Thursday, 13 December 1990
Dáil Éireann Debate
Mr. Yates;: On a point of order, we have reached amendment No. 160 and there are 62 amendments remaining. Some informal discussions took place after the sos on how we might group these amendments. I have reconsidered the suggestion I made earlier and I suggest that we deal with amendments Nos. 160 to 185, from 3.45 p.m. to 5.15 p.m.; that we deal with the next part of the Bill, which relates to residential homes, amendments Nos. 186 to 201 from 5.15 p.m. to 6.15 p.m. and the balance of the amendments, Nos. 202 to 212, from 6.15 p.m. to 7 p.m. While we are dealing with amendment No. 160 perhaps  Members will think about that suggestion and decide whether they agree.
Mr. Yates: I will not be moving this amendment No. 160 as I prefer Deputy Fennell's amendment, No. 161. Her amendment is much the same as mine. However, it is important to state that we do not know what future developments there will be in regard to creche facilities, play schools and pre-schools groups or what the future trend will be in relation to the age at which children are enrolled in primary school. Therefore, it is better that we provide for the widest possible coverage of all children up to six years of age. The definition in amendment No. 161 is preferable to the definition in section 40. We do not know what quasi-Montessori-type developments there will be in the future which might not fit into the Minister's definition which basically defines a pre-school child as a child who is not attending a national school or a programme similar to a national school.
I do not want to spend too much time on the amendment because I believe further sections of the Bill are more relevant and important. The Minister said on Committee Stage that the term “pre-school child” was cumbersome. I do not know of any other country in the world which has managed to come up with a better terminology for the constituent group of children about which we are talking.
The definition in my amendment is more general than the Minister's because we do not know what is going to happen in this area in future years. As everyone knows, this is one of our most rapidly developing service areas despite the fact that there are no regulations, no requirement for registration and little support given to it. The objective of my amendment is to think ahead and make sure that whatever we do in this Bill will be relevant to any developments which may take place in the next five to ten years. I do not want to labour the point.
Minister of State at the Department of Health (Mr. N. Treacy): I can confirm that I accepted on Committee Stage that the definition of “pre-school child” in the Bill is rather cumbersome. I am aware that the term has been criticised by some of those involved in providing pre-school services. I should like to again explain why the definition reads as it does.
Under the School Attendance Acts the minimum age at which children are required to attend school is fixed at six years. As everyone here is well aware, despite this it is a long-established practice that parents start sending their children to school from the age of four years onwards. It has been estimated that over 50 per cent of four year olds are attending school; the figure for five year olds is over 90 per cent. The number of children involved is of the order of 100,000.
The whole purpose of this Part of the  Bill to provide a scheme of control and inspection of services which are not subject to any form of statutory regulation at present. However, this is not the case with regard to four and five year old children who are attending national schools. These children benefit from the various rules and regulations laid down by the Minister for Education with regard to the conduct of national schools. In addition, the Department of Education have a well developed and highly professional schools inspectorate who monitor all aspects of the operation of schools. In preparing the Bill the Government took the view that it would be wasteful and inefficient to duplicate the responsibilities and activities of the Department of Education in so far as four and five year olds attending school are concerned by imposing obligations on the health boards in relation to this group of children.
I might add that a similar attitude was adopted by the former Coalition Government in preparing the 1985 Bill. Under that Bill, regulations in this area were not to apply to care provided by or in any school recognised by the Minister for Education. It seems to me that the safety and welfare of young children attending school is adequately protected through existing arrangements under the overall supervision of the Minister for Education and that we should confine this Part of the Bill to children who are attending services and facilities which are not subject to any regulation at present.
Mr. Howlin: I am impressed by the case put forward by the Minister. I would like to have seen — hopefully this will happen in the future — the development of a comprehensive State-provided pre-school service. I know much work was done in this area and that a special report was commissioned by the Irish National Teachers' Organisation on the facilities in other countries where the State takes on the obligation of providing kindergarten or pre-school education as an integral part of the state education service. Unfortunately we do not have that in Ireland and some Irish children start  national school when they are four years old while others do not attend until they are five or even older.
I see the logic in the Minister's statement that once children are in the national school service they are covered by the rules, regulations and legislation governing national schools. It should be said that one of the failings in our educational system is that we do not have a comprehensive, State-provided, uniform system of nursery or pre-school education. This is very damaging to our children in an educational sense. I hope in the fullness of time that we will have such a service.
An Leas-Cheann Comhairle: There is an informal arrangement, an aspiration, to take the remaining amendments as follows: amendments Nos. 160 to 185 up to 5.15 p.m., amendments Nos. 186 to 201 from 5.15 p.m. to 6.15 p.m. and amendments Nos. 202 to 212 from 6.15 p.m. to 7 p.m. Is that agreed? Agreed.
An Leas-Cheann Comhairle: Amendment No. 162 in the name of Deputy Fennell. Amendments Nos. 172, 176 and 183 form a composite proposal. Amendments Nos. 162, 175, 180 and 181 are consequential. Amendments Nos. 173 and 174 are alternatives to amendment No. 172. More precise minds than ours have applied themselves to informing us  of that decision and I suggest we agree. Is that agreed? Agreed.
“register” means any register of pre-school service established under section 42, and in relation to a particular health board, means a register established by that board and cognate words shall be construed accordingly.
I know everybody starts their contribution by saying that a particular section is very important and all sections of this Bill are very important — we would not spend so much time and energy on them if we did not think they were important. However in terms of its immediate application, this is a vitally important section and we have very high expectations for it. I am talking here about the regulation of pre-school services.
I am responsible for this group of amendments which relate to bringing in a register of pre-school services. They would make it mandatory and obligatory for virtually all pre-school services to register. When this amendment was moved at the Special Committee on 8 May the Minister stated, at column 757 of the Official Report: “I do not think it is necessary to introduce a registration process with all the expense and bureaucracy that would involve”. I found that reply very disappointing as it gave a clear indication that money would not be up front in dealing with issues which are important, and that we should look for a cheaper solution. To me this is a cheap solution.
In the Bill as it stands there are sections dealing with matters such as the giving of notice to health boards, the duty of the person carrying on pre-school services, the supervision of pre-school services,  the inspection by authorised persons and the provision by health boards of pre-school services and information. I suggest all these sections will be meaningless unless we introduce regulations covering them. Since the Special Committee I have met with a number of groups all of whom expressed their deep concern to both the Minister and the Department. These groups include the Irish Pre-School Playgroups Association who deserve great credit for the work they have done down the years in the pre-school and playgroup area, for introducing their own regulations, for trying to give it a status and guarantee quality but this has proved to be a difficult task as no standards are applied. I have also met with Barnardos, the St. Nicholas Montessori Society, Cathal Brugha Street College, OMEP, the world organisation for Early Childhood Education, and a number of other groups, all of whom have appealed to us and the Minister to strengthen these sections.
When we think of pre-schools we mostly focus on those pre-schools which provide a three or four hour service each morning. Such services are provided all over suburbia and in most parts of the country as there is a demand for it and people willing to provide it. Child care services for disadvantaged children are also provided by the health boards. The reality is that anybody could start up a playgroup, and even though there may be very nice wallpaper and beautiful curtains, the parent who leaves their child with the person running the playgroup each morning and does not collect them until 1 p.m. needs to have great faith and trust in that person. However, this is not enough and parents are not satisfied. Many parents have telephoned these organisations to ask which statutory organisation has an interest in this area and if they can give information on the status and quality of service provided by pre-school playgroups or on child care in general. The point has been made that the person running the group could have a criminal record and there could be instances of child sexual abuse. What we need to do is button this down and ensure  that a quality child care service is provided with the health board or some other statutory organisation being given responsibility.
These amendments reflect the amendments the Minister will introduce on Part VIII which deals with children's residential homes. If there is a need to include a reference to registration in that part there is certainly a need to do so in these sections for the single reason that the children we are talking about are severely disadvantaged and will be present at the playgroup all day. These children are entitled to the same protection as that given to the long term residents of children's residential homes.
Almost every report and survey on pre-schools or day care has recommended registration. Bureaucracy or the expense involved should not be used as an excuse for a failure to introduce this recommendation. In their report to the Department of Health in 1985 the committee appointed by the Minister for Health to decide on the minimum legal standards and requirements for day care centres recommended compulsory registration and stated at paragraph 4.10, page 16 of their report:
In the light of all the considerations, we decide to recommend the introduction of a compulsory registration procedure on a phased basis. We recommend that, initially, any service operating on a full day basis, full day service and full day child minding service should be subject to compulsory registration. Compulsory registration should be extended to any service providing part day care, sessional service and part day child minding service within two years of the introduction of regulations governing day care services.
There is a fear that this would place a great onus on people running pre-school and day care services throughout the country, but the vast majority of them would welcome registration. Admittedly, it would make things more difficult for them and result in many of them being brought into the tax net — I suspect that  most are in this net at present — but at least this area would be regulated. Most important, maximum protection would be provided for the children attending pre-schools while parents would be given a degree of security which they do not now have. I know that in the years ahead this is an area where demands will increase and I hope the Minister will listen to the arguments which will be put from this side of the House and accept these amendments.
Mr. Sherlock: Under section 40 “ `pre-school service' means any pre-school, play group, day nursery, creche, day-care or other similar service which caters for pre-school children, including those grant-aided by health boards”. That covers adequately the whole range of services provided. The amendment is unnecessary because section 42(1) provides that a person carrying on a pre-school service on the commencement of this Part shall give notice to the relevant health board in the prescribed manner. I would be more inclined to accept that provision than to have the register which is proposed. I am aware of the smaller groups who do good work, smaller creches and pre-school facilities. For that reason I have difficulty with the amendment.
Mrs. Barnes: Deputy Fennell reflects a great body of opinion when she speaks of the concern outside this House, particularly among people who have worked for years at a very high professional level to give the best pre-school education and formation possible. One of the most disillusioning and frustrating factors with which they have to deal is that while they strive for qualifications and standards which the children deserve, there is a huge degree of freedom to set up a pre-school centre anywhere which need not comply with any standards or registration requirements. The effect of this has been to devalue the quality of educational socialising that must be incorporated in those formative years before the age of five or six.
 Psychologists and researchers note that most of the formative experiences in the development of character occur in the first five years. These are the most important five years in the life of any person. It has also been found that the greatest amount of learning and assimilation occurs during that period and it forms the attitudes we adopt to life. We cannot exaggerate the importance of these early years.
Teachers and child workers are appalled that we will not have that kind of registration and standard for those under five or six years of age. We are proud of our educational system. An unqualified or incompetent person would not be allowed to take charge of a class from the primary level up. We can take great pride in the quality of our teachers who have acted as role models for our students. How can we not demand the same level of qualification and protection in the pre-school area when the evidence shows that this is the most influential time of all? If we do not demand registration and do not ensure the highest standards through our whole educational and formation system, we devalue not just the development which takes place in pre-schools but the role of parenting and child rearing.
