Special Committee on the Children (Care And Protection) Bill, 1985 debate -
Thursday, 16 Oct 1986

Procedure

Chairman

Before we commence, I have noted a couple of points. I would like to say a few words for the benefit of Members who may not have served on a special committee before, which, incidentally, includes myself. This is a special committee set up by the Dáil to consider this particular Bill. The procedure here is the same as in a Committee Stage of the whole House. Only members of the committee may speak and vote. Members of the public and the press may attend if the committee do not preclude their attendance. No representations will be discussed by the committee and no delegations are received. Persons or bodies wishing to make representations may do so to any individual member of the committee. We will go through the Bill section by section as in the House. A verbatim report of the committee's procedure is published.

I should like at this stage to ask the Minister for Health to address the meeting as he indicated at the last meeting that he would let us know the position regarding official amendments today.

Minister for Health (Mr. B. Desmond)

Chairman, with your permission I should like to make a slightly long statement. I should like to make a general comment on the amendments which we are facing into and then ask for the consideration of the committee in that regard.

Mr. Shatter

Before the Minister starts, could I just clarify something? Would I be correct in assuming that whatever general statements we are making we are not starting to process individual sections at the moment?

Chairman

I take that point. I suggest to the Deputy that we agree that the Minister should make a statement at the commencement of the meeting and then, conscious of the fact that the Deputy raised this matter at the last meeting. I assume the Minister will deal with that in the course of his remarks. If not, we can then take the point raised.

Mr. Shatter

I have no desire to interrupt you. Chairman, but I just wanted to clarify what we are doing.

Mr. B. Desmond

At our first meeting. I undertook to make a statement on the up-to-date position regarding my proposed amendments to the remaining sections of the Bill.

For the sake of clarity I propose to go through the Bill, as introduced, on a Part by Part basis and give an indication on each Part as to the amendments I propose to make. I do that because of the anxiety of Members to be in possession of the general approach of the Bill.

Part I, which is headed Preliminary and General — sections 1 to 8 of the Bill — deals with definitions and other technical amendments. I have already circulated 12 amendments to this Part and notes on these are contained in the brief which I have made available to Members.

Before the existing section 9, I will be proposing to insert a completely new Part II entitled "Promotion of Welfare of Children". The new Part contains sections dealing with the duty of health boards, the welfare and wishes of the child, provision of premises by health boards, arrangements with voluntary and other bodies to provide services on behalf of health boards and the functions of the chief executive officers. This new Part is designed to ensure that the emphasis in providing child care services will be on promoting the welfare of children within their families. Only as a matter of last resort will children be removed from their families and placed in care. Notes on these amendments are contained in the briefing document.

Regarding the existing Part II currently before members, namely, Regulation of certain child care services. I propose to delete all of that existing Part II, that is, sections 9 to 22, and to replace it with two entirely new Parts as follows, a new Part III and a new Part IV. As soon as I have finished, for the benefit of members. I will circulate photocopies of my notes.

Chairman

I was going to suggest that.

Mr. B. Desmond

The indulgence of the committee will be requested because of technical matters.

The new Part III will be Regulation of day care services and the new Part IV will be Regulation of children's residential homes. Each of the new Parts is self-contained and includes provisions on the establishment of registers of day care services and registers of children's residential homes, power to make regulations governing the operation of the respective types of services, removal from the register, the question of appeals, the powers of entry and inspection. These amendments became available only yesterday from the parliamentary draftsman. Following consultation with the Chairman, it was agreed that they should be circulated, in any event, for today's meeting, though I fully appreciate that Deputies will need some time to study those amendments before we can begin to discuss them. They have been circulated this morning.

Regarding Part III of the Bill, namely, Children in need of care and protection, as it was introduced that covers sections 23 to 40, inclusive. It is the most important and most complex Part of the Bill. This is the Part of the Bill about which constitutional doubts have been expressed, notably by Deputy Shatter and other colleagues here following a judgment by the Supreme Court in the middle of 1985. My Department have been in consultation with the office of the Attorney General about this Part for some time. It is proposed to bring forward major amendments to the following sections: section 25, Voluntary care; section 27, Power of Garda Síochána to take a child to a place of safety; section 28, Detention in a place of safety; section 29, Place of safety order; section 31, Notification of reception into place of safety.

