There are a number of amendments to the section. Amendments Nos. 1, 2 and 4 are related and may be discussed together.
Children Bill, 1989: Committee and Final Stages.
I move amendment No. 1:
In page 2, line 9, to delete "includes and" and "shall include and" in line 11.
The purpose of this amendment is not in any way to obstruct the passage of the Bill. Indeed, we are anxious that the Bill should be processed through the House and the protection it will afford be applied. But it does indicate a matter which results from a hasty formulation of the Bill and an attempt to close off loopholes arising out of the Supreme Court decision which may cause problems for the future. We are very much aware of the statement of the Supreme Court and a question has been raised in this House and in the other House about constitutionality and whether this Bill should be referred to the president for referral to the Supreme Court. We believe it should. There is a matter which these two amendments seeks to address.
Section 1 seeks to validate the orders that have heretofore been passed but the wording implies that it would be validating in the same fashion orders for the future. In line 9, "includes" would suggest inclusion for the future. That would be going a step further than what is deemed to be dealt with, namely validation in the past. Secondly, in line 11, "shall include" very firmly implies inclusion in relation to the future. The problem is, of course, that this Bill by attempting retrospectively to validate orders has itself a question mark after it, but seeking to establish the same type of validation when the Supreme Court Judge, Mr. Justice Finlay, clearly stated that a fit person should be nominated would seem to be contrary to the intention of the Supreme Court judgment and could be compounding the situation for the future. It is for that reason that we seek to eliminate those words in lines 9 and 11 and to add a further subsection which we would call section 1 (b), to come in after "any subsequent Act", namely:
"That servants or agents of the health boards shall be nominated as fit persons for the purpose of placing a child or young person in the care of a health board under part II or IV of the Children Act, 1908"
Thus the Act would incorporate a subsection, which would deal with the statement made by the judge, namely, that in future when anybody was taken into care by the courts through the health boards that there should be fit persons named or nominated for that purpose. We believe this Bill would be faulty if it did not include a provision for that purpose, seeing that the judge emphasised so strongly the importance of having a person named who would be the person appointed by the court or the person who would be dealing with the situation and who, except in exceptional cases, would be there as a nominated person.
What we seek to do here is to provide an amendment which would improve the Bill and provide for the closing of some of the loopholes that were referred to by Justice Finlay in the Supreme Court judgment.
Even though I have not got notification of the amendment as proposed by Senator Costello, I am prepared to debate it. We must reflect back on the original scenario and take it in its broadest context and see how the situation has arisen. In November 1986 a health board in this country applied for a fit person order and was granted that order by the District Court. The following year the parents appealed that decision to the High Court. The High Court found that taking the 1908 Children Act along with the 1970 Health Act the fit order as confirmed by the District Court was in order.
An appeal of that decision was taken to the Supreme Court. Originally, there were 24 different considerations: 19 of those were withdrawn at the Supreme Court and the Supreme Court then took its decision on five questions. It gave its reserved judgment last Thursday on those five remaining questions. On four of the questions it found in favour of the health boards, but on the fifth question on the technicality that the 1970 Health Act did not include section 2 of the 1908 Children's Act, it declared that the health board was not a fit person to hold children in care. In order to rectify that technicality we have this Bill before us tonight.
I do not understand the thinking behind these amendments. The effect of the proposed amendment of section 1 would be to prevent health boards acting as fit persons from the passing of this Act. In other words, we accept that they were fit persons in the past. The interpretation by lawyers, the High Court and by everybody in the health services and the advice available to successive Ministers for Health and to the Department of Health was that the health boards were fit persons to hold children in care. If we accept this amendment now we are saying that we accept that in view of the Supreme Court decision, but we are not prepared to accept it in the future. That would be a serious situation. Instead of the health boards acting as fit persons the Senators seem to envisage that this function will be performed by servants or agents of the board. Presumably the intention here is that individual social workers, foster parents or managers of children's homes would be nominated as fit persons. This is the complete negative to what we are trying to do in the Bill, which is to give health boards the statutory authority to act as fit persons.
The whole thrust of the Bill is, as I have said, to provide health boards with the necessary statutory authority to act as fit persons. This is in keeping with the approach proposed in the Child Care Bill, 1988 which seeks to establish health boards as statutory child care and child protection agencies throughout the country. The idea of appointing named individuals as fit persons is completely at variance with this approach and would, in any event, give rise to major practical difficulties. For example, if an individual social worker was nominated as a fit person and that person subsequently left the service of the board, or moved to other duties, it would then be necessary to go back to court to have the fit person order varied. Similarly, in the case of foster parents there would have to be an application to the court if the child had to be moved for whatever reason from one foster parent to another. All in all, I think the approach is impracticable.
I would ask Senators to reconsider the situation. These amendments, as proposed, have various and severe connotations. They would totally negate what we propose to do in the Bill, which is to legalise the right of the health boards to act as fit persons. The common interpretation was that they were suitable; they have done it and they are doing it. We want them to continue to do it and to recognise what has been done and to rectify the anomaly and the difficulty or the deficiency which has arisen as a result of the Supreme Court case.
I respectfully suggest to Senators that rather than negate all the good work that has been done and the positive contributions that have been made, they withdraw these amendments in the interests of the children who are involved in care orders throughout the country.
I wish to make a brief comment on the first amendment. As I understand it, the difficulty arises from the fact that this is an attempt at retrospective legislation. I speak only from a grammatical point of view. The Minister has stated, if I follow him correctly, that this difficulty has arisen as a result of the decision of the Supreme Court that there was a technical defect, so that certain powers could not continue to be used. It seems to me that by using the word "includes" in the present tense you are asserting, before the passage of retrospective legislation, that it already includes a matter that the Supreme Court decided that it does not include. I may be incorrect in this, but this appears to me to be the intention of the amendment. In other words, to recognise that because of a defect acknowledged by the Supreme Court it does not, until the passage of this Bill actually, "include" but after the passage of this legislation shall retrospectively "include". I may have taken the sense of the amendment up wrongly, but this is the way it would appear to me. If that is the case I would simply have to add my weight as a grammarian to the interpretation that I assume is the intention of the amendment.
I would like to remind Senators that No. 4 is included for discussion with amendments Nos. 1 and 2. I said that at the outset.
In response to Senator Norris, the Bill cannot become law until it is first passed by this House and, secondly, it is signed by the President. We accept the decision that has been taken by the Supreme Court. We are here, as a result of that, to remove the deficiency which has been clearly identified by the Supreme Court in its judgment. What I am saying is that if we accept the amendments as proposed then we are not going to remedy the deficiency. We are declaring that the health boards will not be fit people. We are not remedying the deficiency, so we are compounding the difficulties. As far as we are concerned "includes" in the present tense would import the future "will" and "shall". Of course, we accept that.
If I may tease this out a little bit further — I understand, of course, that it would be intended to include the future, but should it include the present as of this present now? Perhaps I am incorrect in this, but my understanding of the intention of this section is that it is to cure a situation in which, as a result of a decision by the Supreme Court, section 38 of the Children Act, 1908 does not at the moment "include". Is it a correct reading that at the moment it does not, in fact, "include"? If that is the case, then it is grammatically, I think, incorrect to assert that it does "include" until the passage of the Bill, at which point it "shall include".
