Amendment No. 111 has been discussed already with amendment No. 85.
SECTION 20.
I move amendment No. 111:
In page 12, subsection (1), line 26, to delete "this Part" and substitute "Part III or IV".
Amendment agreed to.
I move amendment No. 112:
In page 12, subsection (1), line 26, after "Part" to insert "and when hearing cases under this Part shall be known as the Children's Court and hearings of this Court shall not take place the same day as criminal proceedings.".
This is self-explanatory and I would ask the Minister to accept it. I do not believe there are any complications involved.
There are two aspects to this amendment. The first is that the court, when dealing with child care proceedings, shall be known as the Children's Court. The second is that child care proceedings should not take place on the same day as criminal proceedings. At present different titles are used to describe the District Court when dealing with children. Section 111 of the Children Act, 1908, provides that the District Court, when dealing with both care and criminal proceedings in relation to persons under 17 years of age, is to be known as a juvenile court. However, the Courts of Justice Act, 1924, provides that these special sittings in Dublin, Cork, Limerick and Waterford are to be known as children's courts. Thus, there is some confusion as to the appropriate title in existing legislation. I would be anxious that we should not add further confusion in this Bill. If the Deputy is agreeable I would propose to re-examine this before Report Stage in consultation with the Minister for Justice with the view to agreeing a uniform title for the court when dealing with matters in relation to children.
The second proposal in the amendment relates to hearing care proceedings separate from criminal proceedings. Section 111 of the 1908 Act is also relevant here. It provides that the District Court, when hearing care or criminal proceedings in relation to children, shall sit either in a different building or room or on a different day or at a different time from those on which ordinary sittings of the court are held. In Dublin there is an entirely separate and full-time Metropolitan Children's Court to deal with children. Because of the smaller number of cases in provincial areas it is not feasible to have entirely separate courts. The practice is that child care and family law cases are heard in the same venue as ordinary courts but are disposed of before or after other court business. I accept that some such provision should apply to the proceedings under this Bill. Regrettably, I cannot accept this part of the amendment in its present form as it is too widely drawn. However, I would be happy to re-examine this question for Report Stage if the Deputy is prepared to withdraw the amendment.
It is appropriate at this stage — in particular with regard to this section — to make one or two comments about the courts and the courts structure. This amendment is designed at least to provide a uniform name to the courts dealing with children's cases. The substantive provisions of the Bill with which we have dealt are designed to provide a more sophisticated approach to the problems of children who require care. The Bill is based on an assumption that I believe will not prove to be the reality, particularly in city areas such as Dublin, an assumption that before making a decision about the future welfare of a child, the court will investigate in some detail the background to the child and the problems of the family of that child. Although in Dublin we have a separately designated building referred to as the Children's Court, one of the problems we have at the moment is that there are so many children being brought before the courts that what we have in reality is a system of conveyor belt justice. Because of the number of cases, the district justices dealing with them, cannot give the level of in-depth attention to the individual children that is required. In the context of describing it as conveyor belt justice we have a number of children who regularly come before the Children's Court in Dublin. I have no doubt that we have a mirror image of the Dublin position in other courts around the country.
One of the major and fundamental defects in this legislation is that we are not providing for a family court system with a specialist children's court attached to it but are going to continue to process all of these cases through the District Courts. Decisions about the welfare of children and their future care are going to be made by district justices who have no special training in the area. I am not saying that as a criticism of any individual district justice. In fact on occasions one is astonished at how district justices with an interest and a commitment in this area and who have no experience of it in their practice prior to being appointed to the bench, develop on their own initiative a degree of expertise and skill in dealing with children's cases. There are a number of justices who deserve our praise for developing these skills. But there are equally a number of district justices who do not have those skills and who do not have the necessary insight to deal with child care cases. There is a hit and miss system of justice in this area, a sort of judicial roulette; the right decisions might be made about particular children provided they come before a particular district justice on the right day in the right court. That is not the type of system we should have. This Bill is designed to provide a uniform approach to child care problems based on modern understandings and insights. We provide no special training within our courts system for the development of those insights by those who are making the decisions. We are relying on individual district justices to personally develop the skills. Some of them have done so, and it is to their praise; some have not. What we need is a special system of family courts with a children's court attached to it that would ensure a uniform approach countrywide.
