Special Committee Child Care Bill, 1988 díospóireacht -
Wednesday, 24 Jan 1990

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. Yates

Earlier in discussing amendment No. 43 I alluded to the fact that I considered one of the most serious omissions from the Bill was the absence of a national children's council. In Part II of the Bill I had proposed to submit a new section. I understand this is out of order on the grounds that it would be a potential charge on the Exchequer.

I would like to make the point briefly that both the 1970 Kennedy Commission on Reformatory and Industrial Schools and the Task Force Report of 1980 recommended the establishment of a children's council. They said that the money to establish such a council would not be excessive and that it is absolutely vital in dealing with research, in dealing with the basis of policy formation and the basis of planning that there would be some independent agency. I could not agree to section 9 of the Bill, not because of what is or is not in it; I would not agree to Part II of the Bill without this. I understand that this is the only part of the Bill where this can be inserted and I would earnestly ask the Minister to consider the national children's council to be the proper vehicle for research other than the Department of Health, because, as we have seen, the Combat Poverty Agency have done an excellent job in highlighting the different aspects of poverty and have spoken out boldly and independently. No civil servant would speak out in the way they have; there is no official of the Department who could speak out the way they have even if they had all the information. Therefore, an independent vehicle is vital. All the different constituent groups of care associations — professional groups, the child care coalition, Barnardo's and so on — have spoken out very strongly about the need for this.

In amendment No. 44, which cannot be taken now, I had proposed that they would be represented as well as the Minister's nominees, that they could carry out this research, participate in social planning with the statutory bodies, raise public awareness and produce annual reports. As this is the first, and probably the last, time this century this legislation has been looked at since 1908, and that it will be some years before it is brought forward, it will be a wasted opportunity if we fail to put in place a national children's council. As a protest, we will be withholding our support of section 9 as the remaining procedural option in Part II on that basis.

Mr. M. Higgins

I would welcome some guidance here. I believe the correspondence received by Deputies Yates and Howlin suggested that amendments Nos. 44 and 45 cannot be taken in so far as they involve a charge. These two amendments suggested that in page 8 before section 10, but in Part II, to insert new sections. The substantial section 10 as it is, and which we can discuss, moves to the functions of the Garda Síochána. In that regard I can only say, relevant to what Deputy Yates has just said in moving on from section 9, that the comparison with the Combat Poverty Agency is hardly appropriate. In the evolution of that agency and its reference in legislation, my memory is very clear that, from 1975 when it was established, through the period when it was replaced by the national community development agency and then its re-emergence in legislation, one of the most beneficial aspects of the later legislation in relation to combat poverty was that among the functions, the research function was listed for the first time. That was very valuable because the research function was contained within a body that was at a distance from the formal operations of the Department. I can see that argument and it is one I am very impressed by.

On Report Stage — because this is all that is left to us in relation to amendment No. 45, about which I said there has been correspondence indicating that it is not proper because it involves a charge — I suspect strongly that if "the Minister shall" is replaced by the wording "the Minister may" it will mean that a charge is not specific to the current financial year, and, therefore, that it would be appropriate to re-enter the amendments on Report Stage. It is certainly our intention to handle it that way on Report Stage, or perhaps in another way; should the transition from "shall" to "may" not prove sufficient, we would go back to the empowering sections which would be more cumbersome, and specify that "it shall be within the Minister's powers to" which is, I am certain, proper and would be appropriate for Report Stage. I am simply giving notice now that that will be our intention. It will defend the principle, which we consider very important, of a national child care authority, a national children's council. I am not worried about precise titles.

Mr. Sherlock

This occurs many times. Besides just stating that this would incur a charge, that should be substantiated. This arose earlier and on many other occasions. I would like to see that substantiated. If the word "shall" puts it into that category, every section of the Health Act, 1970, is being breached by the Minister and the Department of Health at present. What good grounds could one put forward for rejecting a call for a national children's council to advise the Minister on any aspect of welfare and so forth? One could talk forever about that; but in fairness, if we are sincere about what we are discussing here, surely to accept that amendment would give a little confidence that there would be a good appraisal of the situation, that the Bill would be made to work and that there would be a national children's council to oversee the whole operation? What is the basis for saying that it would be a charge for which there is no provision and that that renders it out of order? Could you substantiate that?

Chairman

I do not want to dwell too much on this; but one cannot set up something without funding it and accordingly these amendments would be putting a charge on the Exchequer which we are not allowed to do.

Mr. Sherlock

That begs the question whether any section of the Bill will be implemented because, if we adopt the Bill and put it into effect, it will mean a charge. Does the Chairman think that within the present system the health boards will be given responsibility when this legislation is enacted, will carry out those responsibilities without additional funding being made available to them?

Chairman

The Minister may answer that question. I am dealing strictly with the technical aspects of the Bill. The Minister can move an amendment involving a charge but private members may not. These are the rules under which we operate. We do not have any discretion in this area.

Mr. Yates

The Minister may accept our amendment but we cannot——

Mr. L. Fitzgerald

May I comment briefly? My recollection is that the Minister or his colleague indicated in the Chamber that they had it in mind to establish, or at least to consider establishing on a non-statutory basis, some advisory committees in relation to the provision of care and welfare. I cannot see much difficulty in relation to this. Obviously, from what he is saying, Deputy Yates anticipates there will be a number of shortcomings. He does not want toothless committees established — to use his phrase — but I would see that as the correct road to go down at this stage. I am not allowed to deal with this amendment and I am steering clear of it but to comment on what Deputy Yates, Deputy Sherlock and Deputy Higgins have said, I disagree in principle with the idea of establishing a national council that would embrace, say, special education, remedial education and certain areas about which a lot of concern was expressed.

I see a lot of merit in proposing national councils for certain purposes but we will have to be very careful that clear distinctions be drawn. I do not think that clear distinctions are or have been drawn here as to how best one can evolve the kind of services we deliver to certain categories of children in need. For example, children who need special education have a very special need, children who need remediation have a very special need. I have to say with no disrespect to the Minister or his officials that if there was to be an evolution in the more perfect or ideal co-ordination of services in those specific areas, I would prefer to see it in the context of education rather than in the context of health. That is a personal view and it is one I have held over many years because of the modus operandi of remediation in terms of the specialist services to the handicapped. Fundamentally it is the educational input that is of paramount importance. There are specialists who are more traditionally associated with health involved in the delivery of that service but, quite frankly, if we are to have a more effective co-ordination, it should be brought about not by way of the establishment of a national council under the auspices of the Department of Health but more in the context of the need for a more comprehensive, caring and wide-ranging educational service. That is where the emphasis should be more appropriately put. Again being tempted, but restraining myself from referring to the content of that particular amendment, what is envisaged by Deputy Yates and the follow on comments — if I am interpreting Deputy Sherlock and Deputy Higgins correctly — goes far too wide and I think it goes in the wrong direction. Since we are not discussing this amendment, I will not pursue the matter any further.