One of the reasons pre-school facilities have been allowed to develop in an uncontrolled way is that we have never acknowledged the value of parenting and the time given by parents and pre-school staff during those incredibly difficult and demanding years. As a person who taught in junior classes, I would claim that it is much more demanding in terms of skill, talent, patience and endurance to look after a classroom of four or five year olds than a classroom of ten or 12 year olds.
The kind of standard we seek to achieve can only be brought about by registration. From the beginning we must provide our children with the best quality care. If we do not have registration from the beginning and allow it to be introduced at a later stage we will be leaving a huge uncontrolled area which will be detrimental to children and also to the  high standard pre-school child care services provided by voluntary and professional groups all over the country. These people believe that the only way their work will be valued is by registration. I remind the Minister of the calls made over the years by pre-school associations, voluntary and professional bodies for full registration and qualification. This must be accepted as the only standard.
Mr. O'Donoghue: Deputy Fennell's amendment would bring about what I can only describe as over-regulation, which can sometimes be worse than under-regulation. Many play groups and pre-schools are doing excellent work. If we were suddenly to introduce registration and so on, as Deputy Fennell suggests, the criteria would be so difficult to meet that we would effectively close down many of the smaller groups. Very few parents, perhaps none, would send their child or children to a place run by a person they did not trust. It would be the duty of any parent to be fairly sure that an individual to whom they were entrusting the care of their child would be somebody of integrity and trust, indeed a caring person. The record speaks for itself in this regard. I am not aware of any instance in which an individual — perhaps somebody else is so aware — has been charged in an Irish court with abusing children in a play school or play group; I am not aware of there having been even one instance.
If one were to accept everything Deputies Fennell and Barnes have said — I do not doubt their sincerity or interest in this area and in respect of which they have made excellent contributions — one would imagine that the Bill, as it stands, would not improve the position substantially whereas the truth of the matter is that, in Part VII, there are provisions for substantial improvements to be effected in our pre-school services. for example, in section 41 the Minister makes it clear that there will be regulations introduced in relation to pre-school services.
Furthermore, under the provisions of section 42 it will be incumbent on any  person carrying on a pre-school service to serve notice of that fact to the relevant health board. In addition, there are statutory duties now being imposed on an individual providing a pre-school service. For example section 43 reads:
It shall be the duty of every person carrying on a pre-school service to take all reasonable measures to safeguard the health, safety and well-being of pre-school children attending the service and to comply with regulations made by the Minister under this Part.
In section 44 there is a watchdog service being provided, where the Minister provides that existing services, or those to come into existence, will be supervised. I might add there is a penalty clause included in section 48 for any breaches that might occur. The history of pre-school services here — services which have grown substantially, in recent years — is fairly good and, in many cases, excellent. The people who have provided such services over the years have been interested not merely in profit but in the children and, possibly, very interested in children in general. Were they not I doubt very much they would undertake the task in the first place. As we all know, it is no joke to take care of two, three, four or five year olds but it can be considerably more difficult if one has a substantial number on one's hands. On balance, while acknowledging Deputies Fennell's and Barnes' tremendous interest in this section I contend that over-regulation, in the final analysis, might do more harm than good.
Mr. Howlin: We had a long discussion at the Special Committee on this section also, which is a very important one. For the first time it addresses the whole aspect of pre-school education here. Much of what was said during the deliberations of the Special Committee might well have been more appropriately said had we been discussing an education Bill rather than the Child Care Bill. However, we must cut our cloth according to measure. Since we do not have an education Bill or State-funded pre-school education — almost uniquely in Europe — we must ascertain at least how we can monitor and look after that level of pre-school education that obtains.
As somebody who worked in a primary school for several years I feel very strongly we are depriving our young people of tremendous advantages by not having a State-funded, monitored, integrated, pre-school system; any progressive country in Europe has such a system already. Instead what we have is a system of individual, private-run pre-school centres some of which are excellent, some of which do no more than mind children, as the last speaker said. I contend there is more to it than that. Deputy Barnes indicated how important are care, attention and education within the two to six-year-old age group. Minding is not good enough. When most young Europeans are being formally and informally trained and brought into informal education at that stage, we do not have that and there are no proposals in this Bill to establish any such system.
What is being asked in this series of amendments is that we put some order on the provision that is in existence if the State is not going to provide it. Let us face facts, mostly it is provided on a commercial basis for those who can pay. There are a great number of children in need of this. They are not getting it and will not because their parents are not in a position to pay for it. There are a great number of communities which do not have any pre-school provision because such is not provided in their urban or rural area. At least let us regulate what provision there is and try to establish some norm over a period of time in relation to training, standards and environment.
I fully accept that the provisions of section 41 do constitute a significant advance. It proposes a framework that can be monitored by the health boards, ensuring that minimum requisite standards of heating, lighting, ventilation and safety are adhered to. We can all point to garages and sheds currently in use, or crèches located on the third or fourth  floor of buildings with no fire escape that place children in mortal danger. At least the provisions of that section address that issue. But it is not enough. We should address — obviously not in the comprehensive way I would like — but by way of one further step down the road, having an enforceable form of registration. I do not believe it will have such a terrible impact on the small groups or force them out. What we are saying is that there are a few people providing this service almost out of the goodness of their hearts and, if they have to conform to standards or register, they will be frightened away. Is that the scale or level of provision we are laying on for our infants? We must examine our consciences on this issue. I said before that there was a furore up and down this country when there was a proposal to restrict intake into national schools — people will remember it — to 4½-year olds because most people felt it was the only type of free schooling children would get. They wanted them integrated into the national schools system as expeditiously as possible.
An Leas-Cheann Comhairle: May I ask Deputy Howlin, as one teacher to another, would he agree with me that perhaps he is here pursuing, theorising and philosophising about a very urgent need. Unfortunately, it is not really appropriate — apart from referring to the unfortunate absence of that which is desired — to make a case for it on legislation that deals solely with the care and welfare of children in the manner proposed here.
Mr. Howlin: I am flattered that the Leas-Cheann Comhairle thinks I am philosophising. I take your admonition. What we are addressing is provision for and registration of pre-school centres. I am talking about pre-schools——
Mr. Howlin: That is an integral part because we are excluding children who  are in the national schools system from the provisions of the section. I do not want to take issue with you, Sir. Having spent many months at this I contend what is at issue here is that the previous amendment specifically excluded from the provisions of this section children who were in the national schools system.
Children attend national school here at four-and-a-half because there is nothing better. We should have proper pre-school State run, education and children should not be in formal education at four-and-a-half. They should be in informal education like the rest of Europe, but I will take the Chair's admonition and refocus my thoughts.
In support of the amendment let me say our pre-school education system is woefully and painfully inadequate. I hope at least some progress will be made in regularising the commercial, haphazard provision that exists by adopting the amendments proposed.
Mr. Dempsey: We are back arguing whether we should have State regulation or allow a certain flexibility at local level. We are back to debating centralisation and localisation. Anybody who knows me is aware I am always better disposed towards a local approach to these things and allowing as much flexibility as possible. We are almost into semantics and Deputy Howlin is philosophising so I will try to avoid both.
We cannot look at any section of this Part of the Bill in isolation. A number of requirements are laid down and Deputy O'Donoghue referred to most of them. People starting pre-schools and play groups have to notify the health board and the health board as a result have a number of obligations to comply with. The pre-schools and play groups can be visited by officers of the health board. Those officers have to be nominated. The health board has to provide information to people who are interested in finding out what pre-schools or play groups are available in an area. For the people running pre-schools and play groups to comply with all the regulations laid down in the Bill they will have to register with  the health board. They have to inform the health board who will have to prepare a list of pre-schools in their area.
I have been listening to some of the Deputies opposite but, like Deputy O'Donoghue, I would not question any-body's motivation. Deputies Fennell and Barnes have spoken on this before, not just on Committee Stage but on Second Stages. To my knowledge none of the horrendous things they suggested might happen have occurred. I have not heard of any criminal or child abuser, or anyone else, running play schools. Play schools and pre-school play groups are very local. We are talking of a person giving up a room, or a couple of rooms, in her house.
An Leas-Cheann Comhairle: The best way to bring mature people back to reality is to advise them that I am now reminded of a nursery from what I hear, and this is not a nursery. Deputy Fennell will have an opportunity of concluding at which stage she will be able to make her comments. Deputy Dempsey, without interruption.
Mr. Dempsey: Community play  groups, as well as commercial play groups, run them. The point I was making before I was interrupted was that there are still a huge number of play groups. Most of them are formed in small areas and operate in the homes of the people concerned. The children attending them are neighbours of the people running the play groups. I am speaking about those in particular. I can see a major problem arising if we tie those groups up in red tape and bureaucracy, which is what a registration system being called for by the other side would give rise to. The Irish Pre-school Playgroups Association have done excellent work in the area, setting up standards for those registered with them. I would rather see a voluntary code such as the one introduced by that association than heavy-handed bureaucracy again being imposed on people from the centre.
Mr. Roche: I have not made a contribution on this debate but I have been listening to it on the monitor and I would like to record, in most complimentary terms, my appreciation. Very few debates here have been as civilised or informative. This aspect of the debate in particular interests me. I take issue with Deputies Fennell and Barnes when they decry some of my colleagues on this side. I know we are only humble men——
Mr. Roche: ——and that in itself means we are at a major disadvantage. We are also only humble fathers which means we are doubly — in my case quadruply — disadvantaged, but we have a little to contribute on this issue.
I received a message from the National Children's Nurseries Association on this aspect of registration. They strike me as being a very sincere group and they have put forward some quite compelling arguments. I am not sure everybody in the House would agree with the suggestion in the first paragraph of their letter to me. They have requested that the Bill be halted and said we should not “be rushing  through the Bill in its final Stages”. They suggest that perhaps we should wait a few months more to finalise the Bill.
However, they see registration of all day care nurseries as a pre-eminent requirement, that notification is not sufficient. They lay down other specifics such as general acceptability, acceptable and basic standards of day care under a variety of subheadings and say these should be spelled out. They say there should be a coding law, monitoring of standards by an authority, recognition of the supervision of child care courses available to students, registration of child minders and recognition in the Bill of their legitimacy as contributors to the workforce. I have sympathy with those suggestions.
However, if, as they suggest, we continuously put the adoption of the Bill off for a few more months, while we tease out these issues we will not get very far. We entered this debate about notification versus registration when we were discussing nursing homes not too many months back in this House. It strikes me that there is a difference in this case. I would take issue with Deputy Fennell on the scale of the institutional operation. Many of the day care centres are very small in scale; many of the day nurseries are very small. Many of them are voluntary. Many are operated in small housing estates, particularly when one moves away from the city. I have experience of at least three of them in the Greystones area, just to take an example. Two are in small housing estates and one is in a relatively large house, again, not a major institution. I feel that we would need to take care that we do not adopt a too heavy handed approach with regard to regulation.
I take the point made by Deputy Fennell and Barnes that an offence or an activity against a child does not need to have taken place. Our job, as legislators, is to try to make absolutely certain that we sew into law regulations and requirements that ensure that our children are protected. I would make the point, going back over the Special Committee's work in this regard, that there is a danger of  excessive regulation in this area. I am familiar with the Irish Pre-School Playgroups Association's efforts and it strikes me they have done a really excellent job. I know other Deputies have referred to that too; I am not seeking to put a divide there. It strikes me that their effort at self-regulation is an excellent one.
