Thursday, 7 March 1991
Seanad Éireann Debate
Mr. Norris: I wish to address the Child Care Bill briefly. My brevity is partly due to the fact that I am a teacher myself, if I may address the Minister through the Chair, and my obligations are to instruct the hungry little minds down in Trinity between the hours of 3 p.m. and 4 p.m. I also believe that quite a lot of groundwork for this Bill has already been laid in many of the speeches and I do not wish to be tedious. However, I have been extensively lobbied by constituents, because as the Minister will understand my constituents being graduates many of them are involved or interested in this area of child care.
I have received briefings from the National Children's Nurseries Association, from Dr. Barnardos, from St. Nicholas Montessori College in Ireland and from a number of other groups. First of all, I would have to say that there is a universal welcome for this Bill and I want everything I say to be placed in that context. It is generally regarded as progressive, forward-looking legislation,  overdue perhaps, but now very definitely to be welcomed. I also understand that the Minister did accept a number of amendments in the Dáil and I hope that it may be possible for some further amendment to the Bill to be made in the Seanad. That is important because the Seanad is, after all, constitutionally the place where refinements should be made to legislation.
I have only two or three areas of concern to which I would like to alert the Minister, and he may in fact know that I have placed amendments to this legislation already. There are about three amendments and they deal generally in the areas on which I am going to concentrate. I am not going to engage in generalised comment upon the Bill apart from giving it a welcome and expressing some degree of concern which has been made known to me by competent authorities in this area.
First, there is the question of notification and the distinction that is drawn between notification and registration. It has been represented to me that notification only requires the child care facility to notify a health board or other Government authority that they are in operation, and this naturally leads to some concern on behalf of the responsible bodies in this area. There seems to be very little control and adequate supervision implicit in this idea of notification — in other words, people can just set up and notify the relevant authority without passing any degree of test or being examined in any way. For this reason registration seems to be a preferable option. A number of us will be urging this in the form of amendments to the Minister. Registration is essential for such pre-school services precisely because it imposes standards before the facility can be registered. A list of registered facilities would then be available to the public and parents on the understanding that they were fit to operate. Any child from any background, advantaged for disadvantaged, has the right to care that is of a fit standard, whether in a creche, playgroup, nursery, pre-school at or near the workplace or at any childminding centre.
Another point which has been made to  me by virtually all the people who either spoke to me or transmitted documents to me is that there is a distinction which is not fully respected by the wording of this Bill: the distinction between the location, the physical plant and equipment, on the one hand, and, on the other, the competence of the personnel involved in it. It seems to me, having read through the Bill and having been advised by these competent professionals, that it is a pity that so much concentration is in the area that I would regard generally as being appropriate for by-law supervision — fire regulations, hygiene regulations and so on.
Of course, an appropriate environment is necessary, but I am a little concerned that the Bill does not really address the problem of the competence or qualifications of the personnel involved. For a service like this to be fully professional and for the Bill to work properly there would have to be some degree of evaluation of the competence of the personnel involved. In the Bill the emphasis is almost entirely on the physical environment. There is no concept of the kind of care and the quality of experience required. Hygiene and safety must of course be met, but under health it is essential to consider as well as the physical health the psychological and emotional needs of the child that is influenced by the environment. A child in a crêche, playgroup, nursery or at any child minding centre will spent the greatest part of his or her early life in that environment. The Bill, we believe, should be amended to ensure that those undertaking supervision and inspection are trained in child care, child psychology and child development and this will enable the health boards or the Department of Education to second staff to do this training or to contract in these skills from outside.
I have also had it suggested and recommended to me, and I think is very practical, that there should be some provision made whereby the costs of any inspections involved should be waived or met by the health board for playgroups and so on in disadvantaged areas. I am sure the Minister will agree with this. Play-schools in Foxrock and Blackrock are one  thing and the parents can afford a great deal more, but we must consider the disadvantaged areas. I speak with a degree of feeling on this because I live in an area where there is 80 per cent unemployment. It is a great privilege for me to live in a beautiful house in an area where I have extremely good neighbours from a variety of different backgrounds; but the income, by and large, of the people in that area, if I exclude the people I have helped to suck into the area to restore houses, is very low indeed. Many of these people are disadvantaged, but that does not mean that they do not care for their children. It does not mean that they do not wish the very best possible provision for them. Therefore, I feel that the cost of some of this could be borne by the health board, particularly because they may need to be more supervised in areas where there is already a level of disadvantage. I would ask the Minister to look at this problem.
That is the general outline. I will not delay the House I have to go teaching myself and also I know that other people want to get in. I will deal with these matters specifically when we come to the amendments we have placed. I would like to take up two other items very briefly. One is that I understand on hearsay evidence, which is not always the best, that a question was raised this morning by Senator Ryan, which I am glad was raised. That is the question of child molestation. It may very well have been raised by other Senators, but I did not hear them, and I understood him to be attempting to lay a particular kind of rumour and that is that people of the homosexual orientation are particularly prone to this kind of activity. I would like through you a Leas-Chathaoirligh, to place on the record — not for the benefit of the Minister because I am sure he is aware of this information — that all the scientific studies demonstrate quite clearly that children are at risk not from people of homosexual orientation. That is not just an arithmetical situation; it is a pro rata thing. They are much more at risk from heterosexual people. It is a very tiny group of people who engage in this  who would claim any kind of homosexual orientation.
