Special Committee Child Care Bill, 1988 debate -
Tuesday, 29 May 1990

SECTION 57.

Mr. Yates

I move amendment No. 190:

In page 25, subsection (2) (a), line 12, after "the" to insert "children's".

This amendment seeks the establishment of specific children's courts. The reason this matter has become more urgent and more pertinent is that the recently appointed Supreme Court judge, Mr. Justice O'Flaherty, has stated his view, in relation to a child care case that children's courts should be established, and that they should be separate from the ordinary District Court and Circuit Court structure. I would like to know from the Minister, arising out of this, whether proceedings taken under this Bill when it is enacted might be found unconstitutional if there was not a children's court in place. I am referring specifically to the need for a child advocate where there is a dispute between parents and health boards or perhaps between parents. In those circumstances a child advocate arguing in the best interests of the child or exclusively for the child is in my view not only desirable as shown in international experience but vital in relation to the development of our administration of justice. I believe that law reform commissions over the years have supported this proposal and I would ask the Minister now belatedly to give a commitment that by Report Stage he will make arrangements — I know it comes primarily under the Department of Justice — for the setting up of a separate court structure to deal with these child care cases. Such children should not be lined up with people who are there for parking offences, speeding offences, drunk driving or other criminal activity.

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

I think I should begin by explaining that section 57 was inserted in the Bill not because it has much to do with the other provisions of the Bill but in order to clear one of the last remaining obstacles that was preventing the State from ratifying the United Nations Covenant on Civil and Political Rights. One of the provisions of that Covenant is that sentence of death may not be imposed on persons under the age of 18 years. Under existing legislation here sentence of death may not be imposed on persons under 17 years and then only in respect of certain capital offences, for example the murder of a garda or a prison officer. In order to comply with the Covenant it was necessary to increase the minimum age for the death sentence from 17 to 18 years. As there was no legislation in the criminal justice area in the offing at the time it was decided to insert the necessary provision in this Bill, and this is what we have in section 57. I might add that the State has now ratified the Covenant on Civil and Political Rights. Members will be aware that the Government recently circulated a Bill, the Criminal Justice (No. 2) Bill, 1990, which proposes that the death penalty should be abolished for all offences to which it still applies. If that Bill is passed there will no longer be any need to have section 57 in this Bill. I intend to keep a close watch on that Bill and depending on its progress I will probably be proposing the deletion of section 57 on Report Stage. In view of this I would suggest that this amendment be withdrawn.

Mr. Yates

I appreciate the Minister's points, which have dealt exclusively with the question of the death penalty. He did not refer at all to the question of the establishment of a children's court structure or indeed to the points made by the Supreme Court in relation to the need for child advocacy and other related matters.

Mr. N. Treacy

I want to deal with the specific issue raised by Deputy Yates in this amendment, which is that cases arising under section 57 should be dealt with in the children's court. Under present legislation it is the District Court which acts as the children's court in both care and criminal proceedings in relation to children. As members will be aware, the District Court is a court of limited jurisdiction under the Constitution and as such there are constitutional and legal restrictions on the type of cases it can deal with. The cases to be dealt with under section 57 are very serious offences for which the death penalty is currently available. These offences include the murder of a garda or a prison officer, as I have already said, acting in the course of their duty, murder of a foreign diplomat or head of State, treason etc.

These offences are so serious and the penalties so severe that the District Court does not have the legal competence to deal with them and they must be dealt with by courts of a higher level and jurisdiction. It follows therefore that in the event of a child being charged with such an offence the case cannot be dealt with by the children's court because it is simply the District Court operating under a different name. The case will have to be heard in a higher level court. I cannot therefore accept this amendment because the children's courts as presently constituted do not have the authority to deal with the type of offences we are concerned with here. The only way to achieve what Deputy Yates is proposing in this amendment would be to establish children's courts at a level above that of the District Court. This would require major amendments of our courts' legislation and is not something that could be done by way of a simple one line amendment to this Bill. Therefore I would ask the Deputy again to consider withdrawing this amendment.

Mr. Howlin

There are two separate issues. The first is in relation to section 57 as a whole, and I welcome obviously the publication of the Criminal Justice (No. 2) Bill, which will be taken on Friday. I have no doubt that it will pass the Dáil Second Stage on Friday and hopefully it can be incorporated into legislation speedily. That obviously makes redundant section 57 of this Bill which provides for the selective abolition of the death penalty, since the death penalty per se will be gone and not a moment too soon. The sooner we can get that enacted the better. I do not think there is much point, and I accept fully the Minister’s reasoning on this, in labouring the issues. We can come back to it on Report Stage if there are any difficulties with it but I have no doubt that the section will be redundant.

