I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to update and strengthen the law in relation to the care of children, particularly children who are being assaulted, ill-treated, seriously neglected or sexually abused or who are at risk. It replaces the Children (Care and Protection) Bill, 1985, which was at Committee Stage here when the 24th Dáil was dissolved. That Bill ran into difficulties when a Supreme Court judgment in a case known asKC and AC v. An Bord Uchtála, cast serious doubts over the constitutionality of two of its key elements; first, proposals to make it easier for children to be placed in health board care and, secondly, provisions which would have enabled the courts to grant custody rights to foster parents.
Apart from these constitutional problems, a large number of changes in the details of the Bill were sought by Deputies, health boards and other interested parties. All of these factors taken together would have involved extensive revision of the Bill requiring as many as 150 amendments.
When this Government came into office we carefully considered the position with regard to the 1985 Bill. We reached the conclusion that it would be more expeditious to allow it to lapse and to bring forward an entirely new Bill, drafted in the light of the latest judicial interpretations of the Constitution and the many representations made by child care interests. The Bill now before the House has been prepared on this basis.
The main provisions of this Bill are as follows: (i) the placing of a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection; (ii) strengthening of the powers of health boards to provide child care and family support services; (iii) improved procedure to facilitate immediate intervention by health boards and the Garda where children are in serious danger; (iv) revised provisions to enable the courts to place children who have been assaulted, ill-treated, seriously neglected or sexually abused or who are at risk, in the care of or under the supervision of health boards; (v) introduction of arrangements for the inspection and supervision of pre-school services and (vi) revised provisions in relation to the inspection and approval of residential centres for children.
The existing legislation in relation to the care of children is based largely on the Children Act of 1908. That Act was the culmination of a series of legislative measures taken during the 19th and early 20th centuries aimed at protecting children from cruelty and exploitation. It has served us well and many of its provisions are still in use today.
While the legislation may not have changed significantly, there have been sweeping changes in society in the intervening period. The political and administrative structures have changed; new values and attitudes have evolved; there is a more sensitive understanding of the psychology and needs of children. In particular, there is a greater awareness now of the rights of the child himself or herself as an individual member of society.
We live in a more enlightened society which has brought great benefits to most of our children but, regrettably, there is a darker side to the picture. There continue to be unhappy and deprived children in our community. At any time about 2,500 children are in the care of health boards. Many are in care because their parents are unable to look after them, whether due to physical or mental illness, alcoholism, marital breakdown or other family crises. Most are reunited with their families after a few weeks or months; unfortunately others remain in care for years.
There is another group of children who come into care in much more dramatic and traumatic circumstances. They are the victims of child abuse, whether it be physical, emotional or sexual. In 1986, the total number of confirmed cases of all sorts of child abuse known to the health boards was 494. This represented an increase of 62 per cent on the 1985 figure of 304. In the case of child sexual abuse, the number of confirmed cases rose from 133 in 1985 to 274 in 1986, an increase of over 100 per cent in one year alone. My Department have not yet completed the collection from health boards of statistics in respect of 1987 but, on the basis on the returns that have been made to date, all the indications are that the total number of reported and of confirmed cases in 1987, particularly of child sexual abuse, will show a substantial increase on 1986. I do not wish to be alarmist but this trend clearly illustrates the need for up-to-date and effective legislation to protect children who are at risk in the community. That is the primary objective of this Bill.
Since coming to office, I have become increasingly concerned at the rise in the number of cases of alleged child abuse being reported to health boards. In July last, my Department published a new set of child abuse guidelines. They set out, in considerable detail, recommended procedures for the reporting, recording, investigation and management of suspected cases of child abuse, including sexual abuse. These new guidelines have been welcomed by the various interest groups. They are designed to ensure a systematic and sensitive approach to caring for the victims of abuse. The problem of child abuse requires an effective and coherent multi-disciplinary response from our health and social services and this is emphasised and underlined through the guidelines.