I would like to concur vehemently. This is just the type of issue which can be grist to the mill of a smart lawyer. We are talking about new legislation and the short title of the legislation may be cited as the Children's Act, 1989. The Children's Act, 1989 is an amending piece of legislation. It is amending the 1908 Act. By amending it says it shall "include" from the moment the Bill is enacted into law. In other words, from the moment the President takes his pen off the paper, it shall "include" from that point. It is not correct to say that that particular section as it is written at the moment in the 1908 Act "includes". The reason that is not correct is because the court has said it is not correct. Words mean what the courts say they mean. The courts have been very clear and succinct on this. It does not "include". The section as it is written does not "include". The word "include" is wrong from any point of view. The reason we are here tonight is because it does not "include". There is no point sitting here and saying it does "include". The court has said it does not "include", but we are rectifying that. Because it does not "include" up to this point, we are saying as and from the moment this Bill is enacted into law it shall "include". It is very clear. It does not leave any room for difficulty.
There are just two points arising from that. Senator O'Toole has made one point that I was concerned about and I do not propose to develop it any further until I hear the Minister's response to it. The second point I wish to raise in relation to this matter is, if I heard the Minister correctly when he replied to Senator Costello that there were difficulties in the use of named persons. Nonetheless — and I will be dealing with this when section 5 arises — section 5 clearly states that if it is established that the health boards are fit persons then the function will be discharged by the chief executive officer of the health board. Perhaps we better leave that subject until section 5 comes before us, unless the Minister would care to comment on it.
The other point I want to make relates to amendment No. 4. I am not aware that amendment No. 4 has yet been discussed and I would like to have a discussion on that amendment. I would like to know what the Minister's response to it is. If there are aspects of the amendment that he does not find satisfactory, I would like to know his reasons.
If we go back to the 1908 Act the actual statement in section 38 (1) is that in this part of this Act unless the context otherwise requires the expression "fit person"— and we are thinking of some particular abstract definition — it is not a person in the sense of a human individual person. It is a person in a much more abstract case. In relation to any child or young person this includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children.
As I said previously, we are basically talking here about cruelty to children. As I understand this Bill seeks to meet the Supreme Court's very correct suggestion. I would feel that it would be quite dangerous to delete the word "includes" or, indeed, "servants or agents of the health boards." Effectively, we would be moving away from the basic definition of any society or body corporate. I would imagine what we are attempting in this Bill to establish is that health boards are legally and rightfully empowered by this Bill, which we hope to pass, as bodies, and that they are included and are seen always to be included. If we delete "includes" and talk about the future I suspect we might be opening a minefield of legal queries in relation to the past.
Before the Minister responds, I think Senator Conroy has put his finger on the precise difficulty. The Senator mentions "the Bill which we hope to pass". It is impossible for us to call the courts liars and not to accept their decision. I use the word "liar" not in any pejorative sense but simply in the purely semantic sense. The courts have ruled that it does not "include"— end of story. There is no point in our saying to the courts: "You are wrong; it did include". We do not interpret the law. We make the law and the courts interpret the law. The Supreme Court has interpreted the law to say it did not "include". For that reason we have to amend or modify the law, or perhaps to add to the law.
We must look at the function or what section 1 purports to do. It purports to provide for two matters that is that the expression "fit person" under the Children Act 1908 includes and always has included a reference to a health board, and that the functions of the health board include and always have included the power to act as a fit person within the meaning of the 1908 Act. The existing definition is contained in section 38(1) of the 1908 Act which reads as follows:
In this part of this Act unless the context otherwise requires the expression "fit person" in relation to the care of any child or young person includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children.
The Supreme Court has ruled that this definition does not encompass a health board. Hence the need to provide that it is to be taken to include and always has included a health board. There is no specific provision in the Health Acts authorising a health board to act as a fit person. Health boards have always operated on the basis that they have an implied power to do so. The effect of the Supreme Court judgment is that health boards cannot assume such a power. Hence the need to provide here that health boards have and always have had, the power to act as fit persons.
When the 1970 Health Act was passed, bringing the health boards into being — before that they were different bodies such as corporate bodies, local authorities, various societies and organisations — they assumed these responsibilities. When the 1970 Health Act was passed it did not include section 2 of the 1908 Act. Even though the health boards have continued to do this work in the knowledge that they had the responsibility to do so, the Supreme Court found that as the 1970 Health Act was not technically amended by the inclusion of section 2 of the 1908 Act they were not fit persons. We are trying to remedy that deficiency as a result of that decision.
The Minister has illustrated possibly the point I was trying to make and which Senator O'Toole has amplified, that is, that the Supreme Court has decided as the situation is at the moment it simply does not "include". If we take the position advocated by the Minister, what is occurring apparently is legislation by assertion, even if this includes a contradiction of a judgment of the Supreme Court. That is a very dangerous precedent indeed. It underlines one of the difficulties of any form of retrospective legislation.
However, the attempt at amending the situation by retrospective legislation is covered by the phrase to which the Minister has drawn our attention. If the section is changed to say that the expression "fit person" in section 38 of the Children Act 1908 "shall include" that covers what we are trying to amend. It continues "shall be deemed always to have included". It is possible for the Oireachtas to pass a section which states, and becomes law, that this expression "shall be deemed always to have included", but until that is passed it does not "include" in the present tense. The meaning of this section at the moment is to assert, in the face of a Supreme Court judgment, that regardless of that judgment it does at this moment "include" the phrase which the Minister has clearly indicated to the House it does not include. That is not to say that it is not possible to work backwards and to pass a section which retrospectively validates.
What I believe the present legislation to be doing is, as I say, to assert legislatively that a position exists which does not exist. The Supreme Court has handed down a judgment which plainly says it does not exist. That is a very difficult situation in which to place the House. I do not think it is frivolous, but it is an important matter where grammar and law come together. It is an impossible situation, I believe, to amend satisfactorily by the present wording. I understand the Minister's difficulties and the difficulty of the Government because they wish, as we all wish, a speedy passage of this Bill. Even if a technical amendment is accepted the Bill would have to go back to the Dáil. That is a problem, but I think it is better for us to face this problem now rather than to have a legal challenge which could be successful in the court.
The remarks by the Minister indicate the level of confusion that can arise in a situation like this. He referred to the wording in line 9 "and that it be taken to include". That is not what is in the Bill. That is really what is meant, that it be taken to "include", but what is inserted here in the Bill is contrary to what has been ruled by the Supreme Court which is categorically that it does not "include" at this time. In terms of what is before us, we are liable to run into the difficulties in relation to retrospective legislation. Here again we have a wording which compounds that difficulty, because it is contrary to what was the finding of the Supreme Court judgment, as I understand it.
In relation to the second amendment, the purpose of this amendment is to reflect the views and the statements of the Supreme Court judge where he found that the health board was not a "fit person". It was a corporate body and could not be a "fit person". The implication of that would be that the "fit person" would be henceforth a named person as distinct from a corporate body. Can we help the matter by dealing with it in that manner in line with the recommendations of the Supreme Court judge, who stated that the court itself was not a "fit person"? While we seek to validate what has gone before, we must seek to establish proper wording and proper, responsible people who would be nominated as required, as stated by the judge, who would have care of the child entrusted to them.