There is a specific requirement of notification in the Bill. Notification is not something which can be ignored. It will become a statutory requirement and when it does, the statutory bodies, the health boards will have to guard standards and, again, they will have specific requirements on them. I do not mean to suggest that this is simply a semantic debate, but there is not a huge difference between that and low level regulation. Listening to the contributions from Deputies Fennell and Barnes, and reading the specific report on this issue from the Special Committee, it is clear that those Deputies and others did not want crushing regulation that would damage a fairly vulnerable, under-developed and very under-funded structure. I would not put any difference between myself and Deputy Howlin, for example, as to the desirability of this measure.
Nobody is saying that these things are not desirable, but sincere people are suggesting that given that the origins of this Bill are approximately ten years old, they would appeal to all concerned persons to refrain from passing the Bill which requires further discussion and amendments and which, at worst, will take only a few months more. I think most Deputies in this House are frustrated at how long it takes for legislation to get through here. Notwithstanding that these people are very sincere in their request, I do not think we can actually afford to wait.
I would suggest to the Minister when he is responding that it would be worthwhile if we could have some way of looking at how well the notification process works. If there is any evidence, for example, that this is inefficient or inadequate, then we should set ourselves, individually or collectively, some sort of target to come back and look at this again.
 I think the two sides of the argument have been well debated here but I would be fearful about the impact of heavy handed regulation on some of the small operators. If, for example, we went the route we were going in the case of the nursing homes, we would then pass the cost of regulation on to the individually registered pre-school groups and nursery groups, and if we went that particular route we could do a lot of damage. I think we could do a lot of damage if we did not go that particular route, because then we would be guilty of cross-subsidising those who can afford something from the taxes of those who obviously cannot or do not wish to afford it. There is a balance in the argument here. I would not be in favour of delaying the Bill on this particular issue. I do not think anybody in the House would. At the same time, however, I can see the two sides of the argument and it might be no harm if we had some way——
Mr. N. Treacy: Before I reply to this excellent debate on this section and group of amendments I would like to say that we are not rushing through this Bill. We are all at one on this issue. This Bill was first published in 1988. It came into this House for its First Reading in October 1989. We went into all party committee in November 1989 where we had 17 meetings. We have now come to Report Stage, which is given three full days. I know that Members want to see a good, positive Bill passed as quickly as possible. We  have no desire to rush it, but we have unanimous agreement on a structured way on ensuring that we complete a good Bill, and I am very grateful for that. I have received the faxed document from the National Childrens' Nursery Association and I want to assure them that we are not rushing through but are giving every consideration to the Bill.
In response to the amendments, we are committed to introducing statutory procedures for the inspection, regulation and supervision of pre-school service. However, we are anxious to avoid creating an unwieldy supervisory system which could become a major drain on scarce resources. I am satisfied that the notification system which we proposed in this Bill meets these two objectives: it provides a system of statutory control but it does not impose a huge cost on the pre-schools themselves, or indeed on the Exchequer.
Deputy Fennell seemed to doubt that the money would be up front; she seemed to think we wanted things on the cheap. I want to assure the House that the money will be up front for the things that are important. We want to ensure when the money is up front that it is spent on the children who are neglected and who do need and should get proper help. We cannot and should not presume that all children attending pre-schools are neglected or otherwise.
We propose that there would be a legal obligation on persons carrying on pre-school services to notify the health board of their existence. Failure to do so would itself be an offence. On notification the operator would be supplied with details of regulations which the Minister for Health will make following consultations with his colleagues, the Minister for Education and the Environment.
Health boards will be required to have the services inspected from time to time and will be able to call on the assistance of inspectors from the Department of Education in the case of services which have an educational dimension. In the event of serious or persistant failure to adhere to the regulations, the court will  be able to impose fines and, more significantly, order that the services be closed either temporarily while improvements are effected or for a longer period.
I feel that these provisions are adequate to deal with any abuses that may arise in the area of pre-school services. I do not think it is necessary to introduce a registration process with all the expense and bureaucracy that would involve. As Deputy Howlin said, we have come a long way. We are bringing the pre-school services into a new system of notification under the supervision of the health boards in all the regions. The Minister will lay down clear guidelines and I think that will be a good day's work.
Mr. Yates: I have listened carefully to all the arguments on both sides. I would remind the Minister that he said in the House previously that, in relation to the point raised particularly by Deputy O'Donoghue and Deputy Howlin, he was prepared to have another look at this. In regard to sections 40, 41 and 42 in Part VII of the Bill, the Minister has not put down any substantial amendments, but just a word here and there, a technical change here and there. He has failed to meet——
Mr. Yates: The Minister had a look at it but he did nothing about it. We will have to challenge a division on this amendment. It is regrettable that the Minister could not see his way to going further than just giving formal notice. On Committee Stage Deputy O'Donoghue raised a very valid point about people starting up in this business and the uncertainty of their position, but no effort has been made to address that matter. I agreed with Deputy O'Donoghue at that stage and I very much regret that nothing has been done in this regard.
Deputy Roche referred to the National Children's Nurseries Association. He went as far as was humanly possible for a Government backbencher in agreeing with what they are saying while, at the  same time, agreeing with what the Minister is doing. On this side of the House we have greater flexibility and latitude and call a spade a spade. This association is not satisfied with what the Minister has done. I agree that the Bill has to be enacted, and that, in any case, it will go to the Seanad. What the Minister is proposing is a form of notification on the cheap. He is not prepared to put in place a proper inspectorate or a proper registration system. The type of ad hoc development we have seen in this area will be only modestly improved with the Minister's proposals.
In relation to the point made about crushing these play-schools with bureaucracy — I am the father of a three year old who will go to a play-school next January — there is a strong demand for this service. Whether or not there is crushing bureaucracy, the question arises as to whether we have minimum standards. One of the Deputies on the other side said that parents would not under any circumstances send their child to someone they did not know. I know nothing about the person who will look after my child, and I am sure a lot of parents take these people at face value. We need to deal with the young children's critical and formative years in a strict sense and give them no less protection than we would give nursing homes. Even if there is a cost factor involved it is better to err on that side. At the end of the day what we are talking about are qualifications for people who mind children, pupil-teacher ratios and so on. All these areas are important. I support this series of amendments and we will be pressing them.
Mr. N. Treacy: I gave a commitment that I would look at this matter again and I have done that in as broad a way as I could. To allay the fears of the House and to give a direct answer to Deputy Yates as regards the matter raised by Deputy O'Donoghue, a person may be fined up to £1,000 for not observing the regulations. The regulations have yet to be drawn up and we will include a provision in those regulations where there  will be a period between the notification the proprietor of the pre-school gives to the health board and when the fine will come into operation. That will give people an opportunity to get their house in order.
Mrs. Fennell: I would like to thank the Deputies who contributed, even though some of the contributions from the other side were at cross-purposes with what we are suggesting. I want to emphasise that what we are talking about is a growing service area. It is a business, and a very profitable one. As somebody who represents a Dublin constituency — there are other Deputies here who represent large urban constituencies — I know there has been a huge growth in this area. I know of a couple of centres, with up to 30 children, who charge £60 a week for each child. We should do something about these groups. If the Minister provides in the Bill that in a year and a half or two years we will bring in a form of registration, he would be giving plenty of notice. In the meantime this provision would be in the legislation. Perhaps that is what should be done, I do not know, but this is a matter the Minister should seriously consider.
Section 42 provides that notice be given to the health board. Will all existing services give notice or will this apply to new services only? Will somebody go immediately from the health board to check out the personnel in the pre-school, or can everybody be sure that every pre-school or play centre service has been thoroughly checked out? Section 45 refers to authorised persons — this matter also arose on Committee Stage — but what is an “authorised person”? Section 45 states that a health board may appoint so many of its officers as it thinks fit to be authorised persons. That does not give me any confidence and, I am sure neither would it give parents any confidence. Will the health board decide that people who have nothing to do on a certain day should go out and check pre-school services? I do not believe the  format in the Bill is adequate. It certainly does not meet the concerns that have been expressed to me by the groups and organisations involved in this area who are pleading for statutory regulation for themselves, which is unusual. This shows how seriously they take the matter. Perhaps provision could be made whereby notice is given that these centres are to be checked out. We can then be sure that as this area develops and grows, there is legislative provision for it and regulations can then be made on registration.
Some people have said they never heard of abuse in pre-school or playgroups, I know of one very agitated and upset parent in my constituency who phoned me constanly when she discovered that her five year old boy had been sexually abused by a son of the woman who is running the local community play group. She knew that son had been there for a number of years — he is 23 or 24 years old — playing with the children. The mother brought her child to the Garda station but it was very difficult to prove the case. That woman wondered how many other children had been abused but had not told their mothers. This does happen even though  you may not hear about it. I heard about it from somebody who was so desperately upset that she wanted to do something about it. Services need to be registered and we need to know who is running them. We need to give an assurance to parents who send their children to these centres and above all we need to protect these children.
The point was raised about small groups. I accept there are small community groups that should be assisted. When my children were small I worked in one of those groups. Parents paid so much towards the running of the group and co-operated with the work. Of course these groups should be in a separate category. I am not suggesting that we should come in with a heavy hand and put them out of business, but there is another category of groups who do good work and they must be regulated. These are the groups who charge for their services and who want to be professional. We have to make a distinction between the kind of groups we are talking about at local level and the bigger groups. I do not want to put the local groups out of business but I would certainly like to see regulations to cover the larger groups.
Belton, Louis J.
Browne, John (Carlow-Kilkenny).
Cosgrave, Michael Joe.
Finucane, Michael. O'Shea, Brian.
Sheehan, Patrick J.
Higgins, Michael D.
Noonan, Michael (Limerick East). Spring, Dick.
Burke, Raphael P.
Coughlan, Mary Theresa.
de Valera, Síle.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Kitt, Michael P.
Noonan, Michael J.
O'Toole, Martin Joe.
Wilson, John P.
We are up against the time we had agreed. This is the only amendment I wish to make any comment on. I will be pressing it. It is very important to have qualifications for the staff working in pre-schools.
Mr. Sherlock: The House will recall the views expressed before the last division. Under section 40 the pre-school service means any pre-school, play group, den or creche, day care or other similar service, which caters for pre-school children. Amendment No. 170 prescribes professional, educational or other qualifications required for persons carrying on that type of work. Although I would not be very demanding about that there should be some qualification. My experience is that those who are already operating in the pre-school system have undergone courses and they are doing excellent work. However, I put in the amendment for the purpose of having it regularised.
