Last week we agreed that we would give approximately half an hour to finish off the four amendments to section 15. We will take amendments Nos. 88 and 89 together as they are alternatives, and then amendments Nos. 90 and 91.
I move amendment No. 88:
In page 11, lines 5 to 8, to delete subsection (5) and substitute the following:
"(5) Supervision orders, under section 16, shall be granted by a justice of the court while consideration of an application by the child care authority for a care order is adjourned or pending to allow for further evidence.".
The Bill leaves discretion for making a supervision order and the amendment is suggesting that it shall be granted by a justice of the court while consideration of an application by the child care authority for a care order is adjourned or pending to allow for further evidence. That is the thinking behind it.
The effect of amendment No. 88 would be to impose a statutory obligation on a district justice to make a supervision order in certain circumstances. This would be a complete negation of the judicial discretion and independence vested in the Judiciary by the Constitution and, for that reason, I could not agree to accept it. However, I would point out to the Deputy that section 15 (6) enables the court to give such directions as it sees fit as to the care and custody of the child pending the determination of an application for a care order. It seems to me that this gives the justice adequate power to secure the safety or welfare of a child pending the outcome of proceedings, while not interfering with his or her judicial discretion. In view of this I wonder if the Deputy would be prepared to withdraw her amendment.
There is a natural concern that in the event that there is an adjournment to enable the court to allow for further evidence, etc., there would not be a supervision order. In that case the child would be totally unsupervised in the home and this could be to the detriment of the child. I am concerned that that situation would not occur and that there would be some provision for supervision of the child in the home.
I move amendment No. 89:
In page 11, lines 5 to 8, to delete subsection (5).
The reasoning behind my amendment is to delete subsection (5), as I felt it was appropriate for the health board to make separate application in relation to a supervision order, and it should not be appropriate for the court to make that determination. It is a matter for the agency which is charged primarily with determining what is in the best interests of the child, and that is the health board, to make that determination and to apply for the appropriate order. If they are not successful they should have to make separate application for a separate order. It should not be a compendium application with the discretion left to the judge. It is much better in the interests of the child if the determination is made by the carers who are the health board and those charged with the care of the child. It is better also that they would make application for the order if they saw fit, and if they did not succeed in the courts, they would have to make separate application. I strongly feel that that should be the way we progress.
On amendment No. 89 proposed by Deputy Howlin, subsection (5) empowers a court, hearing an application from a health board for a care order, to make a supervision order either instead of making a care order or, until it reaches a final decision on whether to make the care order. A supervision order would authorise the health board to have the child visited by social workers or other health board staff, so the child would remain in his own home.
I have received strong representations from social workers and others urging me to delete this provision. Their main concern is the proposal that the court could grant a supervision order instead of a care order. They fear that the existence of this option might result in children who are at serious risk and who ought to be placed in care being left at home receiving only occasional visits from health board staff. I accept the contention that a supervision order cannot assure a child's safety to the same extent as a care order which takes him completely away from the source of danger, but since the nature and effect of the two types of order are so different, it might be better to keep them separate and not to have the type of linkage now contained in subsection (5). For these reasons I agree that subsection (5) should be deleted from the Bill.
Apart from removing from the courts the power to make a supervision order in lieu of a care order, this will also mean that the court would not be able to make a supervision order pending its determination of an application for a care order. The loss of this facility should not create any difficulty since subsection (6) enables the court to give interim directions as to the care and custody of a child pending a final decision on an application for a care order. The court could avail of this to give a variety of directions, depending on the circumstances of the case. For example, it could leave the child in the custody of its parents, with or without right of access by a health board; it could place him temporarily in care or it could direct that he remain in care if he was already in the custody of the health board, for example, if the application for a care order was preceded by an emergency care order or an interim care order. There is sufficient power in subsection (6) to meet any situation that is likely to arise and the deletion of subsection (5) will not weaken the Bill in any way.
Do I take it that the Minister is accepting the amendment?
I am gratified and I thank the Minister.
I am sorry I was late and missed the Minister's initial comments. I understand he is agreeing with Deputy Howlin's proposal to delete subsection (5). It would seem to me that as supervision orders are going to be new, because the courts have not had the power to grant them previously, there is a great deal of merit in having a specific subsection here which makes it clear that, pending the determination of a care case, a supervision order can be made. I understood the Minister to be saying that subsection (6), as drafted, could be taken to cover everything, unless the court gives directions as it sees fit — as it can give custody of the child, who is the subject of the application pending such determination. My concern is that the court may regard that subsection as a provision which allows it to make care or custody orders, in other words, it may not see it as extending to the remit of making supervision orders. The concept of even care or custody can legally be regarded as a term apart and, particularly, the concept of custody, which normally means that you are in the physical custody of one or other person.