That plea to Government has been made in a number of different contexts in the children's area. The Oireachtas Joint Committee on Marriage Breakdown spoke of the need for family courts. The need for a different type of court structure was referred to in the task force report. There have been pleas to provide, for example, a panel system such as they have in Scotland. My own personal view is that we will not have a uniform and a skilled approach until we provide specialist courts that should be within a family court structure. This particular proposal is designed to ensure that at least there is a feeling on the part of those operating these courts that they are dealing with something different, that it is not just an adjunct of the District Court, but the change of a name will not of itself solve the problem.
From the Opposition side of the House we cannot propose the establishment of a new court system. As was the case with the Judicial Separation Act, we could not propose the establishment of an entirely new system of family courts because it would have been ruled out of order as being a charge on the Exchequer that only the Government can provide for. When we were processing the Judicial Separation Bill from the Opposition side, I have recollections of the Progressive Democrats — although they knew that from the Opposition side you could not establish a new court structure — criticising the Fine Gael Judicial Separation Bill because we did not try to provide for a new court structure. The Progressive Democrats are now part of the Government. When Fianna Fáil were in opposition, on regular occasions their spokespersons on Justice spoke volumes about the need for family courts. Now there is an opportunity to set up such courts. There was such an opportunity with the Judicial Separation Bill but the Government did not take on board or amend the Bill to provide for new family court structures.
There is an opportunity again in this Bill, Chairman, to provide for a specialist children's court structure to at least lay the fundations for the establishment of an overall family court in dealing with child law and the juvenile justice area. The Government, to date, have not been willing to do that. We have had a very constructive Committee Stage on this Bill and the Minister, in fairness to him, has been very open to taking on board suggestions from the Opposition side. He has been very willing, when we have raised suggested problems with the Bill, to say to us he will look at them again with a view to bringing amendments on Report Stage. We have had, what I would regard as a very constructive Committee Stage. Once more I invite the Minister from a constructive perspective to look at section 20 and at the court structure this Bill is providing for. In reality we are providing for very complex matters relating to the welfare of children to be dealt with in the ordinary District Court and Circuit Court system. The comments I have made about the District Courts equally apply to the Circuit Court. Many child care cases are currently appealed to the Circuit Court and under this legislation many more will be appealed to the Circuit Court. There are many Circuit Court judges who will deal with these appeals and who equally do not have the skills and the insights to process them. In the overall family law area that is a particular problem at present within the Circuit Court which has an extensive family law jurisdiction. Because of the varied approaches by Circuit Court judges you are positively operating a system of judicial roulette. The outcome may depend on what judge you get, not on a uniform approach to law or an insight into family problems. The same will apply in the child care area where the decision whether to take a child into care or not may determine what is to happen to that child and — it is not too dramatic to say so — may determine whether that child remains alive or not in the future or whether serious dangers are posed to the child's safety.
There is a need for uniformity. We should have a special children's court with a special appeals court in place within a family court structure. The fact that that is not provided for is a major defect in the legislation. The comments I am now making, I would make and have made in the past no matter what Government are in office. I want to emphasise that, because I am on the record of the House as criticising the predecessor to this Bill in 1985 for not providing these structures. Until we do provide specialist structures we are not going to get it right and mistake will be made and children, no matter what our intentions are, will remain at risk and will not be properly dealt with.
Is there any reason the Judiciary cannot meet to try to hammer out a uniform approach to these cases?
The problem is, and rightly so, that the Judiciary are independent and they may try to develop uniform approaches in some instances but they cannot internally develop the skills. In my view if somebody is to be appointed a district justice or a Circuit Court judge to work in this area, and if they do not have the initial skills, training should be available to them. It is not available to them and we do nothing to provide such training. There is a need to have a more comprehensive approach. If you look at what is being done in other countries, such as Australia, and the establishment of specialist family courts structures since 1975, you will see that other countries have a far more serious view of this area than we have. There is a need to move away from the stuctures that in a sense we put in place in 1922 and have not changed since.