The amendment proposed by Deputy Yates is a separate matter, one that we have often raised in the course of the long debate on this Bill and that is the necessity, which many Members and indeed many interested parties outside the Houses of the Oireachtas feel, to have separate children's courts. I am not sure this amendment would be the appropriate place to provide for it without a proper framework. I know that it was envisaged some time ago that the provision of family courts and children's courts would be the subject of separate legislation, possibly coming from the Department of Justice. Perhaps the Minister could indicate the up-to-date position on that and whether a separate Bill to establish children's courts is envisaged or is in the offing.

Mr. Yates

I will be withdrawing this amendment and I would agree that it is not appropriate to insert a provision for the establishment of children's courts into a section that is going to be withdrawn later. That being said, I do think that during the course of the work of this committee there was a significant development in relation to the Supreme Court judgment and comments that I have referred to. Arising out of that and arising out of advice that I have got since, there may be a question on the constitutionality of the legislation on certain types of child care if there is not a child advocate available. I think that is a very serious situation and, whatever about the merits or demerits of this section or this amendment, it warrants at least some comment from the Minister as regards the Government's intentions to establish children's courts to operate the whole of this Bill. I am prepared to withdraw the amendment but before doing so I would like the Minister to give some indication to the committee of the Government's latest thinking in view of the new developments.

Mr. Sherlock

Under this section and the amendments thereto we are dealing with offences that may be committed. It is all about the care and protection of children. If a person under the age of 18 years commits a serious offence against a child there should be no sympathy in the treatment of the offender in the case of a conviction. I think, but I am open to correction, that the matter of the Supreme Court judgment referred to previously has a lot to do with the access to the courts by people who cannot afford it but I am not making a point of that; I am merely stating my own view on the section, that I would not be in favour of any more sympathetic approach to a person under the age of 18 who commits a serious offence against a child.

Mr. N. Treacy

I thought I had made the position quite clear on the children's courts situation, that it is not within our competence in this area here either as a Department of Health or dealing with child care legislation to change the court structure. It is purely a matter for the Department of Justice to bring forward new courts legislation.

Mr. Howlin

The Government.

Mr. N. Treacy

Absolutley, I would appreciate that but it would not fall to me to bring it through. I thought I had made it clear that it would not be possible to put an amendment in this Bill to change the status of the courts. We have not got the competence, we have not got the role, the power or the function, to do that. Consequently it will be a matter for the Government, in consideration of this Bill and of the Law Reform Commission Report when it is available, and when we get the overview of all those interested in that area, to decide whether it should or should not proceed with a new courts Bill. I am at this stage not in a position to say what the Government will do in that area.

Deputy Yates has made a number of references to the Supreme Court judgment and I am intrigued at his suggestion that a recent Supreme Court decision has made it essential that children's courts be established and that this Bill will be unconstitutional if it does not provide for such courts. I presume the Deputy is referring to the judgment delivered on 3 May last in a case known as F v the Superintendent of Ballymun Garda station and the Eastern Health Board. I have studied the very learned judgment delivered by Mr. Justice O'Flaherty and some of the accompanying remarks made by the Chief Justice. I have read it in detail word for word. In his judgment Mr. Justice O'Flaherty provides an authorative interpretation of the place of safety provisions of the Children Act, 1908, in particular those provisions which empower the Garda in certain circumstances to take children without warrant and place them in care. The interpretation which has been given accords with what had been the understanding in my Department and the health boards and the judgment will be of considerable value in removing the doubts and uncertainties which had crept in since an earlier judgment in the same case in the High Court late last year.

However, the point I wish to make in relation to this amendment is that nowhere in the judgment is there any reference good, bad or indifferent, to children's courts or family courts. The matter is not alluded to in any way. I am at a loss to understand how Deputy Yates can make these statements. I do not think he has read the judgment in detail or, if he has been advised on it, that he has the proper advice. While the Supreme Court judgment did not make any reference whatever to the need for children's courts it did refer to the desirability of there being some procedure available to enable a child involved in care and custody proceedings to be granted legal representation in his own right. That was the publicly quoted point made by Mr. Justice O'Flaherty.

