Deputy Alan Shatter reported progress.
Children (Care and Protection) Bill, 1985: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time".
When I spoke on this Bill last week I initially made the point that the Bill was welcome in that it contained a number of important positive aspects to bring about a change in both the law and social work or health board structures dealing with children at risk and in need of care. In those welcome aspects of the Bill I would include the emphasis on providing family care for children who cannot be cared for in their own families to the extent that emphasis is placed on fosterage and the importance of fosterage as opposed to simply residential care. The onus is placed by the provisions of the Bill on health boards to cater for the welfare of all children in their area not only children at risk, which is welcome, as is the strengthening of the provisions for the making of place of safety orders and improved provisions for the making of care orders. Again, in the context of fosterage, the specific recognition within the Bill of the role played by foster parents, of their need for greater legal protection, and the need for legal protection of the fosterage arrangement is welcome, as are the proposals for the regulation of day care services and residential care.
I had begun to say last week that there are many aspects of the Bill that I felt could be improved and that there are some anomalies created by its provisions. I shall also explain why I believe certain aspects of this legislation will not withstand a constitutional examination. If we are truly committed to protecting the rights of all children, ensuring that their welfare is fully and properly protected, in the light of recent court decisions, in particular a recent decision of the Supreme Court, it now appears to me to be urgent that we provide for a constitutional referendum to clearly set out the rights of children so as to ensure that where there is a conflict between the right of the child to have its welfare protected and the right of parents to have custody of their child, the right of the child to welfare and full development during childhood will take precedence over any parental right vested in parents under our Constitution.
I had begun to make the point on Thursday last that there are difficulties with the Bill, some of which are no fault of the Minister as such, but derive from the fact that this Bill precedes the introduction in this House of any legislation on the status of children, on the whole anomalous area of illegitimacy and the legal discriminations that currently exist in respect of children who are labelled by our law as illegitimate. I made the point that I believed it was unfortunate that we currently have merely a booklet for public discussion dealing with the whole problem of illegitimacy as opposed to a formal Bill which has received a First Reading in this House containing specific and detailed legislative proposals that we could debate on Second Stage here to place all children in a position of legal equality. The booklet we have contains a draft Bill within it. Nevertheless it is not a Bill yet that has come before this House. I indicated that it creates an initial difficulty for the Minister in this Bill and will create a continuing difficulty that I shall trace in the course of the passage of this Bill in the context of whom this Bill defines as being a parent for the purpose of the legislation and who is not regarded as a parent.
Because of the law still obtaining whereby children are regarded as illegitimate this Bill effectively, within its definitions section, excludes from the definition of "parent" the natural father of any illegitimate child. That has important consequences later on in the general care provisions of the legislation. In the context of the child who is currently labelled by our law as illegitimate one presumes the parental situation to be such that there is an unmarried mother living alone, with a father somewhere, often having disappeared over distant horizons, or certainly not a father who participates in the regular, day-to-day, care of the child or who has taken part in any parental duty.
I was making the point that there are a number of anomalies currently which will continue to be with us for some time and which this Bill has not yet taken into account. We have many examples of couples whose marriages have broken down, having obtained either a foreign decree of divorce that we do not recognise, or Church decrees of annulment that we do not recognise, and then one or other spouse goes through a second ceremony of marriage which we equally do not recognise. There are a number of such second households established between people who, to all outward appearances, are a married couple but because of the legally anomalous situation in which they find themselves, are regarded as two people residing together who are not married to each other. In consequence any children born to them are regarded as illegitimate. As a consequence also the father of those children is regarded as not being a parent having any relationship to them.
The fact that this Bill excludes the natural father from the definition of "parent" has important consequences for the care provisions provided under the Bill. If the view is taken by a health board that a child may be in need of care and may require either a care order, that could result in the child being placed with foster parents or would result in the child being placed in an institution. Or if the view is simply taken that some form of supervision order should be made it would appear to me that the father, who would be a real parent, in any ordinary meaning of the term, to these children, would have no specific role to play in any court proceedings brought to have the children taken into care. He would not need to be notified that such court proceedings had been brought; he would not be a party to the court proceedings, and he would not have any specific right, for example, to appear separately, legally represented in such court proceedings if the situation had arisen whereby the relationship between himself and the mother of the child had collapsed. Even though he may have lived with and loved his children for many years he could find himself effectively excluded from playing a role in a fundamental court hearing on the basis of which the child or children could be taken out of their home and placed in care.
It seems to me that because we are still stuck in the anomalous situation in which we have the law relating to illegitimacy unchanged there is a need to provide amendments to the Bill to deal with the position of the person in loco parentis, the person who is effectively playing the role of a parent, who is not legally speaking a guardian and not legally speaking a parent, as defined in this Bill, but who is in real terms a parent of the child, so as to ensure that when a child is in the care of such parent that parent does have a role to play in ensuring the child's future welfare is properly protected and that that parent is not bypassed in any care proceedings or in any other interventions that may take place on the part of a health board.
I hope we will have legislation dealing with the issue of illegitimate children before this House very early in the next Dáil session. I also hope that there will be a considerable change in the legislation brought before this House from the approach evident in the document which has been circulated for public discussion. That document continues to preserve an anomaly whereby children are labelled as a result of their birth. Children who in the nineteenth century were called bastards and this century were called illegitimate will have the new trendy title of nonmarital children in the year 2000. They will still be labelled as different which is legally unnecessary. It is unfortunate that the hoped for Bill could not precede this measure or run in tandem with it. I hope we will produce legislation in that area in which the parental relationship will be based on the biological link between parent and child and not on whether the parents have or have not been through ceremonies of marriage, a matter over which no child has any say at the time of conception or at the time of birth. The provisions that are currently being circulated for discussion relating to illegitimate children or the absolute abolition of the concept of illegitimacy which I favour, will both run into a constitutional difficulty arising from a decision in a law case determined by the Supreme Court a year ago, which is reported in Volume 5 of the 1985Irish Law Reports Monthly at page 86. The case is entitled “In the Goods of William Walker, Deceased”. The constitutional issue arose for consideration as to whether it was unconstitutional to deprive an illegitimate child of the same succession rights as are given to a legitimate child. The courts held that it was constitutionally permissible to deny an illegitimate child rights that we extend to the legitimate child because of the constitutional provisions relating to the family. The argument was accepted in that case that such discriminations against illegitimate children were designed:
To strengthen the protection of the family as required by the Constitution and for that purpose to place members of the family based upon marriage in a more favourable position than other persons in relation to succession to property....
On page 98 of the same report the Supreme Court stated that:
The provisions of Article 41 of the Constitution of Ireland create not merely a State interest but a State obligation to safeguard the family.
The family in this case being the family based on marriage. There is a judicial hint in that decision, despite a contrary view earlier being expressed by the Law Reform Commission, that legislation to equalise the rights of children could find itself, on current judicial interpretations, in conflict with the constitutional protection afforded to the family under Article 41. That issue is a problem regardless of whether we deal with this area in the manner suggested in the discussion document circulated by the Department of Justice in May or whether we deal with it in the manner in which I suggest, by abolishing all distinctions between legitimate and illegitimate children.
I will be making the case in greater detail on this Bill that this Bill will require a constitutional amendment to ensure that it is constitutionally sound. In making that case — and briefly adverting to the issue of illegitimate children and the departmental discussion document on the status of children — if we are to deal with the constitutional issue of children's rights we should deal with it in a comprehensive way and face up to the constitutional anomaly whereby it seems to be not merely sanctioned but possibly obligatory on current judicial interpretation to discriminate against children born outside of the conventional, legally recognised martial relationships and we should provide for a comprehensive constitutional amendment to protect the rights of all children.
In pointing out the anomalies that arise under the definition of parent in this legislation I recognise that it is through no fault of the Minister. The anomaly exists and it will continue to be with us; but in the context of this legislation, even on an interim basis, we will have to make some provision for a person in loco parentis being a party to care proceedings involving children.
Another anomaly that arises from the definition of parent is that in some instances this Bill does include the natural father and relations as being a parent. In one section the natural father is a parent and in another he is not. In the context of the provisions relating to the regulation of day care services the natural father's position as a parent is recognised. In some parts of the Bill we acknowledge natural fathers and in other parts of the Bill we pretend they do not exist. This arises from the anachronistic legislation which we currently have in relation to illegitimacy. In the context of infant maintenance and the provision for a contribution to be made towards the support of children who, for example, are taken into care, this Bill says that the father is not a parent. Where a mother will have an entitlement to bring affiliation proceedings against a father, the health board will have no entitlement, where a child is taken into care, to seek a financial contribution from the father towards the expense involved in the care of that child. This is an anomaly created by the current anachronistic law in this area. We should deal with this on Committee Stage.
I welcome the fact that in this Bill a positive duty is imposed on the health boards to promote the welfare of children. In Part III of the Bill, in section 23, it is referred to in detail to some extent. I would ask the Minister to have another look at the operation of this provision in the Bill. The Minister's intent is welcome but the phraseology in which that section is couched is unnecessarily qualified and does not impose a sufficient obligation on health boards. It does not impose an obligation that can be properly monitored. It does not ensure a uniformity of approach by all health boards in dealing with children. The section states that:
A health board shall, so far as practicable and subject to the provisions of this Act, promote the welfare of children in its area
I am not sure why the words "in so far as practicable" have to be included in the section. It is an unnecessary qualification which means that, if a health board derogates from its duty to provide proper system of care or if it fails to take action promptly in a situation where a child may need care and protection, if it does not have sufficient procedures and properly trained and qualified social workers and if it does not properly monitor the families of children who are at risk, the health board, if the matter is investigated, can simply say that it was not practicable for them to look after the matter or deal with it promptly. There is no necessity for not imposing on health boards a more positive and definitive obligation to promote and protect the welfare of children.
In the context of the powers of the health board in relation to the provision of day care services, the Bill provides that the health board may make available services for the care of children on a daily basis. It is recognised by child care workers that day care facilities are an absolute necessity. I do not see a reason that the position should be that one health board might provide such facilities and another might not do so.
One problem in the context of child care in recent years has been the lack of a uniform duty imposed on our health boards to provide comprehensive and equal services within the health board areas for the protection of children. We are all aware that the services provided by the Western Health Board differ substantially from those provided by the Southern Health Board which again differ from those provided by the Eastern Health Board. There is an absolute need for uniformity of approach and provision for minimum standards ensuring that, operating as a child care authority, each health board continues properly to perform its function. Whilst there is a need for some autonomy in what they are doing, nevertheless, there is a need to ensure that minimum standards are observed. The difficulty seems to be that up to now the Department of Health have no statutory ability to lay down uniform and minimum standards; and if something goes wrong, as the law stands at the moment, no health board can be held necessarily directly responsible. Whereas the Minister's intentions in this Bill are desirable, the phraseology of the provisions relating to children in this context are woolly and need to be set down in a far more definite way.
I welcome the provision in relation to place of safety orders. Place of safety orders are not new. Under the 1908 legislation, which we are changing, there was provision in relation to place or safety orders for the protection of children in need of protection. This legislation before us is seeking to up-date that provision in a way to ensure that children can be taken to a place of safety when that is necessary. A number of things concern me in a general way about the provision relating to place of safety orders. Firstly, it appears that the gardaí primarily are now to take children to a place of safety. It will not normally be a garda who will be directly involved in monitoring families where children are at risk. More often it will be social workers attached to a health board or a community care team and occasionally social workers attached to a voluntary agency. As the current law stands, there is a facility for a third party to seek orders for the protection of children; and in the context of social workers attached formally to health boards obliged to provide for the care of children, the facility for taking a child to a place of safety and the power to do so should be formally extended to social workers attached to health boards acting as a child care authority.
