Wednesday, 1 November 1989
Dáil Éireann Debate
An Leas-Cheann Comhairle: Amendment No. 1 is in the name of Deputy Yeats. Normally if the Chair were acting very formally he would move on but I understand Deputy Yeats is in the House and I think we will give him a few moments.
I am not going to make a big issue of this amendment which relates to the Title of the Bill. In Part II of the Bill, sections 3 to 9 deal extensively with the welfare of children so I think it only fitting that the Title of the Bill would encompass the full scope of its direction and not give the impression that it deals exclusively with control, care and supervision proceedings purely for children at risk. We want to be more positive about the Bill and put it in the context that it will set forward standards vis-à-vis both family care and alternative care for children. The present Title is limited. The 1985 Bill produced by the former Minister, Mr. Barry Desmond, was called the Child Care and Protection Bill. I would consider the Title, The Child Care and Welfare Bill, to be more appropriate.
This is the first of 100 amendments in my name. I do not wish to obstruct the passage of the Bill nor to make very lengthy contributions on each of the amendments but I would ask the Minister in return to give a commitment on Report Stage to be flexible and open in regard to amendments put forward by all sides of the House so that we can have as harmonious a passage of this Bill as possible.
Mr. Howlin: It is rather unusual that the first amendment should be an amendment to the Title of the Bill. Because the Bill was so long in gestation and is of such importance, and because there are so many interested groups watching its progress, we have to be careful as to how we present it.
For many years, we have been looking at the question of reforming, in a comprehensive way, our laws relating to children's welfare. For that reason, there is some merit in being positive in the way we start off the job we are embarking on today. I support the amendment.
I do not know why the Title of the Bill as proposed by Mr. Barry Desmond initially was changed to the Title that is now before us, whether it was simply for change sake, but there is a continuity in the three Bills, the 1985 and the 1987  Bills published in my own name and this one. We are seeking to regulate and protect children in a very narrow way but, in an all-encompassing way, to seek to better the state of children and improve their welfare.
Mrs. Fennell: I support this amendment. Adding one word to a prepared Bill should not be a matter of major debate. I hope the amendment will be accepted. I would prefer the title, Child Care and Welfare Bill, rather than Child Care and Protection Bill. We are talking about welfare over a very broad area.
When we look at the history of this Bill, at how far back it goes in terms of reports, commissions, proposals, Private Members' Bills, etc., we cannot feel too happy. This Bill is long overdue. I do not wish to labour that point. I did not speak on Second Stage, as I have just come back to the Dáil, and I do not intend to make a Second Stage type speech but I would like to put in context the background to this very important Bill.
A great deal of the original task force report dealt with care over a very broad area. I have great hope for the Bill in this Minister's hands but let us look at the time it has taken to bring the Bill — from the time the task force were set up in 1974. I will read the terms of reference of the Task Force on Child Care Services into the record: (1) to make recommendations on the extension and improvement of services for deprived children and children at risk; (2) to prepare a new Children's Bill updating and modernising the law in relation to children; (3) to make recommendations on the administrative reforms that may be necessary to give effect to proposals at 1 and 2 above. The terms of reference of this task force which brought out an interim report in 1975 and the main report in 1980 are as valid today as then. It is now 1989 when we are coming to grips and tackling the problems. I hope the Minister, in his approach, will be very open and generous and be prepared to listen carefully to amendments from this side and to consider them on their merit.  There has been a great deal of consultation with interested groups, with organisations and units working with children and in child care. I consider that we are bringing forward the very vest proposals in the interests of children. We must bear in mind that this legislation should be absolutely child centred. It has to be positive in terms of what is needed for children and not necessarily looking at how we can punish parents or put sanctions on them. The Bill has to be positive in the context of children's needs. Central to all our discussions has to be the recognition that the greatest problems against children are——
An Leas-Cheann Comhairle: May I say to Deputy Fennell that her good resolution not to make a Second Stage speech seems to be enduring the fatality of all such resolutions. We are on Committee Stage and the Deputy must confine herself to the amendment.
When we talk about welfare we are talking about many children in poverty. This is one of the root problems of much of the tension and stress which bring about abuse in society. I would have liked — and perhaps it is not too late to think about it — a more detailed and longer title to have been given to this Bill, and I suggest that this small amendment should be accepted.
Mr. N. Treacy: At the outset I welcome the presence in the House of so many Deputies from all parties for the Committee Stage debate of this very important Bill. It is indicative of the very great interest in the Bill that representatives of all parties are here. I want to assure those Members present that I intend to be very positive and open during the debate on this Bill. I shall be  as generous as I can, but I am not too sure how far I can go.
I want to assure Deputy Howlin that the title being given to this Bill is not being done for the sake of change, far from it. The expression “child care” is widely used and well understood. For example, some years ago there was the task force on child care services and also the Status of Children Bill. In this Bill reference is made to child care advisory committees. Even Deputy Yates in some of his amendments refers to child care authorities. We want to give a clear identity to this Bill as a child care Bill. The word “welfare” has many connotations and broad meanings and we do not want to mix up the Bill with any other Bill pertaining to children. I think Deputy Yates in one or two of his other amendments wished to include the word “welfare” and I shall be as generous as I can in relation to those. We want to ensure the integrity, specificity and identity of the Bill and consequently I regret that I cannot accept this amendment.
Mr. Yates: I do not wish to delay the House unduly on this point but I think there was a consensus that what is being sought was not unreasonable and Deputy Howlin rightly referred to his Bill of 1987. The first section of the Explanatory Memorandum to that Bill states that the purpose of the Bill is to promote the welfare of children, especially children who are at risk from a variety of causes. If at the end of the day what we want in each community care area, county and city are childcare centres to which children can be referred, from which teams  can operate, and a clear vision of the care and welfare services children need, I would not have thought it unreasonable to seek the inclusion of this word in the title of the Bill. I will come back to this point on Report Stage and I will not press my amendment.
An Leas-Cheann Comhairle: I have to advise Deputy Sherlock and Deputy McCartan that the amendment they wish to move is out of order. It is out of order for reasons which I am sure Deputy Sherlock will appreciate, in so far as he has heard them so often before; it involves a potential charge on the Exchequer and would also cut across the Minister's discretion in the matter. Therefore, as happens with all amendments of this kind, it cannot be moved. That does not mean Deputy Sherlock is precluded from referring to what is in his amendment when we are discussing the section.
An Leas-Cheann Comhairle: The Deputy is entitled to treat of what is in the amendment to his heart's content and he will not be out of order. However, he would be out of order if he attempted to move the amendment. That is the distinction we make.
Mr. Sherlock: Having ruled out of order an amendment which merely asks that following the enactment of the Bill it should be brought into effect within 12 months and stating that such an amendment is out of order on the grounds that it would be a charge on the Exchequer means only one thing to my simple way of thinking, that is, the Minister and the Government have no intention of bringing in the Bill.
An Leas-Cheann Comhairle: What the amendment proposed would interfere with the Minister's discretion in the matter of when he introduces the Bill. One cannot do that in an amendment. Secondly, there is the question of a potential charge on the Exchequer and I would ask Deputy Sherlock to accept that. It gives me no pleasure to say that and I only say it because it is required of me under Standing Orders. If the Deputy looks at Standing Orders he will see that that is the case. The Deputy is entitled to proceed now to discuss the amendment. He can comment on his disappointment, if he so desires, but he will not get any further reply from me on it. The Chair does what it is obliged to do and at times explains why, although it is not required of it, and I hope the Deputy now accepts that what I say is the exact and true position.
Mr. Sherlock: As pointed out by a previous speaker this legislation has been awaited in the State since 1974 and to put in a condition in an amendment which provides that it would be brought into effect within 12 months of being enacted should be considered to be reasonable in view of the fact that there is such a demand for the Bill. I merely want to make the point, which creates a great suspicion in my mind, that the Health Mental Service Act, 1981, which was enacted in this House has not been brought into effect, as was indicated in reply to a question in May. Many other Bills have been enacted here which have not been brought into effect. Rejecting the amendment proposed by Deputy McCartan and myself because it seeks to have this Bill brought into effect within 12 months is a clear indication of the policy of passing Bills in this House and  leaving them on the shelf. That is what is going to happen to this Bill.
Mr. Howlin: In relation to section 1, which is the Short Title and Commencement, let me take up what has been said by Deputy Sherlock. This is a unique Bill which covers an area that has been neglected for 80 years — since the Children Act 1908 when we consider that there has been 20 years of debate going further back than instanced by Deputy Sherlock to the Tuairim Committee Report of 1966, through the Kennedy report of 1970 to the then Minister for Education, through the task force on child care services set up by a predecessor of mine, Labour TD for Wexford, Brendan Corish, which reported in 1981, and when we consider that this area has been the subject of two previous Bills already alluded to — one presented by the Minister for Health and Social Welfare, Mr. Barry Desmond and the other in my own name in 1987 — it is not unreasonable that there would be some need for an assurance that this Bill will come into operation as speedily as possible. It is in the hands of the Minister now replying to simply state the Government's intentions in this regard. A simple assurance that the Bill will be brought into operation in three months, six months or 12 months would, I am quite sure, satisfy all Members.
Mr. Yates: I strongly agree with the last two speakers. If this amendment had been in order we would have supported it. If it is any consolation to Deputy Sherlock, I too received a letter containing a whole series of amendments——
Mr. Yates: ——relating to the setting up of child care authorities, national children's trusts, etc. all of which are liquidated at the stroke of a pen. This is extremely irritating and I hope whoever made this decision will be aware of the annoyance that is felt on the Opposition Benches because of this rule. It seems to be interpreted in a very rigid way because  in some cases we are clearly talking about redeployment or representatives in some cases, which I will come to later, and puts Opposition Deputies in a strait-jacket.
Dealing specifically with section 1 I believe the Minister and the Government have no credibility. We have the Kennedy report since 1970. Because of a series of events, we had the change of Government in 1981-82, and that was a period when little or no legislation was passed. There was no good reason the last Government should not have enacted this legislation in 1987. The Taoiseach often sat where the Minister of State is now sitting and gave commitments that this would be taken before the summer recess but it was not taken, and that was after consideration, due process and all the messing we had on the Order of Business.
Depending on the Minister's reply, I feel this is serious enough for us to challenge a vote on section 1. We should get a commitment from the Minister as to what the operation date would be. Nearly all the groups we met — organisations directly involved in child care facilities, health personnel and so on — are totally frustrated by the delays. Some would even compromise the finer points of detail in the Bill if it meant the passing of this legislation could be expedited; but all this will count for nothing if we do not have some commitment and some operation date. While it may be out of order for us to specify an operation date, I understand it is not out of order for the Minister of State to table an amendment with a definite charge on the Exchequer. As a measure of the Government's good faith, I ask the Minister to bring forward an amendment on Report Stage with a definite unambiguous commencement date, because it is more than 80 years since we had the last child care legislation.
The Government's credibility is very poor. No later than tomorrow, I understand, the Supreme Court is to give a further detailed judgment which raises a question mark over every child taken into care by the health boards, and the legality of the procedures under which that was  done. I would have thought that in those circumstances the Minister would give a commitment. If he does not we will have no redress but to oppose this section.
Mrs. Fennell: Like previous speakers I feel very disappointed that there are no promises as to commencement in this section. It is a very bad start to the debate. If there is no commencement provision this begs the question as to whether any money is to be voted to implement the necessary new provisions in this legislation. This Bill is aimed at bringing the social agencies dealing with children, the health boards and a number of other agencies, out of the stone age and into something that resembles the civilised democratic treatment of children.
I would suggest that the Minister look at what was done in the Status of Children Bill. There amendments were brought in and changes were made willingly by me as Minister, and there were commencement dates and proposals in regard to what needed to be done after the passing of the Bill. Of course, there will be commitments which will cost money. That is the whole point. It is about time we allocated real funds to child care services. Surely provision can be made in the Estimates for next year. I do not think the Government should be allowed to slide out of that. We have had very good notice of this Bill and we know the provisions in it. If estimates are needed there are plenty of people prepared to send them in. This is a fundamental aspect of this Bill and I would ask the Minister to come forward with some proposals on it.
There is also the question of the rules of court, which is an important aspect to legislation. As we know, the last Private Members' Bill on judicial separation was passed six months ago and there are still no rules of court to enable it to be put into effect. This is a fundamental area and we should have some commitment from the Minister on it.
An Leas-Cheann Comhairle: Let me interrupt Deputy Garland. The Office of the Ceann Comhairle adjudicates on amendments in respect of their appropriateness under Standing Orders. The Minister has nothing to do with it, but the Deputy will learn. We appreciate that all new Deputies do not take Standing Orders for private reading; perhaps they should. You will appreciate that any amendment, under any Government, that can be interpreted as a potential charge is automatically ruled out of order by the Chair.
Mr. Garland: I accept that but there is a saving clause here which says that “unless a motion postponing the coming into effect of any part or section has been passed by each House of the Oireachtas”. That gives the Minister an opportunity, if the funds are not there, to bring a motion before the House to further delay the implementation of the Bill. That surely seems reasonable.
Mr. N. Treacy: At the outset let me say that neither I, my colleague the Minister for Health, nor the Government want to delay this Bill one moment. We want this Bill enacted as quickly as possible but we must do so in a reasonable, practical and rational manner.
Deputy Yates said the Minister and the Government had no credibility. As far as I am concerned, what happened in the past happened. I am in this job a very short time but I believe I have credibility and I take no responsibility for any decisions taken in the past.
The Taoiseach gave a firm commitment in this House that the Child Care Bill would be brought forward and on the first day back he gave a commitment to Deputy De Rossa that it would be introduced this week. Parents, children and the courts are waiting for the Bill. We should be pleased to have an opportunity to debate its provisions in a reasonable manner.
Once the Bill is passed by both Houses of the Oireachtas it will be an enabling  device for decisions to be taken. It will be a clear indicator of what needs to be done in the area of child care. I should like to outline the background to the legal position pertaining to the Bill and to ask Members to consider what happens when other Bills are passed by the Houses of the Oireachtas. It is not usual to set a deadline for the implementation of provisions of a Bill. Given the scale and complexity of the Bill it is not realistic to think that all sections can be brought into effect within 12 months of its enactment, no matter how desirable that may be. I am aware that some of the amendments have been ruled out of order and I regret that as much as any Member. I would like to have had an opportunity of debating the merits of those amendments with Members but I bow to the superior wisdom of the senior officer of the House and accept the decision made by him.