This is legislation dealing with the taking of children into care. Subsection (6) could be interpreted by a court as meaning that, pending the determination of the matter, the court can either make a care order in favour of a health board or a custody order in favour of a parent. My initial reaction would be to express some reservations about the idea of deleting subsection (5). As I arrived a few minutes late I did not hear Deputy Howlin's opening remarks and I may have missed something. I think Deputy Yates was proposing a different amendment; he was not proposing to delete the subsection. I am a little anxious about this because supervision orders have a role and there is a need to be terribly explicit about their role, because the courts are not used to them; they have not made that type of order previously. It would be unfortunate if some ambiguity arose by our deleting subsection (5).
I welcome the Minister's comments. In relation to the comments of Deputy Shatter, the net point is that it is open to the health board to make separate application in respect of each order and they should be kept separate. That was certainly the line I argued initially, a line which is very strongly supported by those people who will ultimately be charged with the care of children — the social workers and their association. The Minister has accepted that they argue very strongly against the inclusion of this subsection, which really devolves on the judge the determination in relation to which would be more appropriate. It is felt by me and by those who care for children that in the first instance, it is the duty and the responsibility of the health board to make the determination as to which order should be applied for, and if they are unsuccessful, they should have to make a separate application for a separate order rather than making an application in a compendium way thus getting what might not be in the best interests of the child. The ultimate control in relation to making application in the first instance should be with the care workers and those who are professionally trained to understand the needs of children.
What Deputy Howlin said alarmed me even more than what the Minister was doing. The Minister was reacting in a constructive way as to whether we needed subsection (5) in the context of subsection (6). If Deputy Howlin is putting forward the proposition that it is for a social worker to determine and curtail the discretion of the court on the basis of what an individual social worker or health board thinks is desirable in the interests of children, I would vehemently disagree with that. I take the view that the group of professional workers who have come together and made submissions to this committee have done so from their own perspective of the work they do, and that they mean well. A number of the proposals they have made to us to amend the legislation make a lot of sense and we are looking at them very seriously. But the fact that they come up with a proposal does not mean it is necessarily always right. If that is the rationale behind this, to use non-legal language, it is a fairly daft proposal. I will explain why I think that.
One of the reasons over the years for the proposition that supervision orders should be made available arose because if a health board fears that a child is at risk, they may go before a court with an application to take the child into care. The court having heard all the evidence, the district justice may be of the view that what he has heard gives a rise to a worry, but what has been proved is not sufficient to warrant taking the child into care. The district justice may also be of the view that to protect the welfare of that child, it is necessary that some form of remit or control be given to a health board but that the evidence, as presented in the court, does not warrant the drastic step of taking the child into care. Supervision orders in other jurisdictions are often seen as being a half-way house between taking a child out of the home or allowing the child to remain in the home with some degree of supervision. In the interests of protecting children, it is of vital importance, if we are talking not just about the interim arrangement but of a district justice ultimately having a discretion, that a court that feels that there is a ground to worry about a child but that the evidence presented is not sufficient to warrant taking the child into care, has a jurisdiction to ensure that there is some ongoing supervision of the child. That is why subsection (5) is there. It is not a question of the health board making an application and getting everything they are looking for, or getting nothing at all; it is not to facilitate the judgments of social workers, but to protect the welfare of children and to extend to a judge who has doubts about the advisability of taking a child into care, the alternative possibility of providing for the supervision of the child while remaining in the home. It is not a correct approach to say that the social workers know best and that they should make the application, and that that is the only decision the judge can make. If that was the case one might as well let the courts close down and let the social workers make the decision. That is not right. It is of vital importance that the courts have available the mechanism of supervision orders as an alternative to care orders where they deem it necessary for the welfare of children to make a supervision order. That is the way this mechanism works in a wide variety of other jurisdictions, and not just in the United Kingdom. They call these orders by different names in other countries, but they have this type of order in a number of countries. Certainly, if this is the rationale for removing subsection (5), we would be opposed to removing subsection (5). It would water down the impact of the supervision order mechanism and it would mean that the health board would simply decide to apply for a supervision order or for a care order. The possibility of making a supervision order in appropriate circumstances should be open to a judge who has a care case brought before him.
Perhaps I am missing something here, but as I understand subsection (6), that is catered for—
the court may give such directions as it sees fit.
