I move amendment No. 118:
In page 12, subsection (1), line 36, to delete "this Part" and substitute "Part III or IV”.
SECTION 22.
Amendment agreed to.
I move amendment No. 119:
In page 12, subsection (2), line 44, after "court" to insert ", after consultation with the appropriate professionals,".
This amendment is basically linked into the discussions we had this morning in that we are seeking that people who have expertise in the whole area of child care have a view on the issue. Short of having specialist trained judges, it certainly should be incumbent on these people to have consultation with the appropriate professionals in the field before they make a decision. The coalition on the Child Care Bill endorsed the amendment for the reasons that obviously there should be full training programmes for district justices before being appointed; at least there should be the back up of professionals who have experience in the area before decisions are made.
The main purpose of section 22 is to enable child care proceedings to be heard without the child concerned having to be brought before the court. I am sure Deputies will agree that this is a desirable provision. Subsection (2) however requires the courts to allow the child to be present in court for all or part of the case if he so wishes unless the court is satisfied that it would not be in his interests to be present. It must be borne in mind that the child concerned could be 15, 16 or 17 years of age and it might be quite reasonable that he be in attendance. However the court is given discretion to refuse to allow the child to be present if it considers that this is not in his interest.
Deputy Howlin seems to want to go further than this by requiring the court to consult with appropriate professionals before deciding whether it would be in the child's interest to be present but I am afraid I do not see the need for this. In some cases the court might wish to consult the psychiatrist or psychologist as to the likely impact on a child on hearing the full facts of the case. However, in other cases the court might be able to take a decision without needing any professional advice. I think we should depend on the good sense of the justice in the matter and I would ask the Deputy to reconsider the need for this amendment.
I am disappointed with the Minister's comment because it really runs counter to the consensus view taken this morning that it should not really be left to the court to decide because you are talking about an individual judge who might not be the most suitable person to make a decision at that time. He might have expertise in other areas but not specifically in this area and he or she might decide not to consult with the specialist, whether they be psychologists or psychiatrists, as to whether it was in the best interests of the child to be present. It is incumbent on us to ensure that the provision is written into the Bill that there would be a requirement for consultation. It would not be harmful and it could never be argued that consultation with the specialists would be damaging in any way but decisions made without consultation could possibly be harmful if a justice had not got the expertise — and he could not be expected to have the total expertise — to make such decisions.
We are concerned about the advisability of non-specialist courts making decisions. That is the whole thrust of this morning's discussion. What the Minister is saying is that it should be at the discretion of the judge to make the decision on what a child should or should not hear. It is my view that the judge should make that decision only after he has had professional advice from somebody who has had a chance to evaluate the psychological and emotional state of that child. I think it would be acceptable that the judge could not be in a position to make that evaluation. This is a very reasonable amendment.
I have been reading the section and I would certainly agree with this amendment and support it. I know from experience that professional people give good sound, sensible advice. In making such a decision whether or not it is in the interests of the child, it would be much more helpful if the court were directed to get professional advice, whether from a social welfare officer, psychologist or GP, because there obviously would be a lot of factors surrounding a case that may not be apparent immediately.
I do not see the need for the inclusion of this amendment. First, looking at the amendment, there is no definition as to the appropriate professionals. I take the point Deputy Howlin is trying to make but I would see this as giving the court no discretion. In effect, it would be taking the matter out of the hands of the justice or judge. It would be making it mandatory on the judge to take advice from the appropriate professionals whoever they may be and I think that would complicate the procedures of the court. I have no doubt, having experience in the District Court, that a judge would normally weigh up all factors, bearing in mind that the welfare of the child is the first and paramount consideration, in deciding whether or not the child should be present for the proceedings. I feel the amendment would be adding a further complication to the proceedings.
It may mean that perhaps an application would have to be adjourned to bring the appropriate professionals to the court. They may not be present for some reason or maybe someone in the health board or someone else involved in the case is not available at that time. I feel it would complicate the procedure. We are trying to make all of these procedures as simple as possible. I would have no doubt — people may say that is because I am a solicitor — that the district justice would accept the most reasonable position vis-�-visthe welfare of the child in these instances.