The social worker should not have to go looking for a garda to take a child to a place of safety. Social workers cannot be guaranteed that if they do they will necessarily have a member of the Garda available to them in time or that they will always necessarily receive from the Garda the co-operation they require, through no fault of the Garda but simply because the Garda are not trained to deal with this area and would regard it as outside their expertise and competence. In a very extreme situation, where a child is in danger of being murdered by a parent, a garda observing a child being physically assaulted would intervene and do something — and, of course, a garda can do that anyway — but in the context of a social worker's judgment that a child needs to be taken immediately to a place of safety, the social worker should have the power to do that. That power should, as are the powers extended to the Garda under this legislation, be hedged in in a way that ensures that they cannot be abused and that any action taken is truly in the interest of the child's welfare so as to ensure that children are not wrongly removed from parental care.
If the Minister's aim is, as I know it is, to protect the welfare of children, then the general phraseology of section 27 of this Bill, which deals with the circumstances in which a member of the Garda may without warrant take a child to a place of safety, is not sufficiently spelled out. Not only should a garda or, as I suggest, a social worker, have the power to take a child to a place of safety if it is required for the child's immediate safety, but also if the child's immediate welfare requires that it be taken to a place of safety. The problem of talking simply about immediate safety is that it envisages a situation where a child is being physically assaulted. The immediate welfare of a child may require that child also to be taken to a place of safety in circumstances where parental abuse falls far short of parental assault. For example, a child is being taken care of by a parent who is continually drunk. The parent is not assaulting the child, but the child's immediate welfare may require that that child be taken out of that environment. I ask the Minister to look at that section again in a general way with a view to amending it.
Regarding the general provisions for making place of safety orders, section 28 of the Bill provides that any child who is taken to a place of safety by a member of the Garda or any child who takes refuge in a place of safety may be detained there pending the making of an application to the courts for a place of safety order. That should read "shall be detained". If the child is not detained in a place of safety where is the child to go? If an initial judgment is correct that a child needs to go to a place of safety, surely that child must be detained there until matters are investigated. If it is merely that the child may or may not be kept in the place of safety, what is to happen? Can the parents simply remove the child? The legislation is designed to prevent that from happening, but that provision should be rephrased in a more definite way than at present.
We must maintain a balance in all of this. One of the problems in a neighbouring jurisdiction is that they have gone from one extreme to another. Certainly England has gone in practice from an extreme whereby ten or 15 years ago social workers were most reluctant to take children into care. After the tragedy of the Maria Cauldwell case in England children were being taken into care in many situations when they should not have been taken into care. It is necessary to find a balance and in finding that balance I take grave exception to the provision in section 28 (2) that, once a child is taken to a place of safety, a court application in relation to the future care of that child must be made not later than 72 hours after the child has been taken to a place of safety. In that sort of timescale, three days, you simply cannot take a child out of a family's home and keep that child for three days before making some form of court application in which the parents can be involved. Why if a child is taken to a place of safety cannot any application that may be necessary to establish the need to maintain that child in care, even for an interim period while assessments are carried out, be done within 24 hours or, at the very latest, within 48 hours? Where a child is removed from a family — and at some stage somebody may make a wrong judgment and remove children wrongfully — that would be not merely distressing to the parents, but it can be devastating for the child. Technically if a wrong decision is made, it would seem to me that it should require access to the courts within 24 hours to obtain some initial court order to retain custody of the child. The three day provision in this Bill, effectively on the judgment of a garda or a social worker without any judicial intervention, could be unconstitutional and in breach of parental rights. Indeed, it could be in breach of the child's rights where the power was exercised unnecessarily and there was no facility to apply to the courts.
A problem could arise where a child was removed in that way without a legal requirement that there should be a court application within 24 hours. Immediately upon the child's removal, if they sought legal advice the parents could head into the High Court on habeas corpus proceedings and require that the child be returned to them. I know this provision is well intended. I am worried that the length of time provided for is too long. I am concerned that it may not be effective as an emergency protection in some instances and that, in other instances, it could actually do damage to the child as well as causing considerable distress to parents.
In the context of place of safety orders, without going into it in detail because we will do that on Committee Stage, section 29 (2) (a) authorises a member of the Garda or an authorised officer of the health board, who presumably and in most instances would be a social worker, to search for a child who has been or is being assaulted or ill-treated. That provision should be amended to provide for a search for a child who requires immediate care and protection. As phrased, the section does not achieve what is required in sufficient detail. I know what it is intended to achieve. Under the same section it would seem to me that a person who knowingly conceals a child who has been made the subject of a place of safety order should be guilty of an offence. I am not satisfied that as drafted the section deals fully with that.
I want to deal at some length with the part of the Bill under the general heading of "Care Proceedings". The provisions relating to care proceedings seek to update the 1908 Act by extending in some instances the grounds on which a child can be taken into care and, at the same time, removing some grounds which have long since ceased to be relevant and bear no relationship to modern problems.
Before I deal with the constitutional issue I want to welcome the Minister's intent as displayed in the Bill to provide comprehensive and extensive provisions to enable care orders to be made in respect of children. I welcome the fact that there is an emphasis on trying to provide as far as possible for a child to be kept within a family environment and, where it is believed that the child's welfare can be protected to provide for supervision of the child within a family by the making of supervision orders as opposed to the current position which is that the court either takes a child into care or it does not. For many years social workers and lawyers working in the area of children's law and child care legislation have pressed for legislation to provide a facility for the courts to make supervision orders so that children can be supervised within the home without the necessity to taking them formally into care by being placed in institutional care or placed with foster parents. As a general principle, I welcome the powers granted to the courts to make supervision orders.
I deeply regret — and at a later stage I will deal with this in more detail — the fact that supervision orders appear to be confined to the bringing of care proceedings as envisaged under the Bill. Whilst they provide an alternative mechanism whereby the courts can make a supervision order instead of taking a child into care, the legislation does not extend the application of supervision orders to other areas involving children where the courts need the power to make such orders and where they lack it at present. I am referring in particular to the Guardianship of Infants Act, 1964. Under the terms of that legislation, if there are disputes relating to the custody of children between parents whose marriage has broken down, the courts have one of two choices. They can simply grant custody to the father or to the mother. That is the extent of their choice.
Many custody cases — I will not say they are the norm but they are not infrequent — have gone through our courts over the years in which I have little doubt the Judiciary have taken the view that neither parent was sufficiently adequate to be given sole custody of the child or children. They have taken the view that the child might be better off with the mother than with the father, or with the father than with the mother. There have been grave doubts as to the capacity of the parent awarded custody to care for the child unsupervised living alone with the child or a number of young children. Over the years there has been no interaction between legislation relating to child care and legislation dealing with custody disputes over children.
I ask the Minister to look at the power to make supervision orders with a view to extending to the courts who are determining proceedings under the Guardianship of Infants Act, and specifically courts dealing with proceedings instituted under the Guardianship of Infants Act and making custody orders where it is deemed necessary in the interest of a child's welfare, the power to make a supervision order authorising a social worker in the child care area of the work of the health board to supervise the care of that child in the home.
Obviously in the majority of custody disputes which come before our courts that sort of power will not have to be used and will be unnecessary. I have very little doubt that many of the Judiciary would welcome that power being made available to them. Due to the inadequacies of the current law, over the years some members of the Judiciary have on occasion cajoled and urged health boards when making custody orders — where social workers have been giving evidence in court proceedings, or where there have been reports from child psychiatrists attached to health boards — to have the child's care monitored by the health board, or that a child psychologist should continue to have an involvement with a particular family. They have had no power to make court orders requiring any parent to co-operate in that, or to require the health board to co-operate in that.
The powers in relation to the making of supervision orders should extend to all proceedings determined by the courts pursuant to the Guardianship of Infants Act, 1964. Whereas in the vast majority of instances custody disputes relating to children under that legislation are concerned with married parents, in all instances they are not. One of the fallacies in our existing law is the belief that natural fathers cannot currently apply to the courts for custody of their children. Of course, they can, and they can get access to them under the 1964 Act. Occasionally under that Act, courts disputes as to custody arise between a parent and third parties such as grandparents, or aunts and uncles, and previously foster parents. Generally speaking, no matter in whose favour the courts make a custody order there should be a power under the 1964 Act, which could be extended to proceedings brought under that Act by this Bill, to make court supervision orders.
While welcoming the general provisions for the making of supervision orders there are a number of points I have to make in relation to them. My view is that the specific substantive provisions relating to supervision orders need to be clarified and to some extent, amended. The empowering provision effectively under the Bill dealing with supervision orders is section 35. It provides for the making of supervision orders but it does it in a rather odd way. It does not lay down exactly what a social worker or a health board are to do in the context of a child who is the subject matter of a supervision order. If a supervision order is made does it mean that a social worker must pay a visit once a week, once a month or how frequently must a social worker pay a visit to the home in which the child is residing with its family? It seems to me that there is a need for a specific uniform provision to be laid down as to how frequently, as a minimum, a health board or a social worker attached to a health board must visit a child who is subject to a supervision order.
The second problem which arises is that when a supervision order is made it can apparently remain in force for a maximum period of 12 months only. The Bill goes on to say that you can apply for a further supervision order. If you get your initial supervision order you will require it because a child is in need of care and attention. The child might be neglected, ill treated, assaulted or sexually abused. There could be a whole series of difficulties and problems placing a child at risk. Obviously, in the more extreme situations, in particular sexual abuse, one would anticipate that the child would be taken into care rather than a supervision order made. If a supervision order is made I certainly suggest that an initial period of 12 months for the supervision order to operate is too short. I would also make the point that if there is to be a power to make further supervision orders it is essential that this Bill lay down the criteria upon which the courts will determine whether a further supervision order should be made.
One can look at a parallel area which has created a problem where there is a similar time limit. Currently, the District Court can grant a barring order excluding a husband who is battering his wife from the family home for a period of 12 months. There is a facility for a wife, when the time limit is almost up, to apply to the courts to get a new barring order. If a wife makes that application at the moment the courts differ, district justices, individually and subjectively, differ, as to whether they will grant a new barring order. If the husband has been barred for 12 months and during the period in which he was barred he has not again beaten his wife he will be automatically allowed go back into the family home by some district justices, even if the wife stands up in court and says "I am terrified, I do not want him readmitted". If he comes back home and beats her up a few weeks later she can then reapply and get another barring order. Other district justices take the view that where an initial barring order was granted for a period of 12 months and the husband's behaviour was sufficiently serious to give rise to a genuine and grave fear for the future safety of wife or children, the wife who is still genuinely in fear at the end of the 12 month period should have her barring order renewed even if the husband has behaved himself during the 12 month period.
We have a problem in the context of supervision orders in the sense that if a parent is inadequate and if a child or children are at risk and an initial supervision order is made a social worker might take the view that the supervision order is working to the extent of monitoring the position of the child or children in the family. But the social worker may be of the view that at the end of the 12 month period she still wants to monitor what is happening, she still feels and believes the children in that family may be at risk. If that social worker goes to court in what circumstances will the court renew the supervision order? If she says to the court "Everything has gone well for 12 months, these children have not been battered", does that automatically mean the supervision order cannot be renewed? If she says she believes the children may still be at risk but nothing has happened in the last 12 months, what credence will be given to that belief? Will it be necessary in order to renew the supervision order to prove that six months after the first one was made one or other child of the family was again abused?
There will be many instances where, for the protection of the child, a supervision order is made and where in the interests of that child's welfare the supervision order should be continued in force after 12 months. The problem is that this Bill lays down no criteria on which any court is to determine the basis upon which a supervision order is to continue in existence. We must spell that out in greater detail in the Bill.
Another problem which arises in the context of supervision orders is in the provisions relating to an appeal. If a child is genuinely at risk, it is felt that a supervision order should be made to protect that child and the supervision order will presumably involve social worker visits to the family, it is then open to a parent or parents of that child to appeal against the making of a supervision order. It is correct that they should have that facility. Section 35 (7) states:
An appeal from a supervision order shall not stay the operation of the order, unless the court otherwise directs.