Mr. M. Higgins

Perhaps I might say a word about this — and I am staying clear of the amendment, which I think is proper, because we are really discussing an appropriate extension or the question of adequacy or sufficiency of section 9. There is merit in considering section 9 as insufficient in terms of the absence of a kind of authority at a distance from the Department. The case that has just been made by Deputy Fitzgerald is very interesting. I would not disagree with the case for moral suasion in relation to improving attitudes towards children through the educational system. I will give one example because I do not want to delay: an authority at a distance from the Department has a number of merits. Inevitably a responsible Minister has to look — we discussed this earlier in relation to another amendment — at the operation of the Department within the existing corpus of law in relation to children and the publication of orderly statistics by the Department, different agencies and so forth, but the value of having an agency, at some distance, is that it could root itself in relation to the vulnerability of the child before the law. It could address such issues as the inadequacy of the child's protection in the existing corpus of law and it would be very valuable, irrespective of which administration was in power, to have such an agency comment on the State of the law.

The example I was thinking of was an agency which, having conducted research and having looked at the operational procedures in relation to children, might address, after a couple of years, the whole question of the constitutional position of the child. This is far more likely to come by way of an informed and neutral comment from outside the legislature rather than from within the Dáil or Seanad. In that sense I see merits in the ability of such an agency having an extended and longer view. I would not be happy to accept that even in this Bill and in other legislation we could rectify the legal situation in relation to the child. To say so means you are accepting the possibilities of using the existing structure of law and changing it to a particular way. All we can do is, in a very limited way, ameliorate an existing defective structure.

All these issues could be discussed by an agency that would be removed from the day to day operation of what we will have as existing law and existing procedures. There is a very strong case for it and I can see how section 9 could be enhanced by such a measure. I agree with the speakers on this side who speak about the plethora of toothless committees that one could have around the place because if you limit something to being simply advisory, without a proper basis, it could peter away into nothing. I agree with the point that is being made for a stand alone agency.

Mrs. Fennell

Briefly, commenting on section 9 and Part II, I think they beg the question about an independent — and the emphasis has to be on independent — body which will monitor, develop and plan. The only thing we have are the local advisory committees of the health boards. There is a definite need for an umbrella body that will be independent and serious-minded about their work. I regret it was decided—and I spoke about this at the first committee meeting—that proposals like this have to be ruled out because of the charge on the Exchequer. I agree with Deputy Higgins' suggestion that we should not make it an absolute or forceful proposal, it should be discretional, it should be there and there should be the possibility of setting this up. The Bill will be naked at the end of the day if we do not have an overall body able to look at the total position and not just at what is happening regionally and — as we heard before lunch — at different patterns. I did not catch all the figures but I felt there was great disparity between the patterns of orders issued in each health board area. I think there is a need for an independent body to which matters could be referred where there is an element of on-going work and development.

I very much regret that these amendments have to be ruled out because the Opposition cannot propose amendments that will impose a charge on the Exchequer. I accept that is the same in other Parliaments but in the context of a Bill like this it is regrettable. The Kennedy Report, the Task Force report, all the organisations dealing with children, proposed this and I wonder, when deciding on the approach to this Bill, how the Minister and his officials could disregard this proposal and what they said to all the people who drafted these reports? I think consultation and accepting valid proposals from gropes working in the area are vital to good legislation. I would like to know what was the rationale and why you decided to do nothing on this issue?

Mr. N. Treacy

Even though this section has been ruled out of order, it is getting a pretty good airing and it was debated at length in the Dáil before this Special Committee was established and I though we had teased this matter out very carefully. I want to assure Deputy Sherlock that there will be no restrictions whatever imposed on the Bill. Once the Bill becomes an Act, we will implement it in totality and the necessary resources will be made available. I can say on behalf of the Government, the Minister and the Department of Health that we are absolutely committed to providing the resources to enable the Act to be implemented once we pass this Bill.

I accept Deputy Fitzgerald's desire for an educational evolution for children. He is a professional educator and has dealt with them for a long time. Indeed, Deputy Higgins concurred with that point of view also. As Deputy Fennell said, we have agreed already that we are having child care advisory committees in each of the health board area. This in itself is a good thing. It fulfils some of the role that would be played by a national children's advisory council.

Deputy Higgins suggested that there is no independent assessment of our child care services.

Mr. M. Higgins

No. There is confusion about that. I was speaking about the merits of an agency with independence and at a distance from the statutory obligation of, say, the Department of Health. I mentioned the analogy with the Combat Poverty Agency.

Mr. N. Treacy

I appreciate that, but let me say that in the first place individual cases and the performance of health boards in such cases are subject to ongoing review by the courts, by Members of the Oireachtas and by the Ombudsman. As regards wider questions of policy, here again Members of the Oireachtas can raise any questions or issues that need to be examined. In addition there is a huge number of voluntary and professional bodies in the field of child care, all of which can and do offer independent comment and analysis on many occasions. Of course, the Department of Health are constantly assessing, aware of and monitoring the whole situation pertaining to child care. I hope that the openness and the information I have been giving to you over the past meetings and particularly today clarifies that position.

I am not convinced about the need for the type of bodies envisaged by the Deputies. The main function envisaged for them is to provide advice to the Minister on the development of our child care services and policies. I would have to say to the Deputies that there is no shortage of advice under our present arrangements. For example, the Minister has available to him the advice and expertise of the officials of his Department, the staff of the health boards, the views of the professional bodies representing social workers and child care workers and the comments and suggestions of the many voluntary groups concerned with child care. I do not believe that setting up new advisory bodies at national level would add much to the advice that is already available from these and other sources.

Furthermore, I would remind the Deputies that the field of child care has been the subject of numerous reports and studies over the past two decades. I will just mention a few, the Kennedy report, 1970, which has been referred to on many occasions here, on the future of industrial and reformatory schools; the reports of 1975 and 1980 of the Task Force on Child Care Services; the report in 1984 of the Review Committee on Adoption Services; the 1983 Report of the Working Party on Child Care Facilities for Working Parents and, of course, recently the consultation paper from the Law Reform Commission on child sexual abuse. There are other reports also.

I put it to the Deputies that the Minister, and indeed the Government, have sufficient advice available and that what is needed now is action to convert the many proposals and recommendations into real improvements in our child care services. I believe this can be done without setting up further layers of bureaucracy. I am not disposed to the creation of the type of bodies proposed by the Deputies. I am somewhat surprised at Deputy Fennell's support for the idea of a national child care authority because she was very explicit on this when she held ministerial office. I say this because of the clear public stance she took on this very issue in 1985 when she was Minister of State for Women's Affairs at the Department of the Taoiseach.