Mr. N. Treacy: Amendments Nos. 165 and 170 seek to include references to the qualifications of staff working in the pre-school services. Amendment No. 169 also proposes that there be references to staffing ratios in the regulations. The list of matters set out at section 41 (2) (a) is not intended to be exhaustive. What are listed are some of the main items that may be dealt with in regulations, but as the introduction to the subsection makes clear, this is without prejudice to the power of the Minister for Health to impose requirements in relation to other matters not mentioned here. There are difficulties about prescribing staffing ratios and minimum qualifications for  staff in the pre-school area. The fact is that there is no uniformity in staffing ratios or qualifications in the staff that exists at the moment in those services. The sudden imposition of strict requirements could throw those services into chaos. This difficulty has been recognised by various working parties who have examined this area over the past number of years and all have urged that standards be raised gradually to avoid widespread disruption, if not the closure of existing services. It is this gradual step by step approach that the Minister for Health intends to adopt. Rushing in and fixing essential qualifications and minimum staffing levels could cause havoc and that is one thing we want to avoid. It is for this reason I have reservations about imposing minimum qualifications or minimum standards, and maximum child staff ratios.
Mr. Howlin: I support the amendment from the philosophical perspective from which I contributed. It is important to have established standards. When we were discussing this in the Special Committee there were some disparaging remarks from the other side in relation to the demand, as if we were demanding PhDs to run our play schemes. That is not intended but there are people who are unsuited to run them. What is required is that they should be pre-schools rather than child minding services. I hope, since the Minister will not accept the amendment, that he will incorporate it in the regulations he is to draw up.
Mr. N. Treacy: I am advised that the  word “different” is the correct word here and it is the word used in similar Acts. I see no advantage in changing it to “appropriate” and I regret that I cannot accept amendments Nos. 167 and 168.
This amendment is related to the section we have already discussed. It deals with proper training for authorised persons who will be carrying out the inspection. Perhaps the Minister would give me his views on it.
Mr. N. Treacy: As regards amendment No. 178 the question of training for staff is a day to day operational matter and is not normally specified in legislation. The Deputy may have noticed that we have not indicated what particular grade or class of person should carry out these inspections. This was done deliberately to give the health boards the widest possible measure of flexibility. The health boards employ a range of professional staff, social workers, nurses, doctors, health inspectors, engineers, etc. and any of them could contribute to the inspection process. In view of this I do not think this amendment is necessary.
I would appreciate the Minister's views on this amendment. It is probably related to the mandatory reporting provision which was the subject of the debate yesterday and is related to the case, which I instanced, in the amendments I pressed to a vote.
Mr. N. Treacy: No, it is covered in the general provisions of the Bill. Consequently I would not be able to accept it. What the Deputy desires to achieve is contained in the general provisions of the Bill.
Mr. N. Treacy: I am not saying that that would be the initial solution but it could be one of the options to be discharged. After due investigation by the health board into any situation they would take the necessary action.
Mr. N. Treacy: What Deputy Fennell is trying to achieve in this amendment is already provided for elsewhere in the Bill. I would refer the House to section 10 which enables health boards to assist either financially or otherwise voluntary bodies who provide, or propose to provide, child care or family support services. This is broad enough to cover the provision of assistance to voluntary and community groups involved in the pre-school area. As the Deputy is probably aware, health boards are already supporting almost 300 day nurseries and pre-school play groups throughout the country at a cost of about £1 million per annum. It is our intention that this support would be maintained and extended to other services as resources become available. In view of this perhaps Deputy Fennell will withdraw her amendment.
“children's residential centre” means any home or other institution for the residential care of children in the care of health boards or other children who are not receiving adequate care and protection excluding—
“register” means a register of children's residential centres established under section 51 and, in relation to a particular health board, means the register established by that board and cognate words shall be construed accordingly;
This amendment is grouped with amendments Nos. 189 to 201, inclusive. These amendments propose a radical overhaul of Part VIII of the Bill dealing with children's residential centres. It might be helpful if I begin by setting out the present position in relation to the approval of residential centres for children.
Mr. N. Treacy: Amendments Nos. 186, 189, 191, 192, 194, 195, 196, 197, 198, 200, 201 and 203. I would like to set out the present position in relation to the approval of residential centres for children.
Under current legislation there are two  categories of children's homes. The Children's Act, 1908, provides for the certification of certain homes as industrial schools. As the title suggests, these homes orginally dealt in the main with young offenders. However, for many years they have withdrawn from that type of work and they now cater for deprived and neglected children placed by the health boards. There are some 20 homes in this category. They include the following homes with which Members of the House may be familiar: St. Kyran's, Rathdrum, County Wicklow; St. Vincent's, Fair Street, Drogheda; St. Anne's Kilmacud, Dublin, Gracepark and May-field in Waterford and Nazareth Home in Tralee.
The second category of homes are those approved by the Minister for Health under the Health Act, 1953, for the reception of children in the care of health boards. Again, there are about 20 homes in this category which include Madonna House, Dublin; Miss Carr's Home, Dublin; St. Mura's Nursery, Fahan, County Donegal and others.
While these two categories of homes have developed under two different Statutes, they all now deliver a similar service for children in the care of health boards and all are funded by the health boards. By virtue of section 55, it is intended that they would cease to be certified as industrial schools or approved homes, as the case may be, and would become children's residential centres.
Under existing law there is no requirement on a religious community or other body who propose to establish a residential home for children to seek approval or recognition from a health board or from the Minister for Health. The decision to apply for approval is entirely at their discretion. In practice, the management of such homes do apply for approval or certification in order to secure a commitment of financial support from the health board for their operations. However, in some cases, homes may be set up and operated without any direct support from the health board.
At the Special Committee there was  unanimous agreement on all sides that the Bill should be amended so that it would not be lawful for any person or body to operate a home for children unless it was registered with the local health board. The amendments seek to give effect to the desire of Deputies that a registration system for these homes be set in place. I might add that the registration scheme we are proposing is closely modelled on the new nursing homes legislation which was recently passed by the House and has since been enacted into law.
Mr. Yates: The Minister is taking quite a mouthful by grouping all these amendments together. I want to refer first to my amendments. My amendment No. 190 is the same as amendment No. 181 which was discussed on Committee Stage. It seeks to reinforce the provision whereby the Minister may prescribe requirements as to the design, maintenance, repair, ventilation, heating and so on and the different factors relating to pupil-teacher ratio in children's residential centres. My amendment provides that it shall be obligatory on the Minister to do this. The Minister did not say whether this requirement would be obligatory.
The same point can be made about amendment No. 193 in my name. Section 52 refers to the withdrawal of approval and the closure of children's residential centres. If circumstances are so serious that the Minister is dissatisfied with the condition or management of a centre or it appears the centre is not complying with the relevant provisions he should take the appropriate action.
I should like to refer to my amendments Nos. 197 and 199 which I regard as important. Amendment No. 199 relates to the training and qualifications of staff in children's residential centres. We are dealing with children who are likely to be the subject of care orders already, children who have obviously been deprived and are at risk. It has to be said that there is a severe lack of these  centres. We all know of the celebrated cases arising out of our juvenile justice system where young female offenders, in particular, under the age of 18 have been repeatedly on remand to District Court sittings by virtue of the fact that no suitable centres could be found for them.
Mr. N. Treacy: No, I just want to say, that having considered representations from other bodies and the points made during the course of the debate at the Special Committee, we have decided to introduce a major amendment which would delete the sections to which the Deputies have tabled amendments.
Mr. Yates: I would like to make a point of substance and that is that the  Department of Justice have not been able to provide adequate residential care centres with secure facilities. We have now been dealing with Report Stage for three days and the Minister has not yet told us which Department of State will have the responsibility to look after the welfare and needs of children. At Dún Laoghaire District Court a young female offender was remanded on seven different occasions because Justice Windle was not satisfied that proper residential care was available for her. We have seen this repeated in other cases, particularly in Dublin. Indeed, we had one spectacular case in the Minister's own constituency in Galway where, Pontius Pilate like, the health board, the local authority and the Minister's colleague, the Minister of State at the Department of Education all said it was not their problem but somebody else's. In the finish the poor hapless Minister for Health had to deal with it as he was not vigorous enough and did not get rid of it.
Before Report Stage concludes at 7 p.m. the Minister should assert, on behalf of the Government, which Department will be responsible for looking after the welfare of children. It is all very fine to meet the bureaucratic point on registration — we will have no difficulty in supporting that — but it should be borne in mind that we are not talking here about people who are being neglected but rather about people who have committed criminal offences, have got on the wrong side of the law and who undoubtedly require special treatment facilities. I want to be told who will take charge of these residential care centres and whether, for example, Lusk House on the north side of the city will be covered. It is all very fine to abolish the workshops and change the name on the door but if we are sincere all residential care centres which deal with people under the age of 18 should be brought under the one umbrella.
As I will be given only one opportunity I ask the Minister to reply to two questions. First, which Department are going  to be responsible and will all secure residential centres be covered by this legislation? If they will not and the Minister continues to fudge the issue of singular departmental responsibility we will have failed to look after the welfare of these boys and girls. I hope the Minister will not continue to dodge this issue.
Mr. Howlin: I appreciate Deputy Yates's difficulty in dealing with this Part of the Bill. Very simply, it has been completely redrafted since the Special Committee. I welcome this but it presents us with a great difficulty. The new draft was circulated on white paper last Thursday. I welcome that new draft as it takes account of many of the comments made at the Special Committee. However we do not have sufficient time to consider the implications of the five new sections to be inserted in this Part of the Bill, to take note of the views of other agencies and see if it is possible to amend it further. It is quite difficult to amend a ministerial amendment as time available is so short. Notwithstanding this I am prepared, having read the new draft, to accept that it represents a significant improvement on the Part to be deleted and to support it on that basis.
The registration process is copied from the one included in the nursing homes legislation. Most of us here dealt with that legislation so we can follow it. I would now like to refer to the point made by Deputy Yates which I made on a previous section. It is important before we finish to grasp the nettle. I for one heard echoes from the past when Deputy O'Donoghue or some other Deputy on the Government side indicated that it would not be right for the Department of Health to step on the toes of the Department of Justice.
Mr. Howlin: A view shared by all Members of the House is that we should finally decide. Ideally the Minister for Health should have the exclusive responsibility for looking after the needs of children and dealing with any difficulties which may arise. It is important that the Minister would clarify that point. I heartily endorse the comments made by Deputy Yates in that regard. Apart from that I have no difficulty with supporting the new draft in so far as I can absorb the implications of the five new sections which represent a significant improvement on the Part we dealt with at the Special Committee.
Mr. O'Donoghue: As Deputy Howlin said, they represent a significant improvement and the Minister is to be complimented. It is fairly clear as to what exactly is a residential care centre and who has the responsibility. In section 2 “the Minister” is defined as the Minister for Health and, accordingly, he is the Minister responsible for child care under the Bill. A “children's residential centre” is defined in section 49 as a home or other institution for the residential care of children in the care of health boards or other children not receiving adequate care and protection. The section then goes on to exclude various other places which would not be considered to be children's residential centres. Therefore the Bill very clearly and definitely sets out that the person who will have responsibility for looking after children's residential centres under the Child Care Bill will unquestionably and indisputably be the Minister for Health. Therefore everybody will know exactly where they stand.