I presume that that direction would include a direction for a supervision order. The case Deputy Shatter argued was that if it is not specifically included there——
I interrupt Deputy Dempsey to draw one thing to his attention and then I will let him continue. The point I was making is that following the final determination of a case, either making a care order or having an option to make a supervision order, subsection (6) as it is currently phrased only deals with the intervening situation before the determination of the care proceedings.
That changes slightly what I was going to say in relation to the subsection. I accept the point the Deputy is making but with due deference to all my legal friends on this committee, if I was to be given the choice between the courts deciding on the care of the child and the professionals, my attitude would be more heavily weighted in favour of the professionals' opinion, not on the courts because, with all due respect to them, the courts have made some very funny decisions that people find very difficult to follow. Whether that is the fault of the courts, the judges, the juries or somebody else I do not know, but definitely my sympathy would be with the professionals and the view put forward by them.
In relation to supervision orders under section 16 — again I will be guided by my legal friends — are we not more or less putting an obligation on the courts to introduce a supervision order if we adopt Deputy Yates's amendment No. 88 which says:
(5) Supervision orders, under section 16, shall be granted by a justice of the court while consideration of an application by the child care authority for a care order is adjourned or pending to allow for further evidence.
Is not that amendment actually placing an obligation on them? That would be unconstitutional and we could not include that amendment. Having taken the point Deputy Shatter made, subsection (6) on its own gives the justice discretion enough. We are coming to section 16 on the supervision orders generally and some of the points he is making are covered under that section.
Very briefly, I favour amendment No. 88 and I do not agree that the deletion of subsection (5) would be the correct thing to do. There are examples that could be given. For instance, an exceptionally good parent of a large family may have a new arrival and there may be problems of one kind or another, and for a time — maybe a short period — that parent might not be fit to look after the children. In those circumstances, the supervision order by the court would be very desirable. I favour that rather than deleting this subsection. I might be oversimplifying this but that is my contribution.
First, the Deputy says that it is often an advantage not to be a lawyer and I certainly do not fear the oozing confidence in the judicial system that has been expressed by Deputy Shatter. I think that the opinion of the people who work with children, whose professional calling is to understand children and whose professional training and discipline is to mind and care for children, should carry a tremendous amount of weight.
In relation to the grouping of child care agencies and workers who have sent submissions to us, I know that in the past Deputy Shatter and Deputy Yates have quoted submissions to support any amendment that was positively commented upon by them in the past. Obviously they regard those opinions as being very important. There was no implication in what I want to do that the final decision will be left to the health board or to any care worker. That is an absurd suggestion for Deputy Shatter to make. There is no implication at all in that. The final determination will be made by the court. We are framing laws within which we expect the court to operate. The net point at issue is simply whether, in applying for a care order which has very serious implications, there should be a discretion with the court to disallow it but to have a lesser option. I feel strongly that the option of a health board to apply to the court for a care order would not be taken lightly; it would be taken after very serious consideration and some degree of evidence. The judge then would make the determination. The judge, who is the arbiter of the law once it is passed and enacted by the Oireachtas, will make the determination on the merits of the case put before him.
There would be possibly an enticement for judges on occasion not to grant a care order and to grant a supervision order instead if he was not 100 per cent satisfied. We could find children who should be in care might be given supervision orders which would mean that there would be occasional calls by social workers. I can give a litany of what happened to some children in Britain where supervision orders had been granted — some of these people under supervision orders were molested and murdered, and, quite frankly, I am not prepared to take that risk with this legislation.
In the first instance we should have an application for a care order. If there is insufficient evidence to warrant the care order in the eyes of the judge, who will be the decision maker in this application, then that will be denied. Then it is open, and should be open, to the health board to apply for a different order if they see fit. The confusion of having the lesser option would be, in my view and in the view of the professionals who have studied it and made submissions both to the members of the committee and the Minister who is willing to take on board the amendment in my name, too great. I argue strongly that the health board should make a separate application to the court.
I would remind the committee that we agreed that to wrap up this section at 5.15 p.m. or thereabouts. We still have two or three amendments to go. Deputy Fennell, if you would keep that in mind.
I hate to take from Deputy Howlin's pleasure at having his amendment accepted so readily but I would like to tell him that, while many parliamentarians tend to be a little inhibited or feel at a disadvantage when lawyers are discussing law, we have to accept the value of having our lawyers when we are discussing legislation on Committee Stage. However I do agree that the opinions and the views of the people working on the ground, i.e. social workers, care workers and children workers, are very important.