In many ways the work of my Department, and the health boards, will only begin when the Bill is enacted. When they are clear on its final shape and contents a huge amount of planning and organising will be required to bring the Bill into effect. For example, all the social workers and other relevant staff will have to be briefed on the new legal procedures in relation to the placement of children in care and they will have to familiarise themselves with the different types of orders and procedures that the Bill creates. It may also be necessary to recruit additional social work staff in view of the additional demands that the Bill imposes on health boards. Deputy Fennell made an important point in regard to the rules of court and the regulations that would have to be introduced. New regulations will have to be drafted in relation to the placement of children in foster care and in residential care. There will also be a need for new regulations before Part VI dealing with the supervision of pre-school services can be brought into force. New regulations will also be required in relation to the inspection of children's residential centres under Part VIII. It will also be necessary for new rules of court to be made by the appropriate judicial authorities.
 Members will understand that when the Bill is passed by both Houses and signed by the President the officials of my Department, liaising with officials of the Department of Justice, will draft the new regulations and that court officers will draft the new judicial regulations. That will take some time. It would be dangerous for us to put any time limit on this work. We must ensure that we have the best possible legislation and that the rules and regulations are interpreted in the most positive way possible. I appeal to Members to be reasonable and not to press the issue.
Mr. Sherlock: I do not think the Minister's excuses can be described as anything else. I cannot understand how the Minister can hold the view that it will take 12 months to brief social workers. I have been advised by social workers about these issues. They have told me that they do not know what to do when confronted with such problems. They are waiting anxiously for legislation so that they can do their job properly. It will not take 12 months to brief social workers. All they want is the legislation to back their decisions. The Minister has not given us any grounds to support his argument. I do not think we are being unreasonable in requesting a starting date. If the Minister means business he will name a date.
Mrs. Fennell: I am disappointed with the Minister's response and we will be pressing him on this issue. If the Minister had consulted with social workers and others who have been calling for this legislation he would understand their position. Having read the report of the task force they are aware of what will be expected of them under the Bill. I do not think it will take 12 months to consult with them. I put it to the Minister that  even if the Bill is passed speedily by this House it will be the middle of next year before it is sent for signature by the President. The Minister has said that consultations will take about 12 months after it has been signed and in that event we are talking about the middle of 1992 before the legislation will be in place.
Mr. Howlin: I listened with growing dismay to what the Minister of State had to say. If we are to have a division of opinion on the first section we will be falling at the first hurdle. I do not think there is a shred of substance in the reasons given by him as to why he cannot give a commitment on the commencement date. The Minister told us that planning was required but the Department have been planning this Bill for 20 years. The Minister told us that it will be necessary to brief certain people but the people involved could brief the Minister.
Mr. Howlin: They could and have briefed me. They have been clamouring for this Bill for 20 years. They have inundated us all with comments on every line of the Bill. They do not need to be briefed. Certainly, they do not need 12 months to be briefed on its provisions. I am fearful that the real reason the Minister is refusing to announce a commencement date is that he does not have the money or a commitment from the Government to provide the necessary finance to put into place the various provisions in the Bill. This section is fundamental and it is important that the Minister should give a commitment in regard to it. This side of the House will  give the Minister every latitude and support in regard to the Bill. We are seeking a commitment from him that within a given number of months after the enactment of the Bill its provisions will be brought into effect.
I am suprised that the Minister has run a mile from that in his contribution. I regard this as the most important Bill introduced in the House since I was elected a Member. I appeal to the Minister to tell us that the necessary resources will be provided and to announce a commencement date. He must do so if he is to retain the confidence of Members. The Government should indicate that they are serious about the provisions of the Bill. If the Minister is not prepared to announce a commencement date today he should give an undertaking to give a date on Report Stage.
Mr. Yates: It is unfortunate that the Minister for Health is not present to deal with the Bill. Without any disrespect to the Minister of State, I view his absence as an indication of a lack of concern by the Government for the Bill. His predecessor, Deputy Desmond, pioneered the Bill. The Minister of State will be unpopular with his Chief Whip, the Assistant Government Chief Whip, Deputy Browne, and others if Fianna Fáil and PD Deputies have to be brought in regularly during the course of the Committee Stage debate on the Bill. Every time his officials hand him a script he reads it out but he should use his own discretion. A very good case has been made about the urgency of this matter. The Opposition are prepared to consider an alternative deadline to 12 months but the Minister did not give us any date. Instead, we heard a load of waffle about planning, consultations, redirection and  so on. His attitude is unacceptable. If one or two sections will cause a problem in regard to time the Minister should adopt the suggestions put forward by Deputy Sherlock. The Government could bring forward a motion postponing implementation of one or two provisions if they so desire and allow the main thrust of the Bill to go ahead. We are throwing the baby out with the bath water and, quite frankly, I think the Minister's excuses are lame and spurious. It is regrettable, on a Bill that has the wholehearted support of this House which we are anxious to expedite, that at the first opportunity the Minister is not prepared to give any commitment about resources or any commitment about implementation in this decade. It is unacceptable and unless the Minister can give a commitment in his final summary on this section we will be voting against it.
Mr. Howlin: There is just one final point which I omitted to comment upon and which caused me concern and I took note of it. The Minister stated in his previous contribution that it would be dangerous of us to put a time limit on this Bill. I put it to the Minister that the reverse is the truth. It would be dangerous and irresponsible of us to allow this Bill to be enacted open-endedly with provisions that are lauded by this House but which may never be put into place.
Mr. N. Treacy: I wish to clarify a number of things at the outset and in particular in relation to what Deputy Yates has said that the Minister for Health is not here to take this Bill. Unlike when the Deputy's Government was in office, the Ministers of State in this Government have a role to play. By decision and by statutory instrument the Government have allocated certain responsibilities in the Department of Health to me to act in that position. I have responsibility to take this Child Care Bill through this House, through the Seanad and then to see to its implementation.
Mr. N. Treacy: I will come to that. Deputy Sherlock's interpretation of what I said was very flimsy and, indeed, he took it very much out of context. I agree with Deputy Howlin that this is one of the most important measures ever to come before this House and we should treat it as such and not divide on simple matters of procedure over a very important Bill.
Acting Chairman (Mr. Wyse): I want to inform Deputies that I want no interruptions. Order, please, Deputy Yates. The Minister has a right to reply and I want no further interruptions. We have quite a number of amendments and for Heaven's sake let us work together and get through the Bill. The Minister without further interruption.
Mr. N. Treacy: I am not saying that none of the sections will be brought in within 12 months. It may be possible to introduce some sections at a very early date but, equally, other sections will require more time. I want to pledge to this House my commitment, as the person responsible for child care through the Department of Health, that we will provide the resources as soon as the Bill is passed to ensure we have the best possible child care system and services.
Mr. Sherlock: I merely want to say that the intransigence of the Minister in giving the commitment requested is very disappointing even if he were prepared to go outside the terms of the amendment. He is not prepared to give any indication of his intention to bring the Bill into effect once it is enacted; that means I will call a vote on this.
Mrs. Fennell: I would like to point out to the Minister of State that it does not matter when this Bill is finished. In the context of what we are talking about the Minister of State can put in whatever sections will come into effect six months after the passing of this legislation. One does not need to have the date of it. I would ask the Minister of State to give a commitment on Report Stage to satisfy the real concerns and anxieties we would have.
Mr. N. Treacy: I will give a commitment to the House that I will consider all the options, as we pass through Committee Stage, and on Report Stage I will give the House a clear indication, so far as I can, of when I would hope would be the operable date.
Browne, John (Wexford).
Burke, Raphael P.
de Valera, Síle.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Haughey, Charles J.
Kitt, Michael P.
Noonan, Michael J. (Limerick West).
O'Malley, Desmond J.
O'Toole, Martin Joe.
Wilson, John P.
Belton, Louis J.
Byrne, Eric. Dukes, Alan.
Enright, Thomas W.
Farrelly, John V.
Higgins, Michael Daniel.
Cosgrave, Michael Joe.
De Rossa, Proinsias.
Doyle, Joe. Mac Giolla, Tomás.
Noonan, Michael. (Limerick East).
Sheehan, Patrick J.
Question declared carried.
Amendment No. 3 not moved.
Mr. Yates: I move amendment No. 4.
4. In page 5, subsection (1), between lines 18 and 19, to insert the following definition:
“foster-parent” means a person other than the child's natural parents who undertakes the care and maintenance of the child,”.
An Ceann Comhairle: I observe that in respect of amendment No. 4, amendments Nos, 145, 147 and 148 are related and that amendment No. 146 is consequential on the amendment No. 145. I suggest therefore that we discuss these amendments together. Is that satisfactory?
Mr. N. Treacy: Yes.
Mr. Yates: I see the Chair has ruled my amendment No. 3 out of order.
An Ceann Comhairle: That is so.
Mr. Yates: I would like to make a brief point of order in relation to it. I understand that the grounds for that decision were that it would involve a potential charge on the Revenue. I deliberately framed that amendment so that it would not involve a potential charge on the Revenue. The basis of all the prepatatory work on this Bill, the 1970 Kennedy report and so on, was that the big weakness in Irish child care services was that the Departments of Education, Health and Justice were not interconnected. I was seeking to redeploy representatives of the Departments of Education and Justice into the workings of the health board which would not involve an additional charge. However, I will confine my remarks to the section in general, if that is agreeable with the Chair.
An Ceann Comhairle: That is fine, Deputy. I should say for the information of the Deputy and the House in respect of not merely the Deputy's amendment but other amendments which have been ruled out of order on the grounds that they involve a potential charge on the Revenue, that these amendments which are ruled out of order either proposed the setting up new bodies, authorities or  schemes which would obviously create a potential charge or impose additional statutory functions or mandatory obligations, including the time limit for the commencement of the Act, on the health boards which are 80 per cent funded by the Exchequer and consequently there would be a potential charge on the Revenue. This explanation is merely for clarification.
Mr. Yates: We will agree to differ. Amendment No. 4 and the other amendments deal with foster care. In amendment No. 4 I put down the definition of foster parent in order to raise this issue because as I understand it there is no definition of “foster parent” in law. I would like clarification from the Minister of State as to the definition of “foster parent” under law at present. It is agreed across the board that after the family home, the next most desirable form of alternative care is alternative family surroundings which provide emotional support, homeliness and togetherness as opposed to what an institutional or residential centre would provide. It is the practice of many health boards to engage foster resource groups and foster parents to cater for children who have been the subject of care orders and legal proceedings by the health board.
I am seeking to establish rights for foster parents so that their role is fully recognised under law and I am seeking to amend section 29 to define the circumstances whereby children can be taken out of the care of foster parents. If a health board suddenly decide to remove children from foster parents, the foster parents should have the right of appeal. It is all right to remove children where the contract has ended or where the child is no longer subject to a care order, but there have been cases where, for no reason, the health boards have removed children from foster parents. There should be some appeal mechanism there. Where there has been a long period of foster care, for instance, some years, surely the foster parents should have the right to adopt the child. I would like those  rights to be set out. I would also like foster parents in certain circumstances to have a right to free legal aid.
I have had detailed discussions, as I am sure other Deputies have, with the Irish Foster Care Association who have made a detailed submission to the Department on this Bill. I think it is generally recognised by social workers that the area of foster resource groups is the key growth area for deprived children who cannot have a family background of their own for whatever reason. I would ask the Minister first to clarify the present legal position of foster parents and, secondly, to meet these subsequent amendments and changes to section 29. Section 29 of the original Bill sets out the circumstances surrounding the removal of children from foster care or residential care. In many cases there would be an emotional attachment to stepbrothers, stepsisters, the new found parents and so on. These emotional bonds are very important and it is absolutely vital that we make legal provision for those circumstances.
Mr. Howlin: This is a very important area and I look forward to the comments of the Minister regarding the current legal position pertaining to it. Many children are placed in foster care at a very young age and for many of them in their formative years they recognise their foster parents as their only parents. Obviously the bonding between the foster parents and the child is such that there should be some very clearly defined mechanism if the health board remove the child from foster care. There must be in natural justice some right of appeal for the foster parents to the health board in circumstances where there is not mutual agreement. I have other comments to make, not only on the section but in relation to this area, but first I am anxious to give the Minister a chance to elaborate on his thinking and that of the Department in this regard.
Mrs. Fennell: The Task Force on Child Care Services, in their final report, devoted a considerable amount of time  to the whole area of children who need foster care, the social work services in foster care and recruitment, selection and remuneration of foster parents. It indicates that there has been a time-honoured recognition that there are some families who can cater for children other than their own, who have a great degree of love and affection for and a general commitment to children and who are willing to open their doors and give the best kind of care outside the child's own family to children who need it. Foster parents have been the poor relations in the whole child care area. We should recognise them as a very valuable and natural family resource that should be used to a far greater degree.
Mr. McCartan: I welcome the amendments put forward by Deputy Yates, particularly amendment No. 148 which provides for the right of appeal against an order of the health board whenever the board would seek to remove a child from the care of the foster parents. The position of foster parents needs much closer attention under the Bill. When foster parents are caring for a child, the child should not be interfered with except in exceptional circumstances equal to those that might exist if a health board were making an effort to remove a child from the natural parents. The rights of foster parents should be recognised fully, if not given an equal status with those of natural parents, particularly where a relationship has developed between the child and the parents. For that reason the concept of an appeal against the decision obviously should exist in law and that amendment must be supported. I would like to hear more from Deputy Yates or others who support the concept as to how one would establish that right of appeal, how it would be put in place, at what level within the board would it be heard and who would have the right of audience in those proceedings.