I support very strongly what Deputy Shatter has said. A view has been expressed over a long period of time now, right from the establishment of the task force in the mid-seventies, that we should try to get away from the adversarial type of regular court system in relation to care proceedings, and while we are moving towards that we actually have not taken it out of the formalised adversarial court setting. That is a pity. I do not know whether a significant cost would be involved in doing this. I think the broad view across all parties is that ultimately that would be the best way to proceed. I regret this and I expressed this view to the former Minister, Deputy Barry Desmond, when I first looked at the Bill which was produced in 1987 — the first draft of it was in 1985 — he did not want to go the whole hog on that, and I believe, ultimately, that will happen. Since this is obviously a major Bill and there is not likely to be major significant reforming legislation in this area for years probably after the enactment of this Bill, it is a pity that we have not got the opportunity to establish the family courts now. That was a core argument in most of the Opposition contributions on Second Stage and I restate that view now; it is a lost opportunity and it is a pity because so much of the Bill is so fine.
I have been looking at this amendment for some time and I support it wholeheartedly. I would not dare to talk about the skills of the district justices but I would talk about the structures. I can say to the Minister who is bringing in this legislation that we welcome it. We are making some more progress now, which is what we want to do because, unfortunately, the day will come when there will be a lot of problems putting in place the health board organisation as well as the court structures. At present, our court structures are such that in the various towns where you previously had court sittings they are no longer held. For instance, in my own area of Mallow the court sittings for Buttevant and Castletown and all those areas take place in one centre, the Mallow Court where people can be seen waiting around all day in crowded corridors and so forth. Is that the way we want to have this very sensitive issue of child care treated? I would say very definitively "no" and for that reason I support wholeheartedly this amendment which will at least make everybody look up and say: we have got to have a system whereby such hearings, as necessary, can be heard and where they are not held on the same day as other proceedings are taken.
Deputy Shatter said that this committee has been very constructive, and so it has. Unfortunately, Deputy Shatter, in this instance, brings politics into it and to a certain extent throws some mud at this side of the table, but as he said in his caveat in the latter part of his statement, his Government did nothing from 1982 to 1987 in relation to this issue and probably for very good reason, that the resources that would be required to provide courts throughout the country, as Deputy Sherlock has said, would be substantial in view of the present economic strictures. I entirely agree with much of what Deputy Shatter said initially in his statement, that there is a need for reform of the structures, but I would be very worried if a new family court and a children’s court were put into place that they would go to the bigger centres of population and not to the small areas, referred to by Deputy Sherlock. If that were to happen, an enormous financial burden would be created for the State. While politicians here in the cold light of day can call for family law courts and for children’s courts, out in the public arena it is very difficult to bring them forward and I have no doubt that is the reason the former Minister for Health, Deputy Desmond, when he brought forward his Bill in 1985, was not in a position to put together family law courts as we would all like to see them.
I agree entirely that there are some judges, particularly in the Dublin area, who have made it their business to become involved in the family law area and I compliment them for that, but I would not overly criticise other judges who may not have experience or too much experience in their practices vis-�-visthe family law area. In my experience judges who sit on family law courts mainly in the District Court and the Circuit Court do a very reasonable job in the circumstances. I was a member of the committee on judicial separation and we talked about taking away the adversarial-type scene but the reality is that there will always be an element of mud slinging and we would be clinging to Utopia if we were to think otherwise. I agree that an effort should be made, but it has to be said that perhaps the financial resources are just not there to provide what is needed.
I concur with and support the views expressed. This amendment deals with one of those clichéd areas concerning the treatment of children in court all over the country. I agree with Deputy Ahern and with Deputy Sherlock that whatever kind of sophistication we may have had recently in terms of family courts and the hearing of family cases in Dublin, this does not extend to people living outside Dublin and other main centres. There is a great deal wrong with our court system when it is dealing with the very sensitive area of the family, whether that is marital problems or the emotive area of taking children to court for whatever reason. There is no doubt that we are way out of date in our treatment of children when compared to the systems in other countries.
If we cannot afford to invest the kind of public funds that are needed — and it is going to be very expensive to change the system — we must look ahead, put a framework in place and have some kind of a vision of what we are trying to aim at. At present there is a little bit of this here and a little bit of that there. Some judges take their job and role very seriously and have attempted to equip themselves to deal with family or child cases, but that is not good enough. We must look back at the very valuable task force and various law reform reports and see if we can set out some agenda for change. It is desperately important in this Bill that we make a feature of it and that a framework or a basis be laid down for dealing with the issue of children in court throughout the country.