There are five other sections which will require amendments. Section 33 would require amendment regarding children who may be the subject of care proceedings, section 35, the supervision order; section 36, the care order; section 37, the interim care order; and section 38, conditions required for making of supervision and care orders.

I want to assure the Deputies that the parliamentary draftsman is working as quickly as possible to complete this batch of amendments. However, Deputies will appreciate that the drafting of these amendments cannot be rushed as it is necessary to pay meticulous attention to the relevant provisions of the Constitution and recent court rulings in order to ensure that the sections, as amended, will be able to withstand constitutional challenge.

There are several other sections I should like to refer to very briefly. Part IV deals with children who are or have been in the care of health boards. This covers sections 41 to section 62, inclusive, of the Bill. It enables health boards to place children in their care in foster care, or residential care, provides for review of placements, for removal from care, for maintenance charges and after care. Some of the provisions of this Part are being incorporated in the proposed new Part II, namely, section 55 (1) and section 56. I will, however, be bringing forward amendments to this Part to take account of representations which have been made to me and to bring it into line with changes which it is proposed to make in earlier Parts. The sections which will be affected by that aspect are section 43, Placement in foster care, section 44, Placement in residential care, section 45 Review of placement in care, section 46 Removal from foster care, section 47 Aftercare, section 49 Removal from voluntary care, section 50 Removal of child subject to care order, section 51 Power to retake a child, sections 52 and 53 Maintenance charges and section 57 Child care advisory committees. My Department have furnished the draftsman with draft amendments to these sections and they are being examined by him in conjunction with the proposed amendments to the earlier Parts.

Chairman, there are two other aspects to which I want to refer. Part V of the Bill covers custody aspects from sections 63 to 70. These are proposed new procedures which would have enabled foster parents or relatives, who were bringing up a child apart from the parents, to obtain a custody order granting them legal custody of the child.

I propose to make a full statement on this when we reach the relevant section. All I would like to say at this stage is that we have had extensive consultations and representations from the child care organisations and in particular from foster parents on the proposals. The reaction to the sections has by and large been almost universally negative in terms of the proposals here. In the light of that level of representations and having reviewed the situation I do not propose to proceed with that entire Part relating to the custody procedures. I want to deal with the remaining sections now very briefly.

Part VI dealing with Court Procedures, Evidence and Jurisdiction covers sections 71 to 81 of the Bill as initiated and there have been substantial representations relating to them. We will have amendments relating to section 78, Exclusion of child or young person from the court in certain cases; section 79. Prohibition on publication or broadcast of certain matters; section 80, Presumption and determination of age and section 81, Jurisdiction.

There will be some amendments, not major amendments, relating to Part VII, that is, section 82, relating to neglect, abuse and cruelty to children, section 83 — Volatile substances and section 84 — Begging. I suggest that I circulate this note regarding the amendments which we will, I hope, process during the course of the Bill. The overall amendments are already substantial. It is a unique Bill in that sense and has been very difficult to draft. It has been in gestation since 1973 and will require careful consideration here, particularly arising from the constitutionality questions which appear in the Bill at every stage. The slightest change has multiple knock-on effects on the other sections of the Bill. That is the position at the moment, Chairman, and while Members are considering what I have said I would ask our staff if they could have some copies made of the statement.

Chairman

There is a lot of detailed information and it is right and proper to get copies for the Members. Apologies have been received from Deputy Madeline Taylor-Quinn and in accordance with Standing Order 70 (2) her place is being taken at today's session by Deputy Maurice Manning, who is very welcome.

Mr. Shatter

Could I convey apologies for Deputy Monica Barnes? She has been delayed.

Chairman

Duly noted.

Mr. B. Desmond

Unfortunately I must be in the Seanad at 4 o'clock. In any event I do not think we intended going beyond 4.30 p.m. today.