To use non-legal language that means if the District Court makes a supervision order the lodging of an appeal should not postpone the coming into operation of the supervision order pending the hearing of the appeal unless the court decides it should postpone it. The problem is that there is nothing laid down in the Bill indicating the basis upon which any district justice should make that decision. Presumably, a supervision order will not be made unless it is believed a child is at risk. It will not be made unless it is believed that it is in the interest of a child's welfare that there be regular visits to the family home to ensure that the child is not being abused, ill-treated or neglected. It then goes on to say that even if one thinks a child is being abused, ill-treated or neglected and even if a supervision order is made, if the parents lodge an appeal, the coming into operation of the order can be postponed. I do not want to be overdramatic but in 1981 two children in the Eastern Health Board area died as a result of parental battering in circumstances in which the health board should have taken them into care. There was no excuse for either of them not being taken into care. If power is conferred on district justices to stay the operation of an order this legislation should lay down the basis on which they exercise such judicial discretion. If a supervision order is made and the parents appeal against it, in my view neither the District Court nor the Circuit Court should have power to stay the coming into effect of the District Court order pending the hearing of the appeal in the Circuit Court.
If a child is in need of care or supervision a supervision order will be made. That need will subsist from the time of the hearing of the District Court case until the hearing of the appeal. There is no rational basis for providing a power postponing the coming into effect of the supervision order. Its operation for some weeks before the hearing of the Circuit Court appeal cannot unduly prejudice either the parents or the child because a supervision order does not involve the child being removed from the family home or the parents being deprived of the care, custody or guardianship of the child. It requires them to submit to social worker visits organised through the health boards to ensure that a child believed to be at risk is being taken care of properly.
I ask the Minister to look at that section. I appreciate he has problems about this in the context of appeals. However this aspect should be tightened up. In relation to the power to make supervision orders I do not understand portion of this legislation. I do not understand the rationale behind it or what it can accomplish or how it can be enforced. Section 35 (4) states:
In addition to or instead of making a supervision order the court may —
(a) order a parent or guardian of the child to enter into a recognisance to exercise proper care and guardianship over the child or
(b) order any person convicted of an offence under the Second Schedule in respect of a child to be of good behaviour towards the child.
It is the "instead of" portion of this section that concerns me. Entering into a recognisance in legal parlance only means that somebody has to go under a bond to the court to pay out a sum of money or lodge money in court so that in the event of their not doing what they say they will do — in this case not exercising proper care or protection — they will suffer some financial penalty. If a parent is abusing his or her child and there is belief that there is a need for a supervision order how requiring that parent to lodge a recognisance of, say, £100 can provide any guarantee that the child will not remain at risk and not be abused is something I do not understand. There is no way of monitoring if the parent is complying with his promise. The only way of knowing if the parent is not complying with his promise is if he or she seriously damages their child. There would be no right of access to the family on the part of health boards because no supervision order would be made. The recognisance would be lodged instead of making a supervision order.
If someone commits one of the offences listed in the Second Schedule in respect of a child I do not understand the point of ordering a parent to be of good behaviour instead of making a supervision order when no one can supervise whether the parent was being of good behaviour or whether the child was being abused. There is no guidance provided for the Judiciary as to the circumstances in which they should make a supervision order as opposed to the circumstances in which they should give the parent a lecture and say they should behave themselves, or order a recognisance.
Section 35 (4) should be deleted. It does not add anything to the Bill. It will leave social workers in a position where although they may believe that a child is in need of a supervision order they may not succeed in getting one. There will be a lack of uniform application of child care legislation by the courts because each district justice will interpret that power in a different way. We do not monitor the way these things are dealt with in the courts and as a result there will be no feedback to the Department, let alone the health boards as to the way in which that aspect of the legislation is applied. It could result in supervision orders not being made in cases where the professional judgment of the child psychiatrist or social worker would be that such an order should be made. The reason it could result in varied judicial application is that different justices have different ideas about the sanctity of the home. One justice might think a man's home was his castle and would only make a supervision order in extreme cases, whereas another justice might take a more flexible view. I urge the Minister to remove the subsection. It adds uncertainty to the legislation and waters it down. It provides an inbuilt mechanism that could result in children not being provided with the type of protection they need.
In this legislation a child is defined as someone under the age of 15 years. At age 14 years and 11½ months one is a child but when one is 15 years and one day old one becomes a young person. This legislation prevents the courts from making a care order if such is necessary in respect of 15 or 16-year-old children. For example, there could be a family of three or four children the eldest of whom was 16 years old. The health boards might be of the view that all four children should be taken into care but as a result of the way the legislation is framed a care order can only be made in respect of children under 15 years. The 15 or 16-year-old child is left to his or her own devices to protect himself or herself from parental abuse. The task force on child care recommended that the age should be 17 years. I ask the Minister to look at this and amend the legislation to deal with this issue.
I welcome the extended grounds provided in the legislation for the bringing of court proceedings. I refer to section 33 (2) (b). The Bill refers to care proceedings as meaning proceedings for the making, variation or discharge of a care order, a supervision order or an interim care order, and states in subsection (2):
A child may be the subject of care proceedings if any of the following conditions is satisfied with respect to him, namely that...
(b) he is or has been under the care of a parent or guardian who does not exercise proper guardianship or has otherwise received or is receiving inadequate care such as to cause or to be likely to cause him physical or mental suffering or injury to his health or to impair substantially his proper development, or
(c) his parent or guardian is not capable of exercising proper guardianship, or
When dealing with the issue of children being taken into care, the Minister in his speech dealt specifically with his intentions and aspirations in relation to this area and what he saw as being the basic approach.
I am in agreement with what he sees as the basic approach but I see it as a major problem. As they stand, subsections (2) (b) and (c) of section 33 will be open to serious constitutional challenge and will not stand up. The Minister stated:
That the child himself has rights is something that has received little emphasis in the past. The third principle upon which the Bill is drafted is that children have natural rights and that these rights may, in certain cases, differ from and conflict with the rights of their parents. These rights arise from the democratic nature of the State and include the right to life itself, the right to preserve and defend (and to have preserved and defended) that life, the right to live at a proper human standard and the right to be reared and educated. In cases of conflict between the rights of a child and those of his parents, the Bill seeks to ensure that the interests of the child will be treated as paramount.
Subsections (b) and (c) to which I referred clearly illustrate the Minister's desire and intention — and what should be the intention on all sides of the House — to ensure that where there are cases of conflict between the rights of the child and those of his parents, the interests of the child will be paramount.
The difficulty appears to be that, under the Constitution as currently judicially interpreted, the interests of the child cannot be paramount in those circumstances. The Minister is, to some extent, relying on paraphrasing of judicial statements made in various court proceedings relating to the care of children and those statements were made in proceedings brought under the Guardianship of Infants Act, 1964. The first problem, which is not of a constitutional nature, is that while laying down the various criteria under which a child can be taken into care, there is not the necessary interaction between this legislation and the Guardianship of Infants Act, 1964. In particular, it does not indicate how the courts will cope with the provision in the 1964 Act which will clearly apply in unison with any provisions contained in this legislation. Section 3 of the 1964 Act states:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
Effectively, that legislation seeks to provide where there is a dispute regarding the custody or care of children, that the welfare of the child is to be regarded as the first and paramount consideration. In the light of a recent decision by the Supreme Court, the argument is no longer tenable, despite the Minister's optimistic statement that, where there is a conflict between the rights of parents and those of children, the child's rights will always prevail in the interests of the child's welfare.
There has been much judicial debate in this regard over the years and in some of the court cases it has been said that the children have the right to have their welfare fully respected and that that right should have priority over parental rights. In other court cases, it has been suggested that section 3 of the 1964 Act is in itself unconstitutional in so far as it could require that the child's welfare be given precedence over the constitutional rights of parents as articulated in Articles 41 and 42 of the Constitution which talk about the family having inalienable and imprescriptible rights and about parents having inalienable and imprescriptible rights in regard to the education of their children.
Children, curiously, in Article 42 are referred to as having imprescriptible and natural rights and, as the courts appear to be interpreting the Constitution on this issue at present, they seem to regard the inalienable and imprescriptible rights as vesting in parents and the rights of children as something less important and less qualified for constitutional protection than the rights of parents in the context of a married couple. Because of that, section 33 (2) (b) and (c) of the Bill is likely to be held to be unconstitutional on the basis of the most recent judicial constitutional pronouncements. If we are serious about wanting to protect the rights of children, there is a necessity to bring before this House, as a matter of great urgency, because of recent judicial pronouncements, legislation to provide for the constitutional referendum to ensure the attainment of the aspirations expressed by the Minister, that where there is a conflict between the rights of children and the rights of parents, the children's rights will prevail. If we are to achieve that aspiration there is a need, as a matter of urgency, to bring legislation before this House for a constitutional referendum to clearly incorporate the Constitution and to amend Articles 41 and 42 to expressly provide that not only do parents have inalienable and imprescriptible rights but that children have similar rights and that where there is a conflict, the welfare of the child should prevail. There should be no conflict of a political nature in that regard.
The tragedy is that because so many family law and custody cases relating to children take place behind closed doors and judgments receive no publicity, the general public and politicians are unaware of the difficulties in this area. We tend to presume that if there is a custody contest over children between parents and other relations or new relations such as foster parents or between parents and a health board, the courts will always make decisions on the basis of the child's welfare being paramount. It can now be categorically stated that that is not the case. A recent decision of the Supreme Court clearly indicates the road our courts will travel in the foreseeable future in this area and it poses a serious threat to the welfare of children. In the absence of constitutional amendments, it is impossible for the Minister to achieve the aspiration laid down in his speech. It also renders a portion of the subsection of section 33 liable to serious constitutional attack. If we do not have the capacity to provide for a constitutional referendum to protect children in this area, it will be necessary for this legislation to be referred to the Supreme Court by the President, under Article 26 of the Constitution, for a pronouncement as to whether it accords with the Constitution before it is signed by him.
My remarks in this area are specifically directed to section 33. I want to illustrate in graphic terms what I am talking about and why this is a problem which legislators must face up to. I do not want to open old sores but we had an unnecessary constitutional referendum on the position of the unborn child. We must now have a necessary constitutional referendum to protect the rights and welfare of children who are born and live in this State. I want to be specific on this issue because all too often in this House we talk about our aspirations and what we want to achieve without being specific in what we are talking about. What I am talking about in the context of the Supreme Court judgment is a case entitled MC and MC and KC and AC v An Bord Uchtála. In the written judgments delivered by using the first letter of each person's name anonymity is preserved. The case involved prospective adopters, natural parents, and An Bord Uchtála, the Adoption Board. The decision by the Supreme Court was delivered in March 1985. There was very little public comment about it as I do not believe the implications and importance of it are clearly understood.
I do not think it is appropriate for me to make any comment as to whether the decision in the case was proper or not. That is not the point I am making. Our courts are there to interpret law. We all recognise in the area of constitutional law that there is a degree of subjectivity of approach in the way in which some aspects of our Constitution are interpreted. Our courts are independent of this House and that is correct. When our Supreme Court makes a pronouncement on an area such as this it must be taken seriously and we must look at the effects of that pronouncement. We must look at its effects in the overall context of the welfare of children.
The judgment was a unanimous one delivered by a five man Supreme Court, with no dissenting judgment, on the issue of the rights of children and the rights of parents in a situation of conflict between a married couple seeking custody of their child against prospective adopters who had had custody for a lengthy period of time. There were other complicated issues involved in the case which I will not comment on because I do not believe it is necessary for us to involve ourselves in them. However, I am specifically concerned about the manner in which the Supreme Court interpreted Articles 41 and 42 and the role the Supreme Court envisaged in the context of the protection of the rights of children.
The court was dealing with section 3 of the Guardianship of Infants Act, 1964, and talked about constitutional rights. In dealing with those rights of children it laid down a number of principles. It referred to the child who at the time the court decision was delivered was living with the couple with whom it had originally been placed for adoption but whom the courts had held, for legal reasons that are not of direct relevance, could not obtain an adoption order. The court was dealing with the legal principles to be applied in determining the issue as to whether the child should remain in the care of the married couple with whom it was originally placed for adoption some two and a half years earlier or whether it should be returned to its natural parents. The judgment stated:
1. The infant being the child of married parents... has in addition to the rights of every child, which are provided for in the Constitution... rights under the Constitution...
(a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law;
(b) to protection by the State of the family to which it belongs;
(c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education.