The assessment of alleged child sexual abuse involves an investigation by a multi-disciplinary term in each health board area, with support from specialist services, including child psychiatric, paediatric and gynaecology services as appropriate. There is a real need to increase the range of services available for sexually abused children and I have already allocated special funds to enable services at Temple Street and Crumlin Children's Hospitals to be significantly expanded. There is, of course, a need also to improve services outside the Dublin area and I have therefore, allocated special funds of £450,000 from my Department's share of the national lottery surplus to the health boards outside of Dublin to enable them to improve their capacity for the assessment and investigation of alleged cases of child abuse including child sexual abuse. These improved services throughout the country will strengthen the ability of the health boards to discharge their duties under this Bill.
While the State and its agencies must have the power and resources to protect those children whose health or well-being is in jeopardy, it is equally important to protect children and families from unwarranted or excessive interference. I would see children being taken into care against the wishes of their parents only in exceptional cases where, for example, they have been ill-treated or sexually abused or where there are compelling reasons why their welfare demands that they be removed from their family. The Bill has been drafted on this basis and I wish to emphasise that it poses no threat to family life generally or to the vast majority of parents who are doing an excellent job, sometimes under difficult circumstances, to rear and care for their children.
I now wish to turn to the detailed provisions of the Bill.
Section 1 provides that the Bill is to be known as the Child Care Act and empowers me to bring the various provisions into effect by order. While it is my intention that the Bill, when enacted, should be brought into operation as quickly as possible, it may be necessary to phase in certain provisions so as to allow time, for example, for social workers and other staff to be briefed on the new legal procedures and for the setting up of inspection mechanisms for pre-school services.
Section 2 defines various terms used in the Bill of which the most important is the definition of "child". At present, the Children Act, 1908, as amended, defines a child as a person under 15 years and defines a young person as a person between 15 and 17 years. In general, children but not young persons may be the subject of proceedings for Fit Persons Orders. This means, in effect, that a person over 15 years may not be placed in health board care regardless of how desirable this might be in his interests. During the debate on the 1985 Bill a number of Deputies and other interested parties drew attention to this and sought an increase in the age up to which children may be taken into care. They pointed to a small but growing number of older children who would benefit from being in care but cannot be admitted under the present law. I accept that there may be older children who may need to be placed in care and propose to achieve it by defining "child" for the purposes of this Bill as a person under 18 years. The main effect of this will be to raise to 18 years the age up to which health boards will be responsible for children and the age up to which children may be admitted to care.
Part II, that is sections 3 to 9, contain a number of provisions aimed at promoting the welfare of children, preventing family breakdown and avoiding the need to have to take children into care on a compulsory basis.
Section 3 places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection and also gives them new and expanded powers to provide child care and family support services. This is one of the most important provisions of the Bill. It imposes a clear obligation on health boards to promote the welfare of children. It will enable them to provide child care and family support services so as to assist parents in caring for their children and to prevent children having to be placed in care. I am confident that the imaginative use of this power by health boards and their professional staffs will result in the development and expansion of community based services and facilities for children and families. These may include more intensive social work support for families at risk, new counselling and advice services, pre-school services, home help and home maker services, child guidance, day fostering, family resource centres and special projects for the young homeless and other "at risk" groups.
In implementing this provision, health boards will be required to have regard to the principle that is generally in the best interests of a child to be brought up in his own family. Thus the emphasis is on providing support and assistance so that children can remain at home; only in exceptional cases are children to be taken into care.
Section 4 extends the powers which health boards have under the Health Act, 1953, to receive children into care on a voluntary basis. At present, about 80 per cent of the children in care are there on this basis rather than under court orders. While there has been a slight increase in recent years in the proportion of children entering care through the courts, I expect that the bulk of admissions will continue to be on a voluntary basis. The new section will enable health boards to receive into care, without reference to the courts, orphans and abandoned children and, with the consent of the parents, children whose parents are unable to care for them due, for example, to serious illness, sudden bereavement, marital breakdown or other family crisis.