I also welcome the idea that legal aid should be made available to foster parents where they are perhaps unwittingly, or certainly through no fault of  their own, drawn into these types of situations where they must protest, appeal or litigate in respect of their rights with regard to the care of their children. Similar amendments by The Workers' Party to different areas of the Bill relating to the provision of legal aid — because not only the foster parents but the children also are affected in these situations — have been ruled out of order by the Chair by reason of the potential charge they may represent on the Exchequer. Nonetheless, that does not get us away from the fact that this is an issue we should address generally during the course of this Bill as regards what the State proposes to do in terms of providing additional resources to the Legal Aid Board to enable them to give meaningful effect to this legislation. I look forward to hearing the Minister's response to the amendments which are eminently sensible.
Mr. N. Treacy: In response to these five amendments I would say that the existing law in relation to foster care is set out in the Boarding out of Children Regulations, 1983. These regulations set out the respective rights and responsibilities of health boards and foster parents and will be updated when this Bill is passed into law.
The term “foster parent” is not used in the Bill as published and the only purpose of this amendment is to facilitate later amendments to section 29 from Deputy Yates which relate to the circumstances in which children may be removed from foster care by health boards.
Section 29 enables a health board to remove children whom they have placed in foster care or residential care and requires them to do so if so directed by the Minister. I do not expect that this ministerial power would be used often; however, it might prove useful if the Minister received complaints about the care of a child and his inquiries indicated that it would be in the child's interests to be removed. Section 29 (3) requires a person having care of a child to deliver up the child when requested to do so by a health  board and provides that it would be an offence to refuse or fail to do so.
There are many reasons a health board may need to remove a child from foster care; it may be to re-unite him with his parents or to remove him to a more appropriate placement. It is also possible that a child might be unhappy with particular foster parents or that they might be neglecting him. In most cases, I would expect that foster parents would readily co-operate with such removals; however, a health board must have the power to remove a child even if their co-operation is not forthcoming.
I might also mention that this is not a new provision. Under section 56 of the Health Act, 1953, a health board can remove a child against the wishes of foster parents.
Deputy Yates made a point with regard to free legal aid and expressed the desire that all foster parents should have recourse to it. So far as I am aware — and there are eminent law people here — it is a matter for the courts to decide who should qualify for free legal aid.
Mr. Shatter: That is entirely incorrect.
Mr. N. Treacy: What is the position?
Mr. McCartan: We would tell the Minister if he did not tell us to stop lecturing him. The last time I tried to clarify a point with him that was his response.
Mr. N. Treacy: Maybe the Deputy went on too long. Deputy McCartan mentioned the right of appeal and asked when would there be appeal and how. There is a number of sections in the Bill dealing with appeals. I suggest that what Deputy Yates proposes in these amendments may have come a little early. We can still debate section 29 when we come to that section, after having dealt with the other sections. I cannot accept these amendments, as proposed, and I would respectfully suggest that we debate section 29 when we come to it.
Mr. Shatter: I listened with some  interest to what the Minister of State had to say. One is loath to make to much of a meal out of this Bill in trying to deal with some of the major defects in it for fear that it may never see the light of day and never be enacted. We faced a problem such as this with a previous measure in this House in 1985. I am afraid that the Minister of State's comments clearly indicate a lack of any real understanding of the point Deputy Yates was making in the context of the amendments he has tabled. First, for the Minister of State's information, where a foster parent wishes to retain custody of the child and where court proceedings are necessary, that foster parent can only get legal help or free legal aid if such help is extended to the foster parent by a Government law centre. As we all know, the law centres at present are understaffed and overworked. Some of them are taking no new clients and in Dublin I think there is a waiting list of three months in the context of seeking legal help. They are not geared to catering——
Mr. N. Treacy: We, in the rural west, do not have that privilege. We must await the decision of the court.
Mr. Shatter: Sorry?
Mr. N. Treacy: We, in the west, do not have that privilege.
Mr. Shatter: Do not have the privilege of what?
Mr. N. Treacy: Of law centres.
Mr. Shatter: If I were you, I would talk to the Minister for Justice and ask him to arrange the opening of a law centre where it is needed. There is a serious point about section 29; we are taking the amendments now, but it is not addressed by the Bill. It is as follows. There may be circumstances where a child is placed with foster parents by a health board and may be with foster parents for a lengthy period of time but the health board may reach a decision, on the basis of whatever social workers' assessments have been  carried out, that the child should be returned to its natural parent or perhaps moved on to some other foster parent or set of foster parents. The original foster parents might legitimately take the view that it is in the interests of the welfare of the child that that child remain with them.
Health boards are not perfect in everything they do. Social workers do not always assess situations correctly. Foster parents who come to the conclusion that it is in the interests of the child that the child remains with them should not be criminalised by our law if they refuse to immediately comply with a request from the health board to hand over a child who has been with them for an extended period of time. It is my recollection that the Children Bill, which came before this House in 1985, although seriously defective in a number of ways, sought to provide certain rights for foster parents in these circumstances but the rights were more than simply rights for foster parents, they were designed to protect the welfare of children. Because the draftsman of the original Bill which came before this House made a mess of it, the Department seem to have taken the easy way out and have simply dropped sections which they could not draft properly. That is not good enough.
Foster parents who believe it is in the interests of the welfare of the child that that child remain with them following receipt of a request from the health board, could, under the current law, if they so wish, bring an application to the High Court to have a child made a ward of court and use the wardship jurisdiction of the court to seek to retain custody. The court would adjudicate on the issue on the basis of what is in the interests of the welfare of the child. However, it would be adjudicating in very strange circumstances, in circumstances where the foster parents found themselves properly before the High Court but could at the same time under this section be prosecuted before the District Court for having committed a criminal offence by failing to comply with the direction of a health board. That is an appalling mess  of a section dealing with a serious issue with regard to the welfare of children.
Foster parents who believe that it is in the interests of the welfare of the child that that child remain with them should not be faced with the legal expense of a High Court wardship application. There is an alternative mechanism which could be used. We could introduce a section into this Bill or accept the amendments tabled by my colleague, Deputy Yates. If the Minister of State does not want to accept those amendments there is another way of doing it and that would be to amend section 11 of the Guardianship of Infants Act, 1964, to extend to a foster parent as it should be defined by this Bill — we should define what we mean by a foster parent — the right to make application under that Act to the District Court or the Circuit Court, if necessary, for an order to retain custody of the child in circumstances where a health board wish to remove a child from them.
In the vast majority of instances this problem will not arise. There can either be short term or long term foster care but in the majority of instances involving short term care the foster parents will only be too happy to know that the child can be properly handed back to its natural parents and no conflict will arise between the foster parents and the health board. In many instances where a child has been placed in long term foster care the child will remain in long term foster care but in some instances it may be possible to return a child to its natural parents or parent. In those circumstances the possibility of conflict arises a little bit more.
I am aware of cases of children, placed in foster care but subsequently returned to their natural parents on judgments of social workers, who have been physically abused by the parent or parents to whom they were returned. On occasion, social workers get it wrong. There were two instances in 1981, early 1982, where children died at the hands of their parents because health boards failed to act and take them into care when they should have. That was a scandal and I said so at the time but we did not make as much  of it as other countries have done when similar incidents have occurred. No commission was appointed to report. I recall, in a very difficult Question Time in 1982 with the Minister of State's colleague, Deputy Woods, who was then Minister for Health, trying to force the Government to publish a report on what went wrong in both those cases.
Occasionally health boards and social workers get it wrong. Occasionally, foster parents may get it right. There will be cases under this legislation as there have been under the existing legislation when foster parents acting in good faith in the interests of the welfare of the child may form a view that the health board have got it seriously wrong and that it is in the interests of the welfare of the child that they retain custody of the child. This Bill provides no mechanism for dealing with that. It criminalises the behaviour of foster parents who seek to protect the welfare of the child in such circumstances and creates a peculiar legal dilemma in the event of they bringing wardship proceedings. It is a dilemma which should not arise.
I invite the Minister of State, if he will not accept my colleague's, Deputy Yates', amendment to look very seriously at providing additional provisions to section 29 to deal with this particular area in the context of foster care. If we do not, having waited since 1908 to produce substantive legislation——
An Leas-Cheann Comhairle: Could we stay within the confines of section 2?
Mr. Shatter: We are dealing with amendments to section 29 and section 2——
An Leas-Cheann Comhairle: For discussion purposes.
Mr. Shatter: Yes, they are being taken together and that is what I am doing. The amendments——
An Leas-Cheann Comhairle: The  Deputy is quite relevant but is ranging very widely.
Mr. Shatter: I am confining myself solely to the issues which arise under Deputy Yates's amendments which apparently the Minister of State is not prepared to accept in the context of the discussion we are having. I am doing so, rather than waiting until Report Stage, because we will not deal with section 29 in detail today. Possibly we will come back to it next week or at a later stage. I invite the Minister of State, if he is not prepared to accept the amendments which Deputy Yates has tabled, to consider bringing forward amendments at this stage, on Committee Stage, so that when we do reach section 29, we can take them.
If the Minister will not accept the Deputy Yates's amendments I invite him to consider putting forward Committee Stage amendments at an early date so that when we reach section 29 we can take them. The dilemma I am raising here can be dealt with by the insertion of an additional section which could quite properly be tabled before we reach section 29. This new section could quite properly deal with the dilemma of the criminal proceedings that are envisaged and provide a mechanism to allow foster parents to properly bring an application under the Guardianship of Infants Act, 1964. That could solve this problem which is worth solving.
It has taken from 1908 until now to bring this Bill before the House and there is a possibility that it may take another 80 years to amend this legislation, if we get it wrong this time. Let us do a proper job. This legislation has the good will of all sides of the House. We will come to various sections in which a number of Members on different sides will raise similar points. They are not just technical points but are important in protecting the welfare of children. All of us are concerned that if we do not get the legislation right now we will not be able to put it right until the next century, because of the poor record of this House in  reforming legislation in this area. I exhort the Minister to look very seriously at the points I have been making. It is not a party political point but a practical point relating to the welfare of children, the manner in which our fosterage and our children laws work in practice and the type of problems that are thrown up in practice and that people acting in good faith as foster parents may have to confront.
Mr. Yates: I would like to make some points arising out of the Minister of State's reply. Deputy Shatter referred to the Child Care Protection Act, 1985, and I now refer to sections 12 and 13 of that Act which deal with regulations on private foster care and the subsequent removal from private foster care. This Act sets out the circumstances whereby such a removal would take place, that is, any premises or environment that would be detrimental, or would be likely to be detrimental, to the child, or any person who would be unfit to care for the child, or any person who, by reason of ill health, age or infirmity or other causes, is incapable of undertaking this care. There, detailed provisions were laid out, but now a similar section, section 29, simply says where a health board has placed a child in residential or in foster care they may at any time remove the child from the centre or from the care of any person with whom he was so placed under such an arrangement. There is no right of appeal, no second guessing or anything. If some social worker suddenly decided to change the situation it can be changed overnight and the child could be taken out of care. Even more alarming is that the courts would not adjudicate on the removal from private care. Section 29 states the health board may, if so required by the Minister, remove the child from the custody of the person with whom he was so placed. What would the Minister know about the situation? Quite frankly, I cannot understand the reason for this.
If the regulations related to the 1983 regulations and if it was thought fit by the Department in 1985 to pursue a Bill with  contents relating to foster care, why are they being dropped in 1989 when there is no subsequent change in the 1983 regulations? From a policy point of view, as far as I am concerned, it is an absolute priority that if alternative care to the natural parents is required, the next best is a family environment with other parents. I have met foster parents and members of their organisations and I know of children who have been reared by foster parents — I know it is not right to generalise — but in the vast majority of cases those children live very happy and fulfilling lives in a family environment which they had not enjoyed previously and which certainly would not be open to them in a residential centre. As far as I am concerned this is a priority. Not to have a definition of foster parents is a fundamental weakness in this Bill. As things stand, under section 29 children can be removed from the care of foster parents or from residential care but the earlier legislation set out in detail what circumstances would justify their removal. That has been dropped. Moreover, there is no jurisdiction for the court to decide whether there should be a removal from care and it is left to the Minister to decide. We are seeking in amendment No. 148 to have a clearly defined procedure on removal from care. If that subequently means regulations are to be put in place for children who come in and out of foster care, so be it.
The Minister did not deal with the further issues I raised, the rights of adoption for foster parents, if after a period of fosterage they would have the right of adoption. Has any consideration been given to this issue? The Minister did not allude to this in his reply. Unless we set out a clear right to free legal aid, at best, whether in the west or in Dublin, it will only be available in theory and not in practice. I am disappointed that the Minister has essentially dismissed all these arguments, relied on the 1983 regulations and given no legal protection whatsoever to foster parents in view of the extensive growth of fosterage in this country and child divisions in the health boards.
 The Eastern Health Board have advised me that they have a clear preference for fostering as a form of alternative care. Perhaps, as Deputy Shatter has stated, the actual drafting poses major difficulties but that is not a legitimate excuse. I will be pressing if not the definition then amendment No. 148 at least and most likely the other amendments also.
I would like the Minister to give some commitment to introduce an amendment on Report Stage that would define the rights and limitations of those rights, of foster parents after a given period, or whatever is deemed to be fair, so that foster parents would know where they stand. Once that provision is there, it will be possible for the health boards to deal with the matter accordingly. One of the things we will come across time and time again in this Bill is the appalling lack of uniformity in child care services across the country. The type of service you get very much depends on what part of the country you live. Therefore, it is absolutely vital that we put in place mechanisms that will allow health boards to expand foster resource groups. I believe this issue should not be evaded or avoided but should be confronted and legislated for.
Mr. Howlin: I have already indicated that I strongly support the amendment and I think a very clear and cogent case has been put forward which has yet to be responded to in any adequate way by the Minister. In relation to the amendment specifically before us, may I ask the Chair what would be the consequences of it being dropped in relation to subsequent amendments regarding foster care?
Would the omission of the term “foster parent” from the definition section have any consequential impact on including it subsequently in the Bill?
An Leas-Cheann Comhairle: That is not a matter for the Chair. Each amendment is dealt with as it appears on the Order Paper. I thought the Deputy was going to inquire about the situation in  respect of amendments Nos. 145, 146, 147 and 148. They will be formally moved when we reach the appropriate section.
Mr. Howlin: I am aware of that, a Leas-Cheann Comhairle. What I am seeking by way of information from your good self, Sir, relates to the definition section of the Bill which is what we are dealing with. If this definition is omitted from the definition section will it have any consequences for bringing up the further amendments in the name of Deputy Yates, amendments No. 145, 146, 147 and 148, when we reach section 29?