In 1985 Deputy Fennell chaired a Government working party which published an excellent report entitled Irish Women, Agenda for Practical Action. The report included a separate chapter dealing in considerable detail with child care issues, including the question of a national child care authority. In making its recommendations, the working party did not favour a national authority for much the same reasons I have already advanced. I will quote from page 199 of the report:

The present working party believes that such a structure, a National Child Care Authority, could lead to unnecessary administration and expense and that arguments for superimposing such a structure on an existing established administrative structure, that is the health boards, have not been adequately advanced.

I might also mention that the 1985 Children (Care and Protection) Bill published by Deputy Howlin's party colleague, who was then Minister for Health contained no provision for a national child care authority or a national children's council. It would seem that experts, politicians, departmental sub-committees, the parties putting forward Bills, were all agreed on the fact that a national children's authority was an unnecessary structure. Now, because somebody seems to be promoting it, it is suggested we should have it. I am satisfied with the long commitment that is there and with the expert advice that has been garnered from all the reports and discussions that a national child care authority is unnecessary and unwieldy and that we would be superimposing a structure on the health boards and on the Department of Health that we can neither afford, nor would seem to have a key role except in an advisory field. I believe that the child care advisory committees that we are providing under the health board structure will fulfil much of the role at a much lesser cost and will be much more relevant in local and regional areas. Consequently, I think we have given this matter plenty of airing and plenty of time. I hope we can agree that the matter can be left at that.

Chairman

We have discussed these ideas and this matter in the words of Deputy Sherlock, ad nauseam, from the first meeting. However, I would not wish to curtail the discussion.

Mr. Yates

In relation to the Minister's remarks concerning previous statements made by the former Minister for Health, Deputy Desmond, and my colleague, Deputy Nuala Fennell, while I compliment the civil servant who dug out the files and say that he should be given a bonus, I would recall the words of the present Tánaiste——

Mr. N. Treacy

I have been in the Library myself also.

Mr. Yates

——Deputy Lenihan — when he spoke about the futility of consistency in politics.

Getting back to section 9 again I strongly disagree, and having thought about it further, the question is whether we are to afford children the same degree of importance we afford other groups. We have a National Council for the Aged which does excellent work — its office is in Fenian Street. I have studied many of their reports relating to the elderly. You could not say that council was excessively bureaucratic. You could not say it was superimposing a structure on health boards. It provides excellent backup material for research and social planning. I envisage a similar body here with a range of expertise, with an input from the personnel of health boards and departmental and voluntary bodies. It can only improve the work of your Department.

I would refer also to the Council for the Status of Women. We give this importance to women; we can afford it to the aged; we can afford it to poverty, but we cannot afford it to children. That really is what the Minister is saying. As far as I am concerned that is unacceptable. Deputy Fitzgerald said he was against a national council on the basis that either way it should not be under the Department of Health — if I am paraphrasing him correctly — because it was in the educational domain and more suitable to that Department.

I envisage that one of the important aspects of the work of a council would be to make recommendations over and beyond the Department of Health and could say to that Department, the Department of Justice and the Department of Education exactly what needed to be done in the same way as the National Council for the Aged could make recommendations affecting the Department of Social Welfare. I disagree with the Minister.

The current body of thinking among all statutory and voluntary groups is that if research and evaluation in relation to the national child care services is to be carried out in an independent and professional way, it must be done by a council. I do not wish to delay the work of the committee, but this is a very important issue. We will be voting against section 9 as a protest at the Minister's failure to incorporate a national children's council into this Bill.

Mr. M. Higgins

Listening to the revelations of the Minister was intriguing and interesting. In fact I found it very positive because it was useful. As somebody said this is not just a matter of consistency or changing consistency — Lenin said that consistency is one of the pock marks of the bourgeoise, but we do not need to go back to Lenin; I could speak of other conversions. The Minister might be very interested in other conversions within the Department of Health. The advice given to the Minister of the day referred to the former Minister, Mr. Barry Desmond, who was very instructive in the civic lessons he gave about how politicians can influence things and the excellent advice available everywhere. There was long and consistent advice from the Departments of Social Welfare and Health who not alone held an ideological position against the Combat Poverty Agency but opposed the existence of the Combat Poverty Agency and the extension of their powers and functions, which had to be over-ruled in Cabinet and was the missing element in the civics seminar. In case historians go through these records as archives I should say that the mistake Mr. Desmond made was his enthusiasm for the Department as an innovative and reforming body. I have no difficulty saying that I wish the 1985 Bill had provided for an agency. Not alone is hostility a real problem in this committee but there is an ideological obstinacy against letting any agency come into existence which will not be under the control of the hierarchy within different Departments. I am not saying this about the area of health alone; it goes right across the board and extends to prisons, justice et cetera. The Combat Poverty Agency was won from what was there or conceded, depending on how you look at it. It is fascinating to think about that. Maybe we will look at this point again but I would urge the Minister to think about what Deputy Fennell is suggesting — that the possibility of the agency coming into existence is something a Minister would want. In spite of all the inconsistencies alluded to, the report was consistent in both the view of the administration and its language: it is word for word what I have heard about every agency legislated for by the Houses.

Mrs. Fennell

I would like to deal with the question of departmental bones that keep getting unearthed from all kinds of graveyards. I do not think what the Minister found in the 1985 report is inconsistent with what I stand for today. We were putting together an interdepartmental report at a time when there were considerable economic difficulties in the country — I am sure the Minister will appreciate that a Minister has to bear that in mind. When the proposal was being discussed, I was not preparing legislation. If I had been I would have had an entirely different approach to it in the context of submissions from all the agencies and groups involved. When one is sitting where the Minister is sitting and has responsibility for going through legislation line by line, one has to take a broader based and open-minded view of it. I ask the Minister to be as courageous as I found I could be when I introduced the Status of Children Bill. I do not think the Minister will find this too difficult if he really tries.

Mr. N. Treacy

I was in two other Departments before I came into the Department of Health and I have to say no Department has more advisers or national committees than the Department of Health. We have a big bound volume of agencies, statutory bodies and various councils and it is frightening to see the number of committees and councils. There is not much point having all these bodies unless they have a clear role to fulfil. All of us are advisers in one way or another and we give advice every day free gratis and for nothing. As public representatives we know this advice is not always followed, but I believe the thrust of this Bill is to create a structure through the health boards to look after the children who need care and attention. We are putting in an advisory structure at regional level in that area. I disagree with Deputy Yates who said we can afford everything for every group except children. That is not true. We are totally committed to the welfare and well being of children and resources will be made available in this Bill for the children of our nation. I was amused by Deputy Higgins' consistency in showing how the administration was consistently against any of these advisory or council structures.

Mr. M. Higgins

It was mostly an ideological——

Mr. N. Treacy

The Department of Health had no input into the civics seminar or the advice on the Combat Poverty Agency. From reading reports I think Mr. Desmond found the advice from the Department of Health very consistent and used it with great success.