The case put by Deputy Shatter in my opinion still holds. Deputy Howlin's last contribution seems to suggest that there was a question mark over supervision orders anyway. I know we have not come to debate that section yet, but the Deputy was saying that supervision orders may be used in a way that was not in the best interest of the child — it could be the last option. I would think that, if there is an application for a care order, that in itself is a serious application. If there is obvious evidence of child neglect, abuse or lack of welfare, discretion must be left with the court to make a supervision order and having it lapse when that decision is taken, if necessary. While, amendment No. 88 may not be worded as well as it might, we still stand over our approach that this subsection should be maintained.
We have reached the bizarre situation where I am defending the Minister's subsection, and the Minister is agreeing to delete the subsection be accepting Deputy Howlin's amendment. This must be unique in the annals of politics.
I feel very strongly about this, not because of my experience in this House, but because of my experience outside this House. For over 15 years I have been involved on both sides in child care cases. Many years ago, until the health board took over these types of applications to the courts, my own legal firm used to act for the ISPCC — they do not involve the ISPCC now, who do not bring care proceedings. My own legal firm acted on the side of voluntary agencies seeking to have care orders to protect children. We have also, since the health boards have taken on that sort of work, been on the other side — acting on occasions for the parents whose children are being taken into care. I want to assure Deputy Howlin that professionals do not always get it right and the courts do not always get it right. That is a reality. I have no doubt about that.
I have also had the experience — and I know of colleagues who have had the experience — of knowing that children are seriously at risk, when courts take the view that there is no adequate evidence available to make a care order. Under the existing system when a court has to dismiss care proceedings the child is then sent home. That, on occasion, may result in the lives of children being at risk, when there is no adequate evidence to warrant the making of a care order, but there is a valid suspicion that they are at risk. The reason for seeking supervision orders is that in their 1980 report the task force on child care recommended that the courts should have the option of making supervision orders; discretion was extended to judges that where there was not sufficient evidence they could make care orders; and when there was a suspicion that a child was at risk, it extended the possibility of having the care of the child supervised.
I personally resent the rather silly comment made by Deputy Howlin when defending his amendment about people oozing confidence in the judicial system. I am not oozing anything. What I am trying to do is ensure that we have proper laws to protect children. I personally do not care whose amendments are accepted and whose amendments are not. On occasion in this committee we, on this side, have tabled amendments and when the Minister explained why they should not be proceeded with, we have not proceeded with them but I believe it would be an extremely dangerous step to withdraw this subsection.
Deputy Howlin made comments about the problems with supervision orders in Britain. I am probably more familiar than any other member of this committee with various reports published in Britain relating to children who should have been taken into care but were not. Problems arose in those areas because social workers did not do their job properly. Supervision orders were made and families were not properly supervised. That is the nub of most of these reports. I believe that if supervision orders are made in our courts, our social workers will take their job seriously and will do the job. I would urge the Minister and Deputy Howlin to think again. We should not put it to a vote; it is not a matter of party politics. If we vote on whether subsection (5) should be deleted we will be in the odd position of the Minister voting to delete it and we will be voting to keep it in. I would urge that further consideration be given to this matter between now and Report Stage. I genuinely believe we are doing something that will create a problem.
Professional social workers who work daily with children and who have come together for the purpose of assisting this committee, have done very good work, but not everything they say is accurate. Social workers do get it wrong. What Deputy Howlin is suggesting is that if a care order is not made at a later stage there should be another application for a supervision order. There could be a multiplicity of court applications involving the same health board, the same social worker and the same families and I do not believe that would be in the interests of children's welfare.
I will conclude on this because I know we want to get on with other Parts of the Bill. This is an extremely important provision which interlinks with section 16. Perhaps the Minister can explain the workings of section 16 in the absence of subsection (5). This is an extremely important section. A judge who will ultimately make the decision, whether we like it or not, and who believes a child may be at risk but does not have sufficient evidence before him to enable a care order to be made should have the discretion to make a supervision order. If he does not have that discretion, children will be placed at risk and possibly lives will be lost. It is as serious as that and that is why the task force on child care in 1980 recommended that courts should have this procedure extended to them as a discretionary procedure in care proceedings.
I preface my comments by saying that I hope all members of this committee will accept as a basic fact that all of us who have been working in this area for years are approaching it on the basis of what is in the interests of children. That is the exclusive prerogative of every one of us; that is what we have been about for many years. I would not be presumptuous enough to suggest that I am more familiar with any particular set of reports than any other member of this committee. I do not know the level of competence of the other members of the committee but I know that everyone has approached this matter having done a great deal of research and work. I sponsored a Bill in 1987 which was largely based on the work of Barry Desmond who was health spokesman for the Labour Party, and Minister in that area. The net point at issue now is — and I am still concerned with this — that if there was an option to the courts in regard to care applications, the implications of granting such an order are such that many judges might, if there was a lower option, opt for something that would not meet the circumstances.
