Amendment No. 114 in the name of an tAire. We have already discussed this with amendment No. 85.
I move amendment No. 114:
In page 12, subsection (1), line 31, to delete "this part" and substitute "Part III or IV".
Amendment No. 115 has already been discussed with amendment No. 85.
I move amendment No. 115:
In page 12, subsection (2), line 33, to delete "this Part" and substitute "Part III or IV".
Amendment No. 116 has been ruled out of order. It involves a potential charge on the Exchequer.
I move amendment No. 117:
In page 12, between lines 35 and 36, to insert the following subsection:
"(3) District Court justices appointed to hear such cases shall be selected on the basis of sensitivity and previous experience in this area."
We have heard a little bit about this in the previous amendments and the previous debate. It is very important from the point of view of the quality of justice and the treatment of the cases that come to court that district justices should be equipped to deal with them. At present there are very many possibilities when a child goes to court. As Deputy Shatter pointed out, some district justices have taken it on themselves to equip themselves and become familiar with cases and with child care, but it can be a very varied approach. The solution would be a proper programme of education, familarisation and updating of information for district justices as a set down priority. This is where we should start. We should accept the need for district justices who would of course have come from the legal profession but would come from various disciplines or constituencies in the legal profession. There is no doubt that many of them would feel they are not equipped to deal with this sensitive and important area. We should start off with an educational programme or information programme for them and then update it gradually. This is what we are attempting to achieve in this amendment.
Again, we discussed this on an amendment from Deputy Sherlock on a previous section. It is back to the whole structure of the courts and who is dealing with the cases. We are trying to arrive at the ideal in a roundabout way since the structures are not going to be fundamentally changed. I am not quite sure how you select on the basis of sensitivity but it is going to be difficult in relation to judges. Sensitive judges would be an interesting criterion.
Are they not all sensitive?
Previous experience might be an easier criterion, people who have had experience of dealing with children. I assume the input the mover of the amendment wants is that as far as practicable people who have a specialist knowledge, who have undergone some training and who have a desire to be involved in this area of the law, be appointed to hear cases like this. It is an ideal I strongly support.
I can understand the thinking behind this amendment, but I can also see huge difficulties in trying to decide which judge is sensitive and which is not and so on. The fact that this amendment and amendment No. 112 were introduced must surely cast some reflection on the method of appointment of judges in that you would have somebody appointed to such a position who may not be familiar with this area of law and who would not have the relevant experience. It raises major question marks over the appointment of judges. Perhaps we should be looking at something much more fundamental than just specifically for this Bill. We all agree that it is an area that is very important, very sensitive and should be treated sensitively and here we are talking about judges who perhaps have been appointed and are practising. It was acceptable in the past where it was not such a serious problem, but judges are being appointed apparently who are not au fait with this situation. That raises very serious questions about the method of appointment of judges.
The appointment of district justices and other members of the Judiciary is a matter for the President on the nomination of the Government of the day. In proposing persons for appointment as judges and justices, the Government must take a number of factors into account including their qualifications, experience and general suitability. The assignment of justices to particular districts or particular aspects of the work of the District Court, for example, the children's courts, is a matter for the President of the District Court. I do not think it would be appropriate for the Oireachtas to intervene or impose conditions or restrictions on the President of the District Court in assigning justices. The President of the District Court must have the freedom and flexibility to decide such matters in a way that will, in his or her view, best ensure the proper administration of justice.
I am not a legal expert but it seems that in his reply the Minister has indicated the desirability of including this amendment in the Bill. In many cases, not necessarily related to this area, we wish we could in some way direct, instruct or clarify the activities and decisions of many of our judges which lead to immense public frustration and general concern. If it is legal and practicable to do this I do not think there will be any problem in giving the President of the District Court an indication of our view on the exercise of his functions. Perhaps this could become the practice in other areas also. It would be a gentle way of indicating our intent and establishing an involvement which does not interfere with his functions in an unconstitutional way.
I think it would be desirable to include this amendment in the Bill but I can see certain difficulties in defining the word "sensitivity". A lack of sensitivity would be very easy to identify. Except on rare occasions it might be a little too much to expect positive sensitivity. Over a period of time people seem to have had a record of general callousness in this area. We deal with lots of cases where this exists. The Minister did not indicate in his reply that there would be any problem in doing what we propose. The inclusion of this kind of direction in legislation of this kind would be a welcome development and would mean that the President would be obliged to take such issues into account.