Mr. Ferris: I ask the Minister to confirm that as we still have our doubts. Given that the Minister has made many changes that are complicated it would be of help if he published an explanatory memorandum or, perhaps, deal with  them in a separate Bill. If we had been given an explanatory memorandum outlining these changes we might have been able to approach them in a more professional manner. However I compliment the Minister as they are much better than what is contained in the Bill.
Mr. N. Treacy: I want to assure Deputy Ferris and my colleagues that I do not doubt their competence to deal in a very professional manner with the amendments I have proposed, and I thank them for accepting them.
Mr. N. Treacy: Lest there be any confusion, responsibility for the provision of facilities for the accommodation of young offenders under the age of 16 years has since the foundation of the State rested with the Minister for Education and the Department of Education. It is not proposed to effect any change in this arrangement in the context of this Bill. Any such change would be properly considered in the context of a reform of our juvenile justice system, which is not the purpose of this Bill and which is not my responsibility. I cannot presume to have the powers of the Minister for Justice or the powers of the Minister for Education.
Mr. N. Treacy: Deputy Yates asked who will take responsibility and what this Government intend to do. The Minister for Justice has responded with resources and is providing facilities in his area. The Minister for Education has responded with resources and is providing facilities in her area. We in the Department of Health are making our contribution by way of a commitment to give extra resources for extra services, extra options to the courts and better protection for children who are neglected. The Government will respond within the law and adhere to the decisions of the courts as they are made. The Deputy picked one case in my great county. All the laws in  the world may not be able to handle that case. We are all uniquely distinctive.
Mr. Yates: A constituent of mine aged 15 was sent to Mountjoy Jail because there was no other place available. There is no point in saying that the Ministers for Justice and Education are providing resources and that the Department of Health are providing resources. This matter is being neglected. Juveniles are being sent to adult jails. Who will take responsibility in those cases? Does the Minister know or care?
Mrs. Barnes: I would be delighted to learn that the Minister for Justice had made resources available for the type of detention centre of which Deputy Yates has been speaking, but as of last week there was not a brick upon a brick for any such detention centre. Where are the resources and where are the results? I say that not in any partisan way but out of serious concern. The Minister is also concerned about children.
(2) (a) There shall be entered in a register in respect of each centre registered therein the name of the person by whom it is carried on, the name of the person who is in charge of it, the address of the premises in which it is carried on, a statement of the number of children who can be accommodated in the centre, the date on which the registration is to take effect (referred to subsequently in this section as `the date of registration') and such other (if any) particulars as may be prescribed.
(ii) the applicant or the registered proprietor, as the case may be, or the person in charge or, as the case may be, proposed to be in charge of the centre has been convicted of an offence under this Part or of any other offence that is such as to render the person unfit to carry on or, as the case may be, to be in charge of the centre, or
(iii) the applicant or the registered proprietor, as the case may be, has failed or refused to furnish the board with information requested by it pursuant to subsection (8) or has furnished the board with information that is false or misleading in a material particular, or
(iv) the registered proprietor has,  not more than one year before the date from which the registration or removal from the register would take effect, contravened a condition under subsection (6).
(i) at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the centre concerned and such other matters as it considers appropriate having regard to its functions under this Part,
(8) (a) A health board may request an applicant for registration or, as the case may be, a registered proprietor to furnish it with such information as it considers necessary for the purposes of its functions under this Part.
(b) A person who, whether in pursuance of a request or otherwise, furnishes information to a health board for the purposes of this Part that is false or misleading in a material particular shall be guilty of an offence unless he shows that, at the time the information was furnished to the board, he was not aware that it was false or misleading in a material particular.
(9) The registered proprietor of a centre who proposes to carry on the centre immediately after the expiration of the period of registration of the centre may apply under subsection (3)  to the health board concerned not less than 2 months before such expiration for the registration of the centre and, if the board does not notify him before such expiration that it proposes to refuse to register the centre, it shall register the centre and its date of registration shall be the day following the day of such expiration.
(ii) the person shall (if he has not done so before such commencement) apply not later than 4 weeks after it to the health board concerned for the registration of the centre, and, if the application is granted, the date of registration of the centre shall be that of the day following the day of the cesser aforesaid,
(iii) if the application aforesaid is duly made, and is not refused then, during the period from the commencement aforesaid until the centre is registered, it shall be deemed, for the purposes of section 50 to be registered and there shall be deemed to be attached to the registration any conditions attached to the previous registration.
(11) (a) Where a health board proposes to refuse to register a children's residential centre, to remove a centre from the register, to attach a condition to, or amend or revoke a condition attached to, a registration, it shall notify in writing the applicant or the registered proprietor, as the case may be, of its proposal and of the reasons for it.
(b) A person who has been notified  of a proposal under paragraph (a) may, within 21 days of the receipt of the notification, make representations in writing to the health board concerned and the board shall—
(12) A notification of a proposal of a health board under subsection (11) shall include a statement that the person concerned may make representations to the board within 21 days of the receipt by him of the notification and a notification of a decision of a health board under subsection (11) shall include a statement that the person concerned may appeal to the District Court under section 52 against the decision within 21 days from the receipt by him of the notification.
(13) Where, in relation to a children's residential centre, there is a contravention of a condition of registration, the registered proprietor and the person in charge of the centre shall be guilty of an offence.”.
52.—(1) A person, being the registered proprietor or, as the case may be, the person intending to be the registered proprietor, of a children's residential centre, may appeal to the District Court against a decision of a health board to refuse to register the centre, to remove the centre from the register or to attach a condition, or to amend or revoke a condition attached, to the registration of the centre and such an appeal shall be brought within 21 days of the receipt by the person of  the notification of the decision under section 51 and that court may, as it thinks proper, confirm the decision or direct the health board, as may be appropriate, to register, or to restore the registration of, the centre, to withdraw the condition or the amendment to or revocation of a condition, to attach a specified condition to the registration or to make a specified amendment to a condition of the registration.
(2) The jurisdiction conferred on the District Court by this section shall be exercised by the justice of the District Court for the time being assigned to the district court district in which the centre concerned is situated.
(4) Where a notification of a decision specified in subsection (1) (other than a decision to refuse to register a centre which was not registered or deemed to be registered at the time of the relevant application for registration) is given under section 51, then——
(a) during such period from such notification (not being less than 21 days) as the health board concerned considers reasonable and specifies in the notification, the centre shall be treated as if the decision had not been made and, if the decision was to refuse an application under paragraph (a) of section 51 (10) for registration, be treated as if it had been registered and the registration had attached to it any conditions attached to the relevant registration that had ceased by virtue of sub-paragraph (i) of the said paragraph (a), and
(II) if the appeal was against a decision of the health board to refuse an application under paragraph (a) of section 51 (10) for registration, be treated as if the registration had attached to it any conditions attached to the relevant registration that had ceased by virtue of sub-paragraph (i) of the said paragraph (a).
53.—(1) The Minister, shall for the purpose of ensuring proper standards in relation to children's residential centres, including adequate and suitable accomodation, food and care for children while being maintained in centres, and the proper conduct of centres make such regulations as he thinks appropriate in relation to centres.
(g) provide for the inspection of premises in which centres are being carried on or are proposed to be carried on or that are reasonably believed by a health board to be premises in which a centre is being carried on and otherwise for the enforcement and execution of the regulations by the appropriate health boards and their officers.
(3) (a) Where, in relation to a centre, there is a failure or refusal to comply with a provision of the regulations the registered proprietor and the person in charge of the centre shall be guilty of an offence.
(4) (a) Where a person is convicted of an offence under this section, the Circuit Court may, on the application of the health board concerned, brought  not more than six months after the conviction or, in the case of an appeal against the conviction, the final determination of it or of any further appeal (if it is a determination affirming the conviction) or the withdrawal of any such appeal therefrom, by order declare that the person shall be disqualified during such period as may be specified in the order from carrying on, being in charge, or concerned with the management, of the centre to which the conviction related or, at the discretion of that Court, any centre.
(b) A person in respect of whom an order is made under this sub-section shall not during the period specified in the order carry on, be in charge, or concerned with the management, of the centre specified in the order or, if the order so specifies, of any centre.
(d) Notice of an application under this subsection shall be given to the person convicted of the offence concerned and he shall be entitled to appear, be heard and adduce evidence on the hearing of the application.
(e) The jurisdiction conferred on the Circuit Court by this subsection shall be exercised by the judge of the Circuit Court for the time being assigned to the circuit in which the premises concerned are situated.
(5) A person who wilfully obstructs or interferes with a health board or an officer of a health board in the performance of functions under the regulations or who fails or refuses to comply with a requirement of a health board or an officer of a health board under such regulations shall be guilty of an offence.”.
55.—(1) Where the registered proprietor of a children's residential centre intends to cease to carry on the centre, he shall give six months' notice in writing to the health board for the area in which the centre is situated and at the expiration of six months from the date of the notice (unless before that time the notice is withdrawn or the period of registration has expired) the centre shall cease to be registered under this Part.
(2) A health board may, if it so thinks fit, accept a shorter period of notice for the purposes of subsection (1) and the provisions of that sub-section shall apply with the necessary modifications.”.
“(4) All staff employed in children's residential centres shall be required to have suitable training and qualifications, which shall be prescribed by the Minister and shall be registered as prescribed by the Minister.”.
This is a very important amendment on a single issue relating to the staff qualifications for these child residential centres. I believe very strongly that the staff require special skills and special training to provide specialised care necessary to deal with the type of deprivation suffered by the children in these residential centres.
Whatever about the plethora of pre-schools and playschools who might not sustain a crushing burden of bureaucracy, we are dealing here with a couple of dozen State-owned residential centres throughout the country. We should observe international standards in regard to the training and qualifications of the staff in these centres. This matter was discussed on Committee Stage as amendment No. 186. It attracted substantial support and it is important that it be debated again. Some of these residential State centres may be State-owned but they are run like public voluntary hospitals. It is important that there be uniformity between the different centres so that a centre in Donegal and another in Kerry would have the same standard of staff.
I would ask the Minister to accept this amendment. There is no good argument for rejecting it. The wording is clearcut. It may initially require some modifications to ensure that existing residential centres are brought up to standard. It is vital that there be a proper therapeutic and rehabilitative aspect to these centres. We do not want the revolving door syndrome that we have in our prisons applied to child residential centres. We must have a quality of rehabilitation and a quality of care that allows people to go on to have the fullest possible opportunity in life, to have a career and a family and so on. I  would ask the Minister to accept amendment No. 199 as something eminently fair and reasonable which will bring a new level of professionalism to a wide variety of centres which are being brought in under this legislation.
Mr. O'Donoghue: I share Deputy Yates's concern that staff employed at children's residential centres be suitably qualified because, of course, they are dealing with children at a very sensitive stage. However, the argument could be advanced that that provision has already been made by the Minister in his amendment No. 194 where it is said:
53.—(1) The Minister, shall for the purpose of ensuring proper standards in relation to children's residential centres, including adequate and suitable accomodation, food and care for children while being maintained in centres, and the proper conduct of centres make such regulations as he thinks appropriate in relation to centres.