I support the amendment. I cannot understand the reasons for not accepting it. Subsection (1) states: "or any part of the hearing unless the court, either of its own motion or at the request of any of the parties in the case, is satisfied that this is necessary for the proper disposal of the case". What the amendment is saying is that where the child requires to be present there should be consultation with the appropriate professionals and I think that is very reasonable. As Deputy Howlin said, it would build that into the section and ensure that consultation would take place. I cannot figure out how there could be any valid argument against that, it is reasonable and I support the amendment.
We have no difficulty with professional consultations but we believe this should be a discretionary rather than a mandatory point. In most cases, particularly cases going to court, I am sure difficulties would have accumulated over a period. The health boards in many instances would have professional reports from psychiatrists, psychologists, doctors and other professional people and it would be a matter for the board to present those to the court in any instance. It would be a matter for the judge to make up his mind whether he would accept the bona fides of the reports or whether he wanted to have further consultations. We believe it would be unwise to make it mandatory on the courts to have to consult in every case with the appropriate professionals. We believe the discretion should be left with the courts as this would be in the best interests of the child. Consequently, I regret I am not able to accept this amendment.
What we are discussing here is a request from a child to be present during the hearings. You can imagine how traumatic that might be for some children. It is important that the correct decision is made for the well-being of the child. The only point I make by putting in this very innocuous amendment is that the decision would be made exclusively by the justice but that he would have to consult with the professionals to know if there was any psychological imbalance in the child or if there were reasons why the child should not be present. I think that would safeguard the interests of the justice, too, in making the right decisions. I am suggesting that it be mandatory rather than discretionary because, while the majority of justices would probably seek advice, those who would have least expertise are more likely to be the ones who would not opt for it. For that reason I would ask again that the Minister accept the amendment.
I sat here at the morning session, listening with great interest. I think it was one of the better sessions we have had and there was some excellent and sensible discussion. We have not always been that sensible around this table. Everybody made some very useful contributions. We talked about the education or instruction of the Judiciary in this area. Presumably they would be guided by people with the appropriate expertise. I would deem it to be totally unacceptable to make it mandatory for the Judiciary to consult with the appropriate professionals, as is worded here. Presumably we are talking about social workers and such people. They are certainly the appropriate professionals. I know some of them very well. They are wonderful people and they certainly have the experience. I am sure any member of the Judiciary would want to make himself as au fait as is humanly possible with the case. If he did not have the expertise or the knowledge to deal with the issue, I am sure he would consult with the appropriate professionals at his discretion. I think it would be totally incorrect and unacceptable to make it mandatory. I would have to row in with the Minister’s advice on this aspect.
Why?
For the reasons I have given.
When we are drafting legislation one of the things we should ensure is that we do not leave any loopholes for my profession to seize on later. If this provision was put in, it is conceivable that a court order could be granted and be found later to be invalid because the judge did not go along with what Deputy Howlin is proposing, to consult with the appropriate officials. I fully accept that it is highly desirable that a judge should consult with the professionals on all decisions he would have to make, but to make that absolutely mandatory in relation to a matter like this would not be in the interests of the child. It could lead to a care order not being given or being held to be invalid.
I am sorry that arguments are coming from that side of the room. I am unconvinced that there should not be such a requirement. I think it is a simple provision to put in. I do not think it would be a terrible imposition or that it would delay matters. We are not talking about the validity of care orders; we are simply talking about access by children to courts and whether they should be present or not. Because of the psychological damage that could be done, I am putting an extra emphasis on the importance of the judicial decision. However, in the light of the obvious resistance of the Minister I will not be pressing the amendment.
Amendment, by leave, withdrawn.
Section 22, as amended, agreed to.
NEW SECTION.
I move amendment No. 120:
In page 13, before section 23, to insert the following new section:
"23.—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.".