In relation to amendment No. 4, what is sought here is to look at the present situation and to seek again to ensure that all means are exhausted before a child is taken into custody. It must be established whether there is a "natural person" who is capable and available to provide for the welfare of the child. Let us remember we have over 40 homes for the care of children and young people, and approximately half of those are certified industrial institutions.
Many Senators will have read the report by Eileen Kennedy, when she was District Justice. She chaired a committee to report on the industrial schools. They were certainly not the most desirable of institutions for young, impressionable children. Certainly there have been improvements since that time but, at the same time, they are institutions to which young people are taken from their homes. We believe that the removal of a child or a young person from their homes should be the last resort. It certainly should not be taken lightly and we believe that all the resources possible should be made available to ensure that that does not happen.
We know that the vast majority of young people who are removed from their homes come from deprived backgrounds. We know the situation that gives rise to various forms of abuse. We would like to ensure that rather than putting the emphasis on the removal of the child from an abusing situation, the resources would be provided to support in so far as possible a person who would be a suitable person, whether a relative, a grandparent, a parent who would not be an offending parent, an aunt, uncle or cousin. All of these people could have the interests of the child at heart. They could also be "natural persons" who would take the welfare of the child in hand. The resources should be provided to support them. The purpose of the amendment is to ensure that the rights of the children are considered and that they should be paramount.
We have in our Constitution very considerable rights in relation to parents but we are quite lacking in our assertion of rights in relation to children. What we wish here is to emphasise the necessity of ensuring that a child or young person is removed from his home only as a last resort.
If I may address the House on amendment No. 4, while I applaud the sentiments, the drafting of this amendment also suffers from the flaws that this side of the House suggested existed in what may well have been hasty drafting of the Bill itself. I am not, for example, aware of the legal definition of a "natural person" or, indeed, an "un-natural person". This seems to me to be so wide as to leave a dangerous flaw in this proposed amendment although, as I say, I am quite happy to applaud the sentiments expressed by Senator Costello.
It is also clear to me from what he said that there is a far wider intention behind this amendment than is actually expressed in it. Reference was made to funding being made available to enable these "natural persons" to undertake properly the task of providing for the welfare of children. Yet, there is no machinery contained in the amendment whereby this laudable aim would be carried out. For those reasons, I would have hesitation in supporting this amendment.
I return, if I may, very briefly, to the fact that it is very important that serious note be taken of the confusion with regard to the use of language, particularly the use of the word "includes" in amendment No. 1. The sense of it is very clearly that the expression "includes" before the passage of the Bill. This can not be maintained. As I say, this is legislation by assertion. It is nonsense. If the Minister, by publishing a Bill, had the power to alter legislation there would be absolutely no need for either House of the Oireachtas. They could just issue proclamations from the Department. It would save the taxpayer a great deal of money but it would not be particularly democratic. That would cause a number of us some considerable concern.
In an attempt to be helpful on the question of the word "includes"— the sequence of events is that the Oireachtas, which is both Houses of Parliament and the President, decide what that law is. The interpretation of that takes place in the courts. The Supreme Court has interpreted the Children Bill, 1908 to say that a health board is not a fit person. The problem we are faced with here is that the Minister's amendment says that the expression "fit person" in section 38 of the Children Act, 1908 "includes" but we all know, because we read it in the papers last week and we heard it all over the media, that the court says it does not "include". Who says what the words mean?
The people who pronounce on this are the courts. The Supreme Court has given its view. When I raised the question, and this is where I am attempting to get both points of view together, I was hoping the Minister would respond to me along the following lines: that the interpretation of legislation takes place from the moment it is enacted and that the word "includes" in this legislation can only "include" from the time the Bill is passed, without any retrospective sense. If the Minister were to assure me on that point I would be, I think, more responsive to his point of view on it. But he has not said that in four attempts. Therefore, I must conclude that our original point was correct: that the Minister's proposal does not stand up to scrutiny. We cannot say it includes when the Supreme Court says it did not include. What we can say is that it shall include in the future and therefore the word "shall" should be included.
I now want to make two points on amendment No. 4. Amendment No. 4 is the proposal of the Labour Party group from Senator Costello. It states that the health board should only be called in when in the words of the amendment "there is no natural person available, able and willing". I must say to my colleagues in the Labour group — this is disunity of the Left for a short period of time——
Is that where you are?
It is just the honesty of those of us on the left of the political spectrum that we need to make our position clear on it. I would support the position outlined by Senator Norris. I am not sure what a natural person is, and the older I get the less sure I am. I have heard philosophers, psychologists, every buxorologist in the world, trying to tell me what a natural person is, and I still do not know. The more I see of life and the more I meet people, the less I know about it. I have difficulty with the natural person.
However, I have a more fundamental question. There is implied in the amendment the view that the health board could never do the job as well or be as acceptable as a natural person. I would not be happy with a law which allows any person who is available, able and willing to do what the health board might do. I would have difficulty with that. Without appearing to be over-statused about this, I think there is a tendency in Irish legislation, and in our general attitude towards State institutions, to feel that the institution can never do it quite as well as the individual. As somebody who subscribes to certain institutions of the State, I would have difficulty with that general line of thinking.
I would think that nobody could educate a child as well as the national school system, even though the Constitution give the right to people to do otherwise. But there is also this general view, with is implied right through the Constitution, that the parents can do it better than anybody else, whatever it is. This bias in legislation is written that way. It is a bias towards a parent, and so it should be. We also need to make it clear that there are times when that system breaks down. The people might be available, able and willing, but they might not be responsible or suitable. There might be other reasons where they may be available, able and willing, why they may not be as suitable as the health board. I would have a very fundamental difficulty with that. Childrens' legislation does not even have the coherence of a patchwork quilt; it is a jumble; it is a series of interpretations. It is made up of bits of common law because there is very little legislation of any description for it. It is significant that the Minister made two references to the Consititution in his response earlier to justify what we are doing here. The real difficulty is that, unfortunately, the majority of Irish people think that the line which says "We should cherish all our children equally" is somewhere in our Constitution whereas you and I know that successive Governments of all sides have conspired to ensure that those words never got into any Constitution and never got beyond the steps of the GPO. Because of that there is no equality or rights for children. Therefore we need to be absolutely careful about how we deal with them.
To sum up, I have three points. I have asked the Minister to come back on the word "includes" again. I have shown, I think an "out" on the matter in my unfailing attempts to be helpful in this House. On subsection (4) I have difficulties, which I outlined, about the natural person and about the institution as opposed to the to the person.
If I might clarify for Senators Norris and O'Toole, my erstwhile colleagues of the Left, in relation to the natural person it is not the opposite to an unnatural person. All of us in this House are very much natural persons. As citizens of this country, ordinary men and women in the streets, that is the technical meaning of the word "natural" person. There is nothing terribly difficult about it. It is in the context of an ordinary man and woman.
There is no implication in my remarks or no suggestion that I was stating that the health board as not a fit body or that there was any criticism of the health board. What is stated and what we are seeking to assert in amendment No. 4 is that, where there is a person as distinct from a body or an institution who is available, capable and willing —"able" there means capable, and it means responsible — where this is clearly shown, as it is stated here in our amendment, unless it is clearly shown that all of these necessary criteria are there, but if they are there and if they are sought after and found to be there, then we would wish that they should provide for the welfare of a child who would otherwise go into care.