I am, and have been, impressed by the arguments put forward by the coalition of care workers, and specifically by the Organisation of Social Workers. My fear is based on a number of issues, one of which is the lack of social workers and social work cover outside the city of Dublin. There are four social workers covering the county of Wexford. The service that is provided by the health boards is totally inadequate. I fear that resources and staffing will not be available to adequately implement a supervisory order but I hope I am wrong. I also hope there will be adequate resources and staff. However, that is another day's argument. In the interim, I am not willing to take the risk that instead of children being put into care, a supervisory order would be granted which would mean that some kind of cursory examination, or a less than thorough monitoring of the circumstances, would be caried out and the children might be at risk. After the enactment of this legislation, if we find a child in that predicament we would all feel very badly about it. I think the legislation would be better if it provided for individual applications to be made and that is the reason for the amendment.
I want to make a few brief comments which arise particularly from what Deputy Howlin said. It may be that there would not be enough social workers but I do not think that would be good enough grounds for not having a provision for a supervision order. I will give an example that might arise. A person might for a short period need supervision or help. Does section 16 not enable the court to make an order in such a case? I cannot understand why we are deleting section 15 (5). If section 16 makes that provision, why delete subsection (5) from section 15? I oppose the deletion because I believe, from experience, that it is vitally important to have that provision. Social workers might act hastily in some instances. They might make a decision and go to the court to prove their case, and that might not be a good decision. For that reason I oppose the deletion of the subsection.
I am loath to get involved at this late stage. I have listened to the arguments on both sides and I am inclined to agree with the sentiments expressed by Deputy Shatter in that if we delete subsection (5), that would take away any discretion the court would have to make a supervision order instead of a care order. That, I think, would lead to a vacuum. Subsection (6) refers to a completely different circumstance, and that is between the making of an application and its determination. If you take away that discretion it could lead to a situation where a judge would have to say, if he is listening to a care order: "I am sorry, I have to refuse it, because I do not feel there is enough evidence". At that stage he would not be able to make any application in relation to a supervision order if we deleted subsection (5) and that would not be correct. I entirely agree with the Minister's attitude in relation to Deputy Yates' amendment. We have forgotten about that matter. What is at issue at present is subsection (5) and whether it should be deleted. I would ask the Minister to have another look at the subsection with a view to leaving it as it is. Subsections (5) and (6) taken together would give adequate discretion to both the health board and the court in any event that could arise. Perhaps I took Deputy Sherlock up wrong but section 16 is based on the application of a health board and not on the application of a court in relation to supervision orders. If subsection (5) is deleted the court would have no way of bringing forward a supervision order of its own volition, and I do not think that would be correct. I would suggest that the Minister take another look at the issue.
I have listened with great interest to the various and diverse contributions. It amuses me somewhat that when I propose to be willing to accepting an amendment I should find a new defence for its preservation. Perhaps that might be a point to reconsidering the whole thing in the totality of the contributions. I have listened with interest and I would just like to respond.
In most cases where an application for a care order has been considered, the child would already be in the care of the health board under an interim care order, so his safety and welfare would not be in jeopardy. Where, however, there was not an interim care order in force, the justice could, as I said earlier, give directions under section 15 (6) as to his care and custody while the case is being considered. In the circumstances I think there is adequate provision to deal with the concerns raised by a number of Deputies, but particularly by Deputy Fennell in relation to amendment No. 88.
I have listened with interest to what Deputy Shatter has had to say and I must say I am surprised at his defence of subsection (5). I say this because his colleagues, particularly Deputy Yates, in amendment No. 88, specifically proposes the deletion of subsection (5) and its replacement by an entirely new subsection. I have already explained why I cannot accept amendment No. 88 and why I propose to accept amendment No. 89. However, in response to the points raised by various Deputies, perhaps I could suggest a solution to the difficulty that has arisen with regard to subsection (6) in the Bill. If it would resolve the matter, I would be happy to give an undertaking to bring forward an amendment on Report Stage to change the reference in line 11 to the care and custody of a child to include a reference to the supervision of the child. This would enable the justice, if he saw fit, to place a child under supervision while an application was being considered. I hope this could be reconsidered before Report Stage and that we could reach agreement on it.