This matter came up in our discussions in the context of amendment No. 116. While that amendment was ruled out of order as a potential charge on the Exchequer, I drew attention to the fact that it is one of the ideas being considered by the Law Reform Commission in the context of their examination of the law in relation to child sexual abuse. I indicated then, and I repeat now, that while the granting of independent legal representation to the child is not without difficulty, the matter will be considered by the Government in the light of the Commission's final report. The views of the Supreme Court in this regard will be taken into account in that context. I hope that this clarifies the situation.

Mr. Yates

I do not know who wrote what the Minister read but whoever wrote it——

Mr. N. Treacy

We read it well.

Mr. Yates

I have no argument with the reading of it but the writing of it is a different matter. One of the distinguishing features of a children's court as distinct from other courts is that there would be a child advocate, which is exactly what amendment No. 116 is about. I take it from what the Minister has said that if the Law Reform Commission recommend this — and I understand the report will be made available prior to us completing this Bill in the Dáil — the Minister will then see fit to persuade his colleagues in the Department of Justice that it would be a vital step forward. On that basis I withdraw amendment No. 190.

Amendment, by leave, withdrawn.

Section 57 agreed to.

NEW SECTION.

Chairman

Amendment No. 191 in the name of Deputy Sherlock is a new section and amendments Nos. 192, 193, 194 are alternatives. Amendments Nos. 191 to 194 inclusive, may be taken together.

Mr. Sherlock

I move amendment No. 191:

In page 25, before section 58, to insert the following new section:

"58.—(1) Any person, not being a child, who sells, offers or makes available to a child or young person any volatile substance in circumstances in which it would be reasonable for that person to know or suspect that the substance will be or is likely to be misused by that child or young person in a manner which is likely to cause him to be intoxicated shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

(2) (a) Any person who sells, offers or makes available to a child or young person a volatile substance to which this paragraph applies, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

(b) The Minister may prescribe volatile substances to which paragraph (a) shall apply, whether in respect of children or young persons or both.

(3) Where a person is prosecuted for an offence under subsection (1) or (2), it shall be a defence for him to prove that he took reasonable steps to assure hismelf that the person to whom any volatile substance was sold, offered or made available was not a child or a young person, as the case may be.

(4) Subject to subsection (6), a court by which a person is convicted of an offence under this section may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit.

(5) A court shall not order anything to be forfeited under this section if a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity is given to him to show cause why the order should not be made.

(6) A member of the Garda Síochána may seize any volatile substance prescribed by the Minister under subsection (2) which is in the possession of a child or young person in any public place or any volatile substance (whether so prescribed or not) which is being misused by a child or young person in a manner likely to cause him to be intoxicated. Any substance so seized many be destroyed or otherwise disposed of in such manner as a member of the Garda Síochána not below the rank of Chief Superintendent may direct.".

The issue here is the very important one of the sale of solvents and the main point is in subsection (6) of amendment No. 191, whereby "A member of the Garda Síochána may seize any volatile substance prescribed by the Minister under subsection (2) which is in the possession of a child or young person in any public place or any volatile substance (whether so prescribed or not) which is being misused by a child or young person in a manner likely to cause him to be intoxicated. Any substance so seized may be destroyed or otherwise disposed of in such manner as a member of the Garda Síochána, not below the rank of Chief Superintendent, may direct."

I have not read the previous Bill but I understand this provision was contained in it. Therefore it might be said that the section as proposed is a watering down of the measures contained in the previous Children (Care and Protection) Bill. In reply to Questions in the Dáil in May the Minister stated that a report in 1986 showed that there were six deaths in different categories related to this and that because of the huge variety of consumer products which contain solvents it would be unrealistic to completely ban the sale of these products to children. We must be realistic if we want to make an impact on this problem. We must give the Garda the power to seize volatile substances. Controlling the sale and distribution of solvents is only part of the solution. I see the need for a major educational campaign to alert young people to the dangers of such substances.

Mr. N. Treacy

Amendment No. 191 is modelled on the section dealing with volatile substances which was contained in the Children (Care and Protection) Bill, 1985. There are important differences between it and what is contained in section 58 of the present Bill. I would like to explain why this has come about. Subsection (1) of the amendment is broadly similar in effect to subsection (1) of the Bill. It makes it an offence for a person to sell or make available any volatile substance to a child where it would be reasonable for him to know or suspect that it is likely to be misused by that child. The main difference is that the amendment uses the term "volatile substance" but the Bill does not. The term is not defined in the amendment nor was it in the 1985 Bill. In drafting this Bill it was decided not to use the term "volatile substance" but to instead use the concept of intoxication which the courts are quite familiar with. I am advised that while it would probably be difficult to secure convictions under either formula, the one contained in subsection (1) of the Bill is tighter and is more likely to prove successful in prosecuting persons involved in this type of activity.