That is what we are saying in this. We are saying further that we do believe, considering statistically the youngsters who are taken into care, that a very high proportion came from the more deprived and impoverished sections of our society. The corollary of that is that resources should be made available and the State should think in terms of dealing with the problem within the community, that is, in the local sense rather than by externally taking the person away. There is the danger of other problems arising there. I am not in any way criticising the excellent work that is done by the health board in this matter, but we do say that this matter should be explored more fully and that is the content and the intent of that amendment.
Again, I want to refer to amendment No. 1. We are not happy so far with the explanation from the Minister. What he seems to be doing here is asserting "includes" as though that is the existing situation which clearly the Supreme Court has found it is not. Therefore, we seek to have the words "includes and" deleted.
It is rarely that I stand up to defend health boards and I served on them for a long time. Looking at some of the cases that have been dealt with by the Mid-Western Health Board — Senator Howard would be aware of some of those cases as well as myself — these children have been looked after properly and with great care. I appreciate that Senator Costello said he was not critical of the health boards but I think — in fairness to the Minister and to the draftsman in his Department — all through this legislation he has gone out of his way to make sure that every individual child is looked after by a fit person. I personally looked at the situation in the mid-west when I knew this emergency legislation was coming. If I were not happy with the way the children were being dealt with I should have no trouble in stating it here this evening. That is amendment No. 4. I am not trying to cut across Senator Costello. I am only trying to express my knowledge of the health boards and how they are dealing with these children.
I appreciate what Senator Costello is saying, but, as serving politicians, we know the reality of life. We all have had to get health boards to take some of these children. These fit persons and fit relatives just would not look after the individual children for us. I am on record as having deep reservations about the functions of health boards. I served for a long time on health boards, I served even before they became health boards and hope to go on serving when the Minister. Deputy Treacy, comes up with a bright new idea for dealing with them. I am happy that a child in the care of Mid-Western Health Board at the moment is in fact cared for.
Again in regard to the interpretation of Senator Costello, I have a difficulty there with the word "able". I interpret that to mean "able" in a financial sense. Senator Costello changed it then afterwards, perhaps not necessarily changed it but interpreted it as being "capable and responsible". I would like to know from him is he stitching in there help and resources from the health board if the natural person were found he would be willing to provide for the welfare of the child? Is he automatically looking for funding in the nature of the wording of that amendment?
What the amendment states is that a court shall not commit the care of a child to a health board by way of an order under the said section unless it is clearly shown that there is no natural person who is available, able and willing to provide for the welfare of such child. It must be clearly shown that no such person is available. The corollary of that is that a person should be sought who would fall within those categories or criteria and that they are willing and that they are able to do the job. Able to do the job in my mind is that they are capable, and somebody who was capable of doing it would also be responsible. You are not capable of doing something unless you do it responsibly.
In the context of resources, obviously if somebody is going to be taken into care the resources of the health board will have to be employed to ensure that the person or the institution responsible for the care is financed satisfactorily. What I am saying is that it would be better if the resources of the State would be first and foremost put in to the support of a child who would otherwise be taken into care and support where a natural person is available and capable of doing the job rather than the child being taken into care.
First, I concur with Senator Costello that we are all very natural people and it would be my own opinion that I am surrounded by very fine natural people.
In response to Senator O'Toole, I think there can be no ambiguity or doubt about the fact that the Constitution is very clear in its confirmation and direction vis-á-vis the rights of the child — Article 42 and indeed other Articles. In my response earlier today to the Second Stage debate, I read into the record a Supreme Court judgment of 1980 G. v. the Adoption Board, an excellent, outstanding judgment where the Supreme Court, in interpretating the Constitution vis-á-vis the child, gave a very clearly defined and detailed interpretation of the constitutional position vis-à-vis the child. I do not think there can be any ambiguity about that.
It would be an opinion if one were to say that successive Governments have conspired to discriminate against the child. I would not accept that. I think the common good is the overall desire of every Government and indeed every public representative but how we achieve that may be in different ways. We have different ways of achieving it, but I think the overall thrust of Government policy, of democracy, of the Houses of the Oireachtas and the various agencies serving the State is to serve the common good.
The Supreme Court was only concerned with interpreting the law as it stood at the time of its judgment last Thursday, 2 November. The Bill is to change the law not to assert that the Supreme Court was wrong. The Supreme Court interpreted the law. As a result of its interpretation we have this Bill here before us now and we have a profound duty as legislators to remedy the deficiency which was declared by the Supreme Court in its reserved judgment. The words "includes only" have effect only from the date that the Bill is passed. The Supreme Court will recognise that the Bill is a change in the law using the type of language which the courts are interpreting all the time in applying dozens of Acts which contain language in the present tense. The Supreme Court will recognise that situation. I do not think we need to have any worries on that score.
A number of speakers have asked me to refer back to the various amendments. I was very clear and specific on amendment No. 1 in that I clearly said that it would negate what we propose to do in the Bill, that is, to clarify and ensure that health boards are fit people to take children into care.
As regards amendment No. 2, the Supreme Court in delivering its judgment had to deal with the situation within the terms of the legislation as existed on that day. It delivered its judgment as the law stood and as they interpreted the law as of that day. In particular the court had to have regard to its own ruling that health boards do not have the authority to act as fit persons. That is why the court said that the orders should have been made in favour of named individuals. In this Bill we are changing the legislation, enabling health boards to act as a fit person. In section 4 we are setting out the manner in which health boards shall provide care for children. I am advised that henceforth it will be possible for a health board, as a health board, to be nominated as a fit person and that it will not be necessary to nominate a specific individual. As far as we are concerned that would be inoperable and impractical.
Amendment No. 4 would prevent a court placing a child in the care of a health board unless it is clearly shown that there is no natural person available, able and willing to care for the child. I take cognisance of what Senator Jackman has alluded to. It seems that this would create enormous practical difficulties for the courts, which would be required to exhaust all the possibilities of placing the child with a natural person before it ever begins to consider placing the child in the care of a health board. We must accept that the health boards do not put children into care easily or quickly or go for orders. The proposed Child Care Bill, which is a very detailed Bill, will be taking care of all that and defining the different types of orders. One could count on one hand, less than one hand, the number of care orders or decisions that are taken each week. We in Ireland have the lowest rate in Europe and that shows the responsibility and the positive attitude adopted by the health boards in this case.
How would the court conduct such inquiries to ensure that there was no natural person available? What would the court do with a child while it was carrying out these inquiries? These are questions which must be addressed. Would this process needlessly delay securing a placement for the child? These are some of the questions that occurred to me, questions that do not seem to have been considered by this amendment, which means that by accepting the amendments we would render the Bill inoperable and render it impossible for the health boards to operate or for us, as a nation, as a State, as legislators, to provide the proper care that our children need in certain circumstances. Again, I would respectfully suggest that these amendments should be considered for withdrawal because they would cause a major upset to the narrow Bill before us.
Both Senator Norris and Senator Costello have spoken about hasty drafting. Last Thursday, the Supreme Court made its decision. We were under pressure, in this House and in the other House and right across the nation. Everybody was saying "What are you doing? Why are you not responding? Where is the Bill?" Firstly, as legislators, you cannot legislate for decisions that may not be made. That would be bad law. We can only legislate for the need that arises. I still take into account the fact that we should have a proper Child Care Bill in operation and I am very confident that this House will play a key role in this later this year and definitely next year.