The judgment went on to state:
2. The State can not supplant the role of the parents in providing for the infant the rights to be educated conferred on it by Article 42.1 except "in exceptional cases" arising from a failure for moral or physical reasons on the part of the parents to provide that education.
In dealing with the 1964 Act the judgment stated:
The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution.
Then we come to the nub of the judgment, because the rights of the children in this judgment are being interpreted not from the perspective of the child but on the basis of a presumption that the rights of children can only be constitutionally exercised if living with the family, meaning the married parents as opposed to any other third party. The judgment went on to state:
In the case, therefore, as this case is, of a contest between the parents of a legitimate child, who with the child constitute a family, within the meaning of Articles 41 and 42 of the Constitution, and persons other than the parents as to the custody of the child, it does not seem to me that section 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in section 2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child or, to put the matter in another way, that it is a case as would be the situation in a contest between the parents of a legitimate child as to which of them should have general custody where the Court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in section 2 of the Act.
That sounds complicated but, in essence, it boils down to the court holding that if there is a custody contest between parents and third parties with whom a child had been living for a number of years, or, to apply it to this legislation, if there is a custody contest between the parents and the health board who believe that a child's welfare requires that the child be taken into care, the court, in deciding whether the child should remain with the parents or should be placed in the care of a health board or should remain with the people with whom it has been residing for two or three years, cannot constitutionally decide that issue solely on the basis of what course of action is in the interests of the child's welfare. If the courts were to do that, the view of the Supreme Court is that it would be unconstitutional. In effect the child's welfare is placed in a constitutionally inferior position to the right of parents to have custody of their children and to the right of parents to educate their children.
The Chief Justice, in delivering judgment in this case, went on very categorically to confirm that that is the legal position. Section 3 of the 1964 Act states that in any issue relating to the custody, guardianship or upbringing of children the court shall regard the welfare of the children as the first and paramount consideration. The Chief Justice went on to say that he would accept the contention that section 3 of the 1964 Act must be construed as...
involving a constitutional presumption that the welfare of the child... is to be found within the family unless the Court is satisfied on the evidence that there are compelling reasons why this can not be achieved or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.
I do not know how the criteria of education can be applied in the context of a two year old child that a health board believes is at risk. I do not know constitutionally what would be regarded as "compelling reasons" to require that a child be taken into care. It is quite clear that this pronouncement of the Supreme Court states absolutely and conclusively that in interpreting the Constitution and applying it to existing children's legislation, that in determining issues of custody between parents and health boards, third parties or anybody else, it is not constitutionally permissible in the context of legitimate children to regard the legitimate child's welfare as of paramount consideration.
The Chief Justice went on to deal specifically with this issue. For some years there has been a debate going on between lawyers as to whether the courts would regard the welfare of a child as of paramount consideration in the context of such a conflict. Following the decision of the Supreme Court in 1977 it appeared that the problem had been resolved and that the child's welfare could be regarded as paramount. However, the Chief Justice went on to say:
In J. v. D. and Ors., unreported, Supreme Court 22 June 1977, the judgment of O'Higgins C.J. clearly indicates that he laid it down that a consideration of the welfare of the child, as defined in section 3 of the Act of 1964, was a sufficient reason to refuse custody to the father who was the sole surviving parent of the children concerned.
That was a Supreme Court case in which the court appeared to lay down absolutely that the welfare principle is paramount. He goes on to say on page 15:
In so far, however, as that judgment may be construed as clearly indicating that in the case of legitimate children, paramount consideration of their welfare as defined in the Act of 1964 can be applied as the sole test without regard to the provisions of Articles 41 and 42 of the Constitution, I must, respectfully, refuse to follow it.
This case did not involve a direct constitutional challenge to section 3 of the Guardianship of Infants Act, 1964. The courts, however, interpreted section 3 of the 1964 Act in a way that would, I believe, diminish the concept of welfare of the child as the paramount consideration. What the court has done in that case is to make it quite clear that, unless there are compelling reasons for removing a child from parents, or unless the parents have failed for physical or moral reasons to properly educate their child, no legislation can constitutionally deprive parents of legitimate children. This creates an even greater constitutional anomaly because, as Articles 41 and 42 of the Constitution do not apply to children born outside marriage and do not apply to parents of such children, it seems that within our legislation we afford greater protection to illegitimate than to legitimate children.
There is a belief that if an illegitimate child is in need of care or protection, or if there is a contest about the care or custody of such child between a parent and third parties, be they foster parents or a health board, it seems there is no difficulty in the court making a decision on the basis of what is in the best interest of the child; but, if a legitimate child is the subject of such a conflict, the courts cannot apply a principle that the person with whom the child will be allowed reside should be determined on the basis of the tests relating to the welfare or the best interests of the child. It seems the child's rights are subservient to the inalienable, inprescriptable and paramount rights of the parents.
It is interesting to note the case in which this emerged. I am not going to comment on what happened ultimately, but there were three different High Court judgments in addition to the Supreme Court judgment. In the context of the High Court judgment relating to the custody issue the judge was dealing with the issue as to whether this child should remain with the prospective adopters or the natural parents after the child had been with the adopters for two and a half years, the child never having lived with his father or mother. Dealing with that issue initially the High Court made an order allowing the "adopters" to retain the custody of the child and in doing so referred to the medical evidence given to the court. In the High Court decision last autumn reference was made to the fact that evidence had been given by child psychiatrists. On page 6 of the court judgment Mr. Justice Lynch, dealing with the issue as to whether the child should be transferred to its natural parents, said:
—On that evidence which I accept I am satisfied that there is an appreciable risk of long-term psychological harm to the child by such a transfer. The evidence did not however indicate whether it is more or less probable that such long-term harm may occur but it did establish to my satisfaction that the risk of such harm is sufficiently approximate that considerable weight must be given to that risk in deciding these claims and counter-claims for custody of the child. There would of course be an immediate upset for the child from which she would probably recover within a relatively short time but while not ignoring such short-term distress it is the risk of long-term detrimental effects that is more important to be taken into account in deciding the question of custody....
The child is clearly bonded to the adopting parents and the boy—a son the adopting parents had—
—as though they were its own parents and brother respectively. Any sundering of these relationships would cause considerable immediate suffering to the child and a real possibility, if not a probability, which it is impossible to say one way or the other, of long-term serious harm.
The High Court was of the belief that the child would be caused long term serious harm. The Supreme Court decided that the issue as to custody could not be decided on the basis of the child's welfare but that the parental rights under the Constitution had to be looked at and then remitted the case back to the High Court. The case was determined in the High Court on 25 May 1985, two weeks ago. The same judge was put in the position of applying the new judicial test laid down by the Supreme Court in March 1985. In dealing with the issue this time the judge said:
The evidence on the previous occasions and even more strongly on this occasion is that there will be a very considerable short term upset for the child and I accept that evidence. The evidence of medium and longer term psychological consequences is also even stronger on this occasion than on the previous occasions, although it remains subject to the reservation that it is predictive evidence and not certain evidence, and to some extent at least it depends on the quality of the parenting which the parents will be able to provide for the child.
In other words, the judge was still of the view that the child could suffer considerable immediate distress and long term harm if custody of the child was transferred from the "adopters" to its natural parents at this stage, never having lived with its natural father or mother but having lived with the "adopters" for almost three years. The same judge, applying the test articulated by the Supreme Court, transferred the custody of that child from the "adopters" to the natural parents whom the child did not know and with whom he had no relationship.
I cannot comment on whether that was a correct decision. I do not know if there will be an appeal and it would not be appropriate for me to comment on it. That decision, however, clearly illustrates that we have moved out of the realm of academic arguments between family lawyers as to whether in determining issues relating to the care and custody of children it is constitutionally permissible to protect the child's right by regarding the welfare of the child as a paramount consideration. The Supreme Court has clearly articulated that in a contest between the parents of a legitimate child and others in loco parentis, such as, foster parents, the welfare of the child, under Articles 41 and 42 of the Constitution, cannot be the principal criterion on which the courts make the decision as to who should bring up the child.
If section 3 of the Guardianship of Infants Act, 1964, does not stand the constitutional test, I have no doubt that section 33 (2) (b) of this Bill will not withstand the constitutional challenge either. If there is a belief that if a child remains with its parents it will substantially impair his proper development, would that be regarded by the courts as a compelling reason to remove the child from its parents? If the view was taken that the parents were not providing proper guardianship, would that withstand this constitutional test? I do not believe it would. Indeed, the Minister may have got an inkling that it would not. The concept of proper guardianship and the right to take a child into care when a parent is not providing the proper guardianship is still contained in the Children Act, 1908. This is the concept upon which the health boards mainly rely at present in bringing care proceedings on behalf of children.
I am aware of at least two cases in which that concept was relied on by a health board, which resulted in constitutional proceedings being issued to challenge the constitutionality of that provision under the Children Act of 1908. Neither of those cases ended up heard in the courts because there was a fear on the part of the lawyers acting for the health board that if the courts determined that issue, the 1908 Act would be found to be constitutionally infirm. This would have resulted in the major substantive legislation contained in that Act, which allowed health boards to take children into care, being effectively removed. Both those cases were settled by agreement between parents and the health board through their lawyers, resulting in the children concerned taken into care being returned to the parents on the basis of the parents agreeing voluntarily to some sort of social worker supervision. There would thus be some guarantee of the two children involved in those proceedings of which I am aware being afforded some degree of protection. The constitutional challenge was not proceeded with.
I absolutely accept the commitment of this Government and of the Minister, their desire and aspiration to ensure that in cases of conflict between the rights of a child and those of the parents the interests of the child would be paramount. In the light of the recent decision in the Supreme Court, constitutionally that is no longer possible. Constitutionally, we in this House must face up to this issue. Members of this House some years ago, without contention, on all sides of the House provided legislation to enable a constitutional referendum to be held to copperfasten the constitutional position of the Adoption Board in 1979. The aspiration to protect the welfare of children is one which we all share. If we do so, the Minister's Department should produce the necessary legislation for a constitutional referendum and I would be anxious that we do not bring about the situation that arose in regard to the rent restriction legislation and the Electoral (Amendment) Bill of 1983 which, again, we are debating today as the 1985 Bill. We waited on the Supreme Court, by virtue of a presidential reference under Article 26, to pronounce something as unconstitutional. In one instance we then had the constitutional referendum and in the other we amended the legislation to fit ourselves into the constitutional framework.
If we want to protect the welfare of children, we cannot fit the legislation within the constitutional restraints. I have no doubt that the Minister has had advice from the Attorney General's office, but regardless of that advice, in the light of that recent judgment we cannot say that this aspect of the legislation is constitutionally sound. There is now an urgent need to provide for full constitutional protection of children's rights because we can no longer rely on section 3 of the Guardianship of Infants Act, 1964, as a provision protecting, in all instances, the welfare of children.
It is worth making the comment that the possibility of this problem arising is not unheralded. There have been references to it in recent reports produced by various groups and voluntary organisations over the years. Back in 1977, the Irish Council for Civil Liberties in their second report dealing with the issue of children's rights under the Constitution set out the need to provide a constitutional amendment in this area. At the time that report was produced the judgment in the Supreme Court in the case J. versus D. to which I referred was delivered and it seemed that the problem was resolved. It seems however that that is no longer the case. I did not mean to labour the issue, but it is an important issue that we can no longer gloss over.
If we are going to have a constitutional referendum to deal with the protection of children's rights—the protection of the welfare of all children — let us do it in the context of also placing all children in a position of legal equality. Let us ensure that we deal with any possible constitutional infirmity in any legislation which may seek to place both legitimate and illegitimate children in a position of equality. Let us provide a constitutional amendment which expressly states that all children have equal rights under the Constitution and that in the context of the rights of children, where conflict arises with parental rights, the paramount, first and most important interest and right is the welfare of the child. If we can finally acknowledge that this is something which must be tackled as a result of the debates taking place on this Bill, we will have done a good day's work.
