Special Committee Child Care Bill, 1988 debate -
Tuesday, 22 May 1990

SECTION 47.

Mr. Yates

I move amendment No. 182:

In page 21, subsection (1), line 25, to delete "may" and substitute "shall".

This section gives the Minister power to withdraw approval if, as it is outlined in paragraphs (a), (b) and (c) of section 47 (1), he is dissatisfied, or if it appears to him the centre is not complying with the provisions. It is important that the Minister would not condone poor standards and that he would act if one were not conforming to the standards laid down. I would ask him to accept this amendment.

Mr. M. Higgins

I have a rather unusual view of this amendment. What effect has the changing of "may" to "shall" on the speed with which the Minister may act? At this stage the effect of changing "may" to "shall" is not necessarily facilitating the rights of children. It may be serving as an impediment to the speedy action of the Minister because it is really placing a requirement on the Minister to give notice of his intention to withdraw approval from a children's residential centre. If this is a statutory inhibition on the Minister, I could envisage that the institution concerned, within its period of time, could put things right before they are confronted with the procedures which the Minister has initiated. If it gives greater flexibility to the Minister to act quickly it could be accepted in the existing wording. It should be the practice that he would give notice wherever appropriate, but he would still be free to act without this burden. In that sense I am rather sympathetic to the draft.

Mr. D. Ahern

The point made by Deputy Higgins is entirely correct in my opinion because throughout this Bill we have adopted the attitude that the authority should be entitled to go in at a moment's notice, and I believe this amendment would restrict that.

In relation to a point the Minister made when we were discussing the previous section regarding the whole area of appeals, there is no provision in this where a centre could appeal a notice of withdrawal; perhaps they would be entitled to appeal a decision like that. Again it would come back to the point Deputy Higgins made that if an appeal procedure is put in place, that would give the centre an opportunity of stalling the appropriate action. It is an area that needs more examination. It could very well be that a centre would have a natural justice right to have an appeal against what, in effect, is an administrative decision made by a Department. I have no doubt that they would be entitled to go to the High Court for a judicial review, but they might be entitled to some level of appeal other than that.

Mr. L. Fitzgerald

Deputy Higgins is correct. He is getting to the nub of the matter in relation to the option between "may" and "shall". It is a question of flexibility and the maximum flexibility should be allowed to the Minister on this case. Already it is quite clear from previous sections what the Minister's intentions are in relation to upholding and maintaining standards. I believe that if "shall" is inserted here, undue restraints are placed on the Minister and that is very wrong and undesirable in the circumstances.

Mr. Yates

I do not know if I agree. Section 47 (2) (a) says, "Where the Minister proposes to withdraw approval, he shall give notice in writing to the manager of the centre specifying the date on which it is proposed to withdraw approval . . . ". It is quite obvious that the manager is entitled to prior notice; that is where the Minister comes to a decision on the matter. I think if the matter is under active review and the Minister intends to close it, it is only reasonable that the centre be warned of the intention so that they are given an opportunity perhaps to improve or rectify it. In terms of acting quickly, they have to give prior notice one way or the other.

Mr. O'Donoghue

I can see Deputy Yates' point, but what he is really saying is that if the Minister was dissatisfied with the condition of the centre because, for example, the ventilation was not working, by placing a mandatory requirement on the Minister to withdraw approval, the Minister could not say he was satisfied with the condition of the centre and, accordingly, he would be obliged to withdraw approval. Surely the more sensible course in that event would be to write to the manager of the centre concerned and say that any faults must be rectified, and not rush into what I can only describe as the last resort for such a small area of discontent. I really do believe Deputy Higgins is correct and that "may" should stand. If we are going to start issuing notices that we are going to withdraw approval for what can be described as minor defects, then it would bring into question before the public the credibility of the centres for what would be a very minor defect.

Mr. M. Higgins

It seems to me that this question of "may" or "shall" has to be taken in context in each section because there are many cases where I do support the question of a change from "may" to "shall". In this case I have no doubt at all because the principle which all of us support in section 46, which is the principle of inspection without notice, is one I support. In fact I wish the prison regulations were of as advanced a standard, that people could come at any time. The idea of the quick visit is an excellent principle. If that is the case it seems to me that the power sought in section 47 by the use of the word "may" is one that enables findings as a result of the procedures of section 46 to be acted on quickly. Taking section 47 as a whole, that is with subsections (1) and (2) together, it seems that the restriction on the Minister in subsection (2) (a) is the point Deputy Yates makes. It states:

Where the Minister proposes to withdraw approval he shall give notice in writing to the manager of the centre specifying the date on which it is proposed to withdraw approval.

Under that subsection he is at once required to give notice in advance but he can give notice of his intention to act as quickly as is necessary and justified by the circumstances. I would think that if we accepted the amendment and put in ". . . the Minister shall at any time give notice of his intention to withdraw approval . . ." you are almost making subsection (2) (a) redundant. It seems to me that the first line of section 47 (1) "The Minister may at any time . . ." gives both flexibility and ease of action, and I think that subsection (2) (a), which requires him to give notice in writing, and obviously that can be adjusted to the circumstances, is a sufficient restriction on the Minister. That would probably be in the best interest of vigilance in the end. I would be in favour of leaving it as it is.