Mr. Yates

I am very disappointed with the Minister's attitude. The National Council for the Aged is an ideal example of what we are trying to do. A similar body catering for children would not cost a lot of money and it was recommended in the 1980 Task Force report which is the basis for this Bill. It is very unfortunate that this body is being neglected. Many of those in the public and voluntary sectors will be very disappointed the Minister has turned his back on such a small body who could do a lot of work. If research is carried out whenever the Minister considers it desirable on an ad hocbasis every four or five years, we will not have social planning or a coherent plan for the development of services. We will be opposing section 9.

I want to ask a question on the point Deputy Higgins raised. If the amendments had proposed substituting the word "may" for the word "shall" would they have been in order?

Chairman

That is a hypothetical question to which I cannot give an answer. We can take it that if they involve a charge, or may involve a charge, unless they were moved by the Minister they will be considered out of order.

Question put.

The Committee divided: Tá, 8; Níl, 7.

Tá

• Ahern, Dermot.
• Jacob, Joe.
• Coughlan, Mary.
• O’Donoghue, John.
• Fitzgerald, Liam.
• Treacy, Noel.
• Fitzpatrick, Dermot.
• Wallace, Mary.

Níl

• Fennell, Nuala.
• Higgins, Michael D.
• Finucane, Michael.
• Shatter, Alan.
• Flanagan, Charles.
• Sherlock, Joe.
• Yates, Ivan.

Question declared carried.

NEW SECTIONS.

Chairman

Amendments Nos. 44 and 45 are out of order because they involve a potential charge on the Exchequer. We move to amendment No. 46 in the name of Deputy Yates.

Amendment Nos. 44 and 45 not moved.

Mr. Yates

I move amendment No. 46:

In page 8, before section 10, but in Part III, to insert the following new section:

"10.—The Court may order that any child who is the subject of proceedings under this Act be made available for an assessment procedure.".

This amendment is straightforward. Before a child is taken into care the court should be given the maximum information and should have the maximum powers to make assessments and decisions. What I am seeking is when such hearings come up, if the courts have any doubts, they should be allowed to ask for an independent assessment of the child. This is a reasonable request and would lead to greater justice. It is a sensible provision and I hope the Minister can accept it.

Mr. Shatter

There is a major gap in the legislation and it needs to be addressed. They tried to address a similar gap in recent English legislation. I think it is something we should not omit and on which considerable emphasis was placed by the Law Reform Commission in their consultation paper on child sexual abuse published in August 1989. The commission emphasised that where there was a worry that a child was at risk, the circumstances may suggest that it is not certain that the child is at risk. There may be simply a bona fide worry that the child is at risk. Under this legislation two blunt instruments will be available. The first is the emergency care order to take the child into care and the second is the full care order. The court will also be able to make, as an alternative, a supervision order, but the place of safety order procedure under the 1908 Children Act, which will be replaced in this legislation by the emergency care order procedure, gives rise to a particular problem.

The statistics the Minister quoted before lunch confirm a long standing suspicion of mine about the manner in which some health boards operate the place of safety order procedure under section 24 of the Children Act, 1908. The general view would be that a child should not be taken out of the family home and removed from the parents unless there is a substantial risk to the child's welfare. We would all agree with that view. A place of safety order or an emergency care order should only be made in exceptional circumstances. Whenever an application for a place of safety order or an emergency care order is made to the courts, the parents should be given an opportunity to be present. Some health boards have operated the place of safety order procedure in such a way so as to have children removed from the family home where they suspected the children may have been at risk, even though they were uncertain, and in cases where they wanted to have some form of medical assessment carried out, in the context of a worry about child sexual abuse, involving what are known as validation assessments, the use of anatomical dolls or physiological examinations. You can believe a child is at risk of violence other than sexual abuse and on occasion the place of safety order mechanism is used.

Where it is necessary to obtain a report or assess a child it should not be necessary for a health board to have the child removed from the care of the parents. On occasion, health boards may be wrong. In most instances fortunately where health boards move, they are right, but there are occasions where they may be wrong. If you wish to have a child medically assessed, you should not have to resort to the blunt instrument of having the child removed from the care of the parents.

The report of the Law Reform Commission emphasises that where an emergency care order is sought it should only be made where the risk to the child "necessitates his detention in a place of safety". It goes on to say "where the level of suspicion of abuse is sufficiently high the District Court should be given the power to authorise a health board to arrange for the medical examination and other assessment of the child and where such an authorisation is granted the parent should be under an obligation to present the child for examination at a given place and at a certain time or times and it should be open to the health board to apply to the courts for an order that a child be assessed." This new power was provided in recent English legislation.

The amendment Deputy Yates has tabled makes provision for the court to order that any child who is the subject of proceedings under this Bill be made available for an assessment. In ordinary care proceedings, obviously it should be possible for the court to obtain an independent assessment, if necessary. I also believe we should — there is nothing in the amendments yet tabled to deal with this — provide that where an emergency care order application is made, instead of simply granting or refusing the order the court would have discretion, as opposed to taking the child into care, to make an order that the child be medically assessed, where necessary, before determining whether a child is truly at risk.

The amendment Deputy Yates tabled deals with the problem where court proceedings have issued, of the making a child available for assessment. We should also allow the health boards an additional power — where proceedings are contemplated but have not yet issued — either to seek the placing of a child in care or the making of a supervision order, and where there are reasonable grounds to suspect that a child may be at risk, they should be able to get a court order along the lines proposed in the report of the Law Reform Commission that would require parents to co-operate in the assessment of a child. Deputy Yates' amendment deals with part of the problem. We may need a more detailed amendment to deal with the situation where care proceedings have not been instituted. I ask the Minister to support the amendment and to come back to us on Report Stage or later on Committee Stage, with an agreed amendment because we could deal with this in later sections of Part III or Part IV.

I believe some health boards have used the place of safety order procedure under the Children Act, 1908 for the purpose of carrying out an assessment of a child. I draw the Minister's attention to the statistics he gave before lunch in which he detailed the extraordinary number of place of safety orders sought by some health boards. For example, the Midland Health Board in 1985 obtained only 20 fit person orders but got 31 place of safety orders; in 1986 they had 20 fit person orders but 23 place of safety orders. That is a very strange statistic. In the Mid-Western Health Board area a similar emphasis is placed on place of safety orders. In 1987, 39 fit person orders were made and 41 place of safety orders. That means that those health boards used ordinary care proceedings regarding place of safety orders as the usual mechanism for taking a child into care. Place of safety order procedures involve the removal of a child without the parents being given an opportunity to appear before the court, or to have an independent medical assessment carried out on their child prior to any care order being made. As the Law Reform Commission emphasised, those types of procedures should only be used in emergencies where there is a risk to the child which necessitates the child's removal from the family home.