Then the Minister's amendment continues to say, in sub-paragraph (2) that he “may” prescribe requirements as to the numbers, qualifications and availability of members of the staffs of centres. Therefore, the only real difference between what the Minister and Deputy Yates are saying is in the use of the word “shall”. If the Minister agrees to the use of the word “shall” instead of the word “may” then sub-paragraphs (a) to (g) of subsection (2) become imperatives. I have an open mind on the matter. I am in no doubt under the provisions of that subsection that the Minister would ensure that such staff would have the necessary qualifications. But if Deputy Yates or the Minister feel it should be a statutory imperative that is a matter for them.
Mr. Howlin: I want to support this amendment. We discussed it at Special Committee at which time the Minister felt it was covered already by way of  regulation and did not see the need for it. It has been my experience that most staff employed in such residential centres are already well qualified; that would apply to virtually all, if not all, of the staff so currently employed. Therefore the requirement of training and professionalism is not a new imposition; it is de facto the case, but it is useful to have it enshrined in the legislation. Because it exists already it would not be a great burden on any of the existing facilities or their staffs, but it should be signalled that we require it for people dealing with children in residential homes. For that reason the Minister should take the amendment on board.
In relation to having a register, I hope the Minister will not advance the same argument in regard to the burden of bureaucracy, the difficulties, expense or whatever that would cause. It is important, since all these centres would be State-funded, that there would be a statutory mechanism for registration. It is a modest enough requirement, one that the Minister could well incorporate into the new section 53, to be inserted under the Minister's amendment No. 194 we have already passed. The Minister has moved along the road we requested at Special Committee. He has redrafted this whole Part, with four new sections. This would represent a little extra strengthening of our case. I do not think it would be difficult for the Minister to accept this amendment.
Mrs. Barnes: We are all aware that the skills, talents and qualifications of staff employed in children's residential centres must be of the highest quality. What we are hoping is that such staff will replace the most fundamental loss to any child, that is the basic love, support and all that the family home normally provides. I do not need to labour that point; the Minister knows exactly what I am talking about. That is the type of qualification and skill needed for those people who endeavour to replace the normal quality of home life. We must also acknowledge the value of such staff and the task they perform at that level. If there were any  further qualifications needed on the part of existing staff, perhaps the Minister would ensure they would be subsidised and encouraged in that endeavour. We cannot speak too highly of the commitment and dedication of the staff employed in this area.
Dr. Fitzpatrick: I can go along with what has already been said. It would be unusual in a Bill that we prescribe the requirements vis-á-vis food to be provided for children and not the qualifications of the relevant staff dealing with them. My only caveat would be that not alone should the staff have academic qualifications or be properly trained but their personal qualities and choosing them will be vital to the whole exercise. The only caveat I would have is that I would hate to see somebody eminently suitable for the task, because of their personal qualities, being excluded.
Mrs. Fennell: I support this amendment for the reasons already stated but specifically because, in the definitions section, as specified in amendment No. 186, at sub-paragraph (c) we talk about an institution for the care and maintenance of physically or mentally handicapped children. I am aware that this is a very expensive service to provide and maintain. There may be a temptation to cut costs and perhaps, not provide for the requisite quality of staff these children need.
Mr. N. Treacy: There are two elements contained in amendment No. 199. The first is that staff in children's homes should be properly trained. The second element is that they should be registered under some statutory procedure. As regards the first matter I accept that the staff of our homes should be suitably trained and qualified. That is the case in respect of the vast bulk of existing staff.
Furthermore, the regulations to be made under the provisions of amendment No. 194 will impose requirements as to qualifications and so on. Therefore, I put it to the House that this aspect is  adequately provided for in amendment No. 194, subsection (2) (b).
The second aspect is the introduction of a system of professional registration. As the house is probably aware, this is to be the subject of a separate Bill to be promoted by the Minister for Health. The purpose of the proposed Bill is to provide for the introduction of statutory registration for a range of health professionals, including child care workers, social workers, physiotherapists, radiographers and others. The preparation of the Bill is proceeding in consultation with the various staff interests. This is also linked to the mutual recognition of qualifications post-1992. In view of all this I would sincerely ask the Deputy to consider withdrawing his amendment.
Mr. Yates: The brief has not changed. I do not have the kind of expertise available to the Minister. I intend to press this amendment because I believe that, to await European directives, is the wrong way to approach this matter. Of course, there is a European directive in relation to everything from radiographers to people working in pathology departments in hospitals, physiotherapists and so on; we all know that. It is probable that that will be delayed, we will get a derogation and, eventually, introduce it in 1994. Deputy O'Donoghue is correct in this that the Minister “may” do it. It  is quite obvious that he will not do it until 1992 anyway according to what he has just said — whether he “shall” do it or “may” do it. It is clear that in the regulations he is not going to do this in the short term, therefore the House has to insist that this matter be dealt with. It is very important that we have and continue to have quality people, with a proper career and pay structure for them in residential care centres. Because we are dealing with young people in their formative years who are in difficult circumstances, probably in these centres because they are abused, we cannot tolerate anything less than the Minister pulling his finger out, making the effort and ensuring the strictest possible qualifications. I will be pressing my amendment.
This relates to a very important matter, the functions of the chief executive officer in implementing this legislation. Against my best determination to seek otherwise, the health boards are having the sole operation of this legislation. As we and members of health boards know, the  chief executive officer's powers are very formidable and I am very afraid that under the present wording of section 60 the functions that should be related to the board and the chief executive officer are as one. While I agree that there should be day to day executive and managerial control by the chief executive officer, because of the financial and other constraints and the fact that they have responsibility for community care, general hospitals, special hospitals and so many new services, I am seeking to provide in section 60 that functions relating to a health board shall be the functions of the chief executive officer of the board “in consultation with the board membership”. With no disrespect to the eight men involved — no women I might add — I am not satisfied that they should be given the sole prerogative. We slip it in at the end of the day's work, having decided that all this is good and idealistic and has to be done, but at the end of the day the chief executive officer can say he has this, that or the other constraint on him. This is the usual subterfuge we can expect from Hawkins House and we will have to amend section 60 (1). I am seeking to insert that the chief executive officer can exercise his functions only in consultation with board membership.
We have spoken about the role of child care advisory committees and other bodies, but one thing has become clear from what the Minister has said; he wants nobody, other than the chief executive officer, involved in individual cases. We had amendments dealing with child care advisory committees and the Minister specifically rejected any role for the advisory committees and any possible role for them regarding any information to do with any individual, and that means an executive day-to-day role. Therefore, I am seeking that one man will not have an authoritarian role. I feel my request is reasonable and modest and will ensure that the best intentions of this legislation will be tempered by the type of democracy and consultation I am proposing. I feel that, as we are all democrats in this  House, we should accept this amendment. I believe it is an important improvement.
Mr. Sherlock: I support the amendment. I did not really cop on until now, when it was pointed out, what is contained in this section. There are such things as powers vested in members and powers vested in management, but to introduce and enact legislation and give the whole range of power contained in that section to the chief executive officer would mean we would be going nowhere. Even in the matter of the functions in relation to the supervision of pre-school services, how could you involve the chief executive officer? I am taking that as the extreme. He would have to have consultations with his officers on the ground. We have talked about advisory committees.
Mr. Dempsey: I am speaking as someone whose credentials in the area of local democracy and giving powers to local authority members cannot be challenged. I have spoken on this issue on very many occasions.
Mr. Dempsey: I am not going to speak in favour of it, but I wanted to put my credentials up there, unlike Deputy Yates who suggested during this debate that everything should be taken to the centre, that the Department of Health should be making regulations for this, that and the other and that all the functions should be taken from local level. That has been the argument throughout Committee and Report Stage. I do not come to this amendment from that viewpoint; I take an opposite view.
 I am not going to question the Deputy's motivation in putting down this amendment. I can see his reasoning behind it. He felt the amendment would strengthen local democracy and so on, but can you conceive of a full health board considering taking a child into care under section 4 of the Bill or the full health board having to be consulted about any of the other things listed in section 60 (1) (a) to (h)? The function of the health board under this Bill is to decide the policy. The function of the chief executive officer is to implement that policy and he has to make executive decisions.
Deputy Yates may want to look at his amendment again. With all due respect to him, what he is suggesting in this amendment will cause hardship, trouble and all sorts of problems for precisely the people we are trying to protect, the children. If a health board chief executive officer, or somebody duly authorised by him, cannot make executive decisions in relation to taking children into care or do all the other things outlined here, then we will have to have health boards permanently in session or people will have to wait for care orders and other things until the next monthly meeting of the health board. While I appreciate the intent behind the amendment, I think it is just not feasible, it is not workable and it should be withdrawn without futher discussion.
Dr. Fitzpatrick: On the face of it, Deputy Yates's amendment looks eminently reasonable, but then we read paragraphs (a) to (e) in the section. We are discussing children and families who are already traumatised. Are we going to have cases discussed in public debated in the evening papers and, no doubt, on radio and TV? This would be the effect if we adopt this amendment and let there be no doubt about it. What we are doing is heaping indignity upon indignity on people already seriously damaged.
Mr. Ferris: Having been a member of a health board for ten or 11 years, I would like to make a brief comment. The present procedure is that the chief  executive officer makes an order committing a child to care. This is done by order at the public health board meeting and by reference number. Any member is entitled to get information from the chief executive officer if he so wishes. There is, therefore, some element of confidentiality. At the moment, under the powers vested in the chief executive officer, an order is made by the chairman at a public meeting but he is never questioned by the members unless they want information, and that is always available. I am not sure whether that is sufficient compromise. The power to make the order has to be vested in somebody responsible but I take it that the chief executive officer would always be acting on behalf of the board and subject to the board's questioning, criticism or otherwise. That has been my experience up to now. I am not sure whether that would satisfy Deputy Yates.
Mr. O'Donoghue: With all due respect to Deputy Yates, he has gone over the top with this one. Aside altogether from his conversion on the worth of health boards, it is ironic that I who criticised him for his criticism of health boards yesterday would urge him to withdraw this amendment, because, to be honest, it is ridiculous. It is ridiculous because we would have the health boards discussing a child's circumstances at their monthly meetings. The Deputy need not tell me that even though they are discussed anonymously, people would not be in a position to identify a case in a small town or village. They certainly would.
In regard to the role of members of the health board if I, as a member of the Southern Health Board, decide that I do not agree with a certain decision taken in relation to a child in my constituency, is it open to me to raise that matter by way of a motion at a health board meeting? If I thought the dignity of the individual concerned, and confidentiality, would be  maintained, I could certainly go privately to the chief executive officer of the health board. Can one imagine a health board deciding whether or not a child should be taken into care? How many meetings would the health board have to have every month to make these decisions? Can one imagine a scenario whereby a health board, under section 48, would decide whether or not an individual should be charged in relation to a given matter?
Deputy Yates, on balance, is a sensible man and will now see that this amendment is just not on. It would not be fair to the Bill, and it certainly would not be fair to the children this Bill is supposed to protect.
Mr. N. Treacy: The whole purpose of section 60 is to assign responsibility for certain functions to the chief executive officer and, through him, to other staff of the health board. This is fully in keeping with the practice that has always obtained since the health boards were established whereby responsibility for individual cases rests with the staff of the health board, while the health board has a broad policy role.