Voluntary bodies and religious communities have played an important part in the development of our child care services particularly in the provision of residential facilities. I wish to acknowledge the excellent work which they have done over the years and continue to do today for the most disadvantaged children in the nation. There are a number of sections in the Bill which recognise their expertise and commitment and seek to ensure that it continues in the future. It is proposed in section 5 to establish one or more child care advisory committees in each health board area to advise the board in the performance of its functions under the Bill. The committees will be composed of persons with a special interest or expertise in child care and will include representatives of voluntary bodies providing child care services. I see this as a very useful provision which will ensure that the voluntary sector has a say in the planning and development of our child care services. I hope that it will also lead to greater co-operation and co-ordination in the delivery of services.
Section 7 enables health boards to make arrangements with voluntary bodies to provide child care and family support services on their behalf. Section 8 empowers health boards to grant-aid voluntary bodies providing child care and family support services. Section 9 enables the Minister and health board to sponsor or carry out research in the area of child care.
Part III (sections 10-13) deals with the protection of children in emergencies. It replaces the "place of safety" provisions of the Children Act, 1908. Since the Garda are often the first to come across cases of child abuse and neglect, section 10 provides that in an emergency a Garda would be empowered, without warrant, to remove to a hospital, a children's home or other safe place a child who had been assaulted, ill-treated, neglected or sexually abused, where there is an immediate and serious risk to his health and well being. The child could be kept there for a maximum of 24 hours pending the making of an application for an emergency care order. Section 11 empowers a district justice to make an order to be known as an emergency care order which would authorise the removal of a child from his home and his placement in the care of a health board for up to eight days where there was an immediate and serious risk to his safety. An important new element is the time limit of eight days; under the present place of safety order no specific period is defined. This new element has been inserted to help to ensure that parents are not unnecessarily or unfairly deprived of custody of their children for indefinite periods and to give them an early opportunity to state their side of the case to the court. The relatively short time span may create some initial difficulties for health boards who will have to be ready to proceed with an application for a care order or a supervision order within eight days. However, I believe that with experience any such difficulties can be quickly overcome.
Part IV, sections 14 to 24, deals with care proceedings and is one of the most important parts of the Bill. It sets out the circumstances in which the courts may place children who have been assaulted, ill-treated, seriously neglected or sexually abused or who are at risk, in the care of or under the supervision of health boards.
The House will recall that it was the corresponding part of the 1985 Bill that ran into serious constitutional difficulties. In preparing this Bill, I have paid careful attention to the relevant provisions of the Constitution and to recent pronouncements of the Supreme Court. I have also obtained the advice of the Attorney General to ensure in so far as it is possible to do so that the provisions in relation to taking children into care are constitutionally sound. What is now proposed is firmly based on Article 42.5 of the Constitution which I would like to quote in full. It states:
In exceptional cases, where the parents for 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.
It is clear from this that the Constitution not only permits the State to intervene where children are not being cared for properly but indeed obliges the State to do so. I am confident, therefore, that the following provisions, which are central to the Bill would, if challenged, be found to be in conformity with the Constitution.
Section 14 imposes a statutory duty on a health board to apply for a care order or a supervision order, as appropriate, whenever it appears that a child requires care or protection that he is unlikely to receive unless such an order is made. At present, health boards are not under any obligation to initiate court proceedings to take children into care and some doubts have been expressed about their legal authority to do so. This section will eliminate any such doubts by imposing a firm statutory duty on health boards to initiate care proceedings where this is necessary.
Section 15 provides for the making of a care order. It replaces the Fit Person Order provided for in the 1908 Act. A care order would, in effect, suspend the parents' right to custody of the child and place him in the custody of the health board. A care order would remain in force until the child attained the age of 18 years unless it was discharged by the court because of changed circumstances.