I have never seen a sensitive decision made in court. Normally the person who wins would say it is a sensitive decision but the person who loses would not.
I agree that many district justices should have ongoing training in this area and indeed in a number of other areas which they deal with from day to day. However the ambit of their jurisdiction is so wide that they have to deal with many more sorts of situations that come up before them from day to day than most other judges. I am not sure whether it is right for us to legislate for their training — it may be unconstitutional in a way — but I believe the Government should insist that District Court, Circuit Court or High Court judges should continue with their training and attend seminars in relation to a number of areas, particularly in relation to these areas but I do not think this is something we can legislate for.
I see the Minister has the big gun there in front of him in the shape of the Constitution. The volume of work which will be created by this Bill, if and when we get to the end of it before an election, is going to create a huge amount of different work for judges than they had before. I do not know what the arrangement is at present for district justices and judges. I have never been satisfied that they put themselves through particular courses or have admitted that they need to keep abreast of developments. Judges and district justices are almost like a group in a monastery because they do not associate or circulate in the normal way. Any of them I know seem to be very sensitive——
How are they informed and made aware of the stresses, strains and emotional needs of the mere mortals living in the real world who come before them? I believe we should give them a strong message. In every debate I have been involved in both in the Dáil or the Seanad, on legislation of a sensitive nature — I do not necessarily know why it is called legislation of a sensitive nature; perhaps it is because it deals with children and the family — this issue comes up again and again, and not without good reason. Reports of court cases and what judges have said are absolutely horrifying. We feel totally helpless and wonder whether we could send booklets or write letters to these judges. I know that would be very inappropriate but I am convinced that they are not sufficiently trained and equipped to deal with the very sensitive and difficult cases that come before them. Perhaps we should make some concession in this Bill, because of the new, detailed and technical nature of the provisions, and provide for a preliminary and inhouse training course for justices which will deal with the social realities and social difficulties that exist at present. I agree with what Deputy Flaherty has said.
An tAire, to lead us carefully down the constitutional path.
Article 6 of the Constitution covers legislative, executive and judicial powers and functions. I should like to quote from Article 35 to show the situation as it exists. It states:
The judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President.
All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.
No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other position or position of emolument.
A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.
The situation is pretty clear. While we all have our views on particular decisions that are taken I think we have to recognise that we are the legislators and the judges are the Judiciary. There is a clear constitutional role for them and they must be absolutely independent. I have to advise that it would be unwise for us to put ourselves in the position of dictating to the Judiciary who are independent. Consequently, I regret that I will not be able to accept this amendment.
It seems the Minister has again confirmed that this amendment would be constitutional. Judges are subject only to the Constitution and the law, which is what we are about here. This may not be the only precise way of going about it but Deputy Yates seems to have achieved something that is devoutly wished. This would be a way of giving some element of correct direction in this area. If the Minister is going to oppose the amendment, perhaps he will come back at a later stage and give us his considered views on it. Perhaps we could look at the issue again after it has been assessed by more expert legal opinion. If we can legally do something like this it would be highly desirable.
I hope Deputy Flaherty is not suggesting that there is more expert legal opinion than is under this roof at the moment.
I will withdraw the amendment. Certain amendments and subjects being raised throughout the debate will have to be seriously considered. One of these is the treatment of cases by judges who should be better trained and better equipped to deal with them. I will withdraw this amendment, with leave to enter it again.
I want to put on the record what I regard as the problem with this section. I do not know whether the Minister can provide us with a solution to the problem but it should be addressed.
One of the reasons our laws in this area have become so antiquated and why it has taken so long to bring legislation to this stage in this House is that there is no public understanding of the problems in this area at all. There is no reportage in our papers of the manner in which we deal with our child care laws before our courts because privacy is maintained. Because the public do not have access to information by simple newspaper reportage there is not only a lack of public understanding or expertise in this area — I hope no one on this Committee will regard this suggestion as insulting — but within the Oireachtas there is not an expertise or understanding in this area. Members of this Committee have developed considerable expertise in the work we have been doing but generally the need for change and reform does not create any major public pressures and is not even perceived generally within this House. It required a multiplicity of reports over years to bring us to this stage. The knowledge of the inadequacies in our laws is shared by small groups of professionals who, wrongly, have often been seen in the past as having axes to grind and whose calls for change have not been taken seriously.