The Attorney General and his staff, the senior law officers of the State, and the best experts in my Department, have spent the whole weekend working on this. Both the Minister for Health and I had consultations with them on Thursday, Friday and Saturday. We put a simple three-page, eight-section Bill together and that was made available to all Members of the Oireachtas on Monday morning. We see it as a narrow Bill, a direct response to the decision of the Supreme Court, filling the deficiency that the Supreme Court decided was there. That is the function of the Bill and we cannot go outside that on this occasion. I want to clear up the confusion about the word "includes". What we are saying here is that from the moment the Bill is signed by the President the functions of health boards will from that point onwards include the power to act as a fit person.
You could give me a job, Minister.
I would not mind having you as an adviser, but your fee might be very high.
Could I come back? The Minister has actually illustrated precisely the point I was trying to make earlier. I would certainly not wish to cast any aspersions on the professionalism of the draftsmanship but it was a difficult situation, as has been admitted, and one in which work had to be done under great pressure.
The Minister has said that after the passage of the Bill it will be deemed to have included, the Bill will include. I am not going to get into the difference between "will" and "shall". The Minister himself has placed this clearly in the future. I also would have to say that I take issue with my distinguished colleague, Senator O'Toole, when he suggested that he invited the Minister to place a certain interpretation on these words which the Minister very obligingly did.
That would be a matter of opinion.
That does not alter the situation at all, because if we take the interpretation in the present tense, that it includes from the passage of the Bill and it basically means in the future, that it means in the future although it is written in the present tense, there is no necessity for it to be there at all. Why is it there? Because the phrase "shall be deemed always to have included" covers the moment at which I am speaking and the moment at which the Supreme Court made the decision that it did not include. That is the whole point of retrospective legislation. The inclusion of the expression "includes" is at the very least provocative of the kind of discussion we have had. Although it is only one word, it is the most significant of the amendments we have discussed. The others are largely unsupportable.
Obviously, what is being considered under the phrase "natural person" is actually "natural relative" rather than natural person. That is how it seems to me. It is not really natural person. The notion of Occam's razor comes into operation with regard to this notion of funding being provided for the health board, because it is nowhere mentioned. Occam's razor, as the Minister well knows, makes it perfectly clear that it is invalid in argument to discuss things which do not exist in the substance of the argument. It is absolute nonsense to start talking about all this funding that is going to be provided. It is not going to be provided in the amendment. So let us not waste time talking about it.
The final thing I would say is with regard to the very moving contribution of the former Cathaoirleach, Senator Honan. I have no doubt whatever that anything with which she is connected is conducted to the extreme of excellence. The legislation does not cover merely the operations of the Mid-Western Health Board. If it did I have no doubt that it would be little——
Health boards, Senator. I was only making reference to——
Senator Norris, without interruption.
The point I was asking is that you cannot generalise from the particular experience. There may well be excellent health boards in operation. That does not mean the operation is universally excellent. As Senator Honan has indicated with some small degree of heat, I am not a member of a health board and so I am not in fact competent to say, just as she is not competent to say, that the operation of all the health boards throughout the country is as uniformly excellent as I have not the slightest doubt the one on which she serves with such distinction is.
The final point I would make is in regard to the abstract notion of time, with which the Minister and his advisers appear to me to have some little difficulty. That is not surprising if I heard all right when the Minister said that it was possible to count certain things on less than one hand. I am not sure how you can count anything on less than one. Perhaps that is an Einsteinian notion that is perhaps best left aside.
I think the Senator is misinterpreting my hand.
I do not intend to be tedious——
I would not like to hear you if you were.
I shall ignore that invitation to sink to the level of boredom that the speaker has himself occasionally reached. I would suggest that I have delicately indicated to my colleagues who are on this side of the House that it would be no harm to consider withdrawing amendments Nos. 2 and 4 but that there is a very strong and substantial case to press amendment No. 1, which to me has not been satisfactorily met by the Minister's arguments.
Is the amendment withdrawn?
The Minister has come a certain distance in explaining his intention in relation to the words "include" and "shall include" but I am not convinced that is how the Bill will be interpreted by others. We will not be making the interpretation in the future. The Labour Party would certainly be much happier if that phrase was deleted. What would remain would cover the matter adequately, would not interfere with the intention of the section and would certainly be quite in line with the Supreme Court decision and the attempt to validate future orders which the Supreme Court had deemed to be invalid at that point in time.
In relation to the other amendments, the Minister has stated that the Child Care Bill will cover a lot of ground. The Child Care Bill has covered a lot of ground already and there is no sign of it reaching this House or, indeed, getting through the Dáil. It is disgraceful that it has taken so much time, when one considers the 1908 Children Act, the committee set up in 1970, the interim committee in 1974, the report of that interim committee, the full report in 1980 and all of the recommendations of all of the voluntary organisations as campaigning for work to be done. Now it has been delayed for a long time and there is no sign of any progress being made. Therefore, I am not convinced we will see much progress in relation to amendment No. 4 which I consider very important.
We have to think in terms of resources and the rights of children. Children are not given the strongest protection either in our Constitution or under the 1908 Children Act. Therefore, I do not propose to withdraw amendment No. 1. I take the Minister's point that many matters of substance will be dealt with in the Child Care Bill, but amendment No. 1 is specifically related to validating the situation arising out of the Supreme Court decision and we would be much happier to see the matter clarified. For that reason we will be pushing for a vote.
I do not want to delay the House because there is no point in repeating what we have said earlier. I am treating everything that has been said with broad, objective consideration, and I appreciate the sincerity with which it was said. Likewise, when I say something to Members, it is on the best and most expert advice available to me and, of course, I have my own thoughts also.
I am very optimistic about the Child Care Bill. I hope the Senator is not attaching any blame to me because I was only handed this job on 20 July. We took the Child Care Bill into the Dáil last week for the first time and we passed two sections. We then had the Supreme Court decision on Thursday and the Government, in consideration of that decision, also considered a request from the Opposition parties and have now transferred the Child Care Bill to an all-party Dáil committee. I am very optimistic we will put very good legislation together. There are 64 sections and 200 amendments and I believe Senators will play a key role when it comes before them.
I appreciate Senator Norris' elucidation of the whole situation. I thought he was being very positive until he said that we should push forward with amendment No. 1 but that is his privilege.
With respect to Senator Costello, the wording we have is regarded by the highest law officers in the land as the best wording available, taking into account the decision of the Supreme Court. We, as legislators have a duty to fill the vacuum that that decision created. We have had the best advice, we are satisfied that it is in order and I would ask the House to accept that.
- Bohan, Eddie.
- Byrne, Hugh
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Cullen, Martin.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Lanigan, Michael.
- McGowan, Paddy.
- McKenna, Tony.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cúiv, Eamon.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G. V.
- Costello, Joe.
- Doyle, Avril.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- Ó Foighil, Pol.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Ross, Shane P. N.
- Upton, Pat.
Amendment No. 2 has already been discussed with amendment No. 1. Amendment No. 2 not moved.
