access order at the conclusion of the hearing. It was automatic. Because now there is a desire to avoid unnecessary applications for access being made, we are actually creating a problem. The practical reality I suspect was that if you left section 17 in its original form, with regard to allowing orders to be made at the conclusion of proceedings, you would then automatically have a discussion between both sides as to whether they could reach agreement. If they did not then the order would be made.

Here it seems to me the health board have to make an arrangement and it is only after that you can come into court. Knowing the way the courts operate, knowing the number of child care cases that are shuffled through the District Court on a daily basis when care proceedings are brought, I suspect that the reality will be that care orders will be made without access orders, without arrangements yet put in place by the health board, immediately following the court hearing. The same parents will be coming back to court, perhaps two or three or four weeks later, looking for access. They are dissatisfied and possibly end up with different district justices unaware of the background. I think there is a need to marry some of the provisions of the original section 17 into this amendment. There may be some good things in it as well. The mechanics of it, I am quite convinced, would create a problem.

Mr. Howlin

I was impressed with Deputy Shatter's recent contribution, he knows the mechanics. It is something we should be aware of and if we can avoid pitfalls now we should build that into the legislation. However, I welcomed the new section and the Minister's amendment No. 100. I listed the reasons why I did welcome it. One of them was the acceptance of the principle which, I think many people requested the Minister to accept, that was that the issue of access should not be decided fundamentally on the day of the hearing since, unlike an emergency care order, which has a limited validity time, a decision on the basis of access could be made immediately, because the emergency care order, being on the basis of an emergency, had no long-term implications. The implications of access in a care order are far more long-term and need to be a little bit more measured. They would encompass a lot of people who would not necessarily be encompassed immediately by an emergency care order. That is why I welcome the Minister's step back from the courts situation in favour, if you like, of a decision between the health board and those who wish to have access. I think in the vast majority of cases you would have an amicable arrangement between the health board and those seeking access. Then you have the fall back position, where you have not got that amicable arrangement and people feel aggrieved by the access requirements or by the lack of access, that they would have recourse to the courts at that stage. It is important that the final arbiter would not be the court on the first sitting. In other words, a week later if say, an uncle or friends need to have access on a regular basis and the health board say no, should they have to go back to the court? If this can be done by amicable agreement in the majority of cases with the health board, and if there is also the appeal mechanism, I welcome that. Nevertheless I do see the difficulties that have arisen now.

I would not like to throw out the baby with the bath water. I would not like to say, let us not then accept this principle; let us revert to the original view and have the courts, in the first instance, when they are hearing the case, decide all access matters. I think that would be a retrograde step. We have made progress on this with the new amendment. Perhaps if we reflect upon it a little more, we can overcome the difficulty that Deputy Shatter has found, without having to have the matter resolved finally and absolutely by the initial sitting and determination of the case by the District Court.

There are two other matters, briefly. One is in relation to the uniformity of practice, and that still has not been referred to by the Minister. I am concerned that health boards would operate differently and what might be considered reasonable access in one health board region might not be in another. Access might be given readily in one case but not in another. In relation to arrangements for access would it be the Minister's intention that the health board would provide financial assistance for transport to make sure that a child in care could frequently meet and spend time with brothers, sisters, extended family and friends? I think that would be a very important part of making sure that the victim, if you like, is in no way disadvantaged or is disadvantaged to the least possible extent.

Mr. N. Treacy

I listened with great interest to what has been said here now and I think Deputy Howlin has outlined the situation pretty well. To try to respond to the points that Deputy Shatter and other people have made, I would like to say that the difficulty about the District Court making decisions about access on the first day is that it may be taking decisions in a vacuum. The health board might not yet have decided where the child is to be cared for. Is he or she to be placed in foster care or residential care? In either event where exactly is the child going to be cared for? It may be that the child will have to be assessed before these decisions can be taken. The location of where the child is placed will obviously have some bearing on the access arrangement that might be possible. So, too, will the needs of the child. It may be that, following a detailed assessment of the child, the health board might be advised that the child should not have contact with, say, an alleged abuser, or that access should be restricted or strictly supervised.

In all the circumstances I would prefer not to have decisions about access taken on the very first day. What we are doing is imposing for the first time a statutory obligation on health boards to provide reasonable access. I agree with my colleagues that there may be differences of opinion as to what is reasonable. This would be a matter for professional judgment in the first instance. However, I agree that we should send out a clear message to health boards that as much access as is in the child's interest should be made available. We will include this for consideration in the directions to be issued to the health boards on this matter when the Bill has been passed.

Amendment agreed to.

Progress reported; Committee to sit again.

The Committee adjourned at 6.30 p.m. until 11.30 a.m. on Wednesday 4 April 1990.