Chairman

That was the agreement. I propose to take the point raised by Deputy Shatter at the last meeting, that it was hoped all the amendments would be available by today.

Mr. Shatter

I should like to raise that and to respond to one or two things the Minister said. What I heard today reinforced the view I expressed at the last meeting, that this committee cannot start to process this Bill until all the amendments have been circularised. We are not simply amending a Bill; we are involved in major reconstruction of a Bill. I welcome the fact that we are involved in a reconstruction and I expressed that view in the House on Second Stage. I also said — in fairness to the Minister — that I agreed with everything he said in his Second Stage speech and that I accepted his aspirations and intent. I made the point that it was a defectively drafted measure and would require major amendments, so I welcome the fact that we will have an opportunity to process major amendments to this Bill.

I find what the Minister is saying extremely depressing. It is almost a year and a half since the publication of this Bill and the Minister, through no fault of his own, because of difficulties he has with the parliamentary draftsman and the Attorney General's office can only circulate amendments to 22 sections of the Bill. Some amendments simply delete sections of the Bill; there are only substantive amendments for about 16 sections. On the present time scale we will be in grave difficulties in making any speedy progress with this legislation before Christmas, never mind this side of November.

I will again raise the issue which I raised on Second Stage. I do not believe that there exists within the offices of the Attorney General and the parliamentary draftsman the necessary expertise to properly draft this legislation. We are now seeing and reaping the rewards of that problem, if "reward" is the right word. I do not think it is. I do not doubt the Minister's commitment or that of his officials. I know his officials have worked on this Bill and that individually they are committed to implementing a new Children's Act. I do not doubt any of that. I am not casting aspersions on them. However, I doubt-whether the drafting expertise exists to put this Bill together properly as a legislative mechanism. What we are seeing today is indicative that it does not. I know the Minister had hoped to provide and to circulate far more amendments by this stage. I accept the Minister's bona fides. He cannot be expected to do the legal work and to draft this measure. He is caught on the hanger of a drafting process that renders him politically impotent to make progress with this legislation.

We must question very seriously how this Bill should be dealt with. I seriously suggest to the Minister that if he is having difficulties in drafting this Bill and difficulties with the Attorney General's office, the Minister should appoint someone with the necessary expertise to do this work properly. That is a point worth making. I want to get on with the job. I want to see a decent children's Bill enacted, modernising our laws. I find what the Minister is saying totally depressing.

The Minister is relying on the legal advice he is getting about constitutional difficulties. I raised on Second Stage the possibility that there could be some constitutional difficulties with the provisions relating to the taking of children into care. The difficulties I raised in relation to this Bill apply to the current Children Act of 1908 to which similar difficulties could apply. The Minister should be careful not to water down the provisions of this Bill to a degree that, instead of extending additional protection to children at risk, we actually remove some of the protections that exist under existing law. The Minister should be cautious in necessarily accepting the views given to him by the Attorney General's office as to the extent of the constitutional difficulties. There are different views of different lawyers on this issue. It could very well be that whatever draft is produced on this Bill in relation to the taking into care of children pursuant to court orders will ultimately have to be referred by the President to the Supreme Court for a decision on its constitutionality, whether it is the phraseology contained in the original Bill as published or a different phraseology. I urge on the Minister caution in watering down the protective provisions of this Bill which are designed to provide protection for children at risk. Some of them are merely a reiteration in more modern language of legal protections that have been there for over 70 years.

The hope for this Bill was that it would deal with all aspects of child care and children's services. It was hoped that this Bill would deal with children's law as a whole and cover not merely health board workings in these areas but cover in total the area of foster care and adoption laws. It may have proved impossible for the Minister to produce reforming legislation in the area of adoption, in the context of this Bill, to implement the report of the Review Committee on Adoption. I know the Minister has plans, at least, to enact adoption legislation to deal with the problem of legitimate abandoned children, but it would be a tragedy if we watered down this Bill to a degree of virtually extricating from it all references to foster care and the need to change our foster laws. Our laws in the area of fosterage are grossly defective. The concept of the foster parent hardly exists in Irish law. We talk about children being boarded out under the boarding out of children regulations, a phrase which might have been suitable to the 19th century, but does not say too much for our social interest or concern as we head towards the 21st century.