I do not believe that the response from the Minister is adequate. We will have to come back to this amendment, and I say that, indeed, with appreciation of the open-mindedness that he has shown throughout all of this debate. This is a crucial area that we have to take seriously here because the people who are going into the Children's Court are children who can do nothing for themselves and, in many instances, poor parents who would not have the power and the voice that is necessary for change. For that reason I would say that this amendment will not be pressed but it is one to which we will return.
The argument of the generalist versus the specialist.
I can accept the sincerity and the desire of all members here to see major improvement in the whole system for children in court. I accept what Deputy Shatter said that he would have criticised any Government on the present situation in relation to children in court.
I have looked back at the two previous Bills published on this matter the then Government's Children (Care and Protection) Bill, 1985 and the Private Members' Children (Care and Protection) Bill published in June 1987 by Deputy Howlin. All included the same court proposals we have included in this present Bill, so at least there is consistency in three different Bills vis-�-visthe court system. The introduction of legislation to provide for family courts or, indeed, children’s courts would be a matter for my colleague, the Minister for Justice. While I see many merits and advantages in such a development, I would not be happy to delay the passage of this much needed Bill to await the possible establishment of family courts. If at some stage in the future a system of family courts was to be set in place, it would be a relatively simple matter to transfer jurisdiction in relation to child care proceedings to a family court.
I wish to reiterate that I will be discussing these matters in relation to children with my Government colleague, the Minister for Justice. I accept that there is much merit in what all the speakers have said and in view of this I will pursue the feasibility of achieving the desired court system that they are all aspiring to and that I, indeed, would love to see in position. I am not sure that we have the resources or are in a position to put into place a very individualistic type of court system dealing with this specific group but I do hope that we can make improvement's vis-�-vis the situation for children and I intend to report back on Report State on this matter.
I thank the Minister for his constructive replies and approach throughout the workings of this Committee. I nevertheless, find this reply depressing. I can recall saying on Deputy Desmond's Bill in 1985 what I have just said on this Bill. The problem in this area appears to be the dichotomy between part of this area falling within the ambit of the Department of Health and another part falling within the ambit of the dead hand of the Department of Justice. It is my view that we will never have family courts or major structural changes in these areas until the Department of Justice cease to be involved in the administration of, say, family law, juvenile justice and child care areas. It is depressing because, five years on with the third Government since 1985, obviously officials in the Department of Health cannot do anything with officials from the Department of Justice, and whatever discussions have taken place in those five years it does not seem to have advanced one iota.
Part of the problem is that we are dealing with the area of child care as if the stuctures relating to the administration of the law we are enacting are different and apart from that law. They are not because the success of this Bill will depend not merely on the resources given to health boards but on the ability of the courts to translate the Bill into providing the type of protections we are anxious to see in place. In this area the 1985 Bill was inadequate, this Bill is inadequate and I do not believe the resources argument is a serious one. Substantial State resources are now being used in administering this area in the context of the current court structure and we will be taking all those resources out of the current court structure and putting them into what should be a more professional type of structure. It could very well turn out that the cost in real terms is less rather than more because we might move away from the situation of the same children coming before the courts every few months or every couple of years. If we had better structures some of the problems that keep repeating themselves within families might be better dealt with at the first stage rather than at the third or fourth stages. I have a cynical view of the resources argument. It is the type of argument that is often used simply for saying that we have had structures since 1922 and we had better not now change them because they are the structures that have been with us up to now and they will always be with us. I constantly fail to understand why, in some of our European neighbouring countries and in other countries which have similar law systems — such as Australia and New Zealand — they have been able to radically move away from their original models in these areas, and very successfully have done so, while we are still stuck on the same model.
In the area of adoption there were various reforms that could not be introduced until the whole adoption area was taken out of the Department of Justice and put within the Department of Health and that took, I presume, behind the scenes political and administrative battles to be successful, and it finally happened in the early eighties. I suggest that the internal political battle now take place for the courts, as they apply in the administration of family and children's law matters, be taken out of the jurisdiction of the Department of Justice, who are in a sense a security Department, and dealt with through the Department of Health. Only when that happens will we have a coherent overview of what is needed in this area and the necessary reforms put in place.