I move amendment No. 3:
In page 2, before section 2, to insert the following new section:
"2. — In any case where an application is made by a health board or any of its officers for an order pursuant to section 24 of the Children Act, 1908, it shall be incumbent on the court hearing such application, before making any order under the said section, to enquire whether the welfare of any child whose welfare might be in issue clearly requires its removal from the custody of both its parents, and should one parent be available, able and willing to retain custody of such child, and to ensure the child's continuing safety and welfare, no order shall be made under the said section other than an order appointing such parent as a fit person for the purposes of the said section."
As the Minister has said that the Child Care Bill will be treated by the Government as a matter of urgency we are happy to accept his assurances and will now withdraw this amendment.
Amendment No. 11 is an alternative to amendment No. 5 and, therefore, both can be discussed together.
I move amendment No. 5:
In page 2, before section 2, to insert the following new section:
"2.— Where any health board or one of its officers applies to a court for an order for the appointment of a person as a fit person pursuant to Section 24 of the 1908 Act, the Court shall not enter on a consideration of such application unless;
(1) the court has been satisfied that the applicant has furnished a statement to any parent or parents of a child the subject matter of such application, setting out particulars of all matters that may be alleged against such parents and which are alleged to warrant the removal of the care of the child from the care of such parents;
(2) the court is satisfied that all reports prepared by medical practitioners and social workers, and touching upon the welfare of such child, have been furnished to the parents of such child in good time in advance of the application;
(3) the court is satisfied that any recordings, whether audio or audiovisual, have been made available for inspection and to be heard and seen as appropriate by the parents of such child and/or their advisers."
What I have said in relation to our last amendment holds also in relation to amendment No. 5 in our name. Again, we accept the Minister's assurances that the Government will be treating the new Child Care Bill as a matter of urgency and accordingly we are happy to withdraw the amendment.
I move amendment No. 6: In page 2, lines 36 and 37, to delete ", certified industrial school".
The point of this amendment is to delete "certified industrial schools" because we believe that this is an outmoded term and reflects an attitude and a set of values that are not current today. For that reason we are proposing the deletion of industrial schools in the legislation.
I can appreciate what Senator O'Reilly says and, indeed, I would like to be able to agree because a number of people have alluded to this during Second Stage debate. I want to assure the House that in the Child Care Bill, 1988, which has gone to an all-party committee, we intend to change this situation. I sympathise with Senators in their desire to retain the term "certified industrial school", but I regret that for legal reasons I cannot accept the amendment. The reason for this is that some 21 of our children's homes, that is about half of the total of children's homes in the land, are still legally certified as industrial schools. Those homes no longer deal with young offenders but provide a service on behalf of health boards in providing accommodation for children in care. Among the homes in question at St. Kieran's in Rathdrum, Mount Carmel in Moate, St. Joseph's in Kilkenny, St. Joseph's in Salthill and, indeed, many others. They are just examples; I am sure many Senators are familiar with some in their own areas. It is proposed in the Child Care Bill to de-certify these homes, but in the meantime I am advised it is essential that this expression be used in the Bill to ensure the health boards can continue to place children in these homes. I hope the House can accept my reasoning on that.
Can we take it that we have an absolute assurance from the Minister that this term will be deleted in the child care legislation?
I wish to put it on the record once again that the all-party committee will consider this and we intend to put forward this proposal so that these homes will be de-certified. It is proposed that the Child Care Bill, 1988, will include the de-certification of these and they will be removed from any part of our law.
In the light of the assurance given by the Minister I withdraw the amendment.
I move amendment No. 7:
In page 3, before section 6, to insert the following new section:
"6.— (1) Where an application is made pursuant to Part II or Part IV of the Children Act, 1908 in relation to the care of a child or young person and the Court is satisfied that it would be proper to make an order under the relevant part of the said Act in substitution for any such order the Court may, where it is in the best interests of a child to do so, make an order (in this Act referred to as a ‘supervision order') in respect of the child authorising the health board of the area within which the child resides to have the child visited on such periodic occasions as the health board may consider necessary in order to satisfy itself as to the welfare of the child and to give to his parents or to a person acting in loco parentis any necessary advice as to the care of the child.
(2) Any parent or person acting in loco parentis who is dissatisfied with the manner in which a health board is exercising its authority to have a child visited in accordance with this section may apply to the Court and the Court may give such directions as it sees fit as to the manner in which the child is to be visited and the health board shall comply with any such direction.
(3) Where a court makes a supervision order in respect of a child it may on the application of the health board, either at the time of the making of the order or at anytime during the currency of the order, give such directions as it sees fit as to the care of the child which may require the parents of the child or a person acting in loco parentis to cause him to attend for treatment or attention at a hospital, clinic or other place specified by the court.
(4) Any person who fails to comply with the terms of a supervision order or any directions given by a court under subsection (3) or who prevents a person from visiting a child on behalf of the health board or who obstructs or impedes any such person visiting such a child in pursuance of such an order shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £250.
(5) A supervision order shall remain in force for a period of twelve months or such shorter period as may be specified in the order and, in any event, shall cease to have effect when the person in respect of whom the order was made ceases to be a child.
(6) On or before the expiration of a supervision order, a further supervision order may be made on the application of the health board with effect from the expiration of the first mentioned order upon the court determining that to make such further order is in the best interests of the child.".
Amendment No. 10 is consequential on amendment No. 7 and both amendments Nos. 7 and 10 may be discussed together.
The purpose of this very important amendment is to ensure that the capacity to arrange supervision will be there for the courts. The first subsection of the amendment suggests that the court can make a supervision order. The second subsection says that the court can adjust to meet justifiable concerns of parents. The court can adopt its findings to meet justifiable concerns of parents. The third subsection provides that the court can order specialised care for the child. The fourth subsection allows for a fine where the supervision order is not adhered to, and this is effectively a device to copperfasten the supervision order. Subsection (5) is delineating the time. Subsection (6) is facilitating further orders. The basic concern that in the case where there is an area of doubt that the capacity for a supervision order be there. We would ask the Minister to accept this as a reasonable amendment.
I appreciate this and, indeed, the meticulous detail that the various Senators have gone into in regard to all the amendments that have been put down. This amendment is very long and detailed and I can appreciate the time that has gone into it. The purpose of this amendment and a later amendment from the Senators is to bring forward into this Bill a proposal contained in the Child Care Bill in 1988. In that Bill it is proposed to create an entirely new form of order, to be known as a supervision order, which would allow the courts to grant health boards right of access to children in their homes where there is a reasonable suspicion that they are at risk. There is no such thing as a supervision order in the current law and it is important that the whole concept should be teased out in detail rather than attempt to rush it into law by inserting it in this Bill. This matter was discussed in great detail in the Dáil yesterday and last night when the Minister made the Government's position very clear. That is that this particular proposal is an integral part of the new care proceedings envisaged in the Child Care Bill, 1988, and that it would not be appropriate or helpful to take it out of its proper context and insert it here. What I am saying in essence is that this Bill is a narrow Bill as a direct consequence of the Supreme Court decision. The amendments we have are taken from the Child Care Bill, 1988, and we do not want to take them out of that context, of giving long, detailed consideration to the proposals contained in that Bill. Senators will have that opportunity when the Bill comes before this House later on. For that reason, I regret that we will not be able to accept these amendments. I hope the House can appreciate the reason.