In relation to care proceedings, I welcome the new provision contained in section 37 which provides that where an application is made by a health board for a supervision or a care order, the court may make what is known as an interim court order. In deciding whether to make an interim care order pending further assessments being carried out, subsection (4) of that section provides that the court "shall have regard to any reports or recommendations furnished by the health board". That is an important innovation. Pragmatically, the courts have on occasion used the existing legislation in a way which could be interpreted as providing an interim care order, but legislatively it had not been provided for and this is a welcome provision. It will provide a degree of protection for children at risk.
I am curious about an anomaly arising in the context, not of interim care orders but of supervision orders or of full care orders. In the light of section 37, which provides that if an application is made for an interim care order, the court—again unfortunately being the District Court— shall have regard to reports furnished by the health board, section 38 is a very curious provision. In dealing with the conditions required for the making of supervision or care orders, it provides in subsection (2) that "a health board shall compile and make available such reports and undertake such inquiries as will assist the court in reaching a decision in relation to proceedings under this Part"— in other words, in relation to care proceedings.
We say that the health board are under an obligation to provide the background report, presumably on the family, relating to the welfare of children to a court which will finally decide whether it should make a supervision or a care order. If the court is asked to make an interim care order it must have regard to the health board reports, but there is no similar provision when a court deals with the final decision of whether a child is definitely going to be taken into care by way of a full care order or whether a supervision order is going to be made. There is no obligation imposed on the district justice deciding a case to pay any regard to the report of the health board or the social worker. The health board are under an obligation to produce such reports, but there is no duty on the district justice to take any notice of them. Anyone with common sense would say that a district justice will take notice of what is in the report. But will they? I do not know. The present reality is that because of the large number of different district justices and the absence of any specialist training in this area and because many are solicitors who never in their entire professional lifetime dealt with child care legislation and know very little about it very often decisions on child care matters are made on the basis of the individual background and subjective judgment of the district justice who is asked to make a decision. I ask the Minister specifically to provide that not only shall health boards compile and make available such reports but also provide a specific obligation that the court shall have regard to such reports in deciding whether to make full care orders. That obligation should not be confined simply to interim care orders.
There are other issues that this legislation does not deal with in the context of such reports. It is essential that a court should have maximum information available to it in determining whether a child should be taken into care and whether a supervision order should be made. For example, in the case of a child who is sexually abused and who is taken into care, it may be that the court may make a place of safety order or an interim care order. However, there is nothing in the legislation that authorises a health board to have a child who is believed to have been sexually abused medically examined. The parents, as guardians, could withhold consent from the health board to have the child so examined. If there is reasonable belief that a child has been sexually abused, there should be a basic power given to the health board to have the child medically examined.
The Bill does not deal with the rights of access of parents to reports that the health board must make available to the court, whether it be for an interim order or a final order. Not only must we protect the rights of children but we must ensure that when a question arises of taking a child into care—a fundamental and traumatic event in the life of a family— parents must have the right to know what allegations are being made against them. They must have the right to know the nature of those allegations, an opportunity of refuting them and an opportunity to call evidence to contradict what might be alleged against them by a health board or a social worker. They should never be placed in a position where a secret report is made available to a district justice or any other judicial official, on the basis of which a child is taken into care, without their having access to that report. It is not stated in the Bill if parents will be given access to such reports. Nowhere in the Bill is it stated that there is an obligation—as there should be—on a health board to furnish to a parent in advance of a court hearing basic information containing the allegations in relation to the parent and their behaviour towards the child.
Another area which has not been dealt with, although our courts have been trying to deal with it on an ad hoc basis, relates to the position in Irish law of a neighbour who genuinely believes a child is being abused and reports that fact to a health board. A social worker records on the report the name of the neighbour, interviews that person and then follows up the complaint. As things stand at the moment, could that neighbour be civilly sued for defamation if a genuine mistake is made? If the neighbour genuinely believes the child was being abused and, with no feeling of malice, reports that fact and then it transpires at court proceedings that the neighbour made a genuine mistake, what is the position? If reports are to be made available, as they should be, there must be some form of immunity from defamation proceedings not only to neighbours but also to medical personnel. The latter, as a result of attending a child within a family or in an out-patient department, may also believe that a child is being abused. There is a need to incorporate in the legislation a protection against a possible civil suit for defamation against somebody bona fide reporting such a fear, while at the same time ensuring that a person who is deliberately malicious is not at liberty to raise doubts about the capacity of parents to care for children. In a marital conflict, a parent —more often the wife and mother—is granted custody of the child and it is not unknown for the father, who may regard himself as having lost out in the custody battle over the child, to keep reporting the mother to the health board or to the ISPCC alleging that the child is being abused when that is not the case. In those circumstances there is a need to find a balance between providing protection for the person who bona fide makes a report and providing a deterrent in the case of those who may wish to prosecute their wife because they have lost out in a custody case or to prosecute a husband who has succeeded in a custody contest.
A health board bringing care proceedings does not always necessarily get it right. This point has been raised in many reports and also by the task force. In a sense they are trying to prove their allegations while the parents are trying to deny them. When there is a custody conflict between parents, it is the position of each parent that is presented, not that of the child. In Canada, America, England and in a number of other countries they have taken account of this. There is provision for the appointment of a children's advocate by the courts in very difficult cases relating to the care and custody of children where the courts believe it is in the interest of the child that a separate legal advocate should deal with the question of a child's rights and protection where there is conflict between contesting parties. I regret that this Bill does not deal with the question of a children's advocate. I am not suggesting that in every child case that should be necessary; but there should be a power vested in the courts in a case of particular difficulty where a separate and totally independent view may be required. That party could argue the child's welfare outside the vested interests of parents and, on occasion, of health board personnel who may be anxious to make their case so that they will not be seen to have made an error.
There is nothing in the Bill about the position of parents who cannot afford legal representation when care proceedings are brought before the court. Theoretically speaking, such legal representation can now be sought through the Government law centres. The law centres operate without a statutory base and have been proved to be inadequate and overworked. Child care proceedings are often emergency proceedings requiring immediate legal advice and help. I am not convinced that the law centres — due to overwork and no other reason — can necessarily cope adequately with this type of area. I believe there should be a specific provision in this legislation providing that parents who find themselves involved in child care proceedings, where there is an application brought by a health board to take children into care, and who do not have sufficient means to pay for legal advice should have an absolute right of access to such advice and a right to be represented. That is a very fundamental right.
Reverting to the articulation of parental constitutional rights, one could raise certain constitutional issues in this area in a situation in which a child was taken out of a family home without parents having adequate financial means or opportunity to obtain legal assistance.
Moving away from that area I want to make a brief reference to section 42. It is a provision concerning what is described as the welfare and wishes of a child and says:
A health board shall, so far as practicable and subject to the provisions of this Act, promote the welfare of children in its area.
I do not understand why that is hedged around. That should simply read: A health board shall promote the welfare of children in its area. Let us place an absolute duty on health boards to perform a function in the context of children. Subsection (2) goes on to say:
In the performance of this function, a health board shall—
(a) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family or where this is not possible to provide him with such care as is most appropriate to his needs;
I want to sound one note of caution here which arises because of the fears I have resulting from the two instances of children dying in 1981, children whom I believe should have been taken into care. In England the child care system had developed in a way in which all too often it appears children are taken into care unnecessarily. The philosophy there was not developed in a way that one seeks to ensure, in so far as is possible, that children will remain within the family with supports provided for the family. I very much support the view that where a child can remain within the family it should do so, that where any fears about the child being at risk can be resolved by the making of a supervision order, that should happen. But there is a danger that in this country we are at the other end of the social work extreme approach. Whereas in the United Kingdom it can be argued that far too frequently and sometimes unnecessarily children are taken into care, in this country I believe we are too cautious and that far too frequently, on occasion, children remain within families at serious physical risk, in the context of their future welfare and development.
It is quite clear from the performance of the Eastern Health Board and other health boards that there have been occasions when parents have been brought to the courts and prosecuted for not properly caring for the children when there has not been the necessary follow-up, swift response of having care proceedings brought in respect of the children or proper supervision given in relation to their upbringing. I absolutely welcome the concept that we do not go overboard in taking children into care, that generally speaking the approach should be that they should be cared for within their own homes. But we should be cautious that we do not adopt the approach that only in extreme cases of major physical danger will children be taken into care.
It is clear from the Minister's approach in the sections to which I referred earlier, where I worried about their constitutionality, that that is not the Minister's intent, that he intends to try to deal with the welfare of children. But I am a little bit worried about how that will interact with section 42 (1) and (2). I am concerned that it could result, in a number of instances in supervision orders being made because of the emphasis on this section when it is in the interests of a child that he or she be taken into care. In that context, of course, "taking into care" does not mean institutional care. The emphasis in this Bill is on the importance of foster care and that is something I particularly welcome.
Again subsection (2) (b) reads:
in so far as is practicable, before making a decision or taking action in relation to a child in its care, give due consideration, having regard to his age and understanding, to the wishes of the child.
I am concerned about that as well. If we are talking about a six, seven, eight or nine year old child I am not sure to what extent the wishes of that child can be implemented or should necessarily be considered. For example, a ten or 11 year old child, a daughter, being sexually abused by a father, or a 13 year old daughter being sexually abused by a father might express a wish to remain in the care of her father. What principle is the health board to apply to deal with that issue? We are talking here of children under 15 years of age, about 14 year olds or under. I am concerned about how that provision will be applied in practice. Because it is contained in the Bill and imposes a duty on health boards, in a sense, as opposed to the courts, I am concerned as to how the courts themselves might apply it by analogy in dealing with this area.
Also in the context of care orders, section 45 (1) says:
A health board shall carry out a review of the progress of each child in its care and of his family circumstances not later than six months after his reception into care and thereafter at such intervals as it sees fit or as may be prescribed. Such review shall include consideration of alternatives to the maintenance of the child in such care.
Basically it talks about reviews of placements in care. Then subsection (2) says:
A health board shall carry out a review in like manner as is required by subsection (1) of each child in its area who is the subject of a supervision order.
I do not believe that is adequate either. One of the problems we have encountered in the operation of the community care teams within individual health board areas is the varied approach adopted in reviewing the position of children at risk. We have encountered situations of an horrific nature, where social workers had ceased employment and new social workers have come on to the scene, where one child has been transferred from one social worker's work list to another where there has been an extraordinary lack of follow-up, a lack of review, a lack of care in ensuring that children who are at risk but who are not yet the subject of care orders are being properly monitored. I would take the view that, as an absolute minimum, there should be a statutory requirement on all health boards to review the position of children subject in particular to supervision orders every three months, that as an absolute minimum should apply to supervision orders. In the context of care orders, where a child is in foster care or institutional care, I accept that if a child is taken into care it is unlikely that within two to three months the child would normally be returned to the parents. It may be returned some time later when matters have resolved themselves and whatever difficulties the parents had have been sorted out. But in the context of a supervision order a statutory requirement that a review should take place every six months is absolutely and completely inadequate.
I would hope that in the context of these sections, the Minister, if he does not regard himself as having the power under this Bill, would provide himself with power to impose on all health boards a uniform code of practice and standards in the care and protection of children and in particular in the monitoring of children who are the subject of supervision orders and the subject of care orders. It can very well be that children who are taken into care, due to a short term family problem, could be taken out of care far quicker with regular reviews and returned to parents than would happen if reviews were carried out at six monthly intervals only. I would certainly take the view that the reviews of children in care should take place far more often than is suggested here. I would suggest that this provision of the Bill be amended to read three months as opposed to six months.
Another matter about which I am concerned arises under section 46, which talks about the removal of children from foster care or residential care. I am concerned particularly here about the removal of a child from foster care. We deal with other aspects of this further on. The Bill provides that where a health board are placed in charge of foster care, they may at any time request the person taking such care to return the child to the custody of the health board. If this request is not complied with the health board may apply to the District Court. I have had the experience in the area of adoption where social workers attached to both the health boards and the adoption societies, who are untrained in adoption matters, have in recent years adopted the practice that a child has been placed with adopters for a number of months and in some instances for two or three years and where the adoption process has not been completed, of dropping in on adopters announcing that they want the child back because the mother wanted it. In one case about which I heard a week ago not only did the social workers behave in that way but announced to terrified adopters that if the child was not immediately returned to the health board the Garda would be called to remove the child and the adopters, unaware of their rights, handed back the child.