That would deal with the problem of the interim situation and of what the position of the child would be pending the determination of the application. That does not deal with the problem that Deputy Ahern, quite rightly, referred to and that Deputy Fennell, Deputy Sherlock and I have raised, that is, when you come to the end of the court hearing, the judge feels a child is at risk. The judge takes the view that he does not have sufficient evidence before him to take a child into court. He is left with two choices about taking the child into care. He does not take the child into care or he does. Without substantial evidence or compelling reasons, as the Supreme Court stated, the child cannot be taken into care. You will then have the child released home and the judge will not have the option of making any other order to ensure that the child is protected.
The purpose, as I understood it, of subsection (5) as it would link in with section 16, is that at the time when the case is being determined the court then has a discretion. The judge would be able to do one of three things. He would be able to simply dismiss the care proceedings, he would be able to take the child into care or he would be able to make a supervision order. The Minister would have the statistics, I presume, in his files. I have them in my files in my office but I have not got them with me today. If one looks at the number of court applications to take children into care under the current laws, there is no reason to believe — the grounds will be different — that every court application is going to succeed under the new law. There are a proportion of cases where the court says no, it will not take a child into care when evidence is presented to it.
I believe, to protect children, it is necessary to extend to the courts a jurisdiction or a discretion to make a supervision order. Where the entire case is coming to an end, the judge is worried about a child but the worry is not sufficient to warrant taking the child into care.
I appreciate the Minister saying he will have another look at it, but may I suggest he have another look at it in the context of our retaining subsection (5) as it is, pending Report Stage. Deputy Howlin will still be free to table his amendment to delete subsection (5) if he wishes to do so. At least it would mean that we would keep intact the possibility of a discretion being available to the judge, who does not want to make a care order but still has anxiety about the welfare of a child.
I am not sure how section 16 can actually work if you do not have subsection (5) because on a technical basis — and I do not want to get too technical in a legal sense — it does seem that the possibility of a court making a supervision order in the circumstances outlined in section 16 as it currently exists, is based on an assumption that subsection (5) is there. It extends to the court the discretion to make a supervision order when it comes to determine the application. Without subsection (5) section 16 is sort of floating through the Bill but does not seem to have any home. There does not seem to be a basis upon which the court is going to make a supervision order.
Listening to the Minister in his response where he stated that after care and custody in subsection (6) he would include a reference to a supervision order, or whatever, to take that into account, again I come back to my original point and this is what Deputy Shatter has alluded to as well. That only refers in between the making of an application for a care order and its determination. If the Minister is also agreeing to take a look at leaving in subsection (5) or something along that line, based on the views as expressed around the table, I would have no objection to that but I would be unhappy if he was just merely going to include a supervision order in subsection (6) and still delete subsection (5).
It comes back to this whole point that a district justice or a judge, reading the legislation that was put before him, could not make a supervision order in such a case where he found he did not have enough grounds to grant a care order. He would then be constrained and that could lead to a situation where a child would go back into the home and would not be supervised and could be subject to further abuse. Perhaps ultimately a health board then would be reluctant to come back and look for an emergency care order. It might feel even coming for a supervision order at that stage under section 16 that if the application came before the same district justice, he would say: "I dealt with this case last week, I am not going to deal with it again". That would be quite conceivable and quite possible.
I think the rationale, from what I can gather, behind Deputy Howlin's amendment is that the court, on an application for a care order, would lean in favour of a care order as opposed to a supervision order in the event of the judge having a certain doubt or the other way around.
My own view is that a care order would be made only in the most compelling circumstances. That certainly gives rise to a difficulty. There is nothing, on the other hand, to prevent a health board, having failed to obtain a care order from the court, to apply under section 16 straight away for a supervision order. Accordingly, I wonder if much of the argument is academic, because it occurs to me that if a health board failed to get a care order in relation to a child who, it felt, was in some danger, that the health board would immediately apply for a supervision order. If one accepts this logic, it would appear that subsection (5) would, to a large extent, become superfluous.
Could I just say, in response to Deputy O'Donoghue — and I do not want to fall out with my party colleague — why wait for the health board to decide to make another application for a supervision order under section 16 if by leaving in subsection (5) of section 15 it gives the court the power to do that there and then? That is the point I was making.
I take the point that Deputy Howlin was making. We are afraid that the court will take the easier "option", if there is any doubt at all there. The point that Deputy Howlin has made — and I am not going to repeat it again but I think it is a very strong point — is that if there is an easier option and there is any slight doubt or whatever, the court will go for that rather than go for the care order. That can be provided in section 16. If the court finds in its wisdom that it should not go for the care order, then the health board is in a position under section 16 to go for a supervision order. If the health board goes for the supervision order, again it is back to a point which was made earlier on. It is the health board that should move these things, not the courts.