We see no reason why the amendment cannot be accepted now. The Minister has stated directly that he accepts the principle that there is a need for the capacity to be there to have supervision orders. Now, given that the Minister accepts the principle and accepts that it is a correct position, the arguments put forward by him that we hold this back until the substantive Bill goes through the Houses of the Oireachtas does not seem to me to hold up on the grounds that if it is a worthwhile thing, I see no reason not to do it now. I also feel that this amendment succinctly and coherently put forward solid proposals for supervision orders to be enacted immediately. I would accept then that if it needed further modification it could be done in the substantive Bill. If not, our amendment could then be incorporated directly into the Bill. I cannot accept the Minister's contention on that one.
I regret that the Senator cannot accept my contention. I want to clarify it again. The Bill we are dealing with is a three page, eight section Bill. Clearly, as a Government response to the decision of the Supreme Court taken last Thursday, we cannot take sections from another Bill which is presently being considered by the Dáil and insert them into this Bill. That would not be good legislation. That Bill has gone to Committee and all the amendments that are coming in here are already part of the proposals for the other Bill and in the future will be considered in the all-party committee, subsequently by the Dáil, and subsequently again by the Seanad.
As I said earlier, this is an important new proposal which demands careful consideration and it would not be desirable to rush it into law through this Bill. In their haste to table this amendment, the Senators have simply re-circulated the Minister's proposed amendments to the 1988 Bill dealing with supervision orders. In doing so they have failed to bring the terminology of the amendment into line with this Bill. In the 1988 Bill a child is defined as a person up to 18 years. In this Bill we are using the definitions of "child" and "young person" contained in the Children Acts. In those Acts "child" means a person under 15, and "young person" means a person between 15 and 17 years. In their amendment, the Senators refer only to a child and make no reference to a young person. The effect of this is that if this amendment were to be accepted it would be possible for the courts to make supervision orders in respect of children, that is those under 15 years, but the courts would have no power to do so in the case of young persons, that is people aged between 15 and 17 years old. This illustrates the danger of trying to rush through important changes in the law. In doing so, we may end up with a provision that does not deal fully or properly with the matter that it sets out to address.
I would again remind Senators that proposals on supervision orders are contained in the Child Care Bill, 1988. Indeed, they are very broad and a lot of new orders are being considered. I would suggest that it would be better to wait for that Bill before trying to proceed with this proposal. I appreciate the sincerity of the Senators in their efforts to make sure that this legislation is good. I hope that they can in turn accept my reasons for sticking rigidly to the Bill which is a response to the Supreme Court decision.
I contend, on behalf of our party, first, the amendment is within the spirit of the Supreme Court ruling, secondly, that the notion of supervision orders is objectively correct and, thirdly, that in a very detailed fashion we suggest how they are to be implemented. For that reason I must once again press for the acceptance of the amendment.
Is the amendment withdrawn?
- Costello, Joe.
- Doyle, Avril.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ó Foighil, Pol.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Ross, Shane P.N.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Cullen, Martin.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Lanigan, Michael.
- McGowan, Paddy.
- McKenna, Tony.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- Ó Cúiv, Eamon.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
I move amendment No. 8:
In page 3, before section 6, to insert the following new section:
".— Where an order is made in relation to the care of a child or young person pursuant to Part II or Part IV of the Childrens Act, 1908 removing a child or young person from the care of a parent or any other person a Justice may of his own motion or on the application of any person give such directions (if any) as he thinks proper having regard to the rights and duties of parents, whether under the Constitution or otherwise: the rights of the child whether under the Constitution or otherwise and having regard to the best interests of the child with respect to —
(a) whether the address or location of the place at which the child is residing or is going to reside is to be revealed to the parents of the child or either of them, a person acting in loco parentis or any other person,
(b) the access, if any, which is to be permitted between the child and any named person and the conditions under which the access is to take place,
(c) the medical or psychiatric examination or treatment of the child.
(2) A direction under this section may be given at any time during the currency of the order and may be varied or discharged on the application of any person.".
This amendment seeks to establish access and again this is in compliance with the spirit of the Supreme Court ruling and also what would be the best possible practice. What it attempts to do is to make, at the discretion of the court, the new address of the child available to parents and to the extended family where it is appropriate to do so. Obviously I do foresee situations that could arise where it would not be so appropriate to give a particular parent the address. In so far as is possible to make the address available to the parent to the extended family that is the first section of the amendment. It attempts that. The second subsection is establishing the principle of access, that access be freely available where appropriate. The third subsection establishes that medical or psychiatric treatment, or whatever medical attention be needed, be given to the child where appropriate and that that could be directed by the court. When you consider the ruling which gave rise to the entire debate today and when you consider the justice of the cause and the right of parents, the rights of the extended family and, indeed, the welfare of the child, I honestly see no reason why the Minister could not accept this amendment.
I thank the Senator for his contribution on this long proposed amendment again. This amendment is based on amendments which were circulated by the Minister early last week in advance of the Committee Stage of the Child Care Bill, 1988. It proposes certain improvements in the existing law in relation to whether the address or the place where a child is being kept is to be revealed to his parents. The access that his parents may be given and the medical or psychiatric examination or treatment that may be provided — while these improvements are necessary there is no pressing need for them to be rushed through now and they can better be dealt with and considered in the context of the Child Care Bill, 1988. In the meantime, I am advised that matters dealt with in this amendment are covered by existing law.
Paragraph (a) of the amendment would give the court power to decide whether or not the address or location of the place where the child is residing should be revealed. I am aware that many foster parents were concerned with reports in the media that the Supreme Court last week ordered that they should be named and that their addresses should be revealed to natural parents. I would like to assure them that this was not the case and that the Supreme Court specifically indicated that it would be justifiable for the country to order that the address and location of the place where the child is being kept should not be revealed to one or both of the parents. Where the welfare of the child requires it, that is now the law of the land, so there is no need for us to enact paragraph (a) in this Bill.
As regards paragraph (b), which deals with the question of access of parents and other children in care, I would like to point out that we have circulated comprehensive proposals on access by way of ministerial amendment of the Child Care Bill, 1988. I believe it would be appropriate to deal with the matter in the context of that Bill. In the meantime, I am advised that parents already have the right under, for example, the Guardianship of Infants Act, 1964, to apply to court for a decision on any matter affecting the welfare of their child, including the question of access. Furthermore, I would point out that, in general, questions of access are agreed between parents and the health boards. I would also like to say that contrary to the impression given in the media over the last few days, most parents whose children are in care do have access to them, some on a regular basis, some on an unsupervised basis. In all the circumstances, I believe there is not an urgent need for this paragraph to be inserted in the Bill. With regard to paragraph (c), which deals with medical and psychiatric examination and treatment of a child, I am advised that under section 22 of the 1908 Children Act a fit person, that is a health board, possesses the necessary power to authorise such examination and treatment for a child in its care if the need arises.
If a parent is dissatisfied with this he can apply to the court under section 21 of the 1908 Act, firstly to have the fit person order varied, that is to ask the courts to restrict the health board's power to have a medical examination made or have treatment carried out. Alternatively, the parents could apply for a direction from the court under the Guardianship of Infants Act. In view of all those considerations I am satisfied that the improvements proposed here can await the larger proposed legislation, that is the Child Care Bill, 1988 and I do not propose to accept the amendment.