Subsection (2) of the amendment would give the Minister power to proscribe certain products which could not be sold to children under any circumstances. In drafting the Bill a lot of thought was given to the effectiveness of such a provision, and the Government came to the conclusion that it would be of no value since all of the products that are generally abused — glues, aerosols, cigarette lighter fuels, household cleaners and butane gas — are freely available in the average home and children have legitimate reasons for using them. To prosecute shopkeepers for selling glue to a child building a model aircraft would make no sense at all.

The last major difference between the amendment and the Bill is subsection (6) which would enable the Garda to seize volatile substances from children. On further reflection this was also felt to be excessive and of doubtful value. For example, it seems unreasonable that a teenager should be at risk of having hair lacquers or deodorant sprays seized from him or her by the Garda but this would be possible under what is proposed here. As far as we are concerned, the best and most effective answer is to create greater awareness of the dangers of solvent abuse among children, parents and those who work with children and among traders. The health promotion unit of my Department has prepared an information programme aimed at combating solvent abuse, and I have a copy of the document which I will circulate to all members of the committee. I believe that the educational approach is likely to be far more successful than the punitive approach and that the carefully planned programme which has been developed will in time reduce the incidence of solvent abuse. In the circumstances, I am unable to accept the amendment.

Mr. Howlin

First I accept that we are dealing with a very important section. This problem was extremely obvious around the country, particularly in our major cities, a few years ago and seems thankfully to have diminished in prevalence in recent years. Still we need to have a clear strategy to tackle it as a problem that may well recur and to give the Garda clear powers to intervene. One of the most upsetting things for many of us was to see children on our streets, particularly in the city of Dublin, with their heads in plastic bags inhaling, and people were powerless to intervene.

I do not accept the Minister's view that children going around with hair lacquer could be at risk of the Garda seizing them. I think that would be an unfair view of action the Garda might take. They will act responsibly with any powers devolved to them by the Oireacthas. They should have the power to remove a plastic bag with solvent in it if a child has his head in it and is in a state of intoxication. It would be wrong of us not to give that power to the Garda and we should use this section of the Bill to do just that.

I included the section, that is now an amendment in Deputy Sherlock's name, in the revised Bill published in my name in 1987, taken from the 1985 Bill prepared by my colleague, Barry Desmond. I accept that the words "volatile substance" might not be the best but it would be only a slight amendment to remove the word volatile and reinstitute the definition of intoxication that is in the Minister's new section. The powers that are included in the amendment are more far reaching than the powers in the Minister's section and I think we should go the further step that Deputy Sherlock wants. I feel strongly about that.

I fully support the notion of education and awareness. Frankly, I am not impressed by other awareness campaigns. This is AIDS weeks and I do not want to digress too far, but the public campaigns on that subject certainly were launched with great fanfare and gusto and it is very obvious to all that they seem to have disappeared off the horizon now when the problem has multiplied That does not fill us with confidence that an awareness campaign from the Department will be all that successful.

For those reasons, I think the Minister should look again at the section, I think the minor adjustment in the definition of substance in the amendment is preferable to the section the Minister is putting before us.

Mr. Yates

My amendment No. 193 reads:

In page 25, subsection (1), line 25, after "intoxication." to insert "It shall also be an offence for a child to purchase or use a solvent as defined under the terms of this Act.".

These amendments are being taken together. My amendment would make it an offence for a child to purchase or use a solvent as defined under the terms of this Act. I note that the Child Care Coalition agree with this amendment, stating that clear rules and limits are useful in restricting children and, therefore, preventing solvent abuse. If there is a law and a consequence of breaking it, it is a useful deterrent.

In relation to Deputy Sherlock's amendment No. 191, which is opposed to section 58 it seems to me the Minister is having it both ways. On the one hand, he is saying it is not possible to define "volatile substances" and on the other hand he is saying that if we accept Deputy Sherlock's amendment it will be an offence for children to have everything from deodorants and hair lacquer to glue for aeroplanes. In my view solvent abuse is a serious problem. In Wexford town there have been major problems in the past years and in urban life generally, solvent abuse is a feature of the early teens and even younger ages, particularly glue sniffing.

We have to be serous about this and while education and information are one arm of a campaign, legal controls are clearly not mutually exclusive to that campaign. Therefore, I too would favour, as Deputy Howlin said, tough regulations to ensure that the business sector would be under no illusions about the dangers involved and that we would set legal limits in allowing the availability of these products to children and, if the Garda know, suspect or are aware of such abuse, there should be a legal code under which they can act. For all those reasons, the Minister might consider between now and Report Stage strengthening section 58 to make it more effective.