I take the example of the famous Kincora scandal in the North of Ireland. That was a very regrettable situation from the point of view of somebody like myself because the newspapers — unfortunately, including many of the responsible newspapers — realising that they were dealing with a very sensitive area and one with which all decent people are concerned, the wellbeing and protection of the young, children, sensationalised it and described it as a homosexual vice ring. As I am sure the Minister will recall, those who were ultimately convicted of these offences were married men with several children, whereas on the other hand at least one of the children involved emerged from this traumatic adolescence to be a gay adult. The headlines were utterly and totally wrong. They were maladjusted people, whose primary orientation was heterosexual, victimising people, including some who turned out to have a homosexual adjustment ultimately. I regret having to place this matter on the record of the House but I think it is appropriate that I should.
I would like to deal with one further subject. I am not sure that it has been dealt with. I hope that it may be something new. It is the question of guardians ad litem. I have been approached to put to the Minister the proposition that there should be some provision for this mechanism in the Bill. This was made clear to me by a group called the Professional Coalition on Child Care who asked me to propose a system for the appointments of guardian ad litem; a description of which would be as follows:
Guardians ad litem are court appointed professionals who have a very specific and independent role in relation to children that are the subject of court hearings. The main job of the guardian ad litem is to focus very specifically on the interests of the child and report to the court for the purposes of the court hearings. It is not intended that the relationship is an ongoing or therapeutic one. It is contemplated solely with regard to the court and comes into play where the parent is absent through illness, death or incompetence of various kinds or is a  party to contentious proceedings. The role is particularly valuable in an adver-sarial legal system where the interests of the adult tend to be competing, whether these adults are the parents of the children in question or professionals working for agencies. Guardians are appointed by the court and operate independently with the right to work with children individually, meet all relevant parties to the case, including professionals and relatives of the child, have access to relevant information and reports so as to get the fullest picture possible of the child's situation.
The other countries' guardians ad litem usually, but not exclusively, are social workers who are very experienced and have particular skills in relation to child care and working with children. A guardian must be a skilled professional who can assess the needs of the child and, more importantly, communicate to the court what is in the best interests of the child.
This system first came to prominence in the United Kingdom, which is a jurisdiction — the Minister knows this, and it is something I have sometimes deplored — we tend to copy, even when this is not in my opinion in the best interests of the development of an independent jurisprudence in this country. In this instance I think this is a good idea.
The role of guardian ad litem was extended following the famour Maria Colwell case, which the Minister will, I am sure, remember. I certainly remember it; it was in the mid-seventies. In this case the girl was the subject of court action and there was obviously a problem with regard to child battering or child abuse. This was drawn to the attention of the local authorities, but the local authorities subsequently returned her to her natural parents, who murdered her. This was a clear case which indicated the need for this form of guardian ad litem.
It emerged in the case that no one had been specifically advocating the child's interests because of the agreement between parents and local authorities. In other words, there is a third party — not just the parents on the one hand, the local authorities on the other, but also the interests of the child. I think this is  important, because this is a Bill which so many people welcomed since it places the interests of the child as a primary concern. This case led to the enlargement of the role of guardians ad litem and they have now become predominantly social workers.
The role of the guardian was further extended in the United Kingdom by, in particular, the new Children Act, 1989. In Ireland we do not have a tradition of the use of guardians ad litem. Under the 1948 District Court Rules Act, amended by a 1955 statutory instrument, there is a provision whereby a judge can appoint a solicitor to act as guardian for children in very limited circumstances. This could arise, for example, in the case of a road accident where a sum of money was awarded to a child and the parents were not able to act on his or her behalf for various reasons. This very limited power, even if extended by tinkering with other laws, would not be adequate to meet the complex series of family law cases that might be involved.
There is a burden of other information that I want amplified in this case, but I think it is sufficiently strongly made and I hope that the Minister may bear this in mind. It seems to me to be a very reasonable point and I think it fits in very well with the Bill. It may very well be that it is not possible to extend this Bill by amendment to take on board the concept of the guardian ad litem. I would like to feel that it could be, but I have not fashioned any such amendment, so it would in a sense be a little bit redundant for me to castigate the Minister for not doing so. I do think however that it is appropriate on the Second Stage of this Bill to draw to the Minister's attention the existence of something that could very well be valuable for a child and to appeal to him to consider this for this legislation. However, if for a variety of reasons this is not possible at the moment, at least to bear it in mind as a mark of some way in which we could improve the wellbeing of children.
I have to say from my experience of court that it is not just children who are marginalised in a court. This is inevitable because legal practice is such a machine. Any vulnerable person or group will find  their rights limited simply by virtue of the legal process. If we can reinforce the rights and wellbeing of a vulnerable group — for example, children — by having them actually represented then I think this would be a very good thing.