This approach can be contrasted with those adopted in other health board areas where, by and large, far more fit person orders, were made. In the North-Western Health Board area 67 fit person orders were made in 1987 and only three place of safety orders. In 1986, 41 fit person orders were made and only eight place of safety orders. There is something very different about the way health boards are approaching this problem. There is a need to ensure that emergency care procedures are not used simply to have a child medically examined but that they are only used in circumstances where there is a certainty that a child is very seriously at risk.

Mr. D. Ahern

I am inclined to agree with Deputy Shatter on this matter because I am aware of a number of cases where the health boards are having difficulty having children assessed and in one particular case getting the consent of the parents or guardians of one particular child in my area. While I am inclined to agree with Deputy Shatter in general, the amendment Deputy Yates has tabled is very bald. It needs some clarification or beefing up. I would like to hear what the Minister has to say in relation to this. It is fairly bland to say that we should have an assessment procedure but it does not say by whom or how it should be carried out or its duration. Some other aspects need to be gone into and it may be that this is not the place to do it. However, there has to be some indication as to what this assessment procedure will entail. Obviously, there will be a medical procedure or examination but other assessments may be required. They should in some way be specified whether in the legislation or in guidelines for the health boards.

The courts, if it is felt necessary, will stop a case if it is felt that a particular assessment is required. It would appear that this will be given, as Deputy Shatter said, when the proceedings are issued. There may be need for a separate type of application to be made by a health board. They may have to go to a court and say they require an assessment made in a particular case but that may not be possible under the Bill. That is something that should be looked at.

Mr. M. Higgins

I am not sure if this is the place to raise the following point and I may have to wait until the section is being discussed. I am interested in the meaning of the word "assessment", particularly in the context of the powers of the Garda Síochána. I am really thinking of a situation that is not hypothetical but occurs, perhaps on rare occasions, where, for example, a neighbour decides to ring up the Garda and make a statement about a child and it is proceeded with or, as is happening now, where a case is referred to a health board. What procedures are appropriate following that? I would prefer to wait until we are discussing the section because there are interesting provisions in relation to the powers of the Garda Síochána that are by no means unproblematic. I am referring, in particular to where the phrase, "must satisfy themselves" is used. I will wait until we are discussing the section to develop this point.

Mr. Yates

On that latter point, earlier a reference to "Garda station" or "gardaí" was deleted from the Bill. Perhaps the Minister will clarify that point. It was in the earlier definition section.

Mr. N. Treacy

I agree that the court should have power to order the detailed medical or psychiatric assessment of any child who is the subject of child care proceedings. I have, in fact, provided specifically for this in amendments which I will be moving later. For example, amendment No. 67 on page 11 of the list of amendments proposes the insertion of a new subsection (6) in section 11. The new subsection (6) (a) (iii), would enable the justice to give directions as to the medical or psychiatric examination or treatment of a child who was the subject of an emergency care order. Amendment No. 81, on page 13, proposes a new order, to be known as an interim care order, which is designed to bridge the gap between an emergency care order and the determination of an application for a full care order. Subsection (4) of that new section enables a justice to continue in force any directions under the new section 11 (6) which I outlined a moment ago or to give new directions which could include directions in relation to the medical or psychiatric examination or treatment of the child.

I am in full agreement that children should not be placed in care unless it is essential in their best interests. Our overall policy which is firmly based on the Constitution is that children should only be removed from the care of their parents in exceptional cases — we have stated this time and again during the debate on this Bill — or where there are compelling reasons for doing so. Anything that helps to prevent inappropriate or unnecessary admissions to care is to be welcomed. As the Deputy may be aware, the Law Reform Commission in their consultation paper on child sexual abuse have made a provisional recommendation that the District Court should be given power to authorise a health board to arrange for the medical examination or other assessment of a child without the child having to be taken into care. This is, of course, a relatively new idea which has only begun to be canvassed in recent times. The Law Reform Commission have sought observations on this and their other provisional recommendations from interested parties. I would suggest it might be premature to legislate for this in advance of the Commission's final report. If Deputy Yates in particular is prepared to withdraw his amendment I would be happy to give an undertaking that this question would be considered again on Report Stage in the light of the Commission's final report which should be available before then.

Mr. Shatter

The amendments the Minister has tabled relate to circumstances in which the child is taken into care. Amendment No. 67 requires the district justice to make an emergency care order before he, in effect, provides for a medical or psychiatric examination. The emergency care order in the context of removing the child from the home would have to be made first. Equally, amendment No. 81 provides for an interim care order in effect where the child is to be placed or maintained in the care of the health board. I appreciate what the Minister is now saying to us, that this is part of an interim report from the Law Reform Commission and what we should wait for is the final report — I hope we get that final report fairly rapidly — but the idea is not all that new. It was canvassed in England.

There was a Private Members' Bill in the Westminster Parliament some couple of years ago which tried to provide for implementing this. It was referred to in the Cleveland report, as far as I can recall — and I am speaking from memory — and it is now provided for in recent English legislation. On the basis of whatever the Law Reform Commission say, ultimately we have to make a political decision on this. We are all in agreement on the general principle that one does not remove a child from the parental home unless it is necessary to do so.

Referring to Deputy Ahern's contribution I should like to say that I have experience of both sides of this coin where a health board wants to have an assessment carried out and the parents do not co-operate. The health board may worry that a child is at risk but still may not have the basis of bringing a place of safety order application or a fit person order application and, in a sense, the whole thing is left in limbo and the child remains at risk. We may have the opposite where health boards, such as the Midland Health Board, simply move in and take children into care on place of safety orders in the hope that, ultimately, they will get some evidence to justify keeping them in care which is the wrong approach to adopt. In principle there is no reason why we could not agree as a committee, and invite the Minister to tell us that he will bring forward an amendment, that we should incorporate into the Bill a provision whereby the courts can do exactly what the Law Reform Commission propose in their report, that the court can upon application by a health board require a parent to have a child made available for the carrying out of an assessment. There is a lot of sense in that. It will prevent health boards making mistakes.

If we are concerned about children being at risk there is always the danger that a child we are concerned about could have far more psychological damage done by being removed from the parental home for no good reason, by mistake, than if assessment was simply carried out with the child remaining in the home. For the purpose of emphasising the point, and reading it into the record, I will quote paragraph 2.22 of the Law Reform Commission's Report which states:

We have already stated that we do not think it is proper for an emergency care order to be employed where the sole purpose is to obtain an assessment or medical examination of a child. On the other hand, it must be recognised that cases arise where, though there may be insufficient evidence of immediate risk to a child to justify an emergency care order, the level of suspicion of abuse is sufficient to justify examination of the child despite parental objection. We believe that the District Court should be give a power to authorise a health board to arrange for the medical examination and other assessment of a child where the level of suspicion of abuse is sufficiently high. Where such an authorisation is granted the parent would be under an obligation to present the child for examination at a given place and at a certain time or times. It should be open to the health board to apply for the order on an ex parte basis.