Mrs. Fennell

I am very happy that we are bringing this long overdue measure into law. While these solvents are useful products — we all know that Tipp-Ex and the various glues are useful in "do it yourself" activities — my generation are constantly amazed and horrified at the uses that have been discovered for very conventional household products. My introduction to solvent abuse and what it can do to children occurred one evening in O'Connell Street. I saw a group of eight or nine travelling children around Bachelors Walk who were out of their minds. I did not know what was happening although I saw these plastic bags. These children were reeling across the road and were in great danger. I remember feeling very agitated and I ran for a Garda and asked what was wrong with these children and if he could do something about it. They were obviously high on something; he told me in graphic detail what was happening and where they were getting the glue but he could do nothing. These were the early days of solvent abuse and glue sniffing.

I support this amendment as there is no point in this legislation tackling this grievous problem unless we do it properly. While there is a role for education we have to go as far as we can in preventing the sale of these substances to under age people where there is a suspicion that they are being bought for abuse, and secondly we have to strengthen the hands of the Garda. If a group of people are inhaling a substance I think it is ludicrous that the Garda cannot under legislation confiscate that substance on the spot. I would like to see that section incorporated into the legislation because I think it is very important.

With regard to the educational procedure, of course we need education about this problem and the book cautions on the role of the media and suggests that to prevent the copycat syndrome media reports should not be explicit about brand names or inhalation techniques. I agree with that. Education is important but I would put greater stress on prevention in terms of outlets and giving sufficient powers to the Garda to take control.

In his reply the Minister spoke about hair sprays and other items. The amendment is specific in that it says any substance so seized may be destroyed but where abuse is happening it is quite specific. I would ask him, please, to look at that and see if he can incorporate some part of it in the Bill on Report Stage. It is not as pertinent now as it was two or three years ago but the reality is that it is there. This material apparently gives a great buzz and a terrific high. It is very pleasurable and it is cheap, but it is very destructive in terms of the health of young people in that it can lead them to stronger drugs and it can affect their organs. It is a very destructive habit. I hope we will be able to deal in this section with this particular abuse so that when some child is found dead — there have been deaths from it — we will not have cause to ask why we have not done anything, and why can the Garda not act.

Mr. D. Ahern

There was an incident in my own home town about one and a half years ago. A number of youngsters were playing. One of the older ones had purchased petrol from a local petrol station and two of the boys poured petrol on to one of the younger chaps in the group and set fire to him. It was publicised in the national papers and the boy was very very badly burned. His parents came to me subsequently and I went from Department to Department trying to find out if there was any statutory prohibition on the sale of petrol to young people. The Department of Justice, the Garda and the Department of Labour all sang dumb. They said it was difficult to legislate in this regard. Subsequently the Department of Labour brought forward an education régime where they tried to exhort people to be careful and not to sell petrol to young people.

This is something the Minister could look at and include in the legislation. There was no support for the family at all; there was no compensation from anyone. They could not sue the owner of the garage because they could not prove that he knew what it was being used for. I have always felt there was a need to put in legislation a prohibition on the sale of the type of material, and not just for inhalation purposes. I am well aware that there is a problem in that area. Will the Minister have a look at that and perhaps liase with the Departments of Labour and Justice in that regard? That family was scarred for life, as was the young boy.

Mrs. Barnes

I thank Deputy Ahern for drawing the attention of the committee to that case which involved the use of a material to which children could have freer access than other solvents. I welcome the booklet and hope it will be widely distributed.

Mr. N. Treacy

It has been.

Mrs. Barnes

I support subsection (6) because the Garda have to be empowered to act. Deputy Ahern checked from Department to Department after that horrific incident and found that no Department would take reponsibility. The point is well made in subsection (6). The words "in a manner likely to cause him/her to be intoxicated" show that the Garda would not intervene unless he knew there was a danger to the child. I support Deputy Ahern's suggestion.

I am aware that petrol or a product like that has been purchased by children and used on animals. Cats and dogs have been set alight. That is horrific. Taking into consideration what everybody has said, maybe the Minister will agree on Report Stage to give the Garda some power to apprehend and to intervene when they feel it is necessary.