It is also in line with the practice that applies in local government where decisions on individual cases are primarily for the management, with the elected members exercising certain reserved functions. Obviously, it is part of the chief executive officer's role to keep the board informed generally on the affairs of the health board and to discuss major questions of policy with them.
However, what Deputy Yates is proposing would go much further than that. For example, under paragraph (f), sub-section (1) the chief executive officer would be required to consult the board about the arrangements for the care of individual children. I am sure the House would agree that this would not be appropriate and for this reason I will not be able to accept this amendment.
Deputies Yates and Sherlock are not correct in saying that all these functions will be performed by the chief executive officer. That is not what we want at all. I would refer the House to section 3 (4) of the Bill. This enables the chief executive officer to delegate any of the functions conferred under section 60 to other officers of the health board. Obviously, decisions in relation to individual children will be taken by the social workers, psychiatrists, doctors, nurses, psychologists and others involved in a particular case. The function of the chief executive officer and the board will be to decide an overall policy and objectives. The same arrangements apply in relation to hospital and other services provided by the health boards.
I have been as broad and as positive as I can throughout the debate. I accepted an amendment on Tuesday from Deputy Yates, amendment No. 29 (a), which confers a role on the child care advisory committees in health board areas. We can pass all the Bills we like but unless there is accountability of operation, unless there is a chain of command to ensure that the resources of the State are disbursed in a proper manner, and unless at the end of the day people know what is going on we will be going nowhere.
Under the 1970 Act the chief executive officer discharges the functions, and bestows on other officers the opportunity to discharge functions and professional duties on his behalf. He, in turn, is responsible to the Minister for Health and the Department. The Minister is responsible to the Parliament and any Member, on behalf of the people, can ask a question about a specific situation and get that information. The Parliament in turn, is responsible to the people. That is democracy at work in the broadest context we can have. We have a very broad open democracy and there is a clear chain of command. There is clear responsibility, clear accountability. I would be sincerely grateful to Deputy  Yates if he would withdraw this amendment.
Mr. Yates: A Leas-Cheann Comhairle, the backing group were in poor voice for this amendment. First, it should be realised that subsection (1) (h) provides for “such other functions as may be prescribed”. That could be anything. Prescribed by whom? By the chief executive officer?
Mr. Yates: That is laid down in sub-section (2). Any question as to whether or not a function is a function of the chief executive officer shall be determined by the Minister. I want to give the Minister a clear message, and I believe it is the view of this House, that all aspects of planning and of the development of child care services should be done in consultation. I would go a lot further than the Minister has gone and say there should be within each health board a programme manager for child care services, especially in the initial years, to ensure that this legislation is backed up with resources.
In the interests of time I will withdraw this amendment but the point is well made that we need to have clear division of responsibility between Executive action and policy considerations. I do not want subsection (2) (h) of this used as a blank cheque for chief executive officers to take over any and every function relating to child care.
An Leas-Cheann Comhairle: Amendment No. 212 is consequential on No. 204 and amendment No. 205 is related. It is proposed, therefore, that Nos. 204, 205 and 212 be taken together. Is that agreed? Agreed.
The purpose of this section was to raise from 17 to 18 years the minimum age at which the death penalty could be imposed for certain capital offences. This was intended to facilitate the ratification by the State of the United Nations Convenant on Civil and Political Rights. As a result of the recent enactment of the Criminal Justice (No. 2) Act, 1990, the death penalty has been abolished for all offences. This renders section 62 and the proposed repeal of section 103 of the 1908 Act unnecessary.
Mr. Howlin: On a point of order, we have a half hour left of this debate. It appears there are three issues of substance in Part X, and perhaps we could allocate ten minutes to each. The one we are about to deal with in Deputy Sherlock's amendment is very important. The second issue relates to solvent abuse, which is the subject of Deputy Sherlock's other amendment and the amendment in the names of myself and Deputy Ferris. The third substantive issue is the age of  criminal responsibility. I think it is important that we touch on all three issues. Could we allocate ten minutes, by agreement, to deal with each?
The purpose of these two amendments is to take out of our legislation the power of a court to commit a child to prison. Amendment No. 206 says that it shall not be lawful for any child to be remanded in custody or to serve all or any part of a custodial sentence in any adult prison. It also states that it shall not be lawful for any child to be held in a Garda station for a period longer than 24 hours. Amendment No. 211 proposes to delete from the children Act, 1908, the two sections that deal with the powers of courts to remand and sentence children to adult prisons.
It is worth remembering in the context of the 1908 legislation, which is the operative legislation in this case, that a court is required as a prerequisite of its sentencing a child to an adult prison to certify that the person is so unruly and so  depraved a character that he cannot be safely detained in custody other than an adult prison. Those are the concepts embodied in sections 97 and 102 (3) that we are seeking to delete.
The Minister mentioned the United Nations Convention on Civil and Political Rights. On 30 September of this year the Taoiseach, Deputy Haughey, attended the New York UNICEF World Summit for Children and signed the Book of Intent, indicating our country's intention to adopt the United Nations Convention on the Rights of the Child, the culmination of years of work since the International Year of the Child in 1979. That convention places on any contracting party to the convention a number of obligations with regard to the incarceration of children. It states in paragraph 37 (b):
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons and their age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests.
None of that is being adhered to or given credence in the law as it stands under the 1908 Act. So far this year 21 children under the age of 15 years have been committed to prison in adult prisons. More recently, two young girls spent up to two weeks on remand in Garda stations because a suitable place of incarceration could not be found for them. These young people are being locked up in prison without any segregation, not in their best interests as is mentioned in the convention but out of desperation because there is simply nowhere else to put them.
 The Minister may say this is the responsibility of another Department but we are dealing with child care in the context of the convention, and it is important that we address it just as, for example, we have addressed the question of the death penalty. I know he will talk about what is to be provided; he referred to this in the House last week. We should not lose the opportunity to delete these two very invidious provisions of the 1908 Act and ensure that from now on no court will have the opportunity, for whatever reason, to send a child to an adult prison and no child will spend longer than the minimum period necessary in a Garda station.
Mr. N. Treacy: I note Deputy McCartan is present to deal with this matter and, being a law man, I am sure he can appreciate that you cannot make provision in a piecemeal way in a children Bill for something that is legally the responsibility of another Department. This Bill is primarily concerned with providing care for children who are in need of protection. It does not purport to reform the law in relation to juvenile justice. Such reform would require comprehensive legislation in its own right. It cannot be achieved by way of piecemeal amendments in this Bill, and I am sure Deputy McCartan can readily accept that.
I am, of course, aware of recent concern about young persons being sent to adult prisons. I would like to briefly set out the legal position in this area. Persons under the age of 15 cannot be sent to prison. Persons aged 15 or 16 can only be sent to prison in accordance with the provisions of sections 97 and 102 of the Children Act, 1908. In these cases the court has to certify, as Deputy McCartan has said, that the young person is of so unruly a character that he cannot be detained in a place of detention provided under that part of the Act, or that he is of so depraved a character that he is not capable of being so detained. Last August my colleague, Deputy Ray Burke, Minister for Justice, made regulations providing for the detention of certain 15 year  olds in the place of detention at Wheatfield instead of in Mountjoy, Cork or Limerick prisons. Those regulations made possible the transfer to Wheatfield of boys who had been sentenced to prison by the courts. The Minister considered that Wheatfield provided a more suitable environment than Mountjoy, or the other prisons, for children under 16 years, given the age structure of the population there generally and the emphasis in its regime on education and work-training for young offenders.
There is a number of institutions operated by the Department of Justice which cater specifically for young male offenders aged 16 to 21 years. The policy of the Department of Justice is to concentrate the accommodation of people under 21 years of age in those institutions. It has to be said, however, that there may be good reasons for accommodating some offenders in that age category in a prison. For instance, young offenders from the Munster counties sometimes prefer to be accommodated in either Cork or Limerick prisons or at Fort Mitchel on Spike Island. Their accommodation at these locations greatly facilitates visits from families and friends of offenders which are very important from the point of view of the wellbeing of inmates.
The general picture as regards young persons being maintained in custody in prisons or places of detention is that the majority of young male offenders are accommodated in institutions designated for them specifically.
The difficulties, which have received considerable attention in this House and in the media, relate primarily to young female offenders for whom an insufficient number of secure places are available. Deputies will be aware of the announcement by the Minister for Justice of the Government's decision to plan and build a new secure unit for female offenders. I understand that a planning team, under the aegis of the Department of Education, are well advanced in their work.
 Regarding subsection (2) of the proposed amendment, the holding of a child in a Garda station for not longer than 24 hours, it is a regrettable fact that children commit serious offences such as burglary, robbery and assault. I am sure that Deputy McCartan, as a legal man, appreciates this. It happens, therefore, from time to time that children must be detained in Garda stations in connection with criminal offences and the Garda must, of course, have adequate power to deal with such situations. Needless to say, in such circumstances, it is essential that the welfare and the rights of the child must also be fully protected. To that end specific provisions are contained in the Criminal Justice (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, which put in place very particular safeguards on the rights of persons in Garda custody who are under 17 years of age.
I am advised by my colleague, the Minister for Justice, that these provisions, in situations where detention of juveniles prove necessary, serve to ensure that children are adequately protected by the law. Therefore, I do not see any merit in the Deputy's proposed amendment to the existing law in this respect.
The reform of our juvenile justice system is a complex issue and would require a great deal of careful consideration before any changes are legislated for. I am satisfied that such consideration is not a matter to be undertaken in the context of a Child Care Bill, it is a matter which should be considered in the context of criminal justice policy in relation to young people generally.
Mr. Howlin: I will limit myself to a short comment. It is important to record the support of my party and myself for  this amendment. The Minister said that it was not appropriate to this Bill. However, we should very strongly signal that we accept the fundamental principle enshrined in this amendment. I would happily have applauded the Minister if he had said that another Bill was in an advanced state of preparation which would be before the House next session incorporating these principles but, unfortunately, he has not given that commitment. It is shameful not to enact this amendment in those circumstances.
Mr. Yates: It strikes me as shameful that the Taoiseach can willingly sign declarations at UNICEF meetings but that his Minister of State can say that he does not have any proposals in this regard. It is appalling hypocrisy.
A constituent of mine was sent to Mountjoy jail and his experience proved beyond all doubt that adult prisons only succeed in making juveniles better trained in criminal activities; it further pursues the question of revolving door justice instead of doing anything to rehabilitate them. I am not spokesman for Justice but, as someone responsible for the area of child care, I feel that adult prisons are not suitable and there should be proper centres to ensure that these young people have a better future away from crime.
Mr. O'Donoghue: While appreciating the sentiments of the amendment it must be made quite clear that this Bill is about children at risk, it is not — and was never intended to be — about young offenders.
Mr. McCartan: I am sad we cannot recognise that juvenile justice in this area means child care. We are talking about children and their care and to send them to an adult prison is an utter denial of  that. The problem is that it is being compartmentalised, when the Minister does not want to address the issue he can say that it has nothing to do with him.