I am concerned about cases of children and foster parents where absolute powers are conferred on the health boards or on social workers to simply remove the child from foster care. I am not sure how it is envisaged that section 46 will work but it seems to create a situation where an application can be made by the health board to the District Court if the foster parent does not comply with the request by the health board and if they still do not comply with the request they will find themselves liable to criminal prosecution. A child living with foster parents for three or four years would establish bonds and attachments with its foster parents particularly if the child was placed at the age of one or two months. A social worker not understanding the implications of what he is doing could go to the house of the foster parents and demand that the child be handed over, two or three years after the child had been placed. It could equally be that the foster parents might form the view that it would be in the interest of the child's welfare that the child be handed over. It seems that under this provision, if the foster parents refuse to return the child the social worker can apply to the court for a court order and if the foster parents still do not return the child, they are liable to criminal prosecution.
I would like someone to clarify the rights of the foster parents in the context of this section. Will they be parties to proceedings brought under section 46? Will they have a right to appear before the court? Will they have a right to be given reasons for the child's removal? Will the health board be required to furnish a detailed background report as to their intentions in relation to the child? In the context of this type of court application being made under section 46, what application will section 3 of the Guardianship of Infants Act, 1964, have if we presume that it still exists statutorily, whatever about it being constitutionally suspect? Will there be an issue of the welfare of the child to be determined — because there would be a contest not between parents with constitutional rights but between the health board on one side and foster parents on the other.
I hesitate to interrupt the Deputy as the Deputy is making a very interesting contribution to the Bill, but whether it is more a Committee Stage contribution than a Second Stage contribution is another question.
In his original comments the Minister invited detailed comments on the Bill, expressed his aspirations for the Bill and said that he was anxious to hear comment, positive or negative, to improve the Bill. I am trying very carefully not to deal with the nitty gritty of individual subsections. I am trying to deal with it in a general way. I will try to confine myself. This is something that was done in the House on the Criminal Justice Bill and as a result we produced a much better Bill.
The Deputy will forgive the Chair for perhaps thinking the contrary, but if the Minister did as the Deputy says that puts a different complexion on it.
I assure the Ceann Comhairle that I will conclude shortly. I will not pin myself to a timescale but what I have to say will be a good deal shorter than what I have said to date.
There is a great need for clarification as to how section 46 is to operate. I am not satisfied that as it is currently drafted it deals adequately with the problem. It can create major problems and it needs to be looked at.
In relation to the maintenance sections of the Bill between sections 52 and 54, I will reiterate a comment I made during the opening stages of the debate. Under those sections because of the restrictive definition of parent a health board cannot require the father of an illegitimate child to contribute towards a child's maintenance if a child is in care. That is an anomaly that should be cleared up. I wish to get rid of the concept of illegitimacy altogether, but when a child is in care there should be a power conferred on the health boards to require a contribution to be made by the father whether or not the child is illegitimate. An example is of an unmarried mother in receipt of affiliation payments from the father to take care of the child, who is not able to cope and who is in a situation in which unfortunately her behaviour is placing the child at risk and as a result the health board bring care proceedings and the child is taken into care and there would still continue to exist an affiliation order whereby the mother would be paid a sum of money towards the child's support while the child remained in the care of the health board. Under existing legislation once the mother ceases to care for the child the father of the child could apply to the courts to have the affiliation order terminated and the health board would not have power to seek support for the child from the father once the child was taken into care under this provision. I would ask that that be amended. It is only correct that there should be at least a power to seek such a payment in appropriate circumstances.
There are more fundamental problems in relation to the child care advisory committee referred to in this legislation. For once I am in agreement with Deputy O'Hanlon in his contribution on this Bill. The provisions relating to the child care advisory committee are inadequate to meet the needs in this area. They do not produce anything constructive or useful and they should be radically altered. The legislation basically provides that a child care advisory committee shall be established by a health board and that the membership of that committee may include persons who are not members of the health board. There should be child care advisory committees within each health board area and they should be independent of the health board. They should have the function of monitoring the child care services provided by the health boards. They should be required independent of the health board. They to produce annual reports on the performance of the health board. The reports should contain a lot of statistical information as well as information about the provision of services which are sadly lacking at the moment. They should provide basic statistics as to how many children are in care in each health board area, the nature of health boards' involvement in court proceedings, the number of social workers available operating in community care teams concerned with children, the number of children in each health board area who are suspected of being at risk of non-accidental injury and so on. At present bits and pieces of information obtained through parliamentary questions are publicly available. At the moment there is no coherent production of information that gives us an opportunity to review the workings of the child care service. These bodies should be independent of the health board but should have some health board personnel on them. Voluntary organisations working in the area of child care should be represented in that composition to include members of such organisations as the ISPCC and Dr. Barnardo's, some of the consumers of child care services and representatives of bodies such as the Adoptive Parents' Associations and the Irish Foster Care Association. They would all as individuals have a valid input to make in monitoring the child care service in each health board area and would perform a useful and independent function. I see no point in providing an advisory committee empowered by the health board who would wish to include personnel employed by the health board who would by virtue of that regard themselves as limited in expressing any criticism of the health board or in criticising services provided by the health board.
What is envisaged here is inadequate. The concept is desirable, but it needs to be beefed up considerably. Such a child care advisory committee within each health board area operating independently of the health board but with access to information on statistics, services etc., and with an input from some of the people at the receiving end of the health board services, would constitute a very good monitoring service, which does not exist at the moment. We need more than that. Other than the local committees we need a National Children's Council of the nature referred to in the report of the Task Force on Child Care Services at page 89, section 5.3, as follows:
5.3.1 The Task Force has also discussed the merits of establishing an advisory committee on child care at national level. The Kennedy Committee recommended that "an independent advisory body with statutory powers should be set up at the earliest possible opportunity" (Kennedy, 1970 paragraph 4.5). It stated that the fundamental purpose of this body would be to ensure that the highest standard of child care should be attained and constantly maintained. The Committee also commented on the lack of research in this field in this country and it went on to suggest that "if work in the area is to develop to meet the needs of child care, there should be continuous research" (Kennedy 1970, paragraph 2.13).
5.3.2. In conjunction with its decision to establish the Task Force in October 1974, the Government authorised the Minister for Health to set up in due course an advisory committee on the basis set out in the Kennedy Report. In accordance with this decision and on the basis of our own consideration of the matter, we recommend the immediate establishment of a National Children's Council.
That was in the report submitted to the Minister in September 1980. The report continues:
5.3.3 Broadly echoing the recommendations of the Kennedy Committee, we suggest that the functions of the National Children's Council should be as follows:
(a) To make recommendations on the development of the child care system, to concern itself with any areas of weakness which may appear during this development and to make recommendations for the eradication of those weaknesses;
(b) To foster and encourage co-operation between the various bodies and persons engaged in different aspects of child care;
(c) To promote research work in child care and to collect and disseminate knowledge in this field;
(d) To create public awareness of development in the child care services.
We should provide a council of this nature composed of individuals with specialist knowledge in this area to whom child care advisory committees would furnish their reports so that the National Children's Council would be in a position to take an overall view of the child care services and their operation. They would be a body independent of Government and required to issue an annual report; and, in the event of services falling down or legislation being inadequate, they would be in a position to highlight such problems and propose reforms. Nobody in this country at present other than certain voluntary bodies such as CARE can hope to fulfil functions in this area. Nobody at present on a national level can monitor the operation of child care services. Between the Department of Health, the health boards and representative Government the public and legislators are given whatever information suits the health boards and the Government to make publicly available. Too much information is concealed. I do not say it is deliberately concealed. I am aware of the commitment of a number of people within the Department of Health and their concern about children and I am very much aware of the tremendous work being done on a personal level. Nevertheless, we should have a national child care service which has a monitoring function, and this legislation does not provide for that.
Part V of the legislation is another major problem area. In the context of the making of custody orders and foster parents I welcome the intent of the legislation to provide the rights which do not exist at the moment. There may be constitutional difficulties in the operation of Part V with relation to the custody rights of foster parents when they come into conflict with the custody rights of married parents of a legitimate child. I have dealt with that earlier but it again arises in the context of the entirety of Part V. There is no inkling in this Bill as to how this part of it is to operate vis-à-vis Part III of the Guardianship of Infants Act, 1964. No attempt is made to reconcile these additional powers with the provisions of that Act. There is no indication of how we can operate Part V and what relevance Part V has to Part III of the 1964 Act and rights of custody. It is left to the judge in the courts to work out what principle would be appropriate in deciding a case. The principles which should be applicable should not depend on which legislation parents or foster parents institute proceedings under. The principle should be based on the child's welfare. There is a lack of clarity as to how interaction should take place between Part V and the Guardianship of Infants Act.
In the provisions conferring rights on foster parents what is the effect of the 1964 Act, on the provisions of this Bill which provide for custody rights to be given to non-parents? Where a foster parent has a child in his or her custody for approximately two years what is intended where there is a contest between parents and non-parents? Can a case be made in favour of the foster parent where the child has been with the foster parent for less than two years? What is the position of a testamentary guardian where one parent has died and the surviving natural parent wants the custody of the child? How is that to operate and interact with this Bill? If custody proceedings are instituted within the two year period is some form of parental consent required? The problems that arise under Part V have not been worked out. There is no inkling in Part V of this Bill as to how it will interact with ward of court procedures. The Act preserves those procedures. For example, if you do not succeed under Part V and you institute separate proceedings to have a child made a ward of court, what legal principles are the courts to apply?
A whole series of problems arise many of which we will have to tease out on Committee Stage. There is a whole series of problems in the operation of this section interacting with the Guardianship of Infants Act, with wards of court procedures and the requirement in some instances for parental consent before a custody order can be made. In other instances there is a time limit, and two years must pass before orders can be made. I understand the problem section 65 (1) is trying to deal with concerning restrictions on the removal of a child from the custody of a person. To whom does it extend?
Will this criminal offence outlined in section 65 (1) apply between parents of a legitimate child where a custody order has been made in favour of the mother under the Guardianship of Infants Act and, three and a half years after that custody order was made, the father makes off with the child? Will that be a criminal offence? We must ensure that children are not kidnapped, but why the three year provision? If a custody order is made in respect of a child by the High Court, or the District Court, or the Circuit Court, and a year or six months after the custody order was made one parent kidnaps the child, surely that should be a criminal offence in itself. We have a major problem in this area. The problem is that section 65 is viewed in the context of fosterage. It appears to apply to other circumstances. The drafters of this Bill have not worked out fully the other circumstances to which it has application.
The final area I want to refer to arises under Part VI of the Bill and relates to court structures and court procedures. I fundamentally oppose and object to this Bill providing that the District Court is apparently the court which will continue to deal with all matters relating to the care of children as outlined in this Bill. A litany of reports has been produced over the years setting out clearly the need to provide a specialist courts structure in this area. I do not accept that there are major difficulties in providing a family court or, if we want to start off on an experimental basis, a uniform children's court to deal with the entirety of this area as something absolutely and completely separate from the District Courts structure. A whole series of reports has been produced over the years and a series of comments made on the inadequacies of the District Courts in dealing with these areas.
It has been acknowledged here and elsewhere that there is a need to establish a specialist courts structure to deal with family proceedings. There is an adequate precedent. The Australian Family Law Act. 1975, established federal and state family courts. They deal with the qualifications to be a judge in such courts. At present the only qualification necessary to be a district justice is to have been a qualified solicitor practising for ten years, which does not, of necessity, give you any great insight into children's law, or how to deal with it properly. In Australia it is provided that, in addition to having legal qualifications, any such judge must by reason of training, experience and personality be suitable to deal with matters of family law.
In the report of the Committee on Non-Accidental Injury to Children published in 1976—a committee set up by the Minister for Health of the day — it was specifically recommended that judges dealing with children should have some special training in the field of child care. In the minority report produced by the task force on child care, recommendations were made for a specialist courts structure in this area. For some reason the majority on that committee did not deal with this issue. More recently we had the report of the review committee on adoption services. Dealing with the area of adoption, that committee talked about the need for an adoption court and the possibility of such a court being extended and becoming a children's court and ultimately a family court to deal with all areas relating to children.