I appreciate that the provisions contained in sections 11 to 14 of this Bill as originally drafted, and the provisions contained in Part V of this Bill as originally drafted as they pertain to fosterage, are considerably defective and require amendment. If the position is that the Attorney General's office are so incompetent and unable to cope with putting together the necessary amendments to put those sections in order we should not simply throw out that portion of the Bill in its entirety. It is the job of other members of this committee, if the Minister cannot appoint a specialist adviser to do so, to draft the appropriate provisions to establish a legal mechanism for foster care with all the necessary legal protections for the natural parents, foster parents and the children who are in the foster care area.

My final point on that issue is that in the context of child care, all the modern thinking is to move away from the need for residential care and to provide for foster care. If we remove some of the major areas in this Bill relating to foster care — from what the Minister says, I know some of them will be retained — because they are badly drafted; we are producing a Bill dealing with the taking into care of children which deals largely with residential care and which is not in accord with modern thinking and will not provide for the needs of children who need alternative care.

I find it extremely difficult to support an approach to this Bill which would simply extricate from it all references to reforming foster care law, simply because the Bill as initially drafted is defective. We should be able to get on with it, and amend Part V of this Bill in a way that makes it workable and affords protection to children who need to be placed in fosterage, to children in fosterage and to foster parents and for the natural parents whether married or unmarried who have children in foster care, who cannot look after their own children but who wish to maintain contact with them and retain a relationship with them. It would be a tragedy if we removed this section from this Bill and did not face up to legislation dealing with an area that has never been dealt with properly in the history of this State.

Dr. O'Hanlon

I share the concern about the number of amendments that are necessary to this Bill, and the whole question of legislating for child care generally. We made the point in the Dáil that we would have liked to see all sections of child care dealt with in this legislation rather than divided into three Bills. While this Bill provides for various aspects of child care, adoption and juvenile justice are not dealt with. I made the point at the time that I would prefer to see a comprehensive Bill dealing with all aspects of child care. We pressed the Minister to get a Bill into the House as quickly as possible. The last legislation was in 1908 and it is long past the time to update that legislation. Nevertheless, it is important that the legislation we pass in the Houses of the Oireachtas will be able to do what we want it to do — give protection to children and at the same time protect the rights of parents.

Having listened to the Minister, might it not be better if we were to have a whole new Bill drafted and presented to us in the Dáil rather than having such a major number of amendments and deletion of sections and new sections coming in? I do not know whether that would delay the Bill that much. Perhaps if a new Bill was brought before the House it might well be a more practical way of dealing with it.

The final point is: have we the total number of amendments to hand on any section of the Bill?

Chairman

Before the Minister replies, would any other members like to make a contribution at this stage?

Mr. B. Desmond

I would like to make three points. I appreciate the singular expertise of Deputy Shatter in relation to child care legislation, but I would remind the Deputy that that expertise is not confined necessarily to the parliamentary draftsmen and there are a number of people directly involved. It is not confined either to the Attorney General's office. The decisions relating to the formation of legislation and the development of it in relation to child care are now devolved to this committee and we are not without powers of competence ourselves, in terms of drafting, amending and developing effective legislation. We must put the role of the parliamentary draftsman and the legal advisers in context. We have legal advisers in my Department and I take cognisance of their views in relation to the Bill, but ultimately the Minister of the day and the Deputies of the day sitting in committee here will define and refine the sections of the Bill. We have done so in relation to other draft legislation.

Secondly, I am not watering down any sections. We will deal later with the constitutional problem of devolving the formal statutory custody powers to foster parents and of children in foster care. Foster care, regulating of foster care arrangements, removal from foster care, the placement in foster care and so on are dealt with in the Bill. There is no effort on my part to water down anything but rather to take cognisance of ongoing advice. As the Deputy knows, major court decisions have been made since the drafting of this Bill and it is necessary to take cognisance of those and incorporate them carefully into the Bill.

