Is cúis áthais dom bheith ar ais arís i Seanad Éireann chun freastal ar an mBille an-tábhachtach seo. Tá súil agam go mbainfidh Seanadóirí an-taitneamh as páirt a ghlacadh sa Bhille, mar táimid go léir chun aire níos fearr a thabhairt do leanaí agus aos óg ár dtíre.
It is always a pleasure to be in the Seanad but I am particularly pleased today to have the honour of introducing the Child Care Bill. I had charge of the Bill during my appointment at the Department of Health and I am grateful to my colleague, the Minister for Health, for asking me to complete the task of processing the Bill through this House. I regard it as one of the most important pieces of socially reforming legislation ever to come before the Oireachtas and I feel privileged to be associated with it.
The Bill comes to this House after a long and detailed consideration of its provisions in the Dáil. In particular, the Bill was examined in great detail by an all-party Special Committee of the House which was specifically set up for that purpose. I am happy to say that the Special Committee carried out its task in a constructive, non-party political manner and it was possible to reach agreement on many of the issues that arose in our discussions.
I was happy to accept all worthwhile amendments to the Bill in the spirit in which they were proposed by the various members. A large number of amendments were made to the Bill as a result of its examination by the Special Committee.
Important changes were made in the original provisions of the Bill, a large number of new provisions were inserted and other provisions have been extended and reformulated. The result is that the Bill now before the House is greatly improved and I am confident it will be widely supported by this House.
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, neglected, sexually abused or who are at risk. The existing legislation in relation to the care of children is based largely on the Children Act, 1908. It has served us well and many of its provisions are still in use today. However, there have been sweeping changes in society in the intervening period which need to be reflected in our child care legislation. Our political and administrative structures have changed, new values and attitudes have evolved and there is a greater awareness of the rights of the child.
While we live in a more enlightened society, there continues to be unhappy and deprived children in our community. At any time about 2,600 children are in the care of the eight health boards. Many are in care because their parents are unable to look after them, whether due to alcoholism, marital breakdown or other family crises. Most are reunited with their families after a few weeks or months; others unfortunately remain in care for years.
There is another group of children who come into care in much more dramatic circumstances. They are the victims of child abuse, whether it be physical, emotional or sexual. In 1989, the total number of confirmed cases of all sorts of child abuse known to the health boards was about 1,300, of which the number of confirmed cases of sexual abuse was about 500. These figures represent an increase of some fourfold in five years. The Department of Health have not yet completed the collection of statistics from health boards in respect of 1990 but all the indications are that the total number of confirmed cases in 1990, including child sexual abuse, will show a further increase. These figures clearly illustrate the need for up-to-date and effective legislation to protect children who are at risk in the community.
However, while we must have the legal means to protect children whose health or welfare is in jeopardy, it is equally important to safeguard children and families from unnecessary or excessive interference by the State. 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 the vast majority of parents who are doing their very best 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 the Minister to bring the various provisions into effect by order. It is the intention that the Bill, when enacted, will be brought into operation as quickly as possible. In this connection, I might mention that the Programme for Economic and Social Progress includes a commitment by the Government to make the necessary resources available to enable the Bill to be implemented over the period of the programme.
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. This means, in effect, that a person over 16 years may not be placed in health board care regardless of how desirable this might be in his interests. There is a small but growing number of older children who would benefit from being in care but cannot be admitted under the present law. It is proposed, therefore, to define "child" for the purposes of this Bill as a person of up to 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 11, contains a number of provisions aimed at promoting the welfare of children, and supporting families in difficulty.
Section 3 places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection. This is one of the most important provisions of the Bill. It imposes a clear obligation on health boards 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. These services may include social work support for families at risk, 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. 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.
I draw particular attention to the amendment to subsection (2) (b) made at the Special Committee so as to require a health board in its actions under the Bill to regard the welfare of the child as the first and paramount consideration. This makes explicit what has always been implicit: that the whole basis of the health boards' action is to promote the welfare of children in need.
Section 4 deals with voluntary care. It will enable health boards to receive into care without reference to the courts orphans and abandoned children and, with parental consent, children whose parents are unable to care for them due, for example, to serious illness, sudden bereavement, marital breakdown or other family crisis. At present about half of the children in care are there on a voluntary basis rather than under court orders. While there has been some increase in recent years in the number of children entering care through the courts, I expect that a significant proportion of admissions will continue to be on a voluntary basis.
Section 5 is an entirely new provision which was inserted at the Special Committee. It aims to deal with the problem of children and young persons sleeping rough on the streets of our cities and towns. It requires a health board to provide accommodation for homeless children who have no accommodation that they can reasonably occupy.