Am I to take it the Minister is assuring the House that in the Child Care Bill, 1988, the question of access will be addressed and that there will be specific clauses facilitating access and delineating where access is to be available?
I give that categoric assurance.
It is flattering that so many of our amendments are to make their way to the Bill. On that basis I withdraw the amendment.
I move amendment No. 9:
In page 3, before section 6, to insert the following new section:
".— Where an order committing a child or young person to the care of a fit person has been made under Part II or IV of the Children Act, 1908 and a court finds or declares in any proceedings that the order, for whatever reason, is invalid that court may refuse to exercise any power to order the delivery or return of the child or young person to a parent or any other person without first determining whether it is in the best interests of the child that such delivery or return be ordered and the court may in any such case of its own motion or on the application of any interested person make such determination having first heard all evidence relevant to making such determination and where following such determination the court refuses to exercise any power to order the delivery or return of a child or a young person it may —
(a) make an order committing the child or young person to the care of a fit person under Part II or IV of that Act as if it were a court before which the child or young person had been brought under section 24, 58 or 59 of that Act,
(b) where a person having the custody, charge or care of a child or young person has been—
(i) convicted of committing in respect of such child or young person an offence under Part II of the said Act or any of the offences mentioned in the First Schedule to that Act or,
(ii) committed for trial for any such offence or
(iii) bound over to keep the peace towards such child or young person
make an order under section 21 of that Act,
(c) Direct that any order under paragraph (a) or (b) shall if necessary be deemed for the purposes of the Children Act, 1908 to have been made by a Justice of the District Court for the time being assigned to a District Court district specified by the Court.".
Amendment No. 9 seeks to establish a situation where if the courts deemed it inappropriate that a child be taken into care, rather than return the child to the home in an unsupervised fashion and inappropriate circumstances, the court could make orders directing the child elsewhere and prevent a situation where the child was immediately returned to the home.
I have listened to Senator O'Reilly and I appreciate his contribution. However, I do not propose to accept this amendment on two main grounds. Here he proposes to insert a new section. In the first place the amendment would greatly reduce the discretion of the court in dealing with a case before it. The Senators in their amendment propose to delete paragraph (b) and part of paragraph (c) of section 6 of the Bill. Under these provisions the court which hears the case initially may refer the case to the relevant District Court so that it can decide whether it is necessary to make a fit person order under the appropriate provisions of the 1908 Act. This is a sensible provision which would allow the case to be heard by the District Court for the area in which the child resides or the court which convicted the parent or guardian of the offence.
On a monetary basis, taking into account the very high costs of access to the higher courts for many people, this is a very wise provision. The Senators in their amendment would remove this discretionary power from the court and on this ground alone I would have to decline to accept the amendment.
Another aspect of the amendment with which I am unhappy is that it purports to tell the court, which could be the High Court or the Supreme Court, how it is to deal with the case before it. I do not think it is unreasonable to suggest that the courts are well aware of the need to hear evidence and they can be relied upon to do so without having to specifically provide for it here. We must accept that the courts, under the Constitution, have a key role to play. They take account of all the information available to them and they always seek out that information. I hope the Senators will accept what I say. I regret that I am not able to accept this amendment.
I want to take the matter a bit further. We are seeking to establish in putting down this amendment, and it is stated quite clearly in it, that where a court for any reason may decide that an order is invalid we want to ensure that the court has discretion and can examine the conditions in the home from which the child was first removed to be satisfied that the conditions have so improved that it would be safe and just to return the child to that environment. That is the purpose of the amendment. That is what we are trying to ensure and perhaps the Minister would comment further on it.
We are concerned that in the situation that prevails for any reason that a court would decide — and it is open to courts to decide in relation to some of the present orders — they may well be invalid. Therefore, it is to prevent a situation in which the child would be returned to a home or to an environment that would be damaging to it. We want to be assured that as the law now stands the court has that discretion. We are not satisfied that it has and we are endeavouring, through this amendment, to ensure that it has that authority and that discretion to examine the conditions in the home from which the child was first removed before allowing a situation to develop in which the child or young person could be returned to that home.
I appreciate what Senator Howard wants to achieve but if he reads section 6 carefully he will see we are really fulfilling what he wishes. The difficulty is that what he wants to achieve is complicating the matter and would infringe on the rights of the courts, as we would be dictating to the courts.
This section sets out the options available to a court, whether the Circuit, the High or Supreme Court, where it finds or declares that a fit person order is invalid whether by reason of the recent Supreme Court judgment or for any other reason. It provides that in such a case the court may either of its own motion, that is at its own discretion, or on the application of any interested person — it is a matter for the court to decide who is interested — refuse to order the delivery or return of the child or young person to its parents or any other person, for example, grandparents, if it forms an opinion that this would not be in the best interests of the child.
Where the court reaches such a conclusion it may again, either of its own motion or an application to it, do any of the following: first, make a fit person order in respect of the child or young person as if he had been brought before the court in accordance with the relevant provisions of the 1908 Children Act. Secondly, make an order referring the matter to the justice of the relevant District Court and in such case the justice may deal with the matter as if an application for a fit person order had been made to him, this is at District Court level, in accordance with the relevant provisions of the 1908 Children Act. The relevant District Court is the court for the district in which the child or young person is living or is, for the time being, when the original order is declared invalid of the district where the child was living or was for the time being when the original order or the application for that order was made.
Thirdly, where a person having custody, charge or care of a child or young person has been convicted of committing certain ofences against the child or has been committed for trial for such an offence or has been bound over to keep the peace towards the child or young person, the court may make an order under section 21 of the Children Act, 1908 or refer the matter to the court by which the person was convicted, committed or bound over so that it can consider the need to make an order under section 21.
Section 21 enables a court to make a fit person order where a parent or guardian has been convicted of committing certain offences or has been committed for trial or bound over to keep the peace in respect of such an offence. Where a person has been committed for trial for an offence, the order lapses if he is acquitted of the charge or if the charge is dismissed. Details of the offences to which section 21 are very long indeed and are included in one of the accompanying documents which will be circulated. Where an order under paragraph (a) or (c) has been made by the Circuit Court, the High Court or the Supreme Court it shall be deemed to have been made by the justice of the District Court specified by the higher court. This is a technical device so that any subsequent proceedings can be dealt with in the District Court rather than in the higher court. Where the Circuit Court, the High Court or the Supreme Court makes an order under paragraph (b) of (c) referring the case to the District Court, the higher court may make a temporary fit person order pending the determination of the matter by the District Court.
That is a very complex, broad, democratic structure within which an order can be made, an application can be made, a declaration can be made or an order can be considered. We would suggest that the discretion is given to the higher court to consider the matter in its entirety and make a conclusive decision. It still has the right to refer that back to the District Court who, on referral back, can consider the matter as if an application was made to the District Court itself.
Therefore, I would ask the House to accept that this is a very fair section. It gives maximum consideration to the child in particular and to the parents, and indeed takes into account the ultimate welfare of the child which is of paramount importance. I ask the House to accept this section and would be grateful if the Senators would consider withdrawing these amendments.
The Minister has responded very comprehensively to the points we have made. Our fears and the assurances we have sought have been put on record. I thank the Minister and I am quite happy to withdraw the amendment.
Amendment No. 10 falls with the decision on amendment No. 7 and amendment No. 11 falls with the decision on amendment No. 5.