An Leas-Cheann Comhairle: I am speaking from recollection having studied Standing Orders and so far as I am concerned what the Deputy refers to is not provided for in Standing Orders nor do I see the matter as being a function of the Chair.
Mr. Howlin: I want to ask a further question. Can the Chair assure us that should the amendment we are currently dealing with not be moved or should the section be moved and defeated, it would not mean consequently that the Chair would automatically rule out the moving of amendments Nos. 145, 146, 147 and 148?
An Leas-Cheann Comhairle: No, the fact that they are taken together for discussion does not necessarily preclude that situation. When we reach the amendments on section 29 the House will be advised that a discussion has already taken place but that will not prevent the Deputy in whose name the amendment appears of formally moving that amendment. Those amendments have not been moved; we can only have a discussion on one amendment at any time. The amendment which has been moved is amendment No. 4. For discussion purposes other amendments have been taken with it but they will be moved separately when they are reached on section 29.
Mr. Yates: On a point of order, I think  the point Deputy Howlin is making — and this arises out of the Minister of State's reply — is that amendment No. 4 is consequential on putting amendments Nos. 145 to 148 into effect. In other words, I could not move amendments Nos. 145 to 148 without amendment No. 4 standing. Is that correct?
An Leas-Cheann Comhairle: If we look at amendment No. 145 and assume it is negatived, then amendment No. 146 cannot be moved because what amendment No. 146 refers to would be no longer in the Bill. That apart, nothing else in any other amendment would be affected in respect of the rejection of the amendment we have discussed.
Mr. Yates: I do not want to delay the House but amendments Nos. 147 and 148 include the words “foster parents”. The fact that there is no legal definition of a foster parent in the Bill does not preclude me from moving those amendments. Who is a foster parent?
Mr. Howlin: Do we have to define that consequently?
An Leas-Cheann Comhairle: The Deputy knows that the Chair is not going to presume to answer——
Mr. Yates: It might be a very important question.
Mr. Shatter: Let the Minister answer.
An Leas-Cheann Comhairle: Deputy Yates is an experienced Member of this House and he realises that there is also provision in legislation for Report Stage at which time any other amendments can be moved.
Mr. Yates: I understand that.
An Leas-Cheann Comhairle: Therefore, I think the interests of the Deputy and of the children concerned are well provided for in the Standing Orders as we have them here. I would suggest that if we have exhausted discussion on  amendments Nos. 4, 145, 146, 147 and 148 we should proceed with the Minister.
Mr. Yates: We are far from concluding.
Mr. N. Treacy: At the outset I should like to thank Deputy Shatter for his information on the free legal aid situation. I would again make the point that what we have in section 29 is more or less a reenactment of section 56 of the 1953 Health Act. Health boards have not been removing children arbitrarily from foster parents and I do not believe they are likely to begin to do so now. Children are removed from foster parents only when the health board, having considered all the facts, are satisfied that it is in the best interests of the child to do so. As I said, health boards must have this power when and where it is necessary.
A number of points were raised about adoption, particularly by Deputy Yates, and the rights of foster parents to adopt. This issue does not arise under this Bill. The Adoption Act which was introduced last year gives particular rights to foster parents to adopt children in certain circumstances. Deputy Shatter would be able to assure the House and, I am sure, Deputy Yates, that it is very difficult to go any further than this. We will be discussing a fairly similar situation in relation to section 27. As the Leas-Cheann Comhairle said, we will also deal with the matter under section 29. I want to assure Deputies that before we reach section 29 I will look at this matter again in the light of the very sincere and broad contributions which have been made.
In the meantime I do not believe the definition here should be inserted in the Bill at this stage. It is too wide as it stands and could give rise to difficulties. For example, the definition as proposed in the amendment, makes no reference to children being cared for on behalf of health boards.
Mr. Yates: Can the Minister give us a definition?
Mr. N. Treacy: I will give a commitment  that I will examine this proposal in great detail and I hope I will be able to bring forward a definition for section 29.
Mr. McCartan: Can I take it from what the Minister has said — I should like to get this absolutely clear in my mind before we move on — that there is no objection in principle to the Minister defining in this legislation a recognition of the concept of a foster parent? I had to step out of the Chamber for a moment and I had not taken on board the full impact of what the Minister had said but the initial response he gave, that it was inappropriate and there were regulations elsewhere which would help to deal with the matter, seems to be rather weak.
All the sections in Part V which deal with fosterage have been very carefully drafted so as not to use the words “foster parent”. They refer to children being placed in foster care and premises provided for the purposes of foster care. Nowhere in the Bill is there an acknowledgement or use of the words “foster parent”. I suspect there is more to what the Minister is trying to avoid then he is prepared to admit. Perhaps it comes back to the need to address section 11 of the Guardianship of Infants Act, to which Deputy Shatter has already referred. I suspect there is a reluctance on the Minister's part to move towards recognising an equality of importance, in many instances, of the natural parent with the foster parent.
For that reason — I want to get this clear before we depart from the debate on the definition section — I want to know the Minister's objection to the concept of foster parent being introduced into the Bill. Even if we were to do the ridiculous and not provide in any legislative form in the subsequent sections for a role or function of foster parents what is wrong with defining a foster parent? It is most innocuous. Deputy Yates' definition of a foster parent is to be found in any other basic definition. I do not wish to take away from his amendment. I believe there is something far more fundamentally suspicious in what the Minister  is attempting to avoid in hoping that we will not adopt a definition of foster parent or introduce the concept of a parent known as a “foster parent”.
Mr. Shatter: I want to raise a query with the Minister on which he might enlighten me. The Minister said that adoption had to do only with section 29. Of course it might have and the Minister might clarify something which somewhat puzzles me in regard to the way in which this section will operate if foster parents do not have the right to make application to the courts to obtain custody and if their refusal to return a child amounts to criminal conduct.
Perhaps the Minister would enlighten me as to what would happen in the following situation. Let us assume a child has been living with foster parents for 15 months and the foster parents use the mechanism of the Adoption Act, 1988, to seek to adopt that child and after they commence that process the health board social worker comes along and says “the health board have decided that your child should now be returned to the original parents” the foster parents say “no, we are using the process of the 1988 Act; we want to adopt the child”. Can the Minister clarify for me how that conflict is resolved? Are those parents liable to criminal prosecution on summary conviction to a fine of £250 in those circumstances? What is the connection between the operation of the Adoption Act 1988 and this section if that sort of problem comes up?
Mr. N. Treacy: That is a very legalistic question.
Mr. McCartan: It is a realistic question.
Mr. N. Treacy: I appreciate that. I am sure the Deputy himself might like to consult more eminent lawyers.
Mr. Yates: I would say he probably knows the answer himself.
Mr. N. Treacy: Does he? This is a very  complex situation. It would be a matter for the legal people and the courts to decide.
Mr. Shatter: We are laying down the law on the basis of which the courts will decide.
Mr. N. Treacy: We are laying down the law pertaining to the care of children. We are not laying down the law pertaining to the adoption of children. That Act was passed last year.
Mr. Shatter: Is the Minister saying we do not look at that Act when we are enacting this legislation?
Mr. N. Treacy: Of course we take it into account. It would be ridiculous to operate in a polarised way without taking into account the other Acts and laws that affect children. I want to reassure Deputy McCartan that there is nothing latent or concealed in the definition of foster parents, but the vagueness of the amendment tabled by Deputy Yates — and I appreciate his sincerity in tabling it — could lead to difficulties. In view of the contributions of all the Deputies here I have given an assurance that we will have another look at it, and I hope to come back with a clear definition for section 29. That is as far as I can go, and I think I am going a fair distance.
Mr. McCartan: I would like to make the point again, lest it has been lost. Section 29 makes no reference to a foster parent per se. It talks about the child who is in foster care or who is in care under these sections. It is the marrying of the two words “foster” and “parent” that I believe should be done. Is there any reservation in principle on the Minister's part about the introduction and defining of that concept in Part V of the Act when we arrive at it?
Mr. N. Treacy: There is no objection as such to that. I would suggest that we look at this again, have a detailed examination of the situation and, if necessary, amend section 2 on Report Stage. We  will evaluate in detail, report back and give the House the best available information, and we are confident we will have the Deputies' wise counsel to help us.
Mr. Yates: Arising out of what the Minister of State has said, I will not at this stage press amendment No. 4 in my name. I will say that just looking at sections 27 and 29 is not adequate. Just to define a foster parent, as I have attempted to do, is not all I am getting at. I am looking to set a legal framework within which foster parents seem to be moving, after a lengthy period, towards the type of rights that Deputy McCartan was talking about, almost equal rights with natural parents. I do not think that is an unreasonable request when one considers that to all intents and purposes, when one takes away the law and the detail, that that child might well want the protection of that new family environment in which to live out the rest of his life. I will not press the amendment at this stage, but we are accepting the good faith of the Minister that he will make a genuine attempt on Report Stage to pursue this.
Amendment, by leave, withdrawn.
An Leas-Cheann Comhairle: The next amendment is amendment No. 5 in the name of the Minister. Amendment No. 1 to amendment No. 5 is related. It is proposed therefore, with the agreement of the House, to take amendment No. 5 and amendment No. 1 to amendment No. 5 together for the purposes of discussion. Is that agreed? Agreed.
Mr. N. Treacy: I move amendment No. 5:
In page 5, subsection (1), to delete lines 23 to 26 and substitute the following:
“ `parents' includes a surviving parent and, in the case of a child who has been adopted under the Adoption Acts, 1952 to 1988, or, where the child has been adopted outside the State, whose adoption is  recognised by virtue of the law for the time being in force in the State, means the adopter or the surviving adopter;”.'
The main purpose of this amendment is to extend the definition of parents to include persons who have adopted children outside the State and whose adoptions are recognised here. This means that the various provisions of the Bill in relation to the care and protection of children will apply to children adopted under foreign adoption orders which are recognised here in the same manner as they apply to children adopted under our domestic legislation. The opportunity is also being taken to change the reference in the Bill to the Adoption Acts, 1952 to 1976, to read Adoption Acts, 1952 to 1988. This is necessary following the passage of the Adoption (No. 2) Bill, 1987, and its enactment as the Adoption Act, 1988.
Mr. McCartan: It helps to illustrate how long this Bill has been lying about.
Mr. Garland: I would like to move the amendment to amendment No. 5.
An Leas-Cheann Comhairle: It is a small technical point, Deputy. You may discuss it now but you do not move it. We already have one amendment moved and we are taking your amendment with it for discussion purposes. If necessary, when that amendment will have been dealt with, we will formally move yours and adjudicate on it. Meanwhile we invite you to make your contribution on your own amendment.
Mr. Garland: Thank you, a Leas-Cheann Comhairle. I think this is the second attempt by the Minister to get the definition right. I think he still has not got it right because he is using the term “surviving parent” implying that the family started off with two parents. There are one parent households, either unmarried women with children or deserted  husbands or deserted wives. It is therefore important to cover a lone parent in that definition. Will the Minister consider that, please?
Mr. Yates: There is one point I wish to raise on this. That is, that it has come to my attention that barring orders, as an example of protection, are not available on equal terms to children born outside wedlock where there is a common law spouse. My question therefore in relation to the definition of “parent” is whether the Minister is satisfied with the definition here. If we were to make subsequent amendments in this Bill in relation to removing offending adults by way of barring orders — we have some amendments down here — as opposed to taking the child into care and out of the family situation, would this apply to unmarried couples? I am told that in the case of a man who is living with the mother but is not married to her and who may not be the father of the children and is brutalising or beating up those children, a barring order cannot be obtained. That is a defect in the present law. I would like the Minister's view on whether this definition covers that type of situation where there is a common law spouse.
Mr. Shatter: Perhaps the Minister would satisfy my curiosity. The definition of parents asserts that we are including within that definition parents of a child adopted outside the State and whose adoption is recognised by virtue of the law for the time being in force in the State and that “parents” mean the adopter or adopters or the surviving adopter. Perhaps the Minister could enlighten me as to the circumstances where we currently recognise adoptions that take place outside the State, just so that we know exactly to whom this definition applies.
Mr. N. Treacy: Perhaps Deputy Yates is correct but I am not sure. In regard to amendment No. 5 I should like to state that I am aware that the present position here with regard to the recognition of adoption orders and decrees made abroad is somewhat unclear. There are  no statutory rules or provisions governing the recognition of such orders. In the absence of legislation I am advised that the matter is governed by common law and that an adoption effected abroad is entitled to recognition here if the adopters were domiciled in the country where the adoption was made at the time of its making. I understand that this was the approach applied in the High Court by Mr. Justice McKenzie in a case stated by the Adoption Board involving an adoption order made in England. I accept, however, that it would be desirable to introduce a greater degree of certainty in this area by specifying in legislation the circumstances in which adoptions made abroad would be recognised here. That was one of the main recommendations in the report of the review committee on adoption services. This is not an easy area in which to legislate involving as it does complex questions of private international law. It is because of its complexity that the Law Reform Commission have undertaken a study of the matter and recently published a report on foreign adoption decrees. My Department are at present studying their report and the question of new legislation in relation to foreign adoptions will be considered in the light of the Commission's recommendations.
I should like to say, in response to Deputy Garland, that there is no agreed definition in law as to what constitutes a lone parent. Is it a widow or a widower, a deserted father or a deserted mother, a single mother or a divorced person? The Deputy's amendment provides no clue as to what he intends and the amendment could not be accepted on that basis alone. I should like to make the point that parents have rights in natural law, in statute and under the Constitution whether they are married, single or divorced and whether they are living together or separated. In performing their functions under the Bill, particularly in relation to taking children into care, health boards will have to be careful in regard to the rights of the parents involved, regardless of their marital or other status. I hope that deals with the  concern raised by the Deputy. I regret that I do not propose to accept his amendment and I urge the House to accept the amendment I have put forward.
Mr. Yates: The Minister did not respond to the points I raised.