This amendment has already been discussed and I think there is general agreement in this area.
I wish to speak in support of the amendment. In amendment No. 100 the Minister sought to meet the provisions in a variety of amendments put down to allow children to have access to their family members and others. This amendment is a very good amendment in that it spells out in clear detail the broad section of people who should have access to the child. We have already debated this but basically the child who is the victim should not be seen to be punished in any way for the sins of others. It is important not alone to go as far as the Minister has previously done in his amendment but to actually spell out in the terms of Deputy Yates' amendment the clear responsibility of the health board to maintain contact with the extended family and friends. I support the amendment.
It is confusing when amendments have been discussed and have not been moved. The objective of this amendment is to put an onus on the health board to ensure that as far as possible realationships with the immediate and extended family will be maintained, for the child in care, and to facilitate visits of the child to its parents or to other members of the family. Again it poses the question — and it is one of those chronic issues that keep coming up again and again — of the resources that are going to be required to enable this to happen. As we go through this Bill we see that there are more and more provisions which require an input from social workers, community workers or care workers. I would want to be assured that the facilities and the resources will be available to personnel to ensure that this wider contact is kept up with the family when a child is taken out of it.
We dealt with this amendment when we were considering my amendment No. 100 which inserts an entirely new section dealing with access to children in care. Under subsection (1) of the new section each health board will be required to allow parents and others interested in the child's welfare to have reasonable access to him or her. This is wide enough to cover access by brothers and sisters, relatives and friends and anyone else who has a genuine interest in the child. I realise that the Deputy's phrase "maintain contact" may envisage more than just access by persons to the child in care. I would therefore remind the committee of section 15 (4) which would enable a health board to allow a child in their care to go out for weekends with its parents, relatives or friends. A health board would also be permitted to allow a child to stay at home or with relatives or friends for a few days. We are committed to enabling children in care to maintain contact with their families and friends. I hope that on that basis Deputy Fennell might be prepared to agree to withdraw this amendment.
Yes, I am reassured. I have read that section again and certainly the intent and the aspiration there is to ensure that the child keeps in touch with its family. We have all heard of instances in years past of children being taken away and put into care and then in midlife searching frantically for the rest of their family. It was a very sad procedure or set of regulations which allowed that to happen. I am quite sure we are well removed from that. I accept what the Minister said and I am reassured, I wonder if the resources are necessary. I do not think in all events they are going to be necessary. When the child can stay in a home with a member of the family there will be no question of cost involved. I will withdraw the amendment.
I thought Deputy Yates' amendment was much firmer than amendment No. 100. There is a difference between allowing access, which is the phrase used in the Minister's amendment, and the devolution of a duty to maintain contact. There are instances where there would be financial implications trying to keep access between families and a child and some would not be in the financial position to do that. The Minister's amendment that woud allow access is not the same as having a statutory duty on the health board to actually bring the children, if necessary, to the family, friends and extended family as required. Therefore, I think Deputy Yates's amendment is stronger. It is not enough simply that access be maintained. Resources should be in place to allow as a routine the child to maintain the link with his family so that he, as the victim, would not be further punished by being exiled from the milieu of his family and friends.
I should like to respond to both the Deputies. We accept fully that access to children has financial implications and means extra staffing and so on. We intend that, within the parameters of the Bill when putting together the financial package that will be needed to ensure that the Bill is operable, this will be taken into account.
That is the point I was going to raise. The coalition of care workers said there is need for resources and personnel to implement this as more and more family access needs to be supervised. Perhaps that is not properly provided for in this Bill. I stand to be corrected, but I think the supervision of family access is very important considering that in all these cases there has obviously been some sort of abuse. If there is an open-ended way whereby a member of the family can come in contact with the child and perhaps it is not supervised, that abuse could start again. I would be particularly worried about that. I accept what the Minister says, that the health boards will have the proper resources to carry that out, but it is something that will need to be looked at very carefully.
Amendment, by leave, withdrawn.