I would hope the Minister could agree to submit an amendment along those lines on Report Stage. I could not possibly imagine that the Law Reform Commission will receive any observations which would result in their forming a different view on this issue in their final report. The only matter that one might want to debate is whether the health board should always be allowed to do it ex parte without the parents appearing in court or whether it should be done on notice.

It would seem to me that getting an order without the parents being present but that merely a medical examination should be carried out does not greatly prejudice the parents or parental rights. It may very well be in the interests of a child that such orders can be obtained ex parte because if there is an allegation of physical abuse or sexual abuse, if the parents had first to be given an opportunity to appear in court, there is always the possibility that the time that would elapse before the court hearing could result in a healing process which would eliminate any observable signs of any abuse that occurred.

I welcome the fact that the Minister has an open mind on this. I would hope that he could agree to bring forward the amendment with an even greater commitment than he has shown so far along the lines recommended by the Law Reform Commission. It would be in the interests of protecting children that we do so.

Mr. Yates

In response to what the Minister said, I would be happy to withdraw amendment No. 46 on the basis of what he has said — that he intends to try and allow for a suitable form of assessment of an individual child where applicable. Having listened to what has been said by all members here, and the circumstances in which this should apply perhaps the most suitable place to have such provision inserted would be in section 16 in relation to supervision orders because that allows the level of activity to be at just "suspicion" level as opposed to the level of a child being at immediate risk. Deputy Shatter has made the case that it is wrong that the law is such that health boards have to use their emergency powers in order to form the basis of that case. In terms of accuracy of judgment and of ensuring that the most appropriate types of assessment take place prior to action these powers of assessment should be conveyed.

I also take the point in that the assessment is not defined as to whether it is medical or whatever. I acknowledge that. I will withdraw amendment No. 46 on the basis that we will be dealing with the substantive amendments Nos. 67 and 81 later. Perhaps the Minister would consider tying in these powers with supervision orders so that where a health board are suspicious that a child is at risk, or where they have a report from a neighbour but they are not totally satisfied it might not be malicious that, first, they could get a supervision order and then a medical examination prior to taking any further care or control proceedings.

Mr. N. Treacy

In response, particularly to Deputy Shatter, what I said about amendments Nos. 67 and 81 was in direct response to amendment No. 46 in the name of Deputy Yates which he proposes to withdraw and for which I thank him.

The other points I made about the Law Reform Commission were in response to the additional points raised by Deputy Shatter which are not directly relevant to amendment No. 46. Deputy Shatter has referred to the United Kingdom Bill. When the United Kingdom Bill was originally published it did not include a section to cover this situation. However, a later amendment did surface. The entire Bill was enacted only two months ago. I want to assure the committee that in view of what has been said here, in view of the consensus here, I am prepared to give an undertaking that I will have this matter looked at within the broadest possible spectrum taking into account what the Law Reform Commission recommend and taking into account the views of the members of this committee. I am confident that we will be able to come forward with an amendment on Report Stage which would encompass all of those views.

Amendment by leave, withdrawn.

Chairman

We proceed now to amendment No. 47 in the name of Deputy Fennell. Amendments Nos. 70, 71 and 106 are related. We will take amendments Nos. 47, 70, 71 and 106 together.

Mrs. Fennell

I move amendment No. 47:

In page 8, before section 10, but in Part III, to insert the following new section:

10.—(1) On application to it by a parent (in this Act called the "applicant parent"), the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of any child so requires, by order (in this Act called a "barring order")—

(a) direct the other parent (in this Act called the "respondent parent"), if residing at a place where the applicant parent or the child resides, to leave that place, and

(b) whether the respondent parent is or is not residing at that place, prohibit that parent from entering that place until further order by the Court or until such other time as the Court shall specify.

(2) A barring order may, if the Court thinks fit, prohibit the respondent parent from using or threatening to use violence against, molesting or putting in fear the child and may be made subject to such exceptions and conditions as the Court may specify.

(3) A barring order may be varied by the Court on the application of either parent.

(4) On or before the expiration of a barring order a further barring order may be made with effect from the expiration of the first-mentioned barring order.

(5) If, between the making of an application for a barring order and its determination, the Court is of opinion that there are reasonable grounds for believing that the safety and welfare of any child so requires, the Court may make an order (in this Act called a "protection order") that the respondent parent shall not use or threaten to use violence against, molest or put in fear the child.

(6) A protection order may be made notwithstanding that the summons in relation to the application for a barring order has not been served on the respondent parent.

(7) A protection order shall cease to have effect on the determination by the Court of the application for a barring order.

(8) A barring order or a protection order shall take effect on notification of its making being given to the respondent parent.

(9) Oral communication to the respondent parent by or on behalf of the applicant parent of the fact that a barring order or a protection order has been made, together with production of a copy of the order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent parent of the making of the order.

(10) If the respondent parent is present at the sitting of the Court at which the barring order or protection order is made, that parent shall be taken, for the pruposes of subsection (8), to have been notified of its making.

(11) An order varying a barring order shall take effect on notification of its making being given to the parent other than the parent who applied for the variation, and for this purpose subsections (9) and (10) shall apply with the necessary modifications.

(12) The Court, on making, varying or discharging a barring order or on making or discharging a protection order, shall cause a copy of the order in question to be given or sent as soon as practicable to the applicant parent, the respondent parent and the member of the Garda Síochána in charge of the Garda Síochána station for the area in which is situate the place in relation to which the application for the barring order is made.

(13) Non-compliance with subsection (12) shall not affect the validity of the order.

(14) A respondent parent who contravenes a barring order or a protection order or, while a barring order is in force, refuses to permit the applicant parent or any child to enter and remain in the place to which the order relates or does any act for the purpose of preventing that parent or child from doing so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or both.

(15) Subsection (14) is without prejudice to the law as to contempt of court or any other liability, whether civil or criminal, that may be incurred by the respondent parent.

(16) A member of the Garda Síochána may, on complaint being made to him by or on behalf of the applicant parent, arrest the respondent parent without warrant where the member has reasonable cause for believing that the respondent parent is committing or has committed an offence under subsection (14) or (15) of this section.