Mrs. Fennell: As other Members have stated, there is a need to include a definition of parent to take account of a parent living alone with children. I am particularly concerned about unmarried mothers. At present unmarried mothers are discriminated against in the context of the Family Law (Maintenance of Spouses and Children) Act, 1976. An unmarried mother in my constituency who has two children and is in receipt of an unmaried mother's allowance lives in a house provided by the county council. The father of the children broke into that house on a number of occasions and beat up her and the children. We have heard a lot of talk in the debate on this Bill about the welfare of children and the need to prevent violence against children, but that woman is not in a position to obtain a barring order from the court, unlike a married mother. That poses problems in relation to the Bill if we are anxious to extend protection to all children. We must ensure that a mother, whether married or not, is in a position to obtain a barring order against a person who is likely to cause violence. It is not always the father of the child who causes the violence; it may be another man with whom that woman is having a relationship. The Minister should address this problem and, if necessary, extend the definition of parent.
Mr. Yates: I am alarmed that the Minister did not respond to my query.
Mr. N. Treacy: I apologise but I will respond to the points raised by the Deputy. Common law spouses are not covered by the definition. However, in appropriate sections of the Bill we refer to the parent or person acting in loco parentis to cover the problems raised by  the Deputy. Deputies Shatter and Fennell raised questions about barring orders. In that respect we are dealing with family law and they cannot be covered in the Bill. I appreciate, as the Deputy said, that this is a serious matter particularly where children suffer. This is a difficult problem and it is a matter for the Minister for Justice to amend the family law Act to take account of it.
Mrs. Fennell: That is not the case because the family law we are discussing is based on marriage. Between 22 and 30 women each fortnight go the District Court Clerk seeking barring orders but they cannot get them because they are outside the scope of the legislation. It is not good enough to leave such people without protection. Generally speaking, they are poor women who cannot afford to pay for legal advice and for whom free legal aid is not of much use because of the time involved in getting approval for it. The only option open to them is to obtain a court injunction. I should like to draw the Minister's attention to the fact that the State took away the allowance paid to that woman because she was alleged to be co-habiting with the man whom she could not remove from the house. Her unmarried mother's allowance was stopped and as a result the children were penalised. We must deal with that dilemma. The Department of Social Welfare should take cognisance of her position.
Mr. Yates: I accept the Minister's definition of a person acting in loco parentis. However, I disagree with him fundamentally on the other points I have raised. It is not the job of the Minister for Justice to deal with the problems I raised. I am aware that mothers who have had their children taken into care by a health board are deeply unhappy at the loss of their children. The sole reason for taking their children into care was because their father was an alcoholic or had beaten them up. The health board adopted the wrong approach in taking  them into care. It would have been preferable had they removed the offending adult and left the children with their mother. I do not accept that in dealing with what is the most major reform for 80 years in the area of child care legislation we should say that such problems cannot be catered for. Our number one priority where abuse is involved should be to remove offending adults and, where possible, permit the children to live with their mother. We will not be opposing the Minister's amendment.
Mr. Shatter: I do not wish to let the Minister's statement pass without making a comment on it because in my view it exposes a fundamental flaw in the Government's approach to this. We have had what I would describe as decompartmental thinking in regard to this legislation. We have had rigid barriers laid down that certain matters fall within the bailiwick of the Department of Health, that something else falls within the bailiwick of the Department of Education and something else within the bailiwick of the Department of Justice.
The issue Deputies Yates and Fennell raise is important. The Minister's response is that that is a family law problem, that it is a matter for the Department of Justice. I tell the Minister that to anyone outside this House the taking of children into care, the beating of children or the sexual assault of children are family law problems. Such behaviour can be categorised in a number of other ways but it is as much a family law problem in the legal sense as is the beating of a wife.
It may be a matter of accident whether as a result of a child being beaten the health board bring a care application, or a mother brings a barring application to have the father who has been beating the child put out of the house, but overall what is wrong with this legislation is that it is the child who is being assaulted is being taken out of a home. Because the demarcation lines between the Department of Justice and the Department of Health are being preserved it is apparently not possible for the Department of  Health to include anything in this legislation or to accept amendments tabled by Deputy Yates to introduce some aspects of the Protection of Spouses and Children Act, 1981 into operating in the context of the Child Care Bill. I find that appalling and I urge the Minister to talk to his colleague in the Department of Justice to see whether it is possible without offending his ministerial sensitivities or sensibilities to accept some of the amendments which are designed to extend to the courts under this Bill the possibility of barring from the home the parent who beats his child and allowing the child to live in the home with the other parent rather than always having to take the child out of the home. There is no rationale in saying you cannot address that because that is a matter for the Minister for Justice.
An Leas-Cheann Comhairle: I think Deputy Yates is indicating——
Mr. Yates: I am not opposing the Bill.
Amendment No. 1 to amendment No. 5 not moved.
Amendment No. 5 agreed to.
An Leas-Cheann Comhairle: We now proceed to amendment No. 6 in the name of an tAire. With your indulgence let me say amendments Nos. 7, 8 and 9 are alternatives——
Mr. Yates: Are they being taken together for discussion purposes?
An Leas-Cheann Comhairle: Amendment No. 71 is related.
Mr. Yates: To which?
An Leas-Cheann Comhairle: To amendment No. 6. I will repeat, so there will be no confusion, the Minister will now move amendment No. 6 but for debate purpose we are also taking amendments Nos. 7, 8, 9 and 71. Does the House agree with that?
Mr. Yates: Could the Minister explain the purpose of the amendment?
An Leas-Cheann Comhairle: I hope to be helpful to the House in respect of the matter referred to by Deputy Howlin. If you look at the amendment you will see that if amendment No. 6 is agreed then amendments Nos. 7, 8 and 9 will not be formally moved. I repeat, that for debate purposes, amendments Nos. 7, 8, 9 and 71 will be taken with amendment No. 6.
Mr. N. Treacy: I move amendment No. 6:
In page 5, subsection (1), to delete lines 27 to 29.
It is my intention to delete the definition of “place of safety” and discontinue the use of this term altogether.
The term “place of safety” originated in the Children Act, 1908 and was a place where a child could be kept on foot of a “place of safety order” until such time as the court reached a decision as to whether he should be placed in care on a long term basis. It is defined at section 131 of the 1908 Act as follows——
The expression “place of safety” means any workhouse or police station, or any hospital, surgery, or any other suitable place, the occupier of which is willing temporarily to receive an infant, child or young person.
As Deputies are aware, section 11 of the Bill provides for the replacement of the place of safety order by a new system of emergency care orders. As a result, it no longer makes sense to continue to use the old terminology — indeed to do so might lead to confusion. I have, therefore, come to the conclusion that it would be best to dispense with the use of the term.
I do not intend to provide a substitute term for “place of safety”. Instead I propose that a child who is the subject of an emergency care order would be placed in the care of the health board and that it would be for the board to decide exactly where and how the child is to be accommodated. The advantage of this is that a  health board would in no way be restricted by a definition in the Bill but could avail of whatever form of accommodation seemed to best suit the needs of the individual child concerned at any particular time.
The proposed amendment of section 13, No. 71, is consequential on the deletion of the definition of place of safety. It is proposed that each health board would be required to ensure the provision of “suitable accommodation” for the purposes of this Part of the Bill, leaving it to each board to decide on the exact arrangements and type of accommodation to be used. For example, it might place a child in a children's residential centre, an assessment unit, or hospital or in foster care depending on the needs of the particular child. Overall, I think this more flexible approach will be better for the children concerned.
I might mention that there are some references to “place of safety” in sections 10 and 11 but it is my intention that these will be deleted as part of more substantive amendments of those sections.
Mr. Yates: The effect of amendment No. 6 in the name of the Minister meets the content of amendment No. 9 which I was seeking to make, which was to eliminate the role of a Garda station as a place of safety to which children could be brought in an emergency. I know, and the Minister will know having been in the OPW, the state of some Garda stations across the country, that they leave a great deal to be desired.
Mr. N. Treacy: Some.
Mr. Yates: The majority, especially in rural areas, so of all places to bring a child they are the most unsuitable. About the only basic facilities some of these premises have are cells. Therefore, I am anxious that that provision be removed. Secondly I am aware of some of the circumstances that can arise in relation to sexual abuse whereby children would be removed from the home. I understand from experts in the field that there is  often a huge sense of guilt involved for the young person that could involve him or her coming forward to the authorities to say he or she had been abused, or confirming the suspicions of a social worker and so on. To bring a criminal element into the proceedings can only make those guilt feelings even worse. Therefore, I consider a Garda station in this context wholly inappropriate.
In meeting the amendments to that effect the Minister has gone even further in abolishing the term “place of safety”. That has been replaced by “a suitable number of places of safety”, which is now deleted, and changed to “suitable accommodation”. The Minister said it would be left to each of the health boards to determine in their own respective way what that would be. In my view that is disastrous. Often the child care facilities available within the eight regions vary enormously depending on the interest and enthusiasm of health board staff and the board members. Some very conservative, senior health board personnel say this child abuse problem is totally exaggerated and overrated. Others are consistently dealing with the problems. Look at the statistics of cases taken between health boards. They bear no relationship to population. Therefore, the Minister in moving amendment No. 6 should consider on Report Stage bringing in enabling legislation to allow regulations to be put in place after the passage of this legislation to determine what minimum standards of accommodation would meet the definition of “suitable accommodation”. I accept the Minister's amendment as it seeks to move in a direction which I would support. I ask him to consider making regulations so that there would be uniform understanding and guidelines for each health board, which are sadly lacking, in all aspects of child care, and to set out exactly what are minimum suitable accommodation standards. In fact, the Minister read them out so it would not be too big a job to draft them.
Mr. Howlin: There are various stages in this Bill whereby intervention is  allowed to protect children at risk. The first level of intervention is provided in section 10, so that children may be taken into a place of safety if they fall within the definitions encompassed in the section. It is a crucial element that there should be a power to bring children out of danger. The corollary of that is that there must be some place for them to go. When a child is at risk in an immediate sense, obviously there are not many options open to the Garda Síochána or to the health board at that time. I am concerned that the Minister would simply eradicate the definition of “place of safety” and leave it to the health boards to define. Does he propose to require the health boards to conform to specific suitable accommodation or will it be up to the health boards to define what is suitable? As often happens in relation to the implementation of other Acts of the Oireachtas, will different health boards take the term “suitable accommodation” to mean different things and will there be a variance in the quality and type of suitable accommodation that is provided as between the different health boards?
There is one other aspect that is causing me concern. I do not think it would be desirable to take very young children and move them a long distance geographically from their home environment. If there is to be, say, suitable accommodation so defined in each health board area — one of a kind to cover a geographical area as envisaged under the Health Act, 1970, it would mean that children would be moved great distances. To add to the trauma of being under attack or being vulnerable in their own home they would be carted off many miles from the surroundings with which they are familiar. We have to address this area very carefully. I would hope that the Minister would respond to what I am saying by requiring, by regulation, each health board to establish suitable places of safety; that he would define “suitable accommodation”, if that is the phrase he prefers, in clear terms so that there would be a high standard uniformly throughout the country, that there would not be one single “suitable accommodation” for  each health board region, and that the child could be looked after, if the health board decide, in his immediate vicinity. The simple abolition of this section certainly takes away the fears we would all have about a young child being brought into a Garda station. I would be concerned that, in cutting off the whole branch, we might be left open in this area. I would welcome the Minister's elucidation on exactly what is his intention in this regard.
Mrs. Fennell: My concern is that there would be places available, for instance, at weekends when a crisis can arise because of alcoholism and other stresses. What provision would there be for the child who is abused at that point? It is generally believed to make good sense if you are removing a child to a place where they will be frightened, certainly in the case of hospital, that a parent goes with them. We will not presume that both parents will be the villains of the case. Where a child has to be removed because of its environment two things are important, first, the provision of a care centre at weekends when health boards do not work and, secondly, that the mother, if she can, should go with the child.
Mr. Shatter: The Minister in removing the place of safety order provision is taking a correct step. I am disturbed at the way in which this Bill has failed to take into account a lot of the model work which has been done in this area; much of it has been done in England in the context of a variety of different commissions of investigation. Everything we are doing in this Bill — and I have already mentioned the fact that barring orders are not applicable — is based on taking the child out of the home and placing the child somewhere. The place of safety order provision, which the Minister is now deleting from the Bill, has been used by some health boards in the country under the 1908 Act for what I would describe as a pre-emptive strike on parents in some instances. In many cases it is being correctly used to provide protection for children where it is needed  but, in some instances, it is being used in a different way. In some instances it is being used by health boards where there has been a suspicion that a child might be at risk but there has been no firm view that the child is at risk. The place of safety mechanism has been used to take a child out of the care of its parents and to get the child into a medical assessment situation where, for example, an investigation could be conducted to ascertain whether a child had or had not been sexually abused. We have had instances in Ireland of some health boards getting place of safety orders and ferrying children to the Rotunda Clinic for investigation to ascertain whether an allegation of child sexual abuse, or a suspicion of it, would stand up. Much work is being done in this area and Deputy Yates referred to the worries and fears of children in Garda stations. We welcome the removal of this reference from the Bill.
Children taken out of the care of their parents by social workers whom they do not know are often terrified by what is happening to them. There are different types of child abuse. Much of the abuse we talk about is by parents, be it physical, sexual or other types of abuse. Another type of abuse can be inflicted by a health board or a social worker who wrongly jumps to a conclusion that a child is at risk and takes the child away from their family. In removing this section from the Bill I would urge the Minister to consider introducing on Report Stage an additional section. To deal with a situation where there is a suspicion that a child is being illtreated — but there is no certainty about it — and the health board require a mechanism to investigate the situation, an investigation should not always require the removal of a child from the home of the parents as the place of safety order provision requires.
The English commission which investigated the death of a child called Kimberley Carlisle proposed a new type of order in the area of child care which would call on parents of a child suspected of being ill-treated or neglected to take a child to the local health clinic. The idea  behind the proposal is to have a child medically examined or developmentally assessed without removing the child from the custody of the parents. There is no provision in this Bill that allows a court to make an order or, which allows a health board to, for example, serve a notice on parents insisting that they make a child available for medical examination or for a developmental assessment. As the Bill is drafted that can only be done following an emergency care order or another type of order as the Bill provides. If it is perceived that there is a need for children to be medically examined, health boards are now regularly having children medically examined after getting place of safety orders and this Bill envisages they will do so after getting an emergency care order. We will discuss that in detail when we deal with it.