Finally, I would just like to commend the Minister for this very useful Bill. I am sure it will have support from right across the House. I do hope that he may find it possible to take on board at least some of the recommendations that have been made, particularly with regard to the question of registration as opposed to notification and the question of the general supervision not only of the facilities but of the personnel.
Mr. Finneran: First, I want to welcome the Bill, as other Senators have done, and indeed to compliment the Minister of State, Deputy Treacy, on his involvement in the Bill. Even though it is a Government Bill, the input into it of the Minister, his dedication to it and his total commitment is indeed to be commended and welcomed.
The Child Care Bill is a very necessary piece of legislation because obviously we are talking about reform of legislation that is nearly 100 years old. We are talking of the Children Act of the early 1900s. Reform is overdue, but still it is welcome. It is unfortunate in our society that we have to have a Bill such as the Child Care Bill. In an advanced civilised society one would wonder why such a Bill has to be there, but obviously it has. Most children grow up in a happy family and do not have any problems. They grow into adult life easily, have an easy run and everything falls into place. So it should be, but unfortunately other children come into the world and it is a nightmare for them. They end up in the hands of monsters and beaters and all that goes with that. It is because of that situation that a Bill such as the Child Care Bill has to be enacted.
Basically, this is a Bill to protect our children. History shows us that the abuse of children has always been with us. We can go back to Victorian times. Under a lovely veil of respectability we had child labour, children going up chimneys to  clean them. We had child prostitution under a veil of respectability at that time. There is good evidence to show that during that period child prostitution and child pornography were indeed widespread.
Today we have the same situation occurring. We look at the situation in eastern countries, where there is talk of eight and nine year olds involved in prostitution; and there are some countries nearer to us in which child pornography is widely available. We are in a world that is very perverted, that does not have a care, as it were, for those who cannot care for themselves. In our own country it is not so long ago since we had corporal punishment. I am not equating corporal punishment with child pornography or child prostitution, but I believe that corporal punishment was an abuse to some extent. I am glad it has been removed from the Statute Book and that it has gone out of the regulations in our schools and educational institutions. I do not believe that corporal punishment is something an adult can or should inflict on a youngster, so I am glad that that is no longer allowed.
Why do people abuse children? Some say it is because those people were abused themselves; others say it is because of bad living conditions, bad environment, alcohol abuse, unemployment and so on. But I do not think we can just identify child abuse with poverty and unemployment. I would venture to say that abuse in the respectable side of society may be more prevalent — we do not know definitely because obviously there is greater opportunity for cover-up in that area. In areas where poverty was prevalent during the time parents were raising their children, fine people came out of those homes. One thing they had had was a great respects for themselves and for their persons. They developed to be very good adults. Therefore, I do not think abuse is in any particular area of society; it can be found in all areas.
Much of the way we dealt with children down through the years should be questioned, where children were placed and the care we provided for children who came under State control. Much of it left a lot to be desired. We placed children in  psychiatric hospitals — children of two, three, four and five years of age. There are many records of that around this country. It seems an extraordinary thing to put a child into a psychiatric hospital. This Bill defines that a child is such up to the age of 18 years. Yet over the years records will show that children from two or three years up to 16 years were placed in psychiatric hospitals. Some will say that the reason they were there was because they were mentally handicapped or physically handicapped, but what could a psychiatric hospital do for either a mentally handicapped child or a physically handicapped child? It was a desperate practice and I hope it is no longer happening. I understand from section 35 of the Bill that the health boards still retain the power to carry out that type of activity. I hope it will not happen and that that section will not be used to the extent it was in the past.
People who are mentally and physically handicapped should be concentrated on in the Bill. I will come to abuse in the home later. People who are mentally and physically handicapped are at a greater disadvantage and at greater risk in some situations. One thing that is apparent about the mentally handicapped and physically handicapped, particularly the mentally handicapped, is that they are very trusting. Members of mental handicap associations, social workers and such people will confirm that those children are very trusting. When they go into care, and not because of abuse, it is very important that the structures have in-built safeguards. I cannot see where that is covered in the Bill.
One area that worries me at present when there is a lack of finance is that we may have people in those areas who are not qualified. I hope there is not a veil covering that at the moment but that it is an area that will be looked at.
In regard to people who are sexually or physically abused, there are two options: one is to remove the child, and the other is to remove the offender. That is the way I see it. The removal of the child can be very traumatic. It may be the best in the end, but it can be very traumatic in that you may implant a notion of guilt in the mind of the child, and that is unfortunate.  The child may not be in a position to evaluate the broad spectrum of what is happening. Therefore, due to the fact that it is the child who is being removed, they may have a certain amount of guilt themselves.
I would like to see the offender being removed. I would feel happier with that. The family unit should be preserved if possible and the offender removed. The health board have certain regulations under which they can work. They can take out a care order. That will mean taking the child out of the home and placing that child in foster care, institutional care or whatever. That is an extreme measure. I have given you the reason: it can create guilt in the child's mind, and that is an unfortunate situation. Obviously, the child has no reason to feel guilty. The child has been the recipient of abuse and is thereby totally exonerated in so far as any guilt is concerned. Yet this can be implanted in their minds.