I take up a point that both the Minister and Deputy Shatter referred to. I have spent time looking at this whole area since I was handed the brief following former Deputy Barry Desmond in the area of health, and I think it was a fundamental mistake that the changes in relation to the courts were not encompassed in both the 1985 Bill and the 1987 Private Members' Bill. I was convinced by the argument at the time that a separate Bill was necessary and that it would have to emanate from the Department of Justice. I am sorry I accepted that argument at the time. The logic of the case just put forward by Deputy Shatter, who is a practitioner in the area whose views I listen to with great interest and whose opinions I respect, should carry great weight. Ultimately we will establish family courts. If a case could be made against them — no logical case could be made except in terms of costings or access — it would be that this structure would not enable every community to participate readily at a local venue. I am not sure that is the case and I would like to see it examined. I hope the Minister is saying today that he will examine this issue between now and Report Stage because it will be a tremendous fillip to this Bill. The structures we put in place in this Bill are all good and we will argue and debate them and get the package right, but the two pillars which support this Bill will be the funding and staffing we give to health boards and the type of courts that interpret the Bill ultimately. I am dreadfully fearful that the package, which I believe will be excellent, that we put into place will have weak foundations on both fronts.
I welcome the commitment of the Minister and his declaration of intent. It is obvious matters will not be let lie because once this Bill is out of the way, the next thing that will have to be faced up to is the issue of children before the courts, the juvenile justice area, the other major area which is hitting the headlines daily and which will have to be dealt with. Therefore, the courts issue, quite apart from its application here, will have to have to be very much in the minds of the Ministers for Health and Justice in the interim. It was regrettable that the concentration being given to this area now was not given in the past. That might have helped if separate responsibility had been clearly retained in the Department. I have direct knowledge of this area because for a short period in 1981-82 I was junior spokesperson in the Department of Health with responsibility for child care and family matters. Even at that stage, there were numerous battles, and many were lost. There are areas that should come within the Department of Health which are currently with the Department of Education and the Department of Justice.
With the rest of my colleagues I would like to indicate our total support for the internal battles. They should go on with a vengeance so that we will not have to keep coming back to deal with this area piecemeal. The plan in 1981 was to have a single Bill which would deal with all these areas. The discussions were on the ground; we were meeting the officials from the Department of Justice and we were battling out the issues about ages of responsibility etc. and memoranda were going back and forth about transfer of responsibility. Because of the pressure on the Department of Health — and there are so many other areas — we had to get on with what could be done easily and leave those battles for another day, but it means we have to keep coming back to it. Therefore, I welcome the Minister's declaration of intent and I hope it will extend not just to the area of courts, but to other areas. I wish him success.
We will be coming back to this area and legislating again and again until those issues are resolved. We will face the frustration of being engaged in major work like this and looking at what is happening on the ground which indicates the huge gaps we are leaving even while we legislate in that children are coming before courts and there is no place to put them because there is inadequate provision and nobody is clearly responsible. This issue should have been resolved before now. We are all keen to see the Minister take up the cudgels in the way he has indicated and maybe even on a broader front, but let me express disappointment that more is not resolved at this stage and we cannot go further here.
I share the view of others here that it would be relatively easy to achieve something like this if there was sufficient commitment. It would not be hugely expensive and it would involve reorganisation of existing resources. Indeed it might even be cheaper because the security requirements of such a court would be a great deal less than the existing ones. It could be done if the will were there. I hope the Minister will be able to come back to us in the near future with some progress to report on these matters.
It is obvious that this Committee wish to see a change. The difficulty I have is that it is a matter for the Minister for Justice to bring about those changes. However, I am prepared to add my weight to the battle that has been ongoing, as Deputy Flaherty has said. I am not sure what success we are going to have. The only commitment I can give the Committee is that I will see what I can do in consultation with my officials to create a better environment for children within the court system. I have a few ideas myself. Perhaps I will be able to come back with some type of a structure that would be better than we have today. We will do our best.
Amendment, by leave, withdrawn.
We now proceed to consideration of amendment No. 113 in the name of an tAire. This amendment has already been discussed with amendment No. 85.
I move amendment No. 113:
In page 12, subsection (2), line 27, to delete "this Part" and substitute "Part III or IV".
Amendment agreed to.
Section 20, as amended, agreed to.