I was very surprised that, in this section, there was nothing dealing with changing the law with regard to barring orders. I tabled this amendment — I know there are other related amendments — in an attempt to try to redress what is a very unsatisfactory position. I will explain. At present the only person who can obtain a barring order is a spouse. That is obtained under section 22 of the Family Law (Protection of Spouse and Children) Act, 1976. That order will bar a spouse for reasons of violence to a spouse or to the children. It is a very useful remedy, a very useful relief which, over the years, has proved to be very positive. At present there are circumstances in which there are children — and I deal specifically with children for the purpose of this amendment — living in unions that are not based on marriage. For example, unmarried parents living together either because they do not want to get married or that they cannot get married because of one or other of them may have been married before. Of course divorce is not available here to enable people like that to remarry. That is the first question — the children of two parents living together. There are also children living with one parent when the other partner in the family relationship may not be the father. These children have the same needs as the children of, say, a conventional marriage. In such instances mothers have gone down to the District Court to attempt to get barring order, where there is violence, a risk of incest or sexual abuse of the children. They have left actually crying because the District Court cannot accommodate their needs under that legislation. It just does not cater for people who are not married to each other.

I have taken this amendment directly from the 1976 Act in an attempt to extend the same protection to these children as exists at present for the children within a conventional marriage. I have to say that this particular provision has been recommended twice by the Law Reform Commission, first in their Report on Illegitimacy. They deal with this specificallly, not in the context of giving a parent the right — regardless of whether they are married to the other parent — but a right to the child itself. I will read section 393 of the Report of the Law Reform Commission on Illegitimacy which says:

On the basis that the concept of illegitimacy is to be abolished, the question arises as to whether section 22 should be amended. In our view the proper approach would be for the legislation to enable, not only a spouse but also a child of any person, whether that person is or is not married, to apply to the Court under the section for a barring order. This approach is consistent with the philosophy we have adopted elsewhere in this paper that legal rights for the benefit of children should be capable of being enforced by the children themselves.

That was their approach in their 1982 report. But they make a further recommendation in their consultation paper on child sexual abuse. They specify at paragraph 2.31 who may be barred and say:

We are aware of several cases of sibling abuse. Where the sibling abuser is young, a barring order may not be appropriate, and care or even criminal proceedings (within the juvenile justice system) may have to be contemplated.

They go on to say — dealing with a step-father:

One of the strongest risk factors, having a step-father, more than doubles a child's vulnerability. Virtually half the girls with step-fathers were victimized. Moreover, this risk factor remained the strongest correlate of victimization, even when all other variables were statistically controlled. Apparently there is substance to the notion that step-fathers are more predatory towards their daughters than are fathers. In our study, a step-father was five times more likely to sexually victimize a daughter than was a natural father.

They conclude that in view of those findings the arguments for the extension of barring orders to step-parents, including unmarried persons cohabiting with a parent, seem unanswerable.

I am suggesting that we should use this legislation to equalise the protection for all children regardless of whether their parents are married to each other. I feel it is appropriate and very necessary.

Mr. Yates

This is a very important issue. You have grouped amendments which are in my name with this, namely, Nos. 70 and 106. There are two important principles here. First, where there is violence, abuse, sexual or otherwise, any form of mental or physical abuse on children, as a policy objective it must be an absolute priority that the offending adult is the person who is removed from that situation and not the child because it is very common — I have come across personal cases of this — that where a child is put in care the whole psychological and mental feeling and emotion of the child is that he or she is the guilty person. Whatever the reason for that the child feels guilty. It must be our view that there is the minimum disruption for the child, the child can stay with his brothers, sisters and mother. I have heard of mothers whose husbands are severe alcoholics, who come home and beat up the wife and the children and the children are subsequently taken into care. The poor mothers are distraught first of all to have their lives destroyed by the abuse and on top of that to have their children taken away from them. It is very upsetting. What should be done is remove the abuser, not remove the children. That is my first point which I think is a point of principle. Everywhere and anywhere where there is abuse by a father, an uncle — if it is a female, so be it — the abuser should be removed and the family equilibrium restored.

My second point is that people have phoned me from the courts in utter distress in regard to cohabiting couples where an unmarried mother forms an alliance and cohabits with another man. In those cases, no matter what the abuse is on the children, I understand there is no current legal protection for those children because the parents are not married and the children are not living in a marital situation. Therefore, the protection we afford to children in wedlock in relation to abuse is not afforded to others. I do not want to be sensational about it, but one gentleman, who was in touch with Deputy Fennell as well, who works in the courts, told me harrowing stories of mothers who turn up trying to get cases of barring orders heard only to find that because they are not married there is no legal device available to them. Therefore, they are dependent not on taking civil action to get the barring order but on the health board to remove the children. This is critical and it is a gap and defect in the law.

In adopting this amendment we would be reaffirming what should be our essential principle, that only as a last resort should children be removed; rather the offending adult should be removed in circumstances of abuse. I totally support this amendment in line with the other amendments tabled on this matter.

Mr. Shatter

I support this amendment. Talking generally about the amendments I have some reservations about the courts, except in very exceptional circumstances, ordering the removal of a parent who is not given an opportunity to appear in court. That should happen only very rarely and for a very limited period pending a court hearing. There is certainly a major problem at present where we have an increasing number of couples living in an extramarital situation and where there is family violence. On occasions it is the mother who is being assaulted and on other occasions it is the children, on some occasions it is both. The barring procedure currently does not apply in those circumstances.

The equivalent type of orders in other jurisdictions can be sought when a couple are cohabiting. Where an unmarried couple are residing together and a parent is being violent towards the children it should be possible for the non-violent parent to have the violent parent barred. It is happening at the moment in other ways because currently in such circumstances, more usually the mother if she gets legal assistance, applies to the Circuit Court or the High Court for an injunction to have the violent parent put out of the home and the courts are currently granting many of these injunctions. It is happening in camera; the media are not aware of it but injunctions are being granted.

Prior to 1976 when barring orders became operative a battered wife had to resort to the courts to get an injunction. That is a Circuit Court or a High Court remedy; it is expensive and the reason for putting the barring procedure in place in the District Court was to provide for easy and cheap access to protection in the courts. I urge that we amend our barring legislation to allow for the granting of barring orders and protection orders in the District Court in the context of people who are cohabiting and also in the context of allowing a parent to obtain protection for a child. Where a couple are married a barring order is obtainable currently on the basis of assaults on the child. The spouse can go in and seek such a barring order. I draw the Minister's attention to the fact that currently it is happening by way of injunction. There is no reason why it should not happen by way of barring order. Indeed, it can happen in another way. Maybe health boards are not aware of this and certainly many lawyers are not.

It is also my experience that section 11 of the Guardianship of Infants Act, 1964 can be used where the courts can give a general direction regarding the welfare of children. Some judges have been willing to make orders under that section putting non-marital parents out of homes. It is questionable whether legally that fully stands up but it has happened. We need to take this on board and in doing so we need to remember that where we are talking about people cohabiting we are not simply talking about two people in their early twenties who have never been married living together. We now see going through the courts on occasions people who have previously married, for example a husband who may have previously married and having battered his first wife, and got a Church annulment, has gone through a second marriage in Church and is now battering his second wife but the problem is the civil law regards the second wife as a mere cohabitee and she has no protections. There are now an increasing number of these second marriages breaking down and the couples finding themselves in court. We have second marriages breaking down where unrecognised foreign decrees of divorce have been granted and the husband may now be battering his second wife who is not a wife according to our law and can get no protection for herself or the children of the second relationship.