In order to obtain a care order, it would be necessary for a health board to satisfy the court that the child has been or is being assaulted, ill-treated, seriously neglected or sexually abused, or the child's health, development or well-being has been or is being avoidably impaired or seriously neglected, or there are reasonable grounds for believing that his health, development or well-being is likely to be avoidably impaired or seriously neglected. In addition, the court would have to be satisfied that the child required care or protection which he was unlikely to receive unless he was placed in the care of the health board.
These grounds differ fundamentally from what is contained in the present legislation in so far as the focus here is on the needs of the child rather than the wrongdoing or shortcomings of his parents. I believe that this is the more appropriate approach and it will ensure that the needs of the child are given full and careful consideration. However, in order that the rights of all concerned are taken into account, the court in reaching its decision will also be required to have regard to the rights and duties of parents, whether under the Constitution or otherwise.
Section 16 enables the court to make a supervision order. This would authorise a health board to visit a child in his home to ensure that he was being cared for properly. The concept of supervising a child at home under a court order is new to our law.
At present, where the welfare of a child is giving cause for concern, a health board faces the stark choice of either seeking a Fit Person Order to take him into care or leaving him at home and depending on the goodwill of the parents regarding access to him. One possible result is that health boards may be tempted to take children into care in cases where the separation of the child from his family is out of proportion to the risk of which he is exposed.
A supervision order would require the health board to have the child visited regularly to ensure that he was being properly cared for and to give his parents any necessary advice and assistance. This regular monitoring of the child would assist the board in identifying any serious deterioration in his welfare. It would then be open to the board to ask the court to give directions to the parents as to the care of a child, or, if necessary, to apply for a care order. The court could direct the parents to bring the child to a day care centre, child guidance clinic, hospital etc. A supervision order would apply for 12 months and would be renewable.
Some parents whose children are taken into care wish to continue to have access to them, either on a regular or an occasional basis. In most cases, arrangements for visits and access can be made through the relevant health board social worker but disputes can arise as to the frequency of access and the arrangements for visits. Section 17 is designed to eliminate such disputes by enabling parents, grandparents and other persons with an interest in the child to apply to the court for its directions as to access.
Sections 21, 22 and 23 contain a number of provisions aimed at reducing, as far as possible, the stress and anxiety associated with court proceedings. Section 21 provides that care proceedings will be heard in private and will be as informal as possible. Section 22 provides that the child involved need not be brought before the court for all or any part of the hearing unless the court so directs. Section 23 prohibits the publication or broadcast of any matter that would serve to identify a child who is the subject of care proceedings.
Part V, sections 25 to 34, sets out the arrangements which may be made by health boards in looking after children in their care. A health board may place a child in foster care, in a children's residential centre, in a special school recognised by the Minister for Education or to make such other arrangements as may be approved by the Minister. Section 27 will enable me to make regulations governing the placement of children in foster care and section 28 confers a similar power in relation to residential care. Section 31 enables a health board to provide "after-care" e.g. support and assistance for persons who were formerly in care.
At present, there is no statutory supervision of pre-schools, playgroups, crèches, nurseries and other pre-school services for children. There have been various calls in recent years for the introduction of legislative controls on these services, notably from the Task Force on Child Care Services and the Working Party on Child Care Facilities for Working Parents, to ensure that children attending them receive proper care and are protected from possible abuse.
Part VI provides for the introduction of a system of inspection of services for pre-school children, e.g., day nurseries, crèches, playgroups and pre-schools. The provisions here are intended to cover a wide variety of different types of pre-school services. Some operate on strict commercial lines while others are run on a community or self-help basis. Some simply mind the children while their parents are away; others provide educational programmes designed to stimulate the child's physical and intellectual development. Some services provide full day care while others operate for only part of the day. My Department estimate that there are some 1,400-1,500 different services catering for up to 20,000 pre-school children.