The second option open to the health board, obviously, is a supervision order. That would be where the child would be supervised in the home. The Bill allows for a 12 month order on that. It is a good provision. It is a better option than care, but one thing about that provision is that you need to have professional people to monitor that supervision.
This Bill has a financial aspect to it that we may hear more about over the next few years. Five or six of the provisions of the Bill involve health boards with the remaining provisions involving the gardaí and the courts. In the majority of sections, those concerning health boards a financial provision will be necessary. When the Bill is passed I hope the financial backup will be there. A Bill such as this without financial backup will not be as helpful as it could be if the finances were there to support it.
Many of the Bills passed by the Houses of the Oireachtas over the last few years have been excellent Bills. I will concentrate on those relating to local authorities and health boards. We had the nursing home Bill, the Air Pollution Bill and so on, but none of them will deliver the goods unless the finances are behind  them. It is very important that legislation handed down to different statutory bodies has the backup. With regard to this Bill I appeal to the Minister to ensure that the money is provided. I have no doubt that there is a great commitment by the Government towards this end.
I would like to see the barring order procedure developed. It is only on a barring order that the offender can be removed from the place where the wrongful acts are being committed. The child is left in the environment of the home but the offender is removed, thus not imposing a guilt on that child. I do not know if that is in the Bill. I know that a barring order can be obtained by a family at the moment. In fact, there is an over use or abuse of the barring order at present. It seems to be a solution for a lot of ills in the family such as assault on the wife or children.
In the specific area of child abuse, whether it be child sexual abuse or battering, provision should be made for a barring order. The health board should be able to go to the appropriate court and obtain a barring order excluding the offender from that home thereby leaving the child, the mother and other members of the family in the home. If this is not included in the Bill perhaps the Minister could give it some consideration.
If the care order option has to be taken then the institutional option should be the remotest. If a care order is obtained by a health board a relative of the child should be chosen to take the child into care or, indeed, a foster parent. Foster parents are a wonderful group of people. I know foster parents in my county and I consider them to be an excellent group. They make themselves available, look after children of different ages and socialise with them. They should be complimented. I would like to place on record my sincere thanks to the foster parent group involved in the Western Health Board area for the wonderful work they are doing.
Institutional care should be very far off and should not be used unless in a very extreme case or where all other avenues had been explored and found unsuitable.  If a child is removed from the home we must ensure that child goes as near as possible to a social unit. The social unit we know in an Irish context is the family. It is important that that child goes to a relative who is part of the extended family or to foster parents who would place them in a family type environment.
In the whole area of care of children it is very important that facilities and resources are available from the start. We have to provide support for the family. We tend to provide money and legislation after the event. It is important to have back-up to prevent, if possible, the abuse occurring in the first place. Child psychologists should be available. I would like to see a marrying of the Departments of Education and Health. Activities such as pre-school and child psychology are very much an interlinking of health and education. Support units should be available to the family and health boards should make provision for them.
Remedial teachers and child psychologists are available but, for instance, if one requests dyslexia to be investigated, the health board will carry out the investigation. I know it is not easy to establish that and it would be wrong to jump into an early diagnosis but once that condition is established you have to leave the health board area then and you have to move into the Department of Education area. The Department of Education, particularly in rural situations, do not have a child psychologist available except when a certain number is reached. You may have perhaps three, four, five or six rural schools with 30, 40 or 50 children and indeed a child psychologist would not be available in that whole territory. You have to be in the region of 500 to 700 children. I believe an interlinking of health and education services in that area is important.
While that is not provided for in this Bill it is something we should look at because we have seen many cases in recent times where there seemed to be a no-mans land, that neither Department were fully responsible for a particular person at a particular time on account of a particular event. We have seen the  situation arising regarding who is responsible for 15 year old in Mountjoy. I have no doubt, however, that every Government Minister has a deep passion to see to it that children are looked after.
There are a number of Departments with part responsibility. That can result in people falling between two stools — indeed not so long ago we have seen them falling between three stools. There is room for thought regarding further legislation on this matter, because this Bill states that a person is a child up to 18 years of age. It is important that we look at that area again to see if we can improve the situation for children who are at risk. Even though they may be involved in crime, that does not exclude them from being at risk. This Bill covers children who are at risk. Children are at risk in their home, they are at risk in care and they are at risk if they are involved in crime. It does not make any difference. They can still be at risk. We have a duty to protect them irrespective of what category or what area they are in. If they are in care, we have as much responsibility for the mentally handicapped, the physically handicapped or the young offender who has been incarcerated as we have for the child out in the family unit. I do not think we can distinguish between one or the other in that situation.
I want to mention also the voluntary organisations. We are all very well aware of the fine work they do. Health boards and Departments may find that there is a major drawback in that some of these groups may set themselves up and then go the health board or the Departments, saying: “OK, we have to get the funds.” That may not be received very well. If the health board or the Department are not satisfied about the authenticity or indeed the good economics of some organisations, they have a right to question that. After all, they are dealing with public money so it has to be spent properly But, by and large, voluntary organisations play a vital and a very welcome role in the care of our children. I am quite satisfied that their input complements the State activity. Therefore, it is to be welcomed.