Mr. Flanagan

I do not wish to be repetitive but I agree with what previous speakers from both sides have said about the need to tackle this serious problem. I take it the Minister has not responded specifically to the points raised by Deputy Yates. Whatever about the merits or demerits of Deputy Sherlock's amendment — I disagree with the Minister that the demerits far outweigh the merits — there is no reason or justification why the Minister cannot accept Deputy Yates' laudable amendment because if it is not accepted, there will be a glaring omission in the Bill. This was referred to by a number of speakers when highlighting instances of solvent abuse and Deputy Ahern's case about the petrol. One of the group actually purchased the petrol. It was probably one of the group on O'Connell Bridge who purchased the solvent. Unless a clause incorporating amendment No. 193 is accepted, we are in difficulty. I would like to hear the Minister's comments specifically on amendment No. 193.

Mr. O'Donoghue

The case outlined by Deputy Ahern is adequately covered by section 58. The substance is not defined in section 58. I would assume that could also relate to petrol. I do not know if petrol could be described as a volatile substance. It can certainly be defined as a substance likely to be inhaled. Subsection (6), while admirable, appears to pre-suppose that there is no power of arrest for intoxication. There is such a power of arrest and that power of arrest is vested in the Garda Síochána. In the example Deputy Fennell gave the garda should have arrested the people involved. It would then be open to the garda not to proceed by way of summons but by way of charge sheet with a view to getting the matter into court quickly and the situation dealt with. If an individual, for example, is drunk in a public place, there is a power of arrest vested in the Garda. In the same way if a child is intoxicated as a result of utilising a substance such as this, intoxication again arises and is specified in the Minister's section and in Deputy Sherlock's amendment. Accordingly I would have thought that the power of arrest would have existed.

Mr. Yates

Under what Act is it an offence to be drunk?

Mr. N. Treacy

Drunk and disorderly.

Mrs. Fennell

I thank the Deputy for his explanation. What is the point of arresting these young children? Do they take their bag of solvent into the cell and continue to sniff it? Why not take swift, sharp legal measures? Take away the solvents. Get care for the children. They do not need to be penalised, they need care. They should not be on the streets. They should not be sniffing in the first place. I do not understand and I would like the Minister to tell me why there would be such a reservation about taking away the bag of glue or canister or whatever when it is apparent that the children are at risk and damaging themselves. The whole arrest procedure and bringing them to the barracks is not a reasonable alternative.

Mr. O'Donoghue

I am not suggesting that the children would be charged, or should be charged. Would Deputy Fennell prefer, for example, if the solvent was taken from the children and they were let roam free to buy it elsewhere?

Mrs. Fennell

We should have provision in this Bill to prevent them buying it elsewhere as well as giving the Garda the power to take the substance from them. I do not think it is one or other. The situation of these children is dreadful and we are not going to resolve it in this Bill. We should give the Garda the power to take practical measures and take the substance from them.

Mrs. Barnes

I take Deputy O'Donoghue's point that he believed petrol was included in section 58 and section 58 (1) continues: ". . . . if he knows or has reasonable cause to believe that the substance is, or its fumes are, likely to be inhaled by the person under the age of 18 years for the purpose of causing intoxication". In the example Deputy Ahern gave the substance was not being inhaled but it was used in a dreadfully destructive and damaging way. I do not see it being covered in that wording.

Mr. D. Ahern

That was the point I wanted to make. I do not agree with Deputy O'Donoghue that subsection (1) would take care of that particular instance because if a prosecution had been taken it would have had to be proved that it was likely to be have been inhaled. There would have been no evidence that it was inhaled. The fact is they poured petrol over the boy, threatened him and then threw a match at him.

Mr. O'Donoghue

That is a crime, and a very serious crime.

Mr. D. Ahern

No one was prosecuted.

Mr. N. Treacy

I think this discussion has been very wide-ranging and the more we talk about it the more we can see the compounding problems and the complexities. The point I was making was that Deputy Sherlock's amendment was so wideranging that it would allow the gardaí to take hair lacquers and deodorant sprays from people; I was not suggesting that they would be doing it, nor am I recommending that they should.

I would like to turn to amendment No. 193 from Deputy Yates. This is a very wideranging proposal. It says: "it shall be an offence for a child to purchase or use a solvent as defined under the terms of this Act". In all the discussions there have been on solvent abuse, I am aware of only one professional or service group involved with children suggesting that the answer lies in criminalising the practice, and that is the professional Coalition on Child Care. They are the first group to recommend anything in that area.