The product of justice being dealt with behind closed doors indicates not only a lack of education but also a lack of perception of the adequacy in which the law is being administered. We have had a discussion, which I do not want to repeat, about the skills of the Judiciary in these areas. It is a very personal view as to whether the Judiciary are fully skilled or unskilled, but we have seen public outcries in the past about the way different areas of the law have been administered by the Judiciary. Because on occasion the public have been outraged changes have been made and the Judiciary have, in a sense, corrected themselves. We have seen this in, for example, their approach to rape laws and sexual offences. Members of the Judiciary in their sentencing are now taking these areas far more seriously than was the case ten years ago. Because of public outcry the Judiciary have taken into account the reality of life and the fears of ordinary people in these areas that were not always understood by them. There may be still exceptions to this but nevertheless there have been, changes in approach in the last ten years.
We have been teasing out the provisions in the Bill but the problem is that we are not going to know whether the Bill is working properly in the judicial area because all the cases brought will be heard in private and will not be reported. We will only know whether the judges are adequate and the only time we will discover whether this Bill is operating properly is if there is a major disaster that cannot be kept quiet — for example, a child who should have been taken into care but was not, or a child who loses his or her life in circumstances where a health board had sought a supervision order but had been refused one.
There is also the problem of uniformity of approach. Because justices will be administering this law behind closed doors, a district justice in one area is not going to know how his colleagues are dealing with the law. Written judgments are not delivered by district justices and precedents are not created. The reality currently under the Children Act, 1908, is that it is administered according to the personal subjective views of individual judges who are appointed to the bench. I am not suggesting that when there is a child care case it should take place under the full glare of publicity, with the names of those involved being reported in the national media. Not only would that be clearly contrary to the interests and welfare of the children concerned but it would also be contrary to the welfare of their families and would render it impossible for social workers in health boards to try to solve internal family problems. However, there is a need to find a middle course between everything taking place in private, with no one knowing what is going on behind closed doors, and the need to preserve anonymity and ensure that there is an informed public view of how the law is being administered and whether it is working.
Under the Children Act, 1908, there are provisions which in the juvenile justice area, allow members of the media to be present to report court cases and judicial comment generally on the condition that the identities of the people concerned are not revealed and that locations where, for example, offences have taken place are not identified in a way that may give rise to the people being identified. Because this is a small country and District Courts are local, if local papers are reporting some child care cases there is always the possibility that people will still be identified. This is a problem. Nevertheless there is a very major problem with the blanket privacy provision in section 21. None of us, as Members of this Committee, in three years' time will be able to say we know the Bill is working. None of us will be able to say whether some of the defects we were concerned about and which we discussed at length have emerged or were resolved by amendments subsequently made. I should like the Minister to comment on this and to have another look at this section before Report Stage.
Section 23 allows for some reportage, apparently in certain circumstances. I should like the Minister to clarify how he sees the interaction between section 21 and section 23 or whether section 23 is merely designed to ensure that people who have participated in court proceedings cannot, through the press, have reportage of their comments made. Section 21 seems to create a blanket prohibition. The current provision relating to the juvenile justice area under the 1908 Act, which does allow limited reportage, has worked although on occasion it has not worked because the news media lost interest in reporting what goes on in, for example, the Children's Court in Dublin. All of a sudden they may again gain interest in it and start reporting it. We cannot force the news media to report these cases any more than we can compel them to come along to these Committees and report what we are saying. Obviously very limited reportage is going to come from today's meeting. We need to look at section 21. There is a need for Members of the Oireachtas and the general public to know if the law is working and whether children are being protected. We will have no means of knowing that if there is this blanket provision in section 21.
I have put down amendments to section 23 which no doubt we will discuss this afternoon. It has certainly been impressed upon me by social workers, in particular, that it is never in the interests of the child to have his or her identity made known. I am not suggesting that the Minister is implying that in any way but I believe, particularly in rural areas, it would be impossible to have any publicity on a case without a family being identified. I very much take to heart what Deputy Shatter said in relation to informing both the Oireachtas, as the legislative forum, and the Judiciary so that there will be uniformity of decision but I do not think the way to do that is by way of publicity. Because by its nature publicity will look for the sensational and will not be objective in the way it reflects everything. The fact that there are no journalists here today is not an indication that we are not doing very important, very serious business. Rather it is that it is not sensational. Were we here, say, attacking a colleague at a different committee the place would be packed to the gallery. That is the reality. I do not think we should use the mechanism of publicity as a means of achieving our objective.