I hope that, following the enactment  of the Bill, the co-operation and liaison with the statutory bodies will continue and will be enhanced and developed. There are many good people out there. People may have found for one reason or another that they now have a lot of time on their hands. They may have reared their own families. They may have been very involved with their families for 25 years but their families have now moved away. These people find now that they have time on their hands. They are healthy, 50 years of age, and they do not want to go back to work. They are comfortable enough. They feel they have a lot of experience.
The experience and the talents of those people made available on a voluntary basis is wonderful. It has to be encouraged because the fact that they are doing this voluntarily means they are very committed to the organisation concerned. It is very important that the Government agencies and statutory bodies would not in any way conflict with those voluntary groups.
I welcome the Bill and compliment the Minister on it. I will not go on further as there will be another opportunity to identify and comment on particular areas in the Bill. By and large, I am very impressed with the Bill. It is long overdue. My compliments to the Minister and the Government for bringing it forward and, hopefully, having it on the Statute Book before long. I comment the Bill to the House.
Dr. Upton: Like Senator Finneran, I too, welcome the Bill. It is a very important piece of legislation and, of course, it has been coming for quite a long time. It is, as a number of Senators have said already, an updating of the 1908 Act, which is certainly quite dated now. It is over 75 years since the 1908 Act was passed and there have been tremendous changes in society in the meantime. It is very important that we should now update the legislation to cater for those changes.
The immediate short term history of the Bill relates to the UN declaration in 1959, which declared the rights of the child. Moving on to 1985 a Child Care and Protection Bill was introduced in the  other House by a member of my party, Barry Desmond. That Bill, of course, fell when the Government of which he was a member went out of office. It is fair to say that this Bill is to a large extent based on the earlier Bill with some modifications.
The Bill has been extensively debated in the other House. Indeed, it has gone through a very long Committee process on which there was broad agreement on both sides of the House. In relation to this Bill the anxiety of everybody was to try to reach consensus and to put the welfare of children above any other considerations. It is certainly appropriate that we have this Bill now because of the problems that exist in this country in relation to children. Approximately 2,600 children are in care at present and 1,300 of them have been victims of abuse of one type or another. Indeed, it is reckoned that about 500 children in this country have been the victims of sexual abuse. I gather that the abuse of children is on the increase. It is expected that when the data becomes available for 1990 it will show an increase on the figures for 1989. However, in relation to State intervention relating to children it is very important that the levels of intervention be kept to a minimum, a minimum which is consistent with the welfare of the children. Certainly the State should only take children into care against the wishes of parents as a last resort. That is a very important principle that should be adhered to in relation to how this Bill is implemented when it becomes law.
There are many desirable aspects of this Bill. First, it increases from 16 to 18 the upper age limit for taking children into care. That is to be welcomed. It provides for a statutory duty on the part of health boards to promote the welfare of children. It is very important that that obligation should be on health boards and that it should be written into the law. It deals with the question of children sleeping rough and it lays down a requirement for health boards to provide accommodation for those children. That is to be welcomed in the context of the present problems of homeless children, particularly in the city of Dublin, where there  are about 400 children who, at one time or another, are sleeping rough. Indeed, it is appropriate that this Bill should be debated at this time when Fr. Peter McVerry is again drawing attention to the problem of homelessness among children and the difficulties he is having in catering for those young people whom he has sought to help over the years.
I welcome the provisions of the Bill which allow for special committees to be established by health boards to deal with the care of children. I also welcome the fact that the Garda are to be provided with a role, in the context of this Bill, in relation to dealing with children. It is very important that the Garda are provided with the adequate resources to allow them to be effective in dealing with problem cases in relation to children. It is very important that, for instance, adequate resources be provided so that gardaí can be trained properly and can take the opportunity of going on appropriate courses so that they will have the necessary level of expertise to allow them to function at an optimum level in this area. I would be very anxious that the Garda authorities and the Minister for Justice would provide leave of absence with full pay for gardaí to take approriate courses, to take social science degrees if that is what is necessary, to allow them fulfil their function in relation to their new role in dealing with children.
I welcome the provisions designed to reduce to a minimum stress and anxiety during court cases which involve children. To that end I am particularly pleased to see that judges and barristers will no longer be geared out in wigs and gowns. Such regalia can be very intimidating for children and indeed for their parents and their families, in difficult circumstances.
The provisions in relation to pre-school facilities and so on are also very welcome. It is desirable that there be inspection of these pre-school facilities and that day care centres, creches and so on should be regulated. I welcome the fact that homes for children will have to be registered. However, I also share the concern of a number of Senators who spoke earlier in relation to the deficiency in the Bill where there are no clear guidelines as to the  level of expertise people will need to acquire in order to qualify them to run such centres. I am very anxious that minimum qualifications are defined and very clearly spelled out so that we can be assured that all children who are in pre-school facilities of one type or another are dealt with by people who are adequately qualified to attend to their needs.
There is a number of defects in the Bill. One of these relates to the omission in cases where children are being placed in care of a mechanism for ensuring that the child's interest is automatically recognised and defended. While the Bill caters for this aspect to some extent, it does not contain a provision which would guarantee such protection in all cases. That is a defect. I ask the Minister to look at it again and see if it is possible for him to accede to some changes there.