The problem of solvent abuse is largely a youth problem and the majority of the young people most heavily involved seem to come from the more disadvantaged sectors of our society. I think this is being borne out by what has been said here today. I do not believe that any good would come from making it an offence for these youngsters to engage in this form of behaviour, objectionable as it might be. I accept that the provision contained in the Bill is not of itself a complete answer to the problem of solvent abuse. Unfortunately, however the problem does not lend itself to easy answers. I think this is very obvious from the debate we have had here today. The number of ordinary domestic products which contain solvents and which may be abused is enormous. They include all forms of aerosols and adhesives, paint stripper, cleaning fluids, butane gas, etc. A ban on the sale of all of these products to children would be both unrealistic and ineffective since there are few homes where at least some of them are not readily available. Deputy Fennell made that point very well.

I share your concern, and the harrowing experiences which you have narrated make us realise how serious this problem is. There are real difficulties about extending the power and role of the Garda in this area. First, the number and range of products which can be abused, most of them freely available in every household, make it difficult if not impossible to restrict the supply to children. Furthermore, children have legitimate uses for these products whether they be glues for model making, deoderants or hair lacquers sold in aerosol cans, etc. Second, there is strong professional advice available that solvent abusers should not be chased or subject to distress while they are high because there is a very real danger of heart failure if the substance abuser engages in sudden activity, such as running from a Garda. I would like to refer Deputies to the last sentence of paragraph 2, page 24 of the booklet I gave them: "It is particularly important to bear in mind the possibility of a sudden death if abusers are chased away or if an angry confrontation develops". I refer also to page 35, paragraph 1, second sentence: "Do not chase after solvent abusers as physical activity or stress may cause heart failure if particular types of solvent have been inhaled". From all the evidence and information available to us in the Department of Health, particularly from inquests, we have found, and the professional evidence is, that heart failure often occurs where people are trying to apprehend or stop the solvent abusor. The situation is so delicate that it is hard to find balance, it is very hard to find a solution. However, I regard it as a very serious problem.

Substance and petrol abuse allied to the whole drug scene is a very difficult area and it is very hard to legislate for it with young people. As Deputy Fennell and others have said, it is very worrying for us who are not in that age bracket to understand why people, young people in particular, would choose to go down this very very sad road. In view of all that has been said I have to say that I find it extremely difficult to be able to give any strong commitment that we would be able to come back with the solution to this problem. I will have a look at it and will be liaising with the drugs committee to see if we can come up with something that might help to bring some semblance of a solution to this very delicate, sad problem.

Mr. Yates

The Minister might tell us what is involved in his amendments Nos. 192 and 194.

Mr. Howlin

I wish to respond briefly to the Minister. I am very disappointed. Deputy Sherlock's amendment is verbatim the section that was devised in the Department of Health when Barry Desmond was Minister for Health, and it was incorporated in the 1985 and 1987 Bills. There is nothing intrinsically in it that the Department of Health have difficulties with. What has caused comments from all sides, including the Government side, is that there seems to be a decision to move away from a stronger line. That is regrettable, and we will regret it. I fully accept it is a very difficult area to legislate in. There are many areas that are difficult to legislate in but we try. The approach the Minister has outlined is not acceptable. We all share the anguish of seeing children in dire circumstances but we should try and legislate to help them. If we need to amend this legislation at some future date because it is ineffectual or is depriving people of other rights, we can do that but I think we need to take that step now. I am taken aback by the Minister saying that one group asked for an approach like this. The one group he spoke about is a coalition comprised of virtually everybody in the child care area. There is a list of groups who have considered this problem and it is their recommendation. I ask the Minister to think again. He is making a mistake by not grasping this nettle. It is important that the Garda have the power of intervention. That is the nub of the issue.

I am flabbergasted by what the Minister said about not distressing somebody who is merrily intoxicated. This is a matter of training for the gardaí. They would be trained not to stress people. Basically what the Minister said is that because we might kill them it would be better if we walked away and let them kill themselves. I ask him to think again and to come back with whatever amendments he wants to amend Deputy Sherlock's amendment. The consensus from all sides is that the section is simply not strong enough.

Mrs. Fennell

There are many laws that are never implemented. The notion of anybody being arrested for being drunk is a bit of a fairy story in this country. I take the Deputy's word for it but I have never seen or heard of it. Nonetheless I would prefer to think that the tools were there if ever they were needed. We could look at the legislation and say we can implement it or we can promote the use of that part of the Bill. I am horrified to hear talk about the coalition of child care groups as only one group, because they represent a very broad spectrum of child care organisations. The Minister can be very advisedly guided by what they say. This is something I feel very strongly about and I hope to come back to it on Report Stage if the Minister has not been able to consult, negotiate and bring forward some stronger amendment. I hope he will speak with the Garda authorities to see if they can agree to have the section amended so that the gardaí can do the practical thing when children are high on solvents.