Surely it is perceived that when there is a need to have a child medically examined it cannot always be necessary to take the child out of the care of the parents by way of court order or by a garda, as the Bill provides, in an emergency? Surely we could introduce a provision whereby a social worker could serve a notice on a parent that he or she wishes the child to be made available for examination or assessment and that where a social worker does so, bona fide acting in the best interests of the child, there then be imposed an obligation on the parents to co-operate. If the parents fail to co-operate the social worker could then resort to a court order to require the parents to make the child available. I am suggesting that the Minister now recognises that the “place of safety” provision should be deleted from the Bill.
I also ask the Minister to recognise that where, for proper reasons, a health board suspect that a child is being abused but are not certain, there should be some lesser mechanism available to them instead of the draconian one of removing the child from the family. There should be a mechanism to allow the health board to require a parent or parents to make a child available for assessment and medical examination while the child continues  to live within the family home. If the health board get it wrong the child will not suffer the trauma of being removed — which is possible under the Bill — for up to eight days or possibly longer while the medical examination is being carried out. This would prevent the child being removed from its mother, father, sisters, brothers and the entire extended family. I am raising this in the context of the Minister deleting the “place of safety” provision in the Bill and bringing forward an amendment of this nature which would greatly assist the health boards and social workers attached to them working in the child care area to comply with the obligation which will now be imposed on health boards by the Bill.
Mr. N. Treacy: Nowadays most children are placed in short-term foster care rather than in an institution when situations like this occur. Deputy Yates, Deputy Howlin and Deputy Shatter referred to the quality of accommodation. In section 12 we propose to impose an obligation on the health boards to provide proper accommodation and when we come to that section we will have an opportunity of discussing it.
Deputy Yates said the health boards are disastrous in relation to deciding on accommodation. They are the professionals in this field and they are statutorily obliged to provide medical and other care under the Bill. They are answerable to the Minister who, in turn, is answerable to the House. Members of the Oireachtas have the opportunity of raising any matter and they will get a response from the Minister. We will be happy to lay down guidelines for health boards vis-à-vis accommodation. As I said, we will discuss that in section 12.
Mr. Yates: Section 12 is not relevant.
Mr. N. Treacy: I apologise. I should have referred to section 13. In regard to Deputy Shatter's comments in relation to the removal of children, Deputy Yates's amendment No. 45 covers that point and we can discuss it then.
Mr. Yates: I did not say that the health boards were disastrous in relation to the provision of accommodation. I said that they vary a great deal——
Mr. N. Treacy: When I said that we proposed to make health boards responsible for accommodation Deputy Yates said that they were disastrous. However, I will stand corrected if I am wrong.
Mr. Yates: That is disastrous but I am not saying that all health boards are disastrous so far as the provision of accommodation is concerned. However, there is a need for uniformity. The implementation of any legislation is beyond the scope of this House; it is up to the executives in the health agencies to ensure that it is implemented. I will not press the point more strongly but I ask the Minister to consider regulations to set out minimum standards because if the health boards take the view that they can board out people temporarily, the accommodation may not be up to the standard we desire.
Mr. Howlin: I am not satisfied that the issues I raised have been addressed by the Minister. Section 10 provides for a child who has been identified as being at risk to be summarily removed from that risk without reference to a warrant and to bring him or her to a place of safety. The Minister intends to abolish the notion of a “place of safety” and talked about suitable accommodation. I am interested in the wellbeing of that vulnerable child. The Minister referred to section 13 requiring health boards to make arrangements but it is a single sentence section.
I want an undertaking from the Minister that where a child in a rural area is identified as being at risk there will be facilities in the immediate environment for that child to be taken in and protected. I am not clear in relation to the health boards deciding what constitutes suitable accommodation and I ask the Minister to assure the House that the health boards will be required to provide accommodation which is suitable in  which to place children who are immediately vulnerable or at risk as envisaged in section 10.
Mr. N. Treacy: I can give that assurance and we will discuss it again when we come to section 13.
Amendment agreed to.
Amendments Nos. 7 to 9, inclusive not moved.
Question proposed: “That section 2, as amended, stand part of the Bill.”
Mr. Howlin: There is an aspect of this section which has not been touched upon by way of amendment. However, it would be remiss of the House not to welcome the opening sentence of the section which defines a child as a person under the age of 18. The new age in the section is welcome as it clears up some anomalies relating to responsibilities towards teenagers. I heartily welcomed this on Second Stage and it is appropriate to welcome it here also.
Mr. Yates: Amendment No. 3 in my name was ruled out of order because it was a potential charge on the Exchequer. However, I have been advised that I can discuss it on this section.
My biggest criticism of the Bill is the way the State propose to deal with child care services. Ever since the Kennedy report was published in 1980 — a task force report on child care services — the central, key and fundamental recommendation of the report, which is considered the bible or the genesis of this legislation, was that the biggest weakness in the State apparatus in dealing with child care services was that each Department compartmentalised child care problems and did different things in their own separate ways. This was to the long-term detriment of children. I am referring to the Department of Education, to schools attendance officers and the primary and secondary school system. I am referring to the Department of Health with the  health boards and the child care services and I am referring to the Department of Justice and the juvenile justice system.
The task force recommended that this legislation should include the provision of new child care authorities. The Government have decided to tack the implementation of this Bill as an “any other business” item to an already over-burdened health board structure. Because of the duties of the health boards at the moment, they are too busy to be able to give detailed attention to child care services which are the Cinderella of health board activites. There is no evidence to suggest that just because the legal framework has changed, the health boards will find resources overnight. They cannot even find resources to cover areas for which they are statutorily obliged to provide, such as the dental services.
The biggest weakness in this legislation is the failure to set up, as recommended in the Kennedy report, a child care service involving representatives of the Departments of Education, Justice and Health to provide at regional level, a child care service. We are opposing this section because we know the health boards are not the adequate structure to monitor this.
There is no role within the health boards to cover vital aspects of children at risk. School attendance officers for instance are not mentioned in this Bill and they are vital in relation to early detection of children at risk. Are school attendance officers to be made redundant or is their role to be duplicated and triplicated by the work of the health boards? Tragically, the poorest families and the children at greatest risk involved in crime are the subject of juvenile justice. It is wrong to compartmentalise different aspects of child care. To say, as we said earlier, that removing offending adults is a matter for the Department of Justice is a fundamentally wrong approach to children at risk. A child is not interested in which Department helps him. He is interested in immediacy of service and a comprehensive integrated service. In  order to obtain value for money and co-ordination of services, we should have a comprehensive child care division in the Department of Health embracing youth services, working with the National Children's Council, which would have independent research and would monitor and execute the services at regional and local level through child care authorities. I would like to know why the Minister has totally disregarded this suggestion.
Mr. N. Treacy: Your amendments were ruled out of order.
Mr. Yates: That does not stop the Minister. I will not repeat my arguments although I will reiterate that this would not involve money because the health boards would spend the money anyway. This is a case of liaison and integrated services. I very much regret that when for the first time in 80 or 90 years we legislate for this area we have missed a golden opportunity to bring the Departments together.
Miss Flaherty: I strongly support the case made by our spokesperson. He identified two major flaws. The one we are discussing now is the failure to establish child care authorities. There has been a total failure to transfer responsibility from the Departments of Justice and Education to the Department of Health and this means that this Bill is inadequate leaving the services fragmented and undirected. I have an intimate knowledge of this area, having spent a little time in the Department. In 1981-82 when this Bill was being considered first, it was planned to present a comprehensive Bill. We saw that there were difficulties but that they could have been overcome. There were proposals to transfer powers from the various Departments to the Department of Health. This is the third Bill to come into this House and each time a Bill has come in, the area of activity has been reduced so that we now have an absolutely minimal Bill. The failure to provide a child care authority is one of the things which makes this Bill so flawed. It is  ludicrous to tack on to an incredibly over-burdened community care service the wide range of additional responsibilities we are proposing in this Bill. The Minister could not be serious about tackling the problem. He could not expect the community care services which have been described by our spokesperson as the Cinderella of the health services to take on a major role which should involve them co-ordinating all the voluntary agencies and the statutory agencies in each local area. Is the Minister aware that in some counties a single social worker operates? How will a single social worker take on these additional responsibilities? It is not realistic. By tagging these responsibilities on to the health board services, the Minister will get the credit for having done something but the substance will not be there. The services provided need radical transformation and it is unbelievable that existing services will be able to give any meaningful substance to the intent of this Bill. All of the major organisations involved in child care have agreed that for a proposal of this nature a separate structure is required. It would have been more feasible if the Government had taken on board the substantive reformed proposals that Fine Gael proposed for the health services, which would have seen the health board system administering the local services, with a child care authority fitting in with its own local programme manager. I support the proposal that we in Fine Gael oppose this section and I ask the Minister at this late stage to reconsider his decision and perhaps come back to us on Report Stage.
An Ceann Comhairle: I am somewhat concerned that Deputies are straying rather far from the subject matter before the House which is section 2, as amended. We are having quite some deviation——
Mr. N. Treacy: A policy debate.
An Ceann Comhairle: ——from section 2 as amended.
Mr. Howlin: I have great sympathy for the Chair's concern with focusing in on the section in front of us. This section defines the terms, the building blocks of the Bill we will debate at some length in the future. Unfortunately, a fundamental cornerstone is missing from those building blocks and that is what the various speakers so far have been trying to allude to. I had an amendment down but unfortunately it has been ruled out of order because it would impose a charge on the Exchequer. All the caring agencies, all the submissions we got and all the independent inquiries I have alluded to already have indicated one over-riding need — to have a national co-ordinating structure for children's policy whereby the various agencies could interact. If there is one single weakness in the Bill it is the lack of a child care authority envisaged since the task force report of 1981. I would appeal to the Minister to consider this matter. The huge body of pressure, all the caring agencies that are dealing directly with this problem, the independent bodies set up by previous Ministers for Health to look into the whole area of child care and the provision of support services for children, have uniformly recommended the establishment of this authority. Would the Minister not indicate to us now that he will reconsider that matter and come back with his own amendment subsequently?
We have been negligent in the way we have handled this whole area of legislation for up to 80 years. In all progressive countries there is a body of legislation and a Minister for the Child — I would put that as an idea to this Government — to co-ordinate that body of progressive legislation and there are resources available at local level to support the family and the child, but all these things seem to be lacking here.
We react to issues in a haphazard way. This Bill was supposed to be a considered overall view after 20 years of reports and debate and, as another speaker has said, three blueprints of the Bill. I appeal to the Minister not to allow this Bill to be enacted in a flawed way without a co-ordinating national children's council  that would oversee the interaction of all the agencies and individuals, both voluntarily and statutory, involved in the provision of care services and the legislation not only in the Department of Health but in other areas that relate to, affect and impact on the child.
Mr. L. Fitzgerald: From my experience as a teacher, and indeed as a public representative, I think this amendment has a lot to commend it. There are many points that are laudable but at the same time the Bill is not designed or structured to cater for them. This wide debate should take place on another day.
Mrs. Fennell: I support the concept of this debate. We are here to put in place new legislation and to try to ensure that there are institutions that will make the Bill effective and meaningful. We are wasting our time if we do not follow up legislation with structures. All the institutions and associations for children stated that the structures in this area are not adequate. You have to look no further than the courts system to realise how many different agencies came into being and are effective in terms of the courts.
We need a children's court but that is a debate for another day. I support the need for local children's councils which primarily would have the needs of children at heart. They could be promotional and play a planning role at local level. I honestly do not see how the proposals in this Bill will be put into effect if there are not special councils with a particular role in regard to children.
Mr. N. Treacy: I can accept the commitment of the Deputies but I cannot understand the attitude that we can have a plethora of bodies, councils, committees and structures to deal with all health and child care matters. I accept there is a need for better co-ordination between, on the one hand, my Department and the Departments of Education and Justice and, on the other hand, the health boards and the educational services, particularly the special schools and the probation and welfare services.  However, I do not believe that what is proposed would be of much advantage in this regard.
At national level there is already regular contact between the three Departments and the three Ministers involved. At present, for example, the three Departments are engaged in discussions on the problems of young offenders. At a local level the child care advisory committees which we propose to establish under section 5 would provide a forum for all those involved in providing child care services to get together and to agree on policies and priorities. The committees will make an important contribution to the co-ordination and development of the child services and I see no merit or advantage in elaborate structures.
What Deputy Yates proposes would be to divorce the child care services from the mainstream of the community care services operated by the health boards and Deputy Flaherty agrees with this. I fail to see how such a development could be in the interests of the child care services or the community care services generally. It would only serve to isolate the child care services and hinder co-ordination and co-operation between the professional staff on the ground. My strategy is to develop the child care services within the overall framework of the health board community care structures. This approach has the advantage of facilitating close integration between the different aspects of the health and social services. I firmly believe that this is the correct approach and is in the best interests of all the children of our country. It also gives Deputies the opportunity, as I have said already, to question the Minister for Health on any given matter or any local problem.
Deputy Flaherty stated that there are counties with only a single social worker. This I refute in its entirety. In the child care area there are about 350 social workers and about 150 social workers in other areas. To say that there are counties with only one social worker is absolutely ridiculous and I refute it in its entirety. What we propose will ensure  that the professionals are in constant touch with the position and that the health boards who have statutory responsibility for administering the health services and now the child care services, have the best professional structures to do so. They have adequate local representation, representatives of the various organisations, elected representatives and professional bodies. We propose to set up the child care advisory services in the regions of the health board areas and I think this is the road to go.
Mr. Howlin: While I welcome what the Minister said about the local advisory committees, I think he misses the point in relation to the national co-ordination I feel is required. In the Child (Care and protection) Bill, 1987, published in my name, I specifically put in a section — Part XI — in response to the pressure and body of opinion of those on the front line of delivery of these services. I defined in that Bill what the National Children's Council should do, their functions, role and composition. The Minister has indicated that there is ad hoc working co-operation between individual Ministers and Departments on specific items.
Mr. N. Treacy: There is constant ongoing integrated working co-operation.