The question of juvenile justice is not covered in the Bill. That is a problem area that needs attention. Many Senators have already referred to the fact that the matter of funding of the various services and facilities for children, as provided for in the Bill, has not been dealt with. I know that the provision of funding in relation to a Bill such as this is outside the direct ambit of the Bill but it is absolutely essential that funding be provided. Otherwise the whole effort will prove to be a waste of time.
Unfortunately, the Bill does not deal with the question of increasing from seven the age of criminal responsibility. There now seems to be a tremendous contradiction within the law where it is possible to be a criminal at seven years and at the same time it is impossible not to be a child until one is over 18 years. That anomaly should be removed as soon as possible. I do not see any purpose in leaving it on the Statute Book.
The Bill does not cater adequately for children who find themselves in trouble with the law. Neither does it deal adequately with the question of providing custodial facilities for that very small number of children who can only  adequately be treated in a custodial environment.
The Bill does not deal either with the social welfare rights of people in the 16 to 18 year age bracket. Many of these people are left in a social welfare limbo. While because they are defined as children, the provisions of the Bill cater for them, there are no specific social welfare provisions for them in certain circumstances.
I would also like to see the introduction of some independent review in relation to the working of the various agencies whose roles are defined in this Bill. It is important that bona fide complaints are investigated by an independent review body. I am anxious that the Minister consider that question carefully.
I support what Senator Norris said in relation to guardians ad litem. I am anxious that people who work in the agencies and who are defined and described in the Bill should be adequately qualified. It is very essential that these people have the appropriate level of training and expertise to allow them to carry out their functions properly. In this regard it is important also that we carefully guard against excessive levels of enthusiasm on the part of professions and, indeed, on the part of people generally who are dealing with children.
I must confess that I was very alarmed to read a report of a recent court case at which District Justice Smithwick expressed considerable alarm about a case which was reported in the last month or so. I would be very alarmed that those type of events should take place. I would be very concerned that it should have been necessary for a man, as distinguished as District Justice Smithwick, to have to speak in the terms he did, and to point the inadequacies, as it were, of his dissatisfaction with how a family was treated in that instance.
There are one or two other points which I want to mention. These refer to some of the things which Senator Finneran said. I have to compliment Senator Finneran on his speech. It was a very useful speech. I particularly share his concern in relation to the question of children being committed to psychiatric hospitals. That is absolutely appalling. I am  shocked that this should still be taking place. I am particularly concerned that children suffering from mental handicap should find themselves in mental hospitals. That is absolutely appalling. I would urge the Minister to take appropriate action and to make the resources available so that that practice ceases immediately.
Mr. Kennedy: I would like to welcome the Child Care Bill, 1988, the primary purpose of which is to put in place a framework that gives effective protection to those who are too young and too vulnerable to defend themselves and is at the same time fair to those most affected, particularly parents and others with parental responsibility. This legislation is long overdue. We are, today, acutely aware of the sharply increased public concern over the care, protection and upbringing of children. At present children's legislation is confusing, piecemeal, outdated, often unfair and in many important respects ineffective, most notably when it comes to protecting children at risk.
I hope this legislation will bring order, integration, relevance and better balance to the law, better balance not just between the rights and responsibilities of individuals and agencies but, most vitally, between the need to protect children and the need to enable parents to challenge intervention in the unbringing of their own children. The recent well-publicised cases, including the tragic cases of Kimberely Carlisle, Doreen Mason, Jasmine Bedford and the unfortunate events in Cleveland in 1987, have graphically shown, in my view, the tragic consequences of getting that balance wrong. Eighty three years ago, the Children Act, 1908, put on a statutory basis a series of offences against children. Ever since, it is true to say, that legislation has served us well. However, as Senator Finneran, who is a very experienced Senator in this area, and other Senators have indicated,  times have changed. The concerns of recent years about the present legal framework of children have been fuelled by the tragic, and, indeed, to many, incomprehensible phenonomen of child abuse.
The purpose of this Bill is to update the law in relation to the care of children, particularly children who have been assaulted, ill-treated, neglected or sexually abused, or who are at risk. The main provisions of the Bill — they are very comprehensive — are as follows:
Part II of this Bill — sections 3 to 11 — deals with promoting the welfare of children, preventing family breakdown and avoiding the need to take children into care on a compulsory and permanent basis. This, section 3 places a statutory responsibility and obligation on health boards to promote the welfare of children who are not receiving adequate care and protection. It gives them the power to provide child care and family support services so as to assist parents in caring for their children and to prevent children having to be placed in care.
Section 3 (2) (c) requires health boards to have regard to the fundamental principle that it is generally in the best interests of a child to be brought up in  his own family home. Thus, the emphasis must be on providing support and assistance so that children can remain at home and that it is only in very exceptional cases that children are to be taken into care.