I would like to make a comment on that. If one operates that way and a judge who is concerned about the welfare of the child but does not have sufficient evidence to take the child into care then dismisses the care proceedings, then the health board goes away to deliberate and four or five weeks later decides to bring supervision order applications. I wonder how many people in this committee would be yelling and screaming if, in the intervening period, the child was killed, and suggesting that here was another example of a bad judicial approach, that the judge should have taken the child into care. It is not an everything or nothing situation. Each of these cases is determined on the basis of the validity of the evidence presented. Neither social workers nor lawyers acting for health boards always get it right, any more than do judges. I would just urge the Minister in the light of what was said not to delete this subsection today and to reconsider the position before Report Stage. I do not believe we are doing a good day's work by taking this subsection out.
I think Deputy Shatter is defeating his own argument there. Surely if he saying that the judge makes a decision which subsequently proves to be wrong, either the evidence as presented by the health boards is inadequate or not clearly worked through for presentation, or the judge has made an error of judgment. If the circumstances were so compelling that subsequently it resulted unfortunately in the death of a child I cannot see how the evidence would not have been strong enough and compelling enough during the course of application and that the judge would not take that fully into account. I do not see the validity of his argument in the last remarks.
Perhaps I could respond. Quite simply there might have been evidence presented that was not sufficient to take a child into care but subsequently a family incident takes place. It is as simple as that.
I would remind the Deputies of the agreement we reached at 4.40 p.m. We will have to reach a decision on this soon, so let us have brevity, please.
If the health board felt that it was important enough to go for a care order initially and the judge found that the evidence just was not there or that he was not satisfied with the evidence, they are not going to wait around for four or five weeks to go for a supervision order. They will go for a supervision order, an interim care order or an emergency care order, one or other of the things that we have there. I do not see a situation arising where they will wait for five or six weeks.
I believe that to go through that kind of machinery is unnecessary. It is, maybe, asking for another court hearing and involving the courts and the health board in unnecessary administration when the care and the child's welfare is paramount. With all due respect to Deputy Fitzgerald, sometimes in cases like this the judge is very aware of the enormity of a care order being exercised. If the evidence is not as compelling as he would like then he or she would probably be very loath to grant the full care order. To cut out all the administration and to take the health and welfare of the child on board at the same hearing, the judge should have the fallback of the supervision order. Remember, we are talking about the practicalities. It is alright talking about this in theory. We are talking about social workers, about administration, about health boards and courts, all of them under-staffed. That is the most practical and direct thing we can do. Considering what this has raised and that we are under a time constraint, the Minister might consider very carefully what has been said by so many people and come back on Report Stage.
I think the debate here indicates that this really is not entirely satisfactory as it is at the moment. We will certainly withdraw our amendment in the hope that the Minister will look at it taking all the points that have been made into account, both the need for the supervision order when the application is made, and subsequently come back with something on Report Stage. That might resolve it.
We have talked around a very fundamental issue. Just to comment briefly on the case example Deputy Shatter gives, quite frankly I would scream in the Dáil if a care order was refused and a child was murdered within four weeks of it because somebody had erred fundamentally. Either the evidence presented to the court by the health board or the judge were in error. We are talking about the life of a child and really Deputy Shatter is touching on the essence of what I am trying to say here.
Deputy Dempsey has restated the case I made twice already. What we are saying now is they are two fundamentally different things. A care order is to take a child into care. It is a very difficult decision for a judge to make and it fundamentally takes the child out of the home. He would have to be in very grave danger for that decision to be made. A supervision order is not the same order at all. What does a supervision order do? A supervision order shall direct the health board to have the child visited on periodic occasions and, quite frankly, if the health board applied for a care order because it was convinced that the child was at such risk that he should be taken into care, I do not think that the fallback position the people are explaining or the supervisory order where the child may be visited, weekly or otherwise, is simply good enough. That is the point I am making.
In a perfect world——
We are trying to introduce legislation as best we can. I believe the health board would not apply for a care order unless it had good reason and ultimately the judge may decide that. But if it was unsuccessful in a care order, which is the ultimate course of action in the obligation to protect the child, I have not got the slightest doubt that the health board would immediately apply for an interim order or a supervisory order immediately. If a child is completely vulnerable immediately there is obviously an obligation on the health board and indeed on the Garda Síochána to take him into a place of safety.