Mr. L. Fitzgerald

Both points of view could be met by the insertion of penalties other than a decision by the Minister to withdraw or a decision to serve notice of his intention to withdraw. Both concerns could be met quite regularly in that regard. The absence, perhaps, of penalties of different kinds to meet different situations like those outlined by Deputy Higgins and Deputy O'Donoghue, is causing a certain amount of confusion here. The concern that has been expressed by Deputy Yates is not well founded in the context in which he is addressing it. Perhaps it is well founded in other contexts because if there is sufficient ground for taking action because of inadequacy of standards, but the level of inadequacy does not warrant the serving of notice of intention to withdraw approval, then there needs to be other forms of penalty readily available to the Minister.

Mr. Dempsey

I agree with Deputy O'Donoghue in relation to minor defects under design, maintenance or ventilation. Making it mandatory for the Minister to give notice of his intention to withdraw approval in those circumstances would not be right and I do not think it is what anybody would want. I noticed from the submission made by the Child Care Coalition that they mentioned the fact that they agree with this amendment, but the way they agree with it is significant. They say:

Where a home is not meeting specified standards in terms of staff child ratio and the quality of care provided, the Minister must act and withdraw approval rather than condone poor standards of care.

The problem we have in this section is that it also refers to the regulations. We talk about the design and maintenance, the equipment and so on. We do not have any problem and I do not think any Minister would be remiss in sending a notice of his intention to withdraw approval where the standard of child care was below par. I do not think it would be the intention of anybody on this committee, or anywhere else, if for instance, the ventilation of the heating was not quite right that the Minister should have to issue a notice saying he was withdrawing his approval. The method outlined by Deputy O'Donoghue would be a much more acceptable one. Perhaps the problem is that you have technical standards and standards of child care referred to in the two sections of the Bill. The word "may" should remain. Any Minister worth his salt will react if the standard of care is not proper; for minor technical things discretion should be used and the Minister should have that discretion.

Mr. D. Ahern

I am wondering if it would be preferable to have an additional clause or clauses to make section 47 (1) complete. It says that the grounds have to be specified but would it be preferable to have something in the subsection, where it would give the manager of the centre the opportunity to rectify the matters complained of particularly in the case of small structural problems and some of the items referred to in the previous section 45 (2)? Would it be better to put in an additional subsection saying that if these are not complied with within 28 days, or whatever, then it is proposed to take a certain course of action? The section, as it stands, is vague.

Mrs. Barnes

This is more a matter of seeking information. I agree about the flexibility for the Minister to give notice. However, the fact that the Minister gives notice would not restrict him in a situation where there was a grave abuse of a child care centre, that he could not close it down immediately. I am worried if you have to take time to withdraw approval. I would like to be assured that this section would not inhibit the Minister from closing a premises immediately if that should prove necessary. Hopefully, it will never happen, but if there was a great abuse of children I hope the Minister would not be caught up with the bureaucracy of having to withdraw approval.

Mr. D. Ahern

Surely the owners of the centre would be entitled to appeal to somewhere about a decision made over their heads? That is where this section would be defective.

Mr. M. Higgins

In relation to that, section 47 (1) (c) fits uneasily with section 47 (1) (a) and (b), because, of one envisages a situation, as has been described, where a centre has been closed, due to malpractice in management or of non-compliance with the Acts, section 47 (1) (c) is closed by the same instrument because the number of children requiring residental care has changed. I could envisage a situation where somebody who got an order based on section 47 (1) (c) would face an immediate problem in relation to the future use of their institution, because of the public perception, it would not be clear as to whether they have been closed down under section 47 (1) (a), (b) or (c). One might find oneself in the situation where they would be of to the High Court to discover the grounds in order to clear the air. It fits very uneasily. It might well be a case for shifting it into a separate section, so that it would be perfectly clear that action taken in this regard was not related to the action that is possible to a Minister under section 47 (1) (a) and (b).

Mr. N. Treacy

Section 47 gives the Minister power to withdraw approval from a home if he considers that it is not being carried on properly or if the regulations are not being complied with. However, the Minister is not required to withdraw approval immediately in such circumstances, but is given some discretion in the matter which he must, of course, exercise in a reasonable and conscientious way. The proposed system of withdrawing approval is contained in section 47 (2) (a).

In response to Deputy Barnes and Deputy Higgins, in a matter of grave urgency we could invoke section 29 of the Bill and withdraw all the children in a centre. Alternatively we could use emergency care orders to place the children in alternative care and accommodation.

Deputy Fitzgerald made a good point regarding the lack of penalties. In view of the commitment I gave earlier to look at the question of a system of mandatory approval of homes, it may be necessary to re-examine the approach adopted in this section, particularly in view of the points that have been made. On these grounds, therefore, I would ask Deputy Yates to withdraw the amendment and I will look at this section again before Report Stage.

Amendment, by leave, withdrawn.

Section 47 agreed to.