Part III — sections 12 to 15 — deals with the protection of children in emergencies. A vital part of striking the right balance is the introduction of a new emergency care order to replace the present place of safety order. The aim here is to strike a balance between the need to protect children from harm in emergencies on the one hand, and the need to allow aggrieved parents to challenge action taken in respect of children, on the other hand. The need for this, as I said earlier, was graphically illustrated by what happened in places like Cleveland. Thus, Part III enables the Garda or the health board staff to intervene quickly where there is an immediate and serious threat to the safety and welfare of children.
Section 12 will enable a member of the Garda Síochána to remove to safety, without warrant, a child whose health or welfare is in imminent danger and where it would not be sufficient to await the making of an application for an emergency care order by a health board under section 13 procedure.
Part IV of the Bill — sections 16 to 23 — deals with care proceedings. It will enable the courts to place children who have been assaulted, ill-treated, neglected or sexually abused. Thus, section 16 of the Bill places a statutory duty on a health board to apply for a care order or a supervision order, as the case may be, whenever it appears to the health board that the conditions for the making of such an order exist with respect to a particular child.
Section 17 will enable a district justice to make an interim care order where the grounds exist for the making of such a care order, and it is necessary for the protection of the child that he be placed or remain in care pending the determination of an application for a care order.
Section 18 provides for the making of a care order. An important element here is the time factor of eight days, unlike the present place of safety order where no  specific period of time is defined. This new time factor has been inserted to help to ensure that parents are not unfairly and unnecessarily deprived of the custody of their children for indefinite periods and to give parents an early opportunity to state their side of the case to the courts.
Section 19 will enable the courts to make a supervision order where there are reasonable grounds for believing that the conditions for such an order exist. This would authorise the health board to have a child visited in his home to ensure that he was being properly cared for. The court would also have the power to direct the parents to bring the child to a day care centre, a child guidance clinic or a hospital, etc.
Part V of this Bill — sections 24 to 34 — deals with the jurisdiction, the powers and the procedures of the courts in respect of care proceedings. Thus, section 24 will require the court, having regard to the rights and duties of parents, to regard the welfare of the child as the first and paramount consideration in any proceedings in relation to the care and protection of a child.
Part VI of the Bill — sections 35 to 46 — deals with the arrangements which shall be made by the health boards. I was pleased to note that the Minister agreed to a number of amendments in the other House where the word “may” was changed to “shall” in looking after children in their care.
Section 36 of the Bill requires a health board to facilitate reasonable access between a child in care and his parents or other persons who have a bona fide interest in him. Section 36 also provides an appeal mechanism for a person to appeal to the courts against the access arrangements offered by a health board and for a health board to apply to the courts for an order authorising them to refuse access to a named person. At present, there is no statutory supervision of pre-schools, playgroups and other pre-school facilities for children.
I welcome Part VII of the Bill — sections 47 to 55 — which provides for the introduction of a system of supervision and inspection of pre-schools, play-schools and similar services for pre-school children. Part VIII of the Bill — sections 56 to 64 — deals with the introduction of arrangements for the registration and inspection of residential homes for children. Part IX of the Bill — sections 65 to 70 — deals with the general question of administration. Part X of the Bill — sections 71 to 76 — deals with miscellaneous and supplementary matters.
There is, indeed, widespread public concern, as has been indicated by a number of Senators, about solvent abuse or glue sniffing, as it is commonly known. Section 71 of the Bill makes it an offence to sell solvent-based products to children for glue sniffing. It will give a member of the Garda Síochána the power to seize any substance in the possession of a child in a public place which he has reasonable cause to believe is being misused by that child in a manner likely to cause him to be intoxicated. Provision is also made for fines of up to £1,000 or 12 months imprisonment, or both.
Finally, a Leas-Chathaoirligh, this Bill gives health boards, I believe, dramatic wide-ranging powers and functions, including all sorts of advisory committees and statutory duties, to look after the welfare of children who are deprived and at risk in the functional areas of the various health boards. However, all these powers and functions and all that is aimed at in this Bill cannot be done unless the Government or the health boards give a definite budget, the wherewithal with which to carry out these new and important functions and duties. It is simply hypocrisy to give a health board a new and important statutory function to look after children at risk and then to leave it to the health boards to find the necessary resources and finance.
This, a Leas-Chathaoirligh, is a major problem with this Bill. It is not in any way overcome by the Bill or the provisions in the Bill. I will, therefore, conclude. I think there is another speaker who has indicated on the other side that he wishes to speak. I would like also to afford the Minister the opportunity of concluding this Stage of the debate. I hope this question of finance and resources is remedied by the Government and that they will indicate during the passage of this Bill,  and at the conclusion and finalisation of this Bill, that a considerable amount of financial resources will be provided by the Government so that this Bill can be properly implemented.
The Child Care Bill before this House today is timely and very necessary representing as it does, a corpus of statutory duties, powers and procedures to protect and promote the ultimate welfare of children. Clearly, children constitute one of the most vulnerable groups in our society. In recent years the scale of abuse to which children have been exposed has shown an alarming increase. It is absolutely vital now to take effective and comprehensive measures to safeguard children from the unnecessary abuses to which they have been subjected.