I would agree with the notion of having a corps of judges who would operate in relation to family matters, who would be involved not only in the type of in-service updating of the law and practice that would be required but would also share their views and decisions in such a manner which would ensure the law would be applied uniformly across the country. I do not know how we can build it into the system. Deputy Shatter raised a very important point. Also, there will have to be some mechanism to enable reporting back to the Oireachtas on progress within this law — perhaps a requirement that the President of the District Court would report on inadequacies, as perceived in the implementation of the law, after a year or two of operation. The points Deputy Shatter raised are extremely important, ones on which we should certainly reflect, although I would not accept that publicity is necessarily the agent or means by which we can achieve those aims.
I would agree very strongly with Deputy Howlin in relation to this, that some system will have to be brought to bear on this. As legislators we will have to know whether or not this provision is working. If we leave things as they are — if there are certain sections of the Bill not operative or not being properly implemented, probably we will hear that from the professionals or from the health board point of view; we will not necessarily hear it from the victim's point of view.
With regard to lack of publicity, in inverted commas — I do not mean that by way of newspaper publicity but rather perhaps the type of reports about which Deputy Howlin spoke — it is very much a case of out of sight out of mind. There must be some means of compiling case histories or a history casebook that we as members of this Committee, as legislators, can examine. We must have some provision like this to be able to review the implementation of the legislation. I do not know the answer. I strongly agree with previous speakers that we should devise or find some mechanism to enable us to review this thoroughly in, say, three to four years.
I entirely agree with Deputy Howlin. It has been my experience that the press are there to sensationalise. Given the history of child care in the recent past I have no doubt the media would tend to sensationalise any case coming before the courts. We talked earlier about such sensitive areas. I have had personal experience of a number of very serious rape cases in which, while the victim was not mentioned, everybody in the area knew who was involved. It would be my concern that similar circumstances would arise in relation to this. There would be a need for reporting of some type, probably along the lines of a recent case when belatedly, unfortunately, we received figures from health boards of the types of cases coming before the courts. I consider there should be some built-in system in that area. I would be vehemently against allowing the press into courts and members of this Committee should also be, given the experience, that we have as politicians, dealing with the press on a daily basis.
When I entered politics in my innocence I believed that each Department — when it had passed legislation, gone through all the sections of any Bill — watched thereafter to ascertain what happened vis-ï¿½-vis its implementation. It was my belief that, in a very altruistic way they followed its implementation. Needless to say, I was disabused of that notion or perception. From my experience of Departmental operations this does not happen. I am talking now mostly of research, classification, understanding what has taken place. Is there any report prepared on decisions taken at the various court levels even for research or educational purposes? A son of mine is at present studying law. He is attending lectures, hearing all kinds of interesting judgments. He reads them to me on matters in which, say, I would have been involved. Is there any way of reporting decisions taken at District Court level on children’s cases or on family law cases? Is there any way we could glean basic information — not necessarily names or places — but merely so that we could ascertain what exactly took place, that there would be a file to which one could have recourse. Certainly I would be very interested in such information.
It is a very valid point to raise. We might have different views on how to approach the matter. Obviously in child care cases there would be less direct communication with those affected. I have heard the view expressed by numbers of people involved in family law cases of their feeling of having no come-back because of the lack of publicity about decisions made or the lack of public comment about decisions taken within the privacy of family courts when issues with regard to custody and so on are dealt with. There is literally no comeback or very little on even the most outrageous decisions or remarks of a judge. That experience could arise in relation to child care. We must remember we are talking about a child who will find it very much more difficult to make his or her own point.
Deputy Shatter has raised a very valid point, one to which we should try and find some resolution. While we may talk about the sensationalism of the press there is no doubt but that were it not for the interest (a) of the press and (b) the determination to get justice, a whole major area of child care would be neglected, allowed as it were to settle in the dust where it has remained for so long. Indeed, it required media attention along with the determination of a particular justice to ensure a certain case was dealt with. That case was a very good, recent example of how media attention, while occasionally negative, can also highlight problems ensuring that they are properly dealt with.