I believe that in dealing with the issue that committee were wrong. The suggestion of an adoption court as such arose due to feelings of frustration because of current inadequacies of the Adoption Board and the slowness of their practices and procedures. The problem in the area of adoption arose because of the manner in which the board operate and because of the limitations on their powers and the manner in which they are staffed. The problems of adoption and the Adoption Board can be resolved by statutory provisions. That is a separate area. There is a great advantage in having an adoption board separate from the courts structure. This report seems to envisage providing an adoption court, which would make the adoption process unnecessarily complicated and result in more legal difficulties in the adoption area than we currently have.
The report however deals with the area of legal disputes such as the one I referred to in the constitutional issue I raised earlier where there are court contests between adopters and natural parents and difficulties arise in the adoption process or where there are other issues relating to the care of children. In this context it proposes that a new type of court be established. We should have a separate courts structure to deal with children's law. The need for family courts was dealt with in great detail in the report of the marital committee. I do not accept that we must pass children's legislation through this House in 1985 which fails to provide a specialist courts structure for children's cases and ultimately and more particularly for family courts to deal with this entire area.
The aspirations expressed by the Minister in this Bill to protect the welfare of children, the talk about family proceedings or children's proceedings being conducted without undue formality, do not mean that the District Courts will be adequate. They are completely and utterly inadequate in this area. We have a form of justice administered in these courts in the area relating to children which lacks expertise and insight and will not be improved by extending simpliciter new powers to district justices. We need a new type of court structure with specialist, formal welfare services attached to it, with proper back-up services, with a children's advocate forming part and parcel of it, and with specific provisions for specialist qualifications being necessary to adjudicate in a court of that nature.
Over the years people have looked at various possible systems such as the one that exists in Scotland, and I am not necessarily in favour of that system. It is a major error to enact legislation of this nature and not take the opportunity to provide a specialist courts structure. I hope the Minister will consider that. In principle I welcome the Bill. I welcome the Minister's openness of approach. I hope he will regard the comments I made here this evening as constructive and helpful. I hope he will consider introducing many amendments on Committee Stage to improve the legislation.
The 1985 Children (Care and Protection) Bill has been awaited for 77 or 78 years. We are now changing something which was enacted in the Westminister Parliament in 1908. It was repealed and changed by the Westminister Parliament in the twenties. We have not had insight, or commitment, or the desire to change it until now. If we do not get this Bill right this time, if we do not deal comprehensively with all the problems which need to be dealt with, and if we do not make the commitment to the constitutional referendum which I believe is desirable, it may be another 77 or 78 years before we have another opportunity to do it again.
I will attempt to be brief. Like many other speakers, I welcome this Bill, although there are a certain number of inadequacies. A lot of Deputies feel it has not gone far enough. I feel, it is a step in the right direction. It is long past the time for presenting this Bill to the Oireachtas. The present laws, as Deputy Shatter said, date back to Edwardian and Victorian times. The world has changed much in the past 80 years and it is obvious that the whole structure of society and the family have altered significantly since then. Many mothers go out to work and leave their children in day care centres, creches or even in the care of strangers. It is obvious that these must be well regulated, especially with the scandals that have emanated in relation to child care particularly from abroad.
The sexual abuse of children in the home and while in the care of others is on the increase. It is estimated that one in six adult women were sexually abused or assaulted as children. This has until lately been a taboo subject; yet many adults are walking around wounded, psychologically speaking, because of their experience as children—and because of the inadequacy of statistics on deprived children or children at risk in Ireland we do not have a clear idea of the extent of the problem. Approximately one million of the population are children, people under 17 years of age, and of these approximately 36 per cent are disadvantaged. They come from one parent families, low income families, badly housed families or some other deprivation.
The Task Force on Child Care Services, which published its final report in September 1980, recommended the establishment of a statutory body for each health board to be known as the child care authority. As it often happens children in similar circumstances are dealt with by different agencies and in some cases by more than one agency, they were unable to discover the number of deprived children and children at risk. If we do not even know what the problem is how can we possibly deal with it? The various services were initiated and developed piecemeal and this has led to gaps, overlapping and the present bizarre situation we have. The task force attached particular importance to the services which can help families to cater for children in their own homes. They recommended that professional home services be provided for families at risk. Obviously the number of children taken into care can be reduced by the provision of good family support services. The provision of day care services by the health boards is obviously an important first step in this direction. We would all welcome that.
Deputy Shatter dealt at length with the constitutionality of a number of sections. I am not a lawyer but I certainly have some problems particularly in relation to Part V, the granting of custody orders to foster parents. This section grants legal custody to those bringing up a child and ipso facto removes it from its natural parents. We all have great sympathy with the reasons stated for this section in that at present a child who has been placed by his parents in foster care or the care of a relative may be moved at any time regardless of how attached he has become to his foster parents. It is obvious that it is not in the best interests of the child to be arbitrarily removed from a stable home by people whose only relation with him may be a blood relationship.
Like Deputy Shatter and other speakers, I ask is this section constitutional? Article 41.1.1º seems to preclude the granting of a custody order, certainly when granted without the consent of the parents which may occur after a child has been three years with foster parents. Article 42.5 of the Constitution allows the taking of a child into care but it does not allow the granting of custody of the child to a third party. I agree that the child's rights are paramount but I wonder about them overriding the rights of a parent. Article 41.1.1º of the Constitution states:
The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
Article 42.5 states:
In exceptional cases, where the parents of physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Has the right of access to the child by his parents been given enough importance in this Bill? It is only natural that a foster parent who has had continuous care of a child for more than three years and who has been granted custody of the child against the wishes of his natural parents might in some instances regard the visits of the natural parents as disruptive and attempt, and perhaps succeed, by applying to the District Court for a direction in curtailing these visits.
It is obvious for the sake of the family, which is protected by our Constitution, and, more importantly, for the good of the child that contact with his natural parents is imperative. It is psychologically and extremely important for the child to feel that the parents who bore him love him no matter what the evidence to the contrary is. I feel that self-esteem is probably one of the most important gifts we can bestow on a child. If the natural parents refuse to give this consent to a custody order or, at a later date, wish to return to court to have the order revoked will they — Deputy Shatter touched on this — be eligible for legal aid if they do not have the means to pay for a solicitor themselves? I note that the District Court will have jurisdiction. This will reduce the expenses to some extent, but there are many families who cannot afford even that.
I would like to quote from the report of the task force. This report stated:
There has been a strong tendency to rescue children from inadequate parents with consequent weakening or even severing of the bonds between child and parents even when the bonds were strong and should have been maintained in the child's interests. We must never forget that a child can have emotional links even with the worst of parents and that these links may be of benefit to him emotionally.
Part II, section 16, provides a welcome legal impetus to the present policy of placing children in foster homes instead of institutionalising them as at present. I am sure everybody will agree with me that, no matter how good the institution is, there is no comparison between it and a normal home. However, I am a little worried that there is not much emphasis on the need to keep a relationship going and maintain as much contact as possible with the natural parents. This is for the good of the child, whose emotional and psychological development requires this.
Registers of children at risk have been drawn up by the directors of community care. I ask the Minister and his junior Minister are they being acted on or does the existence of the register lead to the feeling that something is being done to help the child whereas the only action might be the placing of his name on a register? With all due respects this is possibly the easy Irish solution — talking about a problem means that it is solved. It invariably does not.
In relation to Part VII a prison sentence of three years and a fine not exceeding £3,000 is an inadequate sentence for the wilful assault or the ill-treatment of a child. This is the maximum sentence and may cover such cases as infanticide and murder. When one considers that allowing a child to engage in begging may lead to a fine of £800 and a prison sentence of six months, the other sentence seems totally inadequate. Sentences have been increased drastically from the previous derisory ones, but they are still inadequate.
Section 83 deals with solvent abuse. In my home town of Waterford we have a significant problem in this area. This section is very welcome but it does not go far enough. A fine of £1,000, or 12 months imprisonment, for knowingly selling solvent-based products to children for sniffing purposes is totally inadequate. How will one prove that the vendor knowingly sold the solvent and was aware that it was to be used for glue sniffing? It is fair to say that most shops voluntarily restrict the sale of such products to those over 18 years and perhaps the law should state this. Having said that, solvent abuse, though a tragic problem in that it prevents a child from getting the most out of life and has on very rare occasions led to death, is self-limiting in that it is not a permanent addiction and children almost invariably outgrow it. It is usually undertaken in response to peer pressure or taken by a group for kicks. The child who sniffs solvents has many other problems and in a lot of cases it is the symptom rather than the cause of their personality disorder. This problem is a difficult one to deal with.
There is a major problem in Waterford city with regard to glue sniffing and the Garda find that their hands are tied. There was an area of the town where there were glue sniffing parties every night and the Garda would raid them. The children would just run away and when the Garda left, the party would start again in five minutes. I have been in touch with the Garda about this on a number of occasions and they have suggested that their hands are tied. Hopefully when this Bill is enacted they will be in a position to seize these products. Unfortunately, the children will probably rapidly replace them with some other solvents which are obtainable in garages or tool sheds or they may transfer their allegiance to other products such as dry cleaning fluids. They can get other solvents without too much difficulty.
I would be critical of the media — not our own media in this instance — in relation to this. Particularly in the British media there have been a number of sensational articles written detailing the different kinds of products which can be sniffed. We will remember quite recently an incident where a British newspaper had a headline "A High for 5p" and underneath was a photo showing the various items children were sniffing. This kind of attitude is unfortunate and can only be damaging to impressionable young children.
I should have liked to see a section in this Bill dealing with under age drinking. Perhaps this will be dealt with in other Bills. Our whole ethos militates against looking for a solution to this problem. I saw a report recently, where a survey was carried out among girls in a convent secondary school in Dublin. The girls were at intermediate certificate and leaving certificate stage — in other words, the majority of them would be between the ages of 15 and 17 years. A substantial majority of these girls were drinking, mostly in public houses. The teachers pointed out that the situation was no different from many other second level schools in Dublin now. Why is there such reticence in the community in dealing with this problem? Do we not know or care about the increasing number of teenage alcoholics? Have we such a fixation about drug abuse that we have totally forgotten this very common and probably equally serious problem of alcohol abuse? It is long past time that we insisted on some form of identity card with a photograph attached for young people wishing to purchase alcohol. When 15 to 17 years olds can say that they buy alcohol in public houses or off licences there is something wrong in our society and we must correct it. Extremely stiff penalties would be necessary for anyone supplying alcohol to a person who is under age or for an under age person trying to procure alcohol. These penalties should extend to anyone procuring alcohol for an under age person.
I welcome the Bill but wonder if it really goes far enough. It does not go anywhere near including all the recommendations in the final report of the task force on child care services, but still I welcome it.
I also welcome the Bill although I am disappointed that the Bills relating to children's rights are being introduced at three different stages. At the same time, the overlapping that occurs when we talk about children in the home and in society leads to frustration in so far as we should like to address ourselves to problems such as Deputy Ormonde raised in regard to teenage under age drinking and the age of responsibility which was very pertinent in the debate on the Criminal Justice Bill. While I am glad to debate this part of the Bill, I am aware that there are whole areas which impinge on it and we look forward to the introduction of the other Bills. I note that the Minister said that he hoped to introduce a Bill on adoption at the end of this year.
I also note that the Government are committed to the reform of the juvenile justice system which will be covered in a separate Bill. We are talking about the protection of children's rights and we are also trying to protect the most vulnerable children in society. Lamentably, as Deputy Ormonde said, a great number of children in the vulnerable section of society turn out to be victims in adult life also. The system is always stacked against them and the deprivation of self esteem, which is so important in childhood, has a terrible effect on them later on. If children during their formative years are denied the love and care which they should get, the end results are horrendous. Their suffering leaves scars and they encounter many problems in adult life.