I recall when raising this previously in the context of the Children Bill I was told that we could not amend the Children Bill to incorporate this type of amendment because this legislation fell within the jurisdiction of the Department of Justice and the Department of Justice deal with the Family Law (Protection of Spouses and Children) Act. I suggest that children do not really understand how the political responsibilities are divided between Departments of Health and Justice and one of the reasons we have so many anomalies in our family law is that people fall through the gaps of the two jurisdictions. In my view the Department of Health have a far speedier commitment to processing law reform in this area and are probably at this stage regarded by the general public, rightly or wrongly, as more responsive than the Department of Justice. We should use this legislation to update our barring order legislation and sort this problem out.

Mr. D. Ahern

I have read through this amendment which is probably one of the more important to the Bill. I have read the Law Reform Commission's consultative paper on this and my first impression — having been involved in quite a number of barring orders under the 1976 Act — was that the recommendations and the discussion on the consultative paper were fairly superficial. While I understand they received submissions, there are many areas in this whole question of barring and protection orders which should be teased out properly. The barring order procedure has been used very well by the courts from time to time.

When the legislation was passed originally in relation to spouse against spouse, I always found that barring orders were given — particularly by district justices — very easily because it was new legislation and there was a new concept. Later on I found that district justices, as a result of a number of High Court decisions, were not inclined to grant barring orders. Indeed I know of one district justice who is not inclined to give a barring order because he feels that a man should not be put out of his house even though there may have been abuse of the wife or children.

Deputy Shatter mentioned that you can go in ex parte and the Law Reform Commission suggested that a health board should do this in relation to applying for a barring order. I am not sure if that is a good thing because nowadays many people who get barring orders — particularly husbands — panic. The do not go to a solicitor, they do not take legal advice, they do not appear in court and the barring order is given. It is only then they realise the enormity of the thing. That is something that should be teased out in relation to whatever proposal comes forward from this committee for inclusion in the Bill.

The other area that needs to be teased out in very great detail is the whole constitutional aspect of barring orders. Have a health board the right, as a State body, to exclude someone from private property? That issue needs to be looked at in greater detail. I do not think anyone has ever queried the right of a spouse to do that but we do not know if it applies to a health board.

In relation to the barring order procedure proposed by the Law Reform Commission, it may very well be that whatever abuse is taking place is of such a nature that it is not the responsibility of the health board or someone residing in the house to apply for it. It may very well be the responsibility of the Garda to become involved as maybe a criminal offence has taken place. If it is a civil offence it could be dealt with under this Bill which deals exclusively with the civil nature of child care. It is a fine balance which we should discuss in greater detail and the Law Reform Commission — and indeed any other body prepared to make a submission to the Law Reform Commission — should also discuss it. It is my experience that a number of people have used barring orders to get rid of their spouse by alleging some sort of abuse. It would be possible, under a wider use of the barring procedure under this Bill, in a house made up of aunts, uncles, grandmothers, grandfathers and even cohabitees that somebody could use a barring order procedure to exclude other people from the house. That is something of which we should be very wary when we discuss this whole area. We should have an aspect of barring and protection procedures in a Bill and I would be very interested to hear the Minister's comments.

Mr. O'Donoghue

I strongly agree with the sentiments expressed in this amendment by Deputy Fennell. The amendment is enlightened and it certainly should receive support in principle. However, I have a worry about it in regard to a situation where a married couple — married under the civil law of this country — fall out and one spouse applies to court and gets a barring order. Let us take a situation where a couple are cohabiting and the violent father, or the person in loco parentis, is the sole owner of the dwelling house. This is a legal minefield because the person who has no proprietry interest in the dwellinghouse, the cohabitating lady, is making an application to exclude a person who is the sole owner of the dwellinghouse. That creates enormous problems from a constitutional point of view and certainly from the point of view of the rights to private property.

Accordingly, I suggest, with all due respect to Deputy Fennell, that the matter be put back to Report Stage so that it could be looked at further. Perhaps some method or mechanism could be adopted to give full expression to the admirable sentiments expressed in the amendment.

Chairman

As Deputy O'Donoghue has led us into that minefield, perhaps the Minister will reply.

Mr. N. Treacy

Deputy Fennell's amendment No. 47, although very enlightened, is almost word for word, as the Deputy herself said, the same as sections 2, 3, 4, 5, 6 and 7 of the Family Law (Protection of Spouses and Children) Act, 1981. The essential difference between what she proposes and what is already on the Statute Book is that orders under the 1981 Act are confined to spouses, that is married persons, whereas it is proposed here that a barring or protection order could be sought by or against any parent, married or not.

On the other hand, amendment No. 70 from Deputy Yates and amendment No. 71 from Deputy Sherlock would enable a district justice to bar an alleged offender from the child's home, presumably as an alternative to making an emergency care order in respect of the child.

Deputy Yates' amendment No. 106 goes further again and proposes that a barring order could be made against any offending adult as an alternative to a care order or a supervision order in respect of a child. Members of the committee will be aware that proposals broadly on these lines are included as provisional recommendations in the consultation paper to which Deputy Ahern referred on child sexual abuse published by the Law Reform Commission last August.

The Commission sought views and observations on their tentative proposals from a wide range of interests, including the medical and legal professions, social workers and child care workers and the statutory and voluntary agencies concerned with child abuse. In addition, the Commission held a full day seminar on 25 November last which attracted over 150 participants, including a number of members of this committee. I understand the commission are now considering the views and submissions they have received and that they hope to submit their final report, including their firm recommendations to the Government, within the next few months. It would be inadvisable and over-hasty for us to proceed with changes in the law in this area in advance of the Commission's final report and recommendations. I would respectfully suggest, therefore, that the Deputies might consider withdrawing their amendments and leave these matters for consideration on Report Stage, by which time the final report of the Commission should be available.

Mr. Yates

The Minister did not say if he was in favour of removing the offending adult as opposed to emergency care orders, or care orders or whatever. I would like to hear his view on that.

Chairman

I remind the committee that it is now 4 o'clock; and we agreed to adjourn at 4 p.m. in view of the inclement weather and the poor state of the roads. Some Deputies may wish to reach their constituencies in one piece this evening.

Mrs. Fennell

This is a very fundamental area, and we should not rush it now. Could we adjourn on this and recommence discussion on it at the next meeting?

Chairman

Is that agreed? Agreed. I propose that we meet on Tuesday 6 February at 5 p.m. Is that agreed? Agreed.

The Committee adjourned at 4.05 p.m. until 5 p.m. on Tuesday, 6 February 1990.