If Deputy Howlin will bear with me, we will let the Minister wrap it up and then we will decide.
On a point of information, if subsection (5) is deleted, how does that affect section 16 which makes provision for supervision orders. Is it not true to say that social workers have an obligation to supervise if it is required without having to go to the court for a supervision order to supervise children who might be at risk? Section 16 makes that provision and Deputy Barnes put it very clearly — why not agree to have a situation whereby if the care order is not granted that a supervision order be granted and have all that in one proceeding? I put that question. How does deleting subsection (5) affect section 16? Go raibh maith agat.
I have been holding a watching brief on all the contributions. First, in response to Deputy Sherlock, section 16 will stand on its own and I do not see the deletion of subsection (5) having a major bearing on it. However, in view of the very impassioned pleas that have been made I am prepared to reconsider this whole matter on Report Stage provided that Deputy Howlin is prepared not to push his amendment. If he pushes the amendment it will put me in a difficult situation. I know I can rely on his co-operation to get the best legislation possible. As amendment No. 88 has already been withdrawn perhaps we could do the same with amendment No. 89?
Without in any way conceding the principle which I still feel passionately about, I will withdraw the amendment.
Before we proceed to amendment No. 90 I have been requested to ask if the committee would agree to rise at 6.30 p.m. because many Deputies on both sides are otherwise engaged. Amendments Nos. 90 and 91 are related and, with the agreement of the committee, may be taken together.
I move amendment No. 90:
In page 11, subsection (7), line 15, after "child" to insert "or either of them".
I move amendment No. 91:
In page 11, subsection (8), line 20, to delete "parents of the child" and substitute "parent required to contribute".
In relation to the section, I have one question that perhaps the Minister could reply to. Section 15 (1) (a) deals with the situation where the child is being assaulted, ill-treated, seriously neglected or sexually abused. I am not sure why the word "seriously" neglected is there. I think I am correct in saying that in the 1908 Act "neglect" is sufficient to allow a child to be taken into care. We do not have an amendment tabled to delete the word "seriously". I feel it is not necessary to have that word there. I think it could, unnecessarily, constrain the application of the section. It may prevent children being taken into care who require care. That word is repeated in section 16. It would be my suggestion that the word "seriously" be deleted. I think — and, Chairman, you can correct me if I am wrong — if we wanted to raise this on Report Stage as an amendment we would have to raise it now. I am not happy with the word "seriously" in either section 15 or section 16. It would seem that the proof of neglect should be sufficient to warrant the making of a care order. It would be for the court to judge whether the neglect was sufficiently serious to warrant a child being taken into care or, possibly, to warrant the making of a supervision order. I think it is an unnecessary word and it is unduly restrictive.
Subsection (8) deals with a child who has been or is being assaulted, ill-treated, seriously neglected or sexually abused. It would be a matter for the court to decide what constitutes assault, ill-treatment, neglect or sexual abuse based on the facts of each case. Although these terms have not been defined here, they are all expressions the court is familiar with and on which it makes judgments on a daily basis. It should also be noted that the court is not required to satisfy itself beyond all reasonable doubt that any particular person has committed an offence constituting assault, ill-treatment, etc. The court must merely satisfy itself on the balance of probabilities that the child has suffered assault or otherwise. Thus, the burden of proof on the health board is less than that which would apply in a criminal case. The reason for the word "seriously" being included was to ensure that there would be no vaguenessvis-ï¿½-visthe neglect situation, and that it would firm up the situation. That is why the word is inserted there. I hope that allays the Deputy’s fears.
I am concerned that by referring to "seriously" neglected rather than neglected it is unduly restrictive and that it may prevent an order being made, be it a care order or a supervision order. It is not an overlapping discussion in a sense as we would have it under section 16 as well. A court may take the view that where a child is being neglected it is correct to make a supervision order, or it is correct to make a care order. Obviously, the court will only do so where the matter is relatively serious. I think I am right in my recollection that in the 1908 Act neglect can be a ground for taking a child into care. The word "serious" is not there. In the Minister's explanation of this section he omitted the word "serious". I think the word "serious" is unduly restrictive. I wanted to raise it now to give the Minister an opportunity to look at it for Report Stage. I do not believe it is necessary to have it in the section. It seems there is no major reason for retaining the word "serious". I think it should simply be "neglect".
I can assure the Deputy and the members that I will have another look at that situation and see whether it is relevant to have it there.
We proceed to consideration of section 16. We are dealing with supervision orders which I feel we have discussed quite adequately in the last hour or so.