Mr. Howlin: What is required is a statutory authority rather than sections of Departments meeting among themselves. Certainly there should be representatives from each of the Departments the Minister has mentioned, but also from all the other voluntary and statutory bodies involved in the provision of child care, who would monitor legislation, make recommendations in terms of legislation and promote positively child welfare.
This section is about definitions. What we all hoped would come about with this legislation was not only a protection of the child who is at risk which any civilised society must afford, but more fundamentally the progressive promotion of the interests of children who are human  beings in their own right. It seems that the Minister has missed this opportunity. He seems to be happy to insert a mechanism to protect children from being abused, either physically or sexually, but is not prepared to encompass the notion that children have rights of their own, that they need a statutory agency to promote and define those rights clearly, to promote their welfare on an ongoing basis, and who would be involved in correlating the work of various Government Departments, identifying community needs and agencies who work in the community, and in deciding on how their work could be dovetailed. This is a simple request. I ask the Minister of State to accept what is not only my plea but that of all the caring agencies during the past 20 years, since the time Brendan Corish established the task force on child care services. I appeal to the Minister of State to think again——
Mr. N. Treacy: He was a good man.
Mr. Howlin: ——and not to reject out of hand the depth of feeling on this matter. Let me say in conclusion that this is the single biggest flaw in the Bill. If no co-ordinating body or national children council, as envisaged by so many agencies, is established under this legislation we will not enact whole legislation.
Mr. Yates: The more I listen to the Minister or the Minister of State at the Department of Health the more I believe they think that once the Custom House is refurbished all our health problems will be solved, that once the ivory tower has been polished up, everything will be all right.
Mr. N. Treacy: When I was in another Department I took——
Mr. N. Treacy: They are working much better now.
Mr. Yates: As the Minister has conceded, he has not been in this Department for very long. I accept that but I would have to say that some of the statements he made in response to points made on section 2——
Mr. N. Treacy: The Deputy is not long in this area himself.
Mr. Yates: ——are mystifying. I do not know if the Minister of State has read any of the submissions made to his Department on the most suitable structures to administer the child care services——
Mr. N. Treacy: I have seen them.
Mr. Yates: ——but let us glance through them. Let us start with the submission from a very worthy organisation, the ISPCC with which the Minister of State is familiar.
Mr. N. Treacy: Very much so.
Mr. Yates: One of the key points they make in that submission is that this Bill amounts to a rejection by the Government of the 1980 report of their own task force. They state that the report of the task force was forthright in isolating the inadequacy of current planning policy on services and resources and provided a clear and comprehensive blueprint against which services should develop. It suggested that there was a need for the establishment of an interdepartmental committee comprising of representatives of the Departments of Health, Education and Justice and an independent children council. It is not clear if the Minister of State is prepared to give a commitment to appoint a separate programme manager, within the health board structure, for child care services. If the Minister of State is committed to ensuring that child care services will not be dealt with at 4.50 p.m. at a monthly meeting when all other life and death matters are taken and if he has any scrap of sincerity he will give a commitment to appoint a separate programme manager for child care services.
 The Minister of State referred to the professionals who work in the field. I was interested in that. He may be aware of the Campaign for the Care of Deprived Children which is an umbrella body for all the different interest groups in the child care area and which comprises employees of his own Department, through the health board structure, and representatives of outside voluntary agencies. These people are experts and deal with this problem every day. They insist that the only step we can take is to establish a child care authority. They point out that one of the persistent criticisms of the child care system is that there are three Government Departments, the Departments of Health, Education and Justice, responsible for providing care for children in need. The consequences of this are that responsibility for planning and policy on services for children is divided between these three Departments. They further point out that it is particularly evident in the instance of the provision of residential care for children where different Departments and agencies have conflicting plans and priorities within the same location. Currently there are three separate statutory social work agencies who work with multi-problem families, where there is a need for remedial education, where there is the involvement of the juvenile justice system and where there are abuse or violence related problems. How can a Minister of State say that this is a reasonable or a sensible way to proceed?
Has the Minister of State read the NESC report on community care services in which they make the most damning indictment of the lack of integration of the services for children under the present structure? Yet, the Minister of State sails on disregarding all the advice of the experts and the recommendations of all the reports and task forces and claims there is no problem. I cannot understand how the Minister of State and the Government can be so isolated from the consensus and agreement which exists among all the experts in this critical area.
 Let me give another example to highlight the Minister of State's unfortunate lack of knowledge in this area. It is nonsensical, and this shows how out of touch he is with reality, for him to boast that the community care services can cope with their present work-load, not to speak of this additional work-load. The reality is that come the month of August public health nurses are so restricted in terms of mileage that they cannot go and visit old people. They also have to ration pads for incontinent patients. How to provide essential child care facilities with combined teams in referral centres? It just will not happen. It is a joke. The present community care structures for which there is just one programme manager, cannot cope with the existing work-load. There is a plethora of reports in the Minister of State's Department —“Care of the Aged” is just one — which indicate that they cannot meet the basic needs of elderly people. We are not essentially dealing with a child care problem, we are dealing with a child care problem. Failure to grasp this fundamental point shows that the Government are going through the motions of providing the bare essentials of what will get through in terms of legal reform. They have no tangible commitment to this area. They have no new ideas or no new structures——
An Leas-Cheann Comhairle: I take it Deputy Yates is on section 2.
Mr. Yates: Absolutely.
Mr. N. Treacy: He is meandering.
Mr. Yates: I knew when I mentioned this Government's lack of concern it might arouse your interest.
An Leas-Cheann Comhairle: I would like the Deputy to withdraw that remark.
Mr. Yates: If you find it offensive, I will.
An Leas-Cheann Comhairle: I would ask you not to repeat it, and to confine yourself to the amendment. I have no  interest in anything, while I sit here, except in what is required of me under Standing Orders.
Mr. Yates: I appreciate that. Amendment No. 3 in my name was disallowed by your office but I was advised that I could fully discuss it when we came to discuss section 2. I am availing of that opportunity now. It is regrettable that the Government have not availed of this legislation to deal comprehensively with this whole area. They have not even used the usual euphemism of saying they will establish an interdepartmental committee. They have not even gone that far.
Mr. N. Treacy: That would have been done in your time.
Mr. Yates: We now know that the Government have no real concern to provide proper structures to deal with this problem. Therefore, we have no other choice but to oppose section 2.
Miss Flaherty: I would like to come back——
An Leas-Cheann Comhairle: I am sorry, Deputy, but I did indicate to Deputy O'Dea some time ago that I would call him next.
Mr. O'Dea: I am not an expert on this subject and because of this I defer to the superior expertise and knowledge of some other Deputies. I listened very carefully to what Deputy Howlin and Deputy Yates had to say. It seems that what they are looking for is a further layer of bureaucracy. There are echoes in this of the debate we had on the navigation Bill, the Harbours Bill, prior to the last general election, when we were assailed from all sides——
Mr. Howlin: Is this very relevant?
Mr. N. Treacy: The Deputy talked about sailing.
Mr. O'Dea: I will demonstrate the relevance.
An Leas-Cheann Comhairle: Deputy Howlin will appreciate that Deputy O'Dea has not been in possession for anything more than 15 seconds——
Mr. Howlin: The navigation Bill.
An Leas-Cheann Comhairle: We will watch how he navigates from now on.
Mr. O'Dea: We were assailed from all sides by the Opposition for introducing extra layers of bureaucracy into an administrative procedure. Deputy Howlin and Deputy Yates are now making the same argument which they had railed against in the debate on that Bill just before the last general election. There is certain merit in what they are saying, and I do not deny that, but we have to guard against a situation where the existing structures which we are trying to better and the new structures we are creating are not bogged down in a morass of bureaucracy. We have to be very careful about that. I accept the need for co-ordination and nobody on this side of the House is saying that we do not need co-ordination. We are trying to improve the situation. We are creating new structures and trying to provide the backup to ensure that those structures work.
No social legislation is going to solve all the problems but we are trying to make a start to solve some very serious problems. Everybody on this side of the House recognises that this is a problem area in which there are fundamental and deep problems. Within the limits of the resources available, the Government are making a start in trying to solve those problems. I commend the Minister for bringing the legislation before the Dáil. It is a genuine start and shows a genuine concern on the part of the Government. We will not solve all the problems but we have to be very careful that we do not create an extra layer of bureaucracy that will hinder us in moving towards a solution.
Miss Flaherty: I wish to reassure the Deputy that this side of the House has no interest in creating additional layers of bureaucracy. What we are suggesting is a separate programme head under the existing structures that will ensure that the child care services will be adequately looked after. We are extremely concerned that what will happen as a result of the proposals today is that without the addition of a single extra penny or a staff member to take up these additional functions this Government will have made a token gesture, on paper at least, towards reforming the child care services. There will be legal improvements as a result of the Bill, if nothing else, unless the Minister rethinks his total approach.
The Minister argued with my assertion of one social worker per county and threw back at me the national figure of 300 social workers being involved in child care. The figure I have is 288, which is not very different from the Minister's figure, but let the Minister divide that figure between 26 counties and one is talking about ten to 12 social workers. In the urban areas——
Mr. N. Treacy: The Deputy said that in some counties there was only one social worker.
Miss Flaherty: Let me make my point. Most of those are stationed in the urban areas. The net effect on the ground and this has been reported to me by social workers and voluntary agents — is that in many areas outside the cities there is only one social worker trying to spread his resources throughout the whole county because there is most need in the urban area. If the Minister looked at this more closely he would realise the extent of the resources crisis. I defend my presentation as an indication of how serious the resources crisis is at the moment. It is totally unacceptable that we are tagging on these additional responsibilities.
In Part II, section 3, one of the major functions of health boards is to develop preventive programmes and services. This is a vital area and all the research has indicated that it is effective. Ireland  by international and European standards is at the infancy stage of child care services. The structures being set up are totally inadequate. Dr. Ann McKenna produced a report in the past 12 months which indicated that of all the EC countries our child care services were under-developed when compared with the other member states. We have a huge problem. The structures being set up are inadequate to ensure that the problem will be tackled, and that is why we are objecting.
Mr. N. Treacy: I have listened with great interest to the contributions of the Deputies but I am not convinced of the need to establish a national children's council, particularly in the light of the continuing constraints on the public finances. Before agreeing to set up a new organisation to be funded by the Exchequer, the Government would have to be satisfied that there is a pressing need for it and that the work envisaged for it could not be undertaken by any existing State agency. The main role envisaged by those who advocate such a council is providing advice to the Minister and health boards on child care policy. The child care area has been the subject of numerous reports, studies and investigations in recent years and this has been alluded to by many speakers this afternoon.
It is fair to say that there is a broad consensus on what needs to be done. The real difficulty is getting sufficient resources to bring about all the changes and improvements that are necessary. I do not believe that the establishment of a national children's council would help to resolve this difficulty. On the contrary the operational expenses of a council would only divert resources from the front line services into the community.
I have listened with great interest to what Deputy Yates had to say and methinks that he protests too much about the commitment of this Government, because when we look back over most of this decade and the previous decade, we  see that his was the main party in Government looking after the health services. It took the present Minister and the previous Government to structure the health services, to bring about efficiency and rationalisation and the prioritising of resources. This has been done and will continue to be done by this Minister under the present Government.
The Deputy also talks about having a special programme manager for child care services. This is bordering on hypocrisy. He spoke about abolishing all the health boards and replacing them with a national health board, An Bord Sláinte, and yet the Deputy wants us to give a commitment that we will provide in each health board a new programme manager for child care services. The Deputy suggested that I was sailing on and ignoring the advice of experts. I am dealing with experts every day and take advice from them.
Mr. Yates: You do not.
Mr. N. Treacy: I am quite confident that we have the best brains in the Department of Health and in the health boards to deal with this situation. I see no reason that a good programme manager, with a good director of community care and sufficient resources cannot do the job. I gave a commitment before Deputy Flaherty came in that we would provide the resources and look at the staff needs in the child care area. That is why we requested the House not to impose a deadline on the implementation and enactment of the Bill. There is no point saying you would abolish the health boards while at the same time saying you want an extra programme manager. That does not prove any point.
I am not opposed in principle to the establishment of some form of consultative and advisory body in the child care area. If the financial situation were to improve and the need for it were to be more clearly established, I could avail of powers which I have under the health Acts to appoint consultative bodies to establish a national advisory body on  child care. This is the legal basis for other bodies such as the National Council for the Aged to which Deputy Yates referred. However for the reasons I have mentioned, I would not be disposed at this stage to making provision for a national children's council in this Bill.
Mr. Yates: This has been a most depressing debate so far.
Mr. N. Treacy: Impressive?
Mr. Yates: Depressing. I do not expect that I will be in a position to change the Minister's mind in view of what he has said. He has made it quite clear how committed this Government are to the child care area. First, they are not prepared to give any indication of when they will introduce the contents of this legislation. The Minister has made it abundantly clear that he is not going to appoint a programme manager in any health board area to deal with child care services.
Mr. N. Treacy: I did not say that.
Mr. Yates: This is a very sad day for at least 2 per cent of the children who are at risk and who depend on statutory services to meet their requirements. I have put forward an alternative structure, child care authorities, which would involve the Department of Education, the Department of Justice and the Department of Health. This would give the Department of Health a very strong child care division which could respond to the ISPCC, those who campaign for the care of deprived children, all the experts and the Kennedy report of 1980. I will not repeat all the arguments; they are clear and succinct. Even if we lose all of those arguments, it seems it is not even getting any recognition within the community care service structure which is too over-burdened to give child care any special attention. This Bill is being so diluted now in its potential implementation that it is not being taken seriously. The appointment of a programme manager for a health board the size of the  Eastern Health Board or the Southern Health Board is the very minimum we must do to ensure that the proper priority is given to this area. Deputy Sherlock is a member of a health board and he will tell us that by the time the members of that board are finished at their meetings discussing the general hospital programme, the special hospital programme, the development of the GMS and the geographical and staff problems of different hospitals, child care services have to depend on a special meeting once every quarter.