Section 6 is another new provision inserted at the Special Committee. It requires each health board to provide or ensure the provision of an adoption service in its area. For this purpose a health board may arrange to have the service provided by a registered adoption society and may assist, financially or otherwise, a society with which it has made such an arrangement.
It is proposed in section 7 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.
Voluntary bodies have played and continue to play an important part in 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 hope that they will continue to work with us for many years to come. Section 9 enables health boards to make arrangements with voluntary bodies to provide child care and family support services on their behalf. Section 10 empowers health boards to grant-aid voluntary bodies providing child care and family support services.
Part III, sections 12-15, deals with the protection of children in emergencies.
Since the Garda are often the first to come across cases of child abuse and neglect, section 12 provides that in an emergency a garda would be empowered, without warrant, to remove a child to safety. This section was extensively amended during its passage through the Dáil. Subsection (1) now provides that a garda may act where there is an immediate and serious risk to the health or welfare of the child and where it would not be sufficient to await the making of an application for an emergency care order by a health board. New provisions have also been inserted granting the Garda powers of entry, without warrant, for the purposes of this section and enabling them to be accompanied by other persons — for example, social workers — in exercising the power of removal.
Subsection (4) has been amended to make it clear that where a child is removed to safety by a garda and is duly delivered up to the health board, the board must apply for an emergency care order as soon as possible. Where no sitting of the District Court is due to be held within three days, it will be necessary to arrange a special sitting within three days to consider such an application. It will not be lawful for the board to retain custody of the child beyond the three day period unless the court makes an emergency care order.
Section 13 empowers a district justice to make 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. I might also mention that this was amended at Special Committee to enable a justice to make an order if there is reasonable cause to believe that a child would be at risk if he were removed from the place where he is for the time being. This is to cover cases where, for example, a child is in voluntary care or in hospital and there is concern that he would be at risk if he were to return home.
Part IV, sections 16-23 deals, with care proceedings. It sets out the circumstances in which the courts may place children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk, in the care of or under the supervision of health boards.
Section 17 was inserted at Special Committee. It enables a justice to make an interim care order placing a child in the care of a health board pending the outcome of an application for a care order. This is designed to bridge the gap between the expiration of an emergency care order after eight days and the determination of an application for a full care order.
Section 18 provides for the making of a care order, which 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 could remain in force until the child attained the age of 18 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, neglected or sexually abused; or that the child's health, development or welfare has been or is being avoidably impaired or neglected; or that the child's health, development or welfare is likely to be avoidably impaired or neglected. These grounds differ entirely from the present legislation. The focus is on the needs of the child rather than the wrongdoing or shortcomings of the 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.
Where a care order is in force subsection (2) empowers a health board to do what is reasonable to safeguard and promote the welfare of a child in its care and, in particular, gives it authority to decide the type of care to be provided for the child; give consent to any necessary medical or psychiatric examination or treatment; and give consent to the issue of a passport or the provision of passport facilities to enable the child to travel abroad on holidays etc.
Section 19 enables the court to make a supervision order, which 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. Unlike a care order, which will have the effect of removing a child from his family, a supervision order would enable the child to remain at home while requiring the health board to have the child visited regularly to ensure that he was being properly cared for. If necessary the board could ask the court to give directions to the parents as to the care of a child. 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.
Section 20 is an entirely new provision which was inserted on Report Stage. It provides a link between the Bill and the Guardianship of Infants Act, 1964, the Judicial Separation and Family Law Reform Act, 1989, and any other proceedings for the delivery or return of a child. In any such proceedings the court will be able to refuse to grant custody to either or both of the parents and instead place the child in the care of a health board or, alternatively, to grant custody to one or both parents subject to the child being supervised by a health board under a supervision order.
Section 23 is another new section which was inserted on Report Stage. It provides that a court, which finds or declares that a care order is invalid, may refuse to order the return of the child to his parents if this would not be in his best interests; instead it may either make a new care order or remit the matter to the relevant district court so that it can consider the need to make a new care order.
Section 24 is another new section inserted at special committee. It requires the court, having regard to the rights and duties of parents, to regard the welfare of the child as the first and paramount consideration in any proceedings in relation to the care and protection of children.
I want to draw particular attention to section 25 which was inserted on Report Stage. It empowers a court to make a child a party to all or part of care proceedings and to appoint a solicitor to represent the child in any case where the court is satisfied that this is necessary in the interests of the child. Where a solicitor is appointed by order of the court, the costs and expenses, including solicitors' fees, incurred will be paid by the health board involved unless the court orders otherwise.