Chairman

I remind Deputies that we are coming near the end. I gather that there is a vote in the Dáil at 6.45 p.m. I would ask not just Deputy Sherlock but all other speakers to be brief.

Mr. Sherlock

I welcome support for my amendment. Very strong points have been made. Under the original section it will be an offence if a person knows or has reasonable cause to believe that the substances or its fumes are likely to be inhaled by a person. In subsection (4) the penalties are specified where it is established that it is an offence. In subsecton (6) of the amendment it does not say "shall" but that the Garda Síochána "may" seize; that is reasonable. If the Garda had that kind of power we would not be availing of this legislation to enact very strong and tough measures to deal with solvent abuse. I appeal to the Minister to follow up this matter.

Mr. L. Fitzgerald

The Minister obviously has some serious difficulties in relation to subsection (6). Arising from what Deputy Fennell said, I go along a lot of the way with her. From my own experiences in Dublin city I know there is a very high incidence of solvent abuse, and the decrease is not very significant. While I see the merits in section 58 I would ask the Minister to look again at the powers of intervention which were referred to and are contained in subsection (6).

Some Deputies referred to training for the Garda Síochana. If the Garda have to be trained in special skills to handle situations like that — and it is usually an urban problem — then so be it, but I would appeal to the Minister to look again at the matter. If he is not too happy with the formula of words I have used, I appeal to him to look at an alternative form of words that might address the problem. I do not believe, despite the legal clauses in section 58, that the problem can be effectively dealt with through the implementation of that section.

Mr. N. Treacy

I think I have been taken out of context. What I said was that no professional group, as an individual group, had made representations on this matter. Collectively the professional child care people in response to this amendment alluded to this but none of the other professional groups, individualy, responded or took up this matter. Deputy Howlin is over-simplifying the matter. I am prepared to look at it again. I do not want to allow a situation to develop where young people can harm themselves and we cannot intervene. I thought I had made that quite clear. The questions we have to ask ourselves are: have we legislation which covers this area? How can we make it an offence for retailers who sell goods to young people that may harm them? This is one of the big problems. Whether to bring this area under the Department of Justice legislation or Department of Health legislaton I am not sure. It is a very difficult problem. It is not because Deputy Desmond brought in this section in 1985 that it is not in the Bill now. We have a lot of information which suggests that this is not suitable at this time.

I will look at this in as broad a way as possible. I will consult whoever needs to be consulted and see if I can come back with something that will protect our young people. That is what needs to be done but it will be very difficult. I do not want anybody to be under any illusion that it will be an easy solution. I hope we can come up with something.

Deputy Yates asked me to respond to the other two amendments and I would like to do that. The purpose of amendments Nos. 192 and 194 is to ensure that there is no possibility of a loophole being created in the Misuse of Drugs Acts as a result of the enactment of this section. I am advised that there is a very slight possibility that the existing wording of subsection (1) could give rise to doubts as to what is intended by providing that it shall be an offence to sell, offer or make available a substance other than a controlled drug to be inhaled for the purpose of causing intoxication. It could be suggested that it would not be an offence to sell, offer or make available a controlled drug to be used in the same manner. Clearly, this is not the Government's intention and the first of these amendments seeks to avoid any possible ambiguity on this point by removing the phrase "other than a controlled drug" from subsection (1).

The second amendment is consequential and makes it clear that this section does not in any way alter the provisions of the Misuse of Drugs Acts. I hope I can have the committee's agreement on those two amendments.

Mr. Sherlock

In view of what the Minister has said, I am prepared to withdraw the amendment but reserve the right to reintroduce it.

Amendment, by leave, withdrawn.

Mr. N. Treacy

I move amendment No. 192:

In page 25, subsection (1), line 21, to delete "other than a controlled drug".

Amendment agreed to.

Mr. Yates

I move amendment No. 193:

In page 25, subsection (1), line 25, after "intoxication." to insert "It shall also be an offence for a child to purchase or use a solvent as defined under the terms of this Act.".

On the same basis as Deputy Sherlock, I withdraw my amendment.

Amendment, by leave, withdrawn.

Mr. N. Treacy

I move amendment No. 194:

In page 25, lines 48 and 49, to delete subsection (7) and substitute the following:

"(7) This section is without prejudice to the provisions of the Misuse of Drugs Acts, 1977 and 1984.".

Amendment agreed to.

Section 58, as amended, agreed to.