I would not dare to make any comment on the Judiciary. Indeed, it is a pity the media are not here to report. It might make those people to whom we have referred somewhat more concerned. I want the Minister to give this amendment — ruled out of order — some consideration. I will give an example of how I perceive the situation. A social worker, who is always in the front line in such matters, will form a judgment that there is need to take some action. In any particular case the mother of the child concerned, for many reasons, could be going through a bad time. If the relevant social worker sees fit to seek a supervision or care order it is vitally important there would be somebody on the other side representing their interests, if only to explain what the case is all about. From experience I know this presents a grave problem to which the Minister should give some consideration. After all, we are talking about child care. Circumstances can arise of a very temporary nature which must be handled or dealt with very sensitively. If a case is brought to the court in which there is no representation, the family might not have any idea of their legal entitlements which could be detrimental to one or other parent.
I accept that media reporting may not always represent the best way of getting accurate reports. Nevertheless it does ensure that, on occasions, district justices feel they are being watched in the exercise of their powers or it puts under the public spotlight some of the more eccentric things judges can do on occasion. There is no harm in that. That is one of the reasons generally justice is administered in open court, subject to certain exceptions.
Deputy Fennell raised an important point — that under this section there would be no exceptions made, that the public could not be admitted to these proceedings. For example if, say, the Department of Health wanted someone to undertake some research, to sit in court and just observe how cases were being dealt with, or if a young lawyer wanted to get some insight and expertise before representing people in cases of this nature, or a social worker, newly qualified or going through university, wanted to see how the courts operate in child care matters one could argue that under section 21 they would have to be excluded from the court because there is not any exception; members of the public are not to be admitted. It seems to me to make sense that the section be examined in that context particularly.
We may not be able to resolve our general problems about newspaper reportage. I would have serious reservations generally about newspaper reportage and I have raised some of those. There is a need to ensure that the way the law is operated can be monitored. Some of those people may be involved in dealing with the law in their professional lives; or departmental officials can sit in the court on occasion and observe how cases are being processed and dealt with.
It is always well to remember that judges, like politicians, can be quoted out of context.
Let me respond first to Deputy Sherlock's point referring to amendment No. 116. I am not convinced about the advantages of giving the child a right to his or her own legal representation, apart altogether from the question of cost which is the basis of the Chairman's ruling. One would have to ask whether the hearing of the case would be improved or facilitated by the child having his or her own lawyer, or would it serve only to make what are invariably complex proceedings even more complicated. There is also the fact that very many of the children involved in care proceedings would be too young to understand the nature of the proceedings, let alone be able to instruct legal advisers. I believe that one of the best ways to ensure that the child's interests are protected is to be found in amendment No. 110 which requires the court to regard the welfare of the child as the first and paramount consideration, also to give due consideration to the child's wishes having regard to his or her age and understanding.
In response to the many points that have been made: with reference to Deputy Shatters' contribution I am not convinced personally that naked publicity, open full public publicity of court decisions vis-ï¿½-vis children and family circumstances is the best reportage. We can look back ourselves at other cases, heard in higher courts, where stark details reported out of context and which did not reflect the decision arrived at. I do not think it serves anybody well to report naked detail of very serious, sad cases. While one can see the merits in reporting a decision, the rights and wrongs, or merits or otherwise of a decision, it is important that we monitor such decisions; I certainly accept that.
In response to Deputy Fennell's point, I should say there is no structured way in which legislation is evaluated by Departments once implemented. However, I am very happy to say that there are conscientious individuals within Departments who are involved in the implementation of Acts and they follow up court decisions of which they become aware by way of publicity, or by hearsay. Very often they put forward proposals to Ministers vis-ï¿½-vis changes in Acts or new legislation to take account of a decision that has been arrived at that may impinge on an Act. I am very happy to say that the child care division of my Department hope to be able to monitor this whole scene in a constant, continuous way. If it is considered necessary to introduce changes it would be our hope that that would happen.
Commercial bodies report on court decisions for lawyers. Usually, as Deputy Shatter and others have said, such reports emanate from the higher courts only; rarely if ever, are decisions of district or circuit courts reported. It is something we will have examined. Personally I am not sure that open publicity is the answer. I know from experience of the District Court that provincial papers do report local cases and decisions. In my area in the last two weeks a case was taken totally out of context, when a family have received very bad, negative publicity just because one of their members happened to be in a group when a wrong-doing took place. While the court found that the teenager had nothing to do with the ultimate decision, the publicity was focused on his family which was totally out of context and unfair. We must guard against such circumstances arising. We will have another look at it ascertaining what we can do to ensure that in the public interest the law is operated properly, that those who should be aware of it, be they lawyers, the public or various Departments involved — know what is happening. We will have it re-examined.