Section 5 deals with advisory committees. Today I had an amendment which would have given terms of reference to child care advisory committees ruled out of order. These committees are totally token in the way they are designed in this section. They are not an answer; they are just a talking shop which will produce paper. They do not have any executive decision-making role whatever, so that proposal falls short. I do not wish to delay the House. I believe there is total and fundamental disagreement between the Government and the Opposition on this matter and I am happy to proceed with a vote.
Mr. Howlin: I want to make one final comment on the section. I have made my case and I do not intend repeating it. I am dismayed at the response of the Minister of State in relation to the national children's council which was included in the Bill published in 1987 under my name. The concept was not opposed at the time by the Fianna Fáil Party. As I have said, there is not a single caring agency who have not advocated this concept and no cogent reason has been put forward by the Minister tonight why he would not accept and enact the concept. I am dismayed at the Minister's response. We have debated almost two sections of this Bill and two mortal blows have been levelled by the Minister of State at the whole concept of this Bill which as I have said repeatedly has been so long in formation and so long awaited not only by the children who will benefit  but by all those whose lives are devoted to the care and protection of children.
Minister for Health (Dr. O'Hanlon): I am surprised at both Deputy Yates and Deputy Howlin in regard to this issue of a national children's council. First, as my colleague, the Minister of State, pointed out, it does not have to be written into legislation to establish such a council. They can be established at any time.
I should also like to draw the Deputies' attention to the fact that when their Government were in power they brought forward the Child Care and Protection Bill and there was no provision in it for a national children's council. Obviously the then Minister who was a member of the Labour Party was aware that there was no need to make such a provision in legislation. I fully support my colleague, the Minister of State.
Mr. Howlin: This is one of the most crucial measures which has ever come into this House and it behoves everybody ——
Mr. O'Dea: Why are you playing games with it so?
Mr. Howlin: A Leas-Cheann Comhairle, this is scandalous. I have letters from every caring agency, for example, the ISPCC and Barnardos, asking for this agency to be set up. The Deputy is talking about games. The Government are sending in people who know nothing about it, who obviously have not read a single submission and who obviously want to reject any progressive proposal in relation to it.
Mr. N. Treacy: What were you doing in your own Government? Ask your Leader.
Mr. Howlin: Now they want to come in and heckle people for implementing progressive proposals.
Mr. Yates: They are being provocative.
Mr. Howlin: If you, a Leas-Cheann Comhairle, allow this debate to degenerate into ——
An Leas-Cheann Comhairle: Deputy Howlin, you know that if you address yourself invitingly to other Members in the Chamber rather than to the Chair inevitably you will get responses which you do not welcome. Will the Deputy address the Chair?
Mr. Howlin: I know I can depend on you, a Leas-Cheann Comhairle, to protect me in making a case in this House on behalf of children ——
Mr. O'Dea: Nobody can protect the Deputy from the facts.
Mr. Howlin: I will endeavour not to respond to the Deputy and I am sure the Leas-Cheann Comhairle will not allow him to continue.
What I am addressing is a core issue which, as I have said, has been articulated by every caring agency, health worker and virtually everybody involved in the provision of child care services and included in every submission I got for the establishment of a national children's  council. That is why the Labour Party included that concept in their Bill which was published in 1987. That concept was defined in Part XI of that Bill in specific and clear terms.
The Minister has come into the House and said something very peculiar, that there is no need for a statutory basis on which to set up the council. The Minister is either in favour of a national children's council or he is not. If he is in favour of it under the terms I have articulated here tonight then it should be statutorily provided for. The notion that the council could be enacted ad hoc at some time in the future and it might be provided is an insult to those people who want it and is a very ham-fisted way of providing for legislation to co-ordinate child care services. We have been waiting for this legislation for 80 years and the Minister should not demean it now by saying we can provide, on an ad hoc basis, agencies of such paramount importance.
Mr. N. Treacy: What were your Government doing? They did nothing.
An Leas-Cheann Comhairle: Tá sé in am anois an Cheist a chur.
The Committee divided: Tá, 71; Níl, 66.
Browne, John (Wexford).
Burke, Raphael P.
Coughlan, Mary Theresa.
Cowen, Brian. Kitt, Michael P.
Noonan, Michael J. (Limerick West).
de Valera, Síle.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Kirk, Séamus. O'Kennedy, Michael.
O'Malley, Desmond J.
O'Toole, Martin Joe.
Wilson, John P.
Belton, Louis J.
Browne, John (Carlow-Kilkenny).
Cosgrave, Michael Joe.
De Rossa, Proinsias.
Enright, Thomas W.
Farrelly, John V.
Higgins, Michael Daniel.
Mac Giolla, Tomás.
Sheehan, Patrick J.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Boylan.
Question declared carried.
Amendments Nos. 10, 11 and 12 not moved.
Mr. N. Treacy: I move amendment No. 13:
In page 6, lines 18 to 34, to delete subsection (2) and substitute the following:
“(2) In the performance of this function, a health board shall—
(a) take such steps as it considers requisite to identify children who are  not receiving adequate care and protection;
(b) having regard to the rights and duties of parents, whether under the Constitution or otherewise—
(i) regard the welfare of the child as the first and paramount consideration, and
(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and
(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.
(3) A health board shall, in addition to any other function assigned to it under this Act or any other enactment, provide child care and family support services, and may provide and maintain premises and make such other provision as it considers necessary or desirable for such purposes, subject to any general directions given by the Minister under section 52.”.
An Ceann Comhairle: There are amendments to this amendment, Nos. 1, 2, 3, 4 and 5 and I suggest that we discuss them together with separate decisions, if necessary.
Mr. N. Treacy: Section 3 is one of the most important provisions of the Bill. It places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection and also gives them new and expanded powers to provide child care and family support services. The main purpose of this amendment is to insert a new paragraph requiring health boards, in carrying out their duty under this section, to regard the welfare of the child as the first and paramount consideration.
An Leas-Cheann Comhairle: In deference to the Minister's vocal cords and  the anxiety of Members to hear him I should like to ask that there be less conversation elsewhere.
Mr. N. Treacy: To accommodate this change, subsection (2) as it stands is being split into two subsections. I am also availing of the opportunity to make a number of technical changes.
The new subsection (2) provides that, in carrying out their statutory duty to promote the welfare of children who are not receiving adequate care and protection, health boards must take certain steps and comply with certain conditions.
The first of these steps is contained in subsection 2 (a) which requires health boards to seek out children who are not receiving adequate care and protection.
Subsection (2) (b) (i) contains the new provision concerning the paramountcy of the welfare of the child. It provides that health boards, having regard to the rights and duties of parents, shall, in the discharge of their functions regard the welfare of the child as the first and paramount consideration. This is as a clear declaration that the primary objective of health boards is to promote the welfare of the child. The effect of this to make explicit what has always been implicit. The entire raison d'etre of health boards in providing child care services is to serve the best interests of the child and this statutory provision will reinforce that.
Health boards can often have a most difficult task in promoting the welfare of a child in an individual case. There is no simple division between the rights of parents and the rights of children. They are often two sides of the same coin. A parent's right to the custody of a child is matched by a child's right to the company and protection of a parent. Improper interference with one means improper interference with the other. Any consideration of the welfare of a child must take into account the totality of rights existing between the parents and the child. Regard must also be had to the duties of parents, with these being measured against parents' behaviour in any individual case.
 This amendment requires health boards, having taken all these factors into account, to regard the welfare of the child as the first and paramount consideration. While the rights of parents and children in relation to each other must be respected, a health board, in any case where it believes that the welfare of a child can only be protected by the removal of the child into the care of a health board, will have to take proper steps in accordance with the provisions of this Bill to ensure that the child's welfare is protected.
Subsection (2) (b) (ii) repeats the provision that was in the old subsection (2) (d) requiring the health board in so far as is practicable to have regard to the wishes of the child. The proviso is to take account of situations where it would not be practicable to consult the child, for example, where there was an immediate threat to his safety or wellbeing.
Subsection (2) (c) repeats a provision in the existing subsection requiring health boards to have regard to the principle that it is generally in the best interests of a child to be brought up in his own family. What this means is that where a child is not receiving adequate care or protection, the health board will generally be expected to assist the family so that the child can remain at home. Only in exceptional cases, where this has failed or where there is a serious threat to the child should the child be taken into care.
Subsection (3) requires health boards to provide child care and family support services and enables them to provide and maintain premises and to make such other provision as they consider necessary for that purpose. I have deliberately not attempted to spell out the types of services which might be provided. This is to give health boards maximum flexibility in responding to the differing needs in their areas and to ensure that there is no obstacle to the development of new services to cater for the needs which might emerge in the future.
Mr. Yates: It seems the main purpose of the Minister's amendment is to ensure  that the first and paramount consideration before a court should be the welfare of the child. I welcome that and I have a number of amendments down to that effect. I would like to raise some queries with the Minister in relation to the wording he has put forward, particularly regarding the constitutional position. Where there is a conflict between the rights and welfare of children on the one hand and the parental rights to custody on the other, under the Constitution which rights are superior? Articles 41 and 42 confer parents “inalienable and imprescriptible rights” with regard to the education of their children; Article 42 confers similar rights on children. However, these latter rights seem less important and less qualified for constitutional protection than the rights of parents in the context of a married couple. This matter has come up in two court cases and I would like to know if the Minister's amendment is constitutional arising out of these cases.
The first is the Supreme Court decision of March 1985 in the case of MC and MC and KC and AC v. An Bord Uchtála. I would like to quote from the unanimous verdict of the Supreme Court: “The State cannot supplant the role of parents in providing for the infant the rights to be educated conferred on it by Article 42.1.” Effectively I am advised that this case showed that the court could not constitutionally decide the issue of a custody contest solely on the basis of what course of action is in the best interest of the child's welfare. If one interprets this judgment it seems it is not constitutionally permissible, especially in respect of legitimate children — that is within the married couple context — to regard the child's welfare as the paramount consideration, as the Minister now proposes to do. In a further case in the Supreme Court of 22 June 1977, J. v. D, it seems the right of children are subservient to the inalienable, imprescriptible and paramount rights of the parents.
I understand there have been cases of potential constitutional proceedings to challenge the constitutionality of the 1908  Children Act that currently exists in this context. These were not heard for fear of this Act being constitutionally infirm, with the cases being settled by agreement.
Therefore, I feel that as a first step in clarifying and establishing unambiguous rights for children as to their welfare being the most important issue in any conflict, the best way to have done this would have been through the Preamble — I have down amendment No. 199 at the end of the Bill, because nowhere in any law are the rights of children set out. I do not profess to be a lawyer; this is advice I have received.
I would like the Minister to clarify whether it is intended that this Bill will be referred by the President to the Supreme Court, under Article 26 of the Constitution to test its constitutionality or if the Government have such a procedure in mind in view of these clear questions. Also, I would like to hear if any consideration has been given to a constitutional referendum or a proposed amendment in this regard. That is the first issue I wish to raise on amendment No. 13.
I have some amendments to the Minister's amendment. I will quote, as I did last week, section 67 of the 1970 Health Act which provides: “A health board shall provide optical, oral and dental services for eligible patients”. “Shall” does not mean very much. If you are an old age pensioner looking for dentures it means nothing as there is no service. While they “shall” provide it, they are not providing it. The Minister has set out the purpose of this Bill in terms of the functions and operation of the health boards in the proposed section 3 (2) providing that: “In the performance of this function a health board shall” and goes on to say “take such steps” and so on. My first amendment is after the word “shall” to insert the words “be under a statutory duty” to perform the different functions. I am trying to assert on behalf of this House a greater obligation upon health boards to do the work we are asking them to do. Given the experience of the 1970 Health  Act “shall” is not strong enough to ensure enforcement and implementation.
My amendment No. 2 to amendment No. 13 seeks to provide after the word “protection” that the health boards would also” co-ordinate information from all relevant sources relating to children in its areas.” We have already referred to the different roles of the Departments of Justice and Education and I feel as a minimum there should be an obligation on the health board to have up to date information of the childrens' needs within an area, be they recreational, related to housing or crime, or whatever. There is a need to co-ordinate all the relevant information. The health boards have not been charged with that function. I was quite intrigued to hear the Minister say they had not set out in this legislation a whole series of things the health boards should do, because they wanted to give them “maximum flexibility”. Once this legislation is passed we will have no control over it.
Mr. N. Treacy: Of course we have.
Mr. Yates: What we pass to give the health boards maximum flexibility might be considered by them as minimal terms with which they would be obliged to comply. Maximum flexibility might turn out to be the exact opposite to what we have in mind because we have not specified those functions we want the health boards to carry out. In that regard I take the opposite view to the Minister — if you want health boards to do something you should set it out.
My amendments Nos. 4 and 5 to amendment No. 13 are vital if we want to give practical expression to making the child's interest of paramount concern and the first concern. My amendment No. 4 is to insert a paragraph as follows:
“(d) inform children of their right to be consulted prior to any action or change in their circumstance and allow for a child to initiate a review of their circumstances.”.
This is a circumstance where children are under the care of the health board in  one guise or another, in residential care, foster care or any other form of care or perhaps are the subject of a supervision order, and the child would have a clear right to be asked: “What do you want in this situation?” Too often we presuppose what children want; we do not ask them what they want. That should be set out as I suggest, and there should be an obligation on the social workers to consult children before they move them from one centre to another or from one carer to another, or before they release them out of the care of the health board.
My amendment No. 5 to amendment No. 13 arises out of what happened in the United Kingdom, for instance, Cleveland, and other cases where there has been a feeling among parents and other interested parties that the health board have been over-zealous and over-enthusiastic in putting children in care. It is important, therefore, that for any outside or subsequent investigation of a child's case history the request of the child would be documented, so that there could be no subsequent cover up or ambiguity about it. In summary I have a major constitutional question about the Minister's amendment. I support it in terms of what it sets out to do. It matches my own desires in this area but I feel that in general terms both the original section 3 and the Minister's proposed amendment, do not set out in sufficient detail some aspects of the protection of children in terms of permanent concern. In other words——
An Ceann Comhairle: I am sorry to interrupt the Deputy. Before I call on him to formally move to report progress may I ask him to be good enough to move his amendment No. 1.
Mr. Yates: I move amendment No. 1 to amendment No. 13:
in the first line of subsection (2), after “shall” to insert “be under a statutory duty to”.
Progress reported; Committee to sit again.
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