An Leas-Cheann Comhairle: We now come to amendment No. 207 in the name of Deputy Sherlock. Amendments Nos. 208 and 209 are related and it is proposed, therefore, to take amendments Nos. 207, 208 and 209 together. Is that agreed? Agreed.
63.—(1) Any person, not being a child, who sells, offers or makes available to a child or young person any volatile substance in circumstances in which it would be reasonable for that person to know or suspect that the substance will be or is likely to be misused by that child or young person in a manner which is likely to cause him to be intoxicated shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.
 (2) (a) Any person who sells, offers or makes available to a child or young person a volatile substance to which this paragraph applies, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.
(3) Where a person is prosecuted for an offence under subsection (1) or (2), it shall be a defence for him to prove that he took reasonable steps to assure himself that the person to whom any volatile substance was sold, offered or made available was not a child or a young person, as the case may be.
(4) Subject to subsection (6), a court by which a person is convicted of an offence under this section may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit.
(5) A court shall not order anything to be forfeited under this section if a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity is given to him to show cause why the order should not be made.
(6) A member of the Garda Síochána may seize any volatile substance prescribed by the Minister under sub-section (2) which is in the possession of a child or young person in any public place or any volatile substance (whether so prescribed or not) which is being misused by a child or young person in a manner likely to cause him to be intoxicated. Any substance so seized may be destroyed or otherwise disposed of in such manner as a member of the Garda Síochána not  below the rank of Chief Superintendent may direct.
Mr. D. Ahern: There is no major amendment from Committee Stage to section 63. I raised an issue, widely publicised at the time, which took place in my constituency where two youngsters bought petrol from a garage, went down to a field, intimidated another young boy in the vicinity, threw petrol on him and set him on fire. The boy was very badly burnt. In the special committee I raised the possibility that this could be looked at in the light of an amendment on Report Stage.
I fully accept that the Minister has looked at my request in the meantime and that there is a difficulty with bringing it in here. The legislation merely deals with the inhalation of solvents. It would be possible to convict someone for selling petrol to a child if it could be proved that the child was intending to inhale it but the reality in this instance is that the petrol was used to set the child alight. When this incident happened I brought it to the notice of the Minister for Justice and was passed from Department to Department because there was a difficulty as to which Department were responsible for the use of these substances. It transpired eventually that it came under the Dangerous Substances Act which was the responsibility of the Department of Labour. I am extremely concerned about the danger of selling petrol to young children. While I fully accept that it is not possible to include it in this Bill, I would implore the Minister to make some representations to the Department of Labour to see if it would be possible to have it taken care of elsewhere, because of the fears raised by me.
Mr. Howlin: The amendment proposed by Deputy Sherlock is the section that was in the original Bill proposed by the former Deputy Desmond when he was Minister for Health, and incorporated in the Private Members' Bill I circulated in 1987. The Minister's section has a glaring flaw. I have no difficulty in  accepting the Minister's section with one caveat and that is why I took one section from the old Bill to insert it into this as a new subsection (7) to give the power to the Garda, if when walking the streets they see a child intoxicating himself with glue, to take the glue away from the child. There will not be that clear power in the section if we do not include the amendment in my name and the name of Deputy Ferris. It is of the utmost importance that the members of the Garda Síochána should have the power to seize such a substance in the possession of a person in a public place, which is causing him to be intoxicated. It is a very important power. We have all been shocked to walk the streets — although thankfully it is now less common than it once was — to see children intoxicating themselves with glue or other substances and seemingly no one had the power to intervene. It should be clearly spelled out and incorporated in this Bill. I sincerely ask the Minister to accept amendment No. 209 which would enable the Garda to make those interventions.
Mr. Yates: I am anxious that we should have at least a minute or two to discuss amendment No. 210. I will be supporting Deputy Howlin's amendment. I have nothing against Deputy Sherlock's amendment and I will be happy to withdraw amendment No. 208.
Mr. Ferris: In relation to amendment No. 209 the previous Minister for Health and his draftsman and advisers considered this section important enough to put into a previous Bill. The Minister's section excludes this, excluding a fundamental power for the Garda Síochána. Because this amendment was previously agreed in the Department and by ministerial advisers and the parliamentary draftsman, I see no reason the Minister cannot accept this. Let us go out on a high, if Deputies will forgive the pun.
 In my constituency there was recently a tragic death of a young student who sniffed Tipp-Ex. If there are two forms of Tipp-Ex, one an eraser used by students and for secretarial work, why can it not be possible to make only the one that is harmless only available for sale? This is a very easy solvent to buy, to hide and to use. This concerns me quite a bit.
Dr. Fitzpatrick: I support the general thrust of this amendment. There is no doubt that glue sniffing is a social evil. I would enter a caveat. We are dealing with a children's Bill. It says “which is in possession of a child or person ... which is being misused by that child or person”. Perhaps I am nit-picking at this stage——
Mr. N. Treacy: Amendment No. 207 is similar to an amendment we discussed at the special committee. There is a number of important differences between it and section 63. Subsection (1) of the amendment is broadly similar in effect to section 63 (1) of the Bill. It makes it an offence for a person to sell or make available any volatile substance to a child where it would be reasonable for him to know or suspect that it is likely to be misused by that child.
The main difference is that the amendment uses the term “volatile substance” but the Bill does not. Subsection (2) of amendment No. 207 gives the Minister the power to prescribe certain products which could not be sold to children under any circumstances. In drafting the Bill a lot of thought was given to the effectiveness of such a provision and the Government came to the conclusion that it would be of no value since all the products that are generally abused — glues, aerosols, cigarette lighter fuels, household cleaners and butane gas — are freely available in the average home and  children have legitimate reasons for using them. To prosecute shopkeepers, for example, for selling glue to a child building a model aircraft would not make any sense. I pointed this out at the Special Committee. The last major difference between amendment No. 207 and the Bill is subsection (6) which would enable the Garda to seize volatile substances from children.
I have listened to the contributions in relation to amendment No. 209 and with the permission of the Ceann Comhairle, and the co-operation of the House, I am prepared to accept this amendment provided we can amend it slightly to read:
(7) A member of the Garda Síochána may seize any substance which is in the possession of a child in any public place and which the garda has reasonable cause to believe is being misused by that child in a manner likely to cause him to be intoxicated. Any substance so siezed may be destroyed or otherwise disposed of in such manner as a member of the Garda Síochána not below the rank of superintendent may direct.
“(7) A member of the Garda Síochána may seize any substance which is in the possession of a child or person in any public place and which is being misused by that child or person in a manner likely to cause him to be intoxicated. Any substance so seized may be  destroyed or otherwise disposed of in such a manner as a member of the Garda Síochána not below the rank of Superintendent may direct.”.
A member of the Garda Síochána may seize any substance which is in the possession of a child in any public place and which the member has reasonable cause to believe is being misused by that child in a manner likely to cause him to be intoxicated. Any substance so seized may be destroyed or otherwise disposed of in such manner as a member of the Garda Síochána not below the rank of superintendent may direct.
I am proposing that the age of criminal responsibility be raised from seven to 14. This was discussed in the committee. I am not saying that this age would mean the age at which a child has reason but that the criminal law code should not apply to children of 14 years of age or younger. It is not right that they should be treated as criminals. It is not right that they could be in adult jails. I would ask the House to accept this amendment. If the Minister has another age in mind I will consider it.
Mr. N. Treacy: I concur entirely with what Deputy O'Donoghue has said. We cannot ignore the fact that children, no matter what age they are, commit serious crimes and consequently, I regret I will not be able to accept Deputy Yates' amendment.
Mr. L. Fitzgerald: I compliment the Minister, being the person responsible, for bringing in such progressive legislation, the innovation he has shown and his ability to consider points of view from all sides of the House.
Minister of State at the Department of Health (Mr. N. Treacy): Before we conclude I would like to sincerely thank you, Sir, the Leas-Cheann Comhairle,  and the staff of the House for the tremdous co-operation they have given us to ensure that the consensus of views which prevailed in this House was enacted into the Bill that now moves to the Seanad. I sincerely thank the staff of my Department, the staff of the Office of the Attorney General, the Government and all Members of the House, particularly the members of the Special Committee, who worked diligently for the past 15 months to ensure that we brought forward a very positive and progressive Bill. To Members who participated in the Report Stage debate I am sincerely grateful. I am particularly grateful to the spokespersons from the various parties who played such a co-operative and key role in achieving this wonderful Bill. It is an historic occasion.
Mr. Yates: Very briefly, I would like to endorse the sentiments of the Minister. I would like to thank you, Sir, your colleagues, and staff, for the efficient and courteous way you assisted us in our deliberations. This is very important legislation and it has taken up a great deal of our time. It is a radical improvement on the Bill originally published by this and previous Governments. There is a need for a further child care Bill to deal with the remaining issues raised in the report of the Law Report Commission and I hope that will be considered next year.
Mr. Howlin: I would like to be associate with the remarks of the previous speakers. We have participated in an historic Bill. I commend heartily the attitude of the Minister during the course of the debate for the last 25 hours and also during Committee Stage. We made substantial improvements to a Bill of which we can all be proud. The process we went through in the last 15 months will stand to us all. I found it to be a broadening and a learning process and I am grateful for having had the opportunity of doing that. I commend you, a Cheann Comhairle, and the staff of the House for the  assistance they gave all of us on the Committee and Report Stages. If we have any legacy as legislators, this will be one in which we will all share a great pride.
Mr. Sherlock: This is very important legislation and I am glad, on behalf of my party, to have been associated with it. The Bill places a huge statutory duty on health boards to promote the welfare of children. The provisions of the Bill have implications for the boards with regard to manpower resources, funding arrangements and so forth. While the debate was taking place, and during the past year, I told the people interested in this legislation that I had no doubt about the sincerity of the Minister of State, the Minister for Health and the Department of Health to have the legislation enacted. As I said earlier, this is legislation we have been crying out for for a long time but the implementation of its provisions will require finance. I did ask the question concerning costs in my own health board area some months ago and I was told it was estimated that an additional £2.5 million would be required. That indicates the magnitude of the problem we are confronting. I have confidence in the Minister, and the Department, to implement them.
Mrs. Fennell: I am not a spokesperson in the Health area but I would like to add my voice to the expressions of appreciation to the Minister of State and to you, a Cheann Comhairle. I would not want it forgotten that we got off to a good start with Deputy Fitzpatrick who chaired the Special Committee with extreme skill and expertise. Much of the credit for the good atmosphere is due to him.
Mr. Ferris: I would like to add one word as the newly appointed Labour Party spokesman on Health. I had to try to dovetail into all the magnificent work that had been done. I tried to do it as constructively as possible and I found  you, a Cheann Comhairle, the Leas-Cheann Comhairle and all the staff very helpful in this matter.
Dr. Fitzpatrick: I had the honour to be chairman of the Special Committee. My chairmanship was made very easy by the co-operation and the input of my colleagues from all sides of the House and, especially, by the Minister of State. They proved they were open-minded and that we can enact legislation in the greater interest.
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