Regarding the desire to have one big magnum opus compendium composite Bill in relation to child care, this has been attempted since 1973. I am the first Minister for Health who decided, after many long hours as everyone here who has served in Government is aware, to put together a series of proposals in order to make progress in this area. We now have 88 sections dealing with different aspects of the Bill. If I drafted more Parts to the Bill dealing with juvenile justice, the Bill would probably extend to about 150 sections. If I added to that major reforming legislation relating to adoption another ten sections could be added. I can comfort the Deputies by saying that the Adoption Bill, which will enable the adoption of children who are called in our society “illegitimate”, abandoned or neglected and taken into custody — there are about 1,100 or 1,200 such children — will be before the House in the next two or three weeks. I expect to have it before the Government next week. The final print should be available to me early next week. This will certainly be published and it will then go through Second Stage in the Dáil.

Finally, in 22 sections of the Bill there are 35 amendments and there will be more. Many of these amendments are consequential. The number of amendments may appear to be substantial but they are consequential. In deference to members of the committee we should proceed along the following lines. I am in the hands of the committee. Normally the interpretation sections of Bills are at the end of the Bill. There is nothing to preclude this committee from starting on section 3 and taking amendments up to No. 16 that have been circulated for some time.

Chairman

Could I interject at this stage? Deputy O'Hanlon asked a very important question. Maybe you would address yourself to that?

Mr. B. Desmond

My apologies, Deputy, could you repeat your question?

Dr. O'Hanlon

Are there any sections on which we have the complete list of amendments?

Mr. B. Desmond

We are cleared up to section 22. On section 2, which is the interpretation section, there are some consequential additional definitions which normally go into the schedule of the Bill at the end. There are some consequential amendments on section 2. Otherwise the amendments are available to members up to section 22 of the Bill.

Chairman

What the Deputy asked was a fundamental question to which you have only referred briefly.

Dr. O'Hanlon

Would it not be better to bring in a new Bill?

Mr. B. Desmond

No. The Bill is complex but not that complex. Because of the volume of discussion which has taken place over a protracted number of years about child care, it would be retrograde to introduce a new Bill. We all know — I concur with Deputy Shatter to an extent — the inertia of the system. I totally exempt my departmental advisers from that. We all know the inertia of the system of circulating Bills to other Government Departments and the protracted discussions that follow. This Bill does not require resubmission to the Dáil on First Stage. It can be amended and when that is done, the committee may come to the conclusion that it is quite unsustainable. The committee then have to report back to the Dáil.

Chairman

The only information I have here regarding the bringing in of a new Bill relates to a Private Members' Bill in 1941, so we will have to consult on that. The Bill was introduced by John A. Costello and Patrick McGilligan. Fianna Fáil were in Government. The committee decided not to proceed with consideration of the Bill in view of the undertaking by the Minister for Justice to introduce another Bill instead.

Mr. Shatter

I support the Minister. It would be a retrograde step if we withdrew this Bill. I know it is not traditional in committees like this one to make party political comments and I do not wish to add any unnecessary aggravation to this committee. Therefore, I will resist the temptation to comment on the fact that Fianna Fáil, in all their years of office, never introduced this type of legislation.

Chairman

I ask the Deputy to keep to the point we are debating. Every member is entitled to raise a point. The point was raised and I would like the committee to discuss it without getting into the political field.

Mr. Shatter

It seems that we have two problems. The Minister said at our last meeting that he hoped today to be able to say when we would have the final amendments to the entire Bill. Obviously he is not in a position yet to give us a date. He is subject to work being done and he cannot put a time limit on it. It also seems clear that whatever amendments are made to further sections may have some impact on the definition section of the Bill which is section 2.