Reference has been made here to abuse — particularly sexual abuse — of children which is only now being publicly discussed. Deputy O'Hanlon made the point that those children suffered incredible trauma and guilt, that those who were the victims of incest often committed rape and that both men and women had a high level of drug addiction. We cannot separate the traumatic and violent things that happen to children from the adults that they grow into. The tragedy is that not alone are those children victims but that when they have children of their own they carry on the cycle of violence, deprivation and lack of relationship with their own children. Therefore, when we talk about children, we are referring to society as a whole because the cycle is continued.
While Deputy Shatter's speech was not brief, it gave a tremendous insight into many legal aspects. Members of the House who do not have legal training must have learned a lot from his examples. From the lengthy explanation which Deputy Shatter gave in relation to decisions of the Supreme Court and the High Court, it is a matter of great concern that the recent case to which he referred indicated that this legislation might be at risk of being challenged constitutionally. We would all view with concern and anxiety a Constitution that seems to allow judgments to be made which would not place the welfare of the child as its first priority and which would even differentiate in regard to legitimate children as designated under Articles 41 and 42 of the Constitution. We could get into all sorts of difficulties in regard to the rights of legitimate children and the imprescriptible rights of parents over them. Illegitimate children have been discriminated against down through the years in many areas but in this area they might have more protection in regard to staying with their foster parents or those looking after them.
While we recognise that the Constitution has been adequate, legally and technically, over the years, at the same time it contains certain Articles which seem to frustrate the very areas in which we are trying to work to bring about reform. Perhaps in 1987, 50 years after the Constitution was framed, we might look at it again to ensure that we can continue with reform instead of having constant referenda on various articles. Perhaps we would end up with something less complicated like a Bill of Rights, which would not get us into legal and constitutional difficulties which occur at present every time we attempt to bring about much needed reform.
The family, as we interpret it in the Constitution, seem to have a sacred and divine right and I do not think the rights of children were considered at any level. Of course, we recognise, ideally, that children should be brought up in a loving family with their parents who care for and cherish them. Unfortunately, for many children this is not the reality and we should not be too preoccupied with the fact that children may be brought up in other circumstances as long as the care and love are there. It worries me that in regard to children in care there seems to be an over-emphasis on the importance of children being cared for by the parents alone. We know that there are vulnerable families and some parents, for different reasons, are not able to carry out the full responsibilities of rearing their families. In cases like that, we must take into account the greater good of the child and we should not agree that parents always have imprescriptible rights and that the welfare of the children is secondary.
We will all be working to give support to the vulnerable families to enable them carry out their responsibilities in regard to the care of their children — socially and politically we have a lot to plan to enable them do that — but when the breakdown occurs we can see that it is not in the best interests of the child for this to continue. Some people have been shy about putting children into care. It appears that we have inherited a type of Dickensian perception of the way children are treated. In generations past children in care were woefully treated. Officials of the Department of Health who have been working on children's rights and carried out research into this area have given evidence of the type of institution that existed many years ago and the treatment meted out to children in care.
I should like to pay tribute to the Minister for Health, and to Department and health board officials who have shown a great commitment to catering for the needs of children in institutions. They have provided the resources to enable institutions to lose the harsher and more depriving aspects of child care that used prevail. I am aware that in institutions children grow up in family type units. We must never lose sight of the fact that modern institutions that care for children manage to give them the type of love and care and family relationship they need. The assessment of children is of supreme importance in care centres. Children taken into care have been found to be behind their age group but by constant assessment and care in those centres they have caught up and reached the same standard as children outside. That is an indication that if we use our resources properly and give the right protection and care to children they will benefit. With the right care they overcome many of their problems.
The Minister stated that where children need to be taken into care the approach will be to provide them with the care they require in a family rather than an institutional setting. I welcome the progress that has been made in that regard. Positive results have been achieved. There has been a lot of talk about attempting to ensure that there is a constant review of children taken into care to ensure they are not kept in institutionalised care longer than necessary. We need to look at the whole area of the family unit and the training of our social workers. It appears that there is an over-emphasis on returning the child to the mother at all costs. In some cases that is to the disadvantage of the child. We must ensure that we do not remove those children from skilled people too soon, even recognising that the ideal situation is a family. We should not remove such children from those experts in order to ensure that the child is returned to the natural parent as soon as possible. I am aware of cases where when that happened there were tragic results. In the long term care, protection and security for the child are important. To return a child to a parent, based on an over-emphasis of the need for a child to be with a parent, and later, following more violence and so on, putting that child back into care is not of benefit to the child. That should be considered in the training of our social workers. We should not over-emphasis the natural bond of a mother-child relationship, especially if it will be to the detriment of the child.
There has been much debate about the legal complications that may arise. The Minister made reference to the drafting language used in the Bill. Down the years that language has consistently been written using the male gender term. In the Bill the only gender described is male. The parliamentary draftsman may say that this has been the tradition down the years but, bearing in mind that half of the children we are talking about are girls, I wonder if in legislation like this we should not say "herself", "her" or "he/she". I have raised this before and it is a matter that should be considered in legislation that has an identity with the female gender.
I share some of the anxieties expressed in regard to custody. We must be very careful in that regard. Deputies Shatter and Ormonde suggested that it might raise constitutional problems but we must also consider the human element involved. In the area of custody, of court cases and evidence given, every precaution should be taken to give priority to the relationships, particularly the bonding relationships, rather than the natural rights of parents. I have known cases where, either for constitutional reasons or because emphasis was placed on the rights of natural parents, very young children who have developed a very loving and secure relationship with people other than their natural parents have been wrested physically and violently removed from that loving bond which had been created in the formative years, and returned to the natural parents. This decision was reached to fit the law rather than taking into consideration the damage which could be done to the child in the long term or in the short term.
The ideal position would be the family unit. I would like to see support for these children through child care facilities and support of vulnerable families. We have failed lamentably to provide child care facilities. In just a few years we have moved from a rural, almost agricultural based society, where children grew up among their grandparents, aunts and uncles as well as parents, brothers and sisters. There was a sense of community in those families. There did not exist a sense of paranoia we see today where it is said that children will not grow up properly unless all their time is spent only with their mothers. I know that is not true.
Because of the present economic circumstances today very often children are left with one parent during the day. Years ago children were not deprived because they were brought up in an extended family, with a group of relations, or perhaps even with people working in the area rather than by just one parent. I want to put that on the record because that allegation has been made on numerous occasions, and I find it unacceptable; it is not even sustainable.
Nowadays we have a great many single parent families. Everybody recognises these people as being very vulnerable and among our most deprived families. There is another group which is becoming the norm, where both parents are working. Rather than talk about an idyllic age where this did not happen, what we, as legislators, have to do is not only to keep in step with changes but, hopefully, anticipate them, because if we do not there will be victims along the way, and the children will be the first to be caught.
The many voluntary organisations which work for children and single parent families have pointed out the lack of child care facilities in Ireland and the urgent need for such a network. The Minister said we should have some kind of standards and registration of the kind of child care we offer, but it is shocking that at present we do not have such standardisation and registration, particularly for children between the ages of two and five years of age. It has been said that children learn between one half and two thirds of the learning they will acquire in their lifetime during that period. After the age of five they acquire knowledge, but it is during their formative years that the real learning starts and these impressions stay with them for the rest of their lives. That is why it is essential that we have the highest standards and give these children the best care possible in that short time. Unless we have standardisation and registration, there is no way we can guarantee that. This lack has been a cause of great concern to the voluntary organisations who are interested in child care.
I would like to refer to the report of the Working Party on Child Care Facilities for Working Parents submitted to the Minister for Labour in March 1983. They referred to the recommendations for child care facilities for all children regardless of whether the parents were working. They asked for regulations for day care services for children and suggested that a code of practice which would complement the legal framework should also be drawn up to include other desirable standards which day care facilities would be encouraged to adopt or to aspire to on a voluntary basis. They also recommended that a national statutory child care authority should be established governing all areas of care, training and protection of children. We cannot emphasise enough the need for this service.
At present we do not have sufficient child care facilities; it is a fire brigade action. If a person is wealthy enough and can afford to make choices, then there are pre-school and creche facilities available; but if not—and here we are talking about those who are not among the privileged, that is single parent families who need to go out to work and low income families who need to go to work—there is no network of day care facilities available.
As far back as 1972 the report of the Commission on the Status of Women recommended that no planning permission should be extended to a developer of either a local authority housing or a private housing development over a certain number of houses without such developer providing a building for créche and pre-school facilities. The cost would be minimal, but can you imagine what it would have meant if we had implemented that recommendation some years ago? It would have meant that, automatically, planning permission would depend upon that. It would be an essential part of planning and development that an estate with more houses than, say, 40, 60 or 80 could not be built without such a facility being provided. With a certain number of trained and professional staff, the voluntary help the community would give towards provision and sustaining of those pre-school and crêche facilities would be of inestimable value. It would go far along the way the Minister wishes to go in the protection and security of children at that vulnerable age. I ask the Government to reconsider that recommendation and to introduce it.
We are not speaking outside the bounds of reality. I am very aware, as is everybody else, of the resources and the investment needed for this proposal. That is one way of achieving the objective in a practical manner and with very little expense. The Minister is committed to trying to reduce the high cost of our health and social welfare services, taking the services from the centralised institutional sphere into the community, and also using the input, energy and expertise of our voluntary organisations. We are all being very realistic in wishing to use more effectively and efficiently our present resources for the benefit of our children. The same applies to the support of our vulnerable families to which I have referred.
I found of tremendous interest, and indeed optimism, a report brought out on behalf of the ISPCC on the Wexford family centre which centre was, in effect, an experiment. The centre took families at risk and, with the help of voluntary organisations and a number of skilled people, they helped those families to the extent that the breakdown did not come with the removal of children and the parents being made to feel guilty. Surely that must be the whole thrust of this legislation.
In the context of this Bill we are not speaking only of the protection of children but of support for parents, particularly those who did not get the opportunity to be adequate parents, as they would wish. I am not ignoring the social factors that contribute to parents finding children removed from their care, through social stress, alcoholism, drug addiction and frustration expressing itself in violence towards the children — the more vulnerable people within the family.
I want to deal with the very impressive results obtained in that centre in the support of the families and the keeping of the children within their family unit. In coming to their conclusions, the researchers into the operation of the centre highlighted as extremely important the provision of transport to and from the centre. This would ensure the attendance of the children and their maximum benefit from the sessions. There is no point in trying to set up centres for the care of children if we do not assist them to and from the centre. That can be overlooked. The transport provided in Wexford ensured that the children all got the greatest amount of help.
The centre concentrated on four aims: strengthening the family relationship, supporting and trying to help individual behaviour, giving care and training to the parents in the bringing up of their children and allowing the parents to look at their role as parents to see how they were succeeding. They found that one of the most common problems experienced by these families was a lack of self-esteem in the parents. The social workers perceived an improvement in the physical care of the children in 12 out of 14 families. That is a very high success rate. The parents' role and performance had improved. The mother's role and performance as perceived by the social workers improved in ten out of 14 of the families. The other point made with great strength was that the family centre in Wexford was extremely successful in attracting and retaining a corps of volunteers to assist in carrying out a broad range of activities. The consistency of the involvement of the volunteers was a notable factor in the development of the centre.
This is the way in which the Minister wishes our resources to be used, by bringing this network of support into the community. The commitment that the voluntary organisations are prepared to give and the time they are prepared to spend is available as long as the structures are set up to allow them to come into play. We should never overlook or cease to acknowledge this work. We have made reference again and again to groups who got together and lobbied and who helped to support children. Full acknowledgment must be paid to the voluntary organisations who have worked selflessly down through the years, with a great desire to do so. The economic cost is not the only factor. The resource of voluntary help can be called upon.
The task force identified the four levels of planning and services for children as follows:
1. The child care services required to meet the needs of deprived children.
2. Family support services required by some families, but especially by families under stress of one kind or another.
3. Social services required to see that children's needs are met.
4. Social planning required to ensure that overall social objectives of Government policies are recognised and given adequate attention.
There is one sentence in the report as follows:
Thus, the cost to the State of keeping one child in residential care and one teenager in Loughan House——
which was open at that stage——
was greater than the entire cost of the ISPCC Family Centre in Wexford in 1981.
Debate adjourned.