Section 26 is another new section which enables the court, of its own motion or on the application of any party, to procure a report from any person on any question affecting the welfare of the child. The reports may be received in evidence at the proceedings and the person making the report may be called as a witness.
Sections 28, 29 and 30 contain a number of provisions aimed at reducing, as far as possible, the stress and anxiety associated with court proceedings.
Section 28 provides that care proceedings will be heard in private and will be as informal as possible. It also prohibits the wearing of wigs and gowns and provides that care proceedings are to be heard at a different place or at different times or on different days from those at which ordinary sittings of the court are held. Section 29 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 30 prohibits the publication or broadcast of any matter that would serve to identify a child who is the subject of care proceedings.
Part VI, section 35-46, sets out the arrangements which may be made by health boards in looking after children in their care. Under section 35 a health board may place a child in care in foster care, in a residential centre or, where he is eligible for adoption, it may place him for adoption or it may make other arrangements for his care, which may include placing the child with a relative.
Section 36 was entirely redrafted at the Special Committee. It now requires a health board to allow reasonable access between a child in care and his parents or any other person who has a bona fides interest in him. A person who is dissatisfied with the access offered by a health board may apply to the court and the court may make such an order as it thinks proper regarding access. There is also provision for a health board to apply to the court for an order authorising it to refuse to allow a named person to have access to a child in its care.
Section 38 provides for regulations governing the placement of children in foster care and section 39 contains a similar power in relation to residential care.
Section 41 deals with the circumstances in which a health board may remove a child from foster care or residential care.
Under the original draft, a health board had an unrestricted power of removal. This was amended on Report Stage and it is now proposed that the circumstances in which a health board would be entitled to remove a child will be subject to regulations to be made by the Minister for Health.
Section 43 enables a health board to provide "aftercare", for example, support and assistance for persons who were formerly in care.
Part VII, sections 47 to 55, provides for the introduction of a system of inspection of services for pre-school children, for example, day nurseries, creches, playgrounds and pre-schools. There is a wide variety of pre-school services. Some operate on a commercial basis 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. The Department of Health estimate that there are over 1,500 different services around the country. All of these services will be subject to regulation under this Part.
Section 48 will enable the Minister for Health, in consultation with the Ministers for Education and for the Environment, 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 a 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. Where services have an educational dimension, the inspection process will be carried out in consultation with the Department of Education. Section 54 empowers health boards to provide pre-school services and to make available information on pre-school services.
Part VIII, sections 56-64, deals with residential centres for children. This entire Part was overhauled on Report Stage to provide for the introduction of a system of registration for children's residential centres.
Section 57 provides that it will not be lawful for any person or body to operate a home for children unless it is registered with the local health board. Section 58 provides for a system of registration which is closely modelled on the recently enacted nursing homes legislation. Section 59 provides for appeals to the courts against decisions of health boards in relation to registration.
Section 60 will enable the Minister for Health to prescribe requirements as to the standard of accommodation and facilities, staff numbers and qualifications, etc., in all the centres. Section 61 provides that a person guilty of an offence under this Part shall be liable to a fine of up to £1,000 or 12 months imprisonment or both.
Section 63 provides for the introduction of a superannuation scheme for the staff of certain children's residential centres. This is something that has long been sought by the staffs of the centres and their representative associations. The staff concerned will be brought within the scope of the local government superannuation scheme.
Part IX, sections 65-70, contains various technical provisions in relation to the administration of the Bill.
Section 66 will enable the Minister for Health to supervise health boards in the performance of their functions under the Bill. Section 69 reserves to chief executive officers of health boards responsibility for the day to day operation of the Bill, particularly those functions which affect individual children. I expect that most of these functions would be delegated by chief executive officers to social workers and other officers of health boards.
Part X, sections 71 to 76, contains miscellaneous and supplementary provisions.
Section 71 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. A new provision was inserted on Report Stage giving a garda power to seize any substance in the possession of a child in a public place which the garda has reasonable cause to believe is being misused by that child in a manner likely to cause him to be intoxicated.
What I have outlined are the main provisions of the Bill. As Senators will see there are many other detailed, technical provisions contained in it. In preparing this Bill, we have paid careful attention to the relevant provisions of the Constitution and to relevant decisions of the High Court and the Supreme Court. We have also obtained the advice of the Attorney General to ensure in so far as it is possible to do so, that the provision 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 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 various provisions of the Bill are in conformity with the Constitution. 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. There is an urgent need to update the law in this area and I believe this Bill represents a significant improvement on the present situation.
I commend the Bill to the House.