Section 36 will enable me, in consultation with the Minister for Education, to make regulations for securing the safety and promoting the development of children attending pre-school services. Persons carrying on pre-school services will be required to notify the local health board and there will be statutory duty on them to take all reasonable measures to safeguard the children concerned. Health boards will be required to arrange for the inspection of pre-school services. As many of the services have an educational dimension this aspect will, where appropriate, be taken into account in the inspection process in consultation with the Department of Education. Section 42 empowers health boards to provide pre-school services and to make available information on pre-school services.
Part VII of the Bill (sections 44-50) updates the arrangements for the supervision of residential centres for children. These include cover for 24 residential homes (former industrial schools) for which I have responsibility and 17 homes approved under the Health Act, 1953. The 41 homes together provide accommodation for about 1,000 children. At present, the residential homes are subject to certain limited controls under the Children Act, 1908, while the 17 approved homes are not subject to specific statutory regulations. The Bill will enable me to prescribe requirements as to the standard of accommodation and facilities, staff numbers and qualifications etc., in all the centres. In addition, the centres will be subject to inspection by officers of health boards and by officers of my Department.
I would like to draw special attention to section 49. This provides for the introduction of a superannuation scheme for the staff of most of our children's residential centres. This is something that has long been sought by the managements and staffs of the centres and their representative associations. It is proposed that the staff of the centres concerned will be deemed to be employed by their local health board for the purposes of the local government superannuation scheme. This is an administrative device to avoid each of the 40 or so children's residential centres having to establish and maintain superannuation records. Instead the records will be maintained by the local health boards who are more familiar with all aspects of the superannuation code. I would like to emphasise that this provision will have no effect on the employer-employee relationship between the staffs and managements of the centres concerned.
Part VIII (sections 51-56) contains various technical provisions in relation to the administration of the Bill.
Section 52 will enable me to supervise health boards in the performance of their functions under the Bill. Section 55 reserves to chief executive officers of health boards certain functions under the Bill, chiefly those which affect individual children. I would expect that most of these functions would be delegated by chief executive officers to other officers of health boards.
Part IX (sections 57 to 62) contains miscellaneous and supplementary provisions.
Section 57 provides for the abolition of the death sentence in respect of crimes committed by persons under 18 years of age. This is to give effect to Article 6.5 of the United Nations Covenant on Civil and Political Rights which provides that sentence of death shall not be imposed for crimes committed by persons under 18 years of age. This is one of two measures required to enable the State to ratify the UN Covenant; the other is the prohibition of incitement to national, religious or racial hatred.
There is widespread public concern about solvent abuse, or "glue-sniffing" as it is popularly known. Already this year, there have been reports of six deaths of young people arising from various forms of solvent abuse. One of the most disturbing aspects of this phenomenon is reports that some traders, a very small minority of them, have been selling solvents to youngsters with reckless disregard for the dangers involved. Section 58 proposes to make it an offence to sell solvent-based products to children where it is known or suspected that they will be abused. Provision is made for fines of up to £1,000 or 12 months imprisonment. I accept that this may not be a complete answer to this problem. However, I do not think that it would be realistic to attempt to enforce more stringent legal controls. The variety of household products which may be abused, for example hair lacquer, cigarette lighter fuel, aerosols, nail varnish remover and petrol, renders legal control difficult. These products are readily available in most homes, so prohibiting their sale to children would not reduce their availability for sniffing. Furthermore, there are quite legitimate uses for these products by children; a ban on sale of glues, for example would hinder children involved in such innocent pastimes as model building. I would like to assure the House that the provisions of this section will be complemented by greater efforts to educate children and the wider public as to the dangers involved in solvent abuse. I have asked the Health Promotion Unit of my Department to take urgent action towards this end.
As I indicated earlier, the primary purpose of this Bill is to protect children who are being or who are at risk of being assaulted, ill-treated, neglected or sexually abused. It poses no threat to the generality of families and is firmly based on the principle that the best place for a child to grow up is with his own family or, where this is not possible, with a suitable substitute family. There is an urgent need to update the law in this area and I believe that this Bill represents a significant improvement on the present situation.
I commend the Bill to the House.