We seem to be caught in a trap. Even if it was desirable, we cannot start processing the initial sections of the Bill because we are not sure how they may be affected by later sections. The Minister would have a problem, for example, if in later sections he required more provisions to be added in the interpretation section having already passed section 2. We need to wait until we have all the amendments, even though I am anxious that we table and process this Bill rapidly, for the simple reason that we are removing some provisions. The Minister's proposed amendments are intent on extricating from the Bill some provisions. I take the view we are emasculating the fosterage provisions. It may be that the Minister has other sections that are going to be tabled to replace some of the sections, for example, sections 18, 19, 20, 21 and 22, which are being deleted. He may very well wish to do this. I do not know. It would seem that we are not in a position to start processing the Bill and agreeing to the deletion of those sections if we do not know whether he is going to produce other sections. Indeed, it would seem a futile waste of time for members of this committee to draft alternatives to the proposed sections to be deleted if the Minister's officials are drafting those alternatives and if they could be appropriate alternatives. I think we are caught and it seems that until such time that this committee can have sight of all the proposed amendments to this Bill we are not in a position to start processing it.

Mrs. Geoghegan-Quinn

Will the Minister tell us when the new Part II, Part III and Part IV are going to become available? How soon can that happen? He has said we have the amendments up to and including section 22 but sections 9 to 22 are now deleted. Therefore, the amendments that are down dealing with any of those sections are no longer relevant. Is that not the case? I support both of the Deputies who have spoken before me. It would be ridiculous to start now if next week or the week after the Minister is going to come along with several new sections which will change the Bill considerably from the one we saw on Second Stage and when amendments we might have in certain sections might become irrelevant in the event of the publication of these new Parts.

Mr. B. Desmond

I would stress, and I know there is some difficulty on this, that the new Part III was circulated today along with the new Part IV.

Chairman

With due respects, Minister, we said at the last meeting — of course I am entirely in your hands — that we would endeavour to get the amendments out as soon as possible but that we would hope to deal with this situation on the basis that if the amendments were only circulated at the meeting or the day before it would be unfair to members to expect them to be able to study their implications and be able to debate them at the meeting and that we should defer those amendments to the next meeting——

Mr. B. Desmond

I accept that.

Chairman

——or a subsequent meeting to give the members an opportunity to study them.

Dr. O'Hanlon

I appreciate the Minister's difficulty in bringing forward a large number of amendments. Because there are so many amendments they are going to pose difficulty for our committee in the overall picture of the Bill and, indeed, their interpretation. It will involve a lot of hard work. That is one of the reasons I suggested that a new Bill might be an alternative. That is not in any way to delay the proceedings because in many ways a new Bill might speed up the proceedings. Does the Minister think it would be possible for the benefit of this committee, not necessarily for circulation outside the committee to other Members of the House, to produce a document containing the new amendments? It may involve a certain amount of work for his draftsmen but because of the very nature of the documentation on Committee Stage where you are deleting lines and substituting lines it would be much easier for the committee to ensure that they do justice to the Bill if they could see what the Bill would look like in its final draft if all the Minister's amendments were accepted.

Mr. B. Desmond

I readily agree to do that. As Deputies know, I have made available a partial written brief which is quite exceptional. Normally that is retained on this side of the House. Because the formality of those committees can obstruct developments. I have made available my speaking notes today and I will certainly be quite prepared to make available to members a full formal brief relating to each individual amendment.

Dr. O'Hanlon

Of how the Bill would read?

Mr. B. Desmond

That can be readily done.

Dr. O'Hanlon

If all the amendments were accepted?

Mr. B. Desmond

Yes.

Chairman

Unless there is anybody else who wishes to speak, it would appear that the consensus is that, as we discussed on the last occasion, the committee would prefer to await the publication and circulation of all the amendments the Minister wishes to introduce and unless there is a motion to the contrary, I will have to rule accordingly. While I rule on that. I suggest that I consult with the Clerk and the Minister regarding a date for our next meeting rather than fix a date today, when we might have a repetition of today's proceedings. I will undertake with your agreement to give you more than adequate notice of the next meeting in time for you to have an opportunity of considering the amendments and for you to make the necessary arrangements for the meeting itself. Is that agreed?

Agreed.

The committee adjourned at 3.25 p.m.