Children are a voiceless group in society. It is only in recent years that we have become so painfully aware of the despicable violence to which they have been subjected. Perhaps the most repulsive and contemptible aspect of child abuse has manifested itself in the various cases of sexual assault.
The primary aim of this Bill is to consolidate the law in respect of the care of children, generally and specifically, in the case of children who have been the sorry victims of assault, ill-treatment, neglect or sexual abuse. Children falling into any one of these, or a number of these, categories are unfortunately on the increase. This Bill now places an onus on the health board to actually promote childrens' welfare where they are not enjoying a satisfactory and reasonable standard of care and protection. Equally, the powers of the health boards to provide adequate care and family support services are considerably strengthened. The Bill also incorporates measures to improve procedure whereby immediate intervention, by the health boards and the gardai in emergency circumstances, is facilitated. In addition, this Bill sets out to reverse the provisions to empower the courts to place children, who have been assaulted, ill-treated, neglected or sexually abused, in the care of health boards or under their direct supervision.
 As I said at the outset, we have witnessed a distressing increase in the incidence of child abuse in general. As a caring and humane society, it is intolerable to allow this grotesque spectacle to continue because of deficiencies in our legislative measures. I am happy to state that the Child Care Bill signals a mature recognition that child abuse, in varying degrees of intensity, does actually exist. Equally this legislation reflects a sensitive but secure mechanism for those unfortunate children who helplessly find themselves in the most unspeakable conditions, often times in the confines of their own family circle.
The necessity for this Bill is graphically borne out by the fact that approximately 2,600 children are in the care of the eight health boards at any given time. As the Minister pointed out, many of these children find themselves placed in care owing to deprivation or neglect or simply because of an inability of the parents to look after them. This placement may not necessarily be long term or permanent. The Minister also referred to the staggering number of confirmed cases of child sexual abuse for 1989 which stood at 500 cases, an four-fold increase in five years. Unfortunately, the trend is upwards. All the indications are that the figures will have shown a dramatic increase since 1989. In the light of these numbers it is now imperative that the correct provisions be enacted which will take due cognisance of this phenomenon which is becoming increasingly problematic. Equally, we must have due regard to the provision in our Constitution which places a duty of care on us to safeguard the rights of the child, particularly where a child becomes the victim of sexual abuse.
Our commitment and concern for victims of child abuse is borne out by the fact that this Bill is the product of deliberations of a special all-party committee of the House, established with the express purpose of giving adequate consideration to the provisions of this Bill. As the Minister pointed out, this Bill is a socially enlightened and reformed piece of legislation which, hopefully, will have far-reaching implications for the welfare of children of which we are now, quite  correctly, more aware. In this Bill the rights of the child are accorded a preeminence and a superiority which is necessary. The inalienable right of the child to proper standards of care has to be recognised and enshrined in the legislative provisions. I welcome the Minister's statement to the effect that the Government have rededicated its commitment to find the necessary resources to enable effective implementation of the Bill in the Programme for Economic and Social Progress.
I would now like to address, in some detail, specific aspects of the Bill. Section 2 is significant in so far as it extends the legal definition of a child to include those up to 18 years who are unmarried. This puts an onus on the health board to take responsibility for the growing number of persons between the ages of 16 to 18 who find themselves in adverse circumstances and who consequently may be taken into the protection of the health board. Section 3 places the responsibility on the relevant health board to promote the child's welfare and empowers it to provide child care and family support services, having due regard to the paramount and primary welfare of the child concerned. Equally, the health board must have particular consideration for the principle that, in general, it is in the best interests of the child to be reared within his or her own family environment. Thus, it is only in exceptional circumstances that the child would be removed from the family home and placed in external care. If the circumstances are appropriate, it is preferable that necessary support and assistance be made available to enable the child to remain at home.
Section 4 covers the area of voluntary care and will enable the health board to receive orphans or abandoned children into voluntary care without reference to the courts. In serious situations, sudden bereavement, marital breakdown, or other family crises, with parental consent children whose parents are unable to look after them may also be placed in voluntary care. Section 5 is, indeed, a welcome initiative which should go towards significantly improving the plight of homeless children or children who, by  dint of circumstances, are compelled to sleep rough in the most squalid and unsightly conditions. Section 5 now places a firm obligation on the health boards to make accommodation available for children who are without a home or who may have no accommodation, that they can be reasonably expected to occupy and who are simply unable to make their own arrangements. Unfortunately, the number of children who have, for various reasons, been alienated from the family home, is on the increase, so I believe this statutory measure is timely and represents a positive move towards alleviating this plight.
Section 6 is also a novel provision and proposes that each health board be obliged to ensure that provision of an adequate adoption service within its functional area. To achieve this objective the health board are empowered to enter into a suitable arrangement, with a registered adoption society, to make sure that such a service is provided. In section 7 it is proposed to establish one or more child care advisory committees to each health board area. The role of these committees will be to advise the health boards in the performance and discharge of their functions as contained in this Bill. These committees will comprise representatives of voluntary bodies active in child care services and people who have a particular interest or expertise in this area.
It is proposed in section 8 that the health boards will conduct annual reviews to assess the adequacy or otherwise of child care services within their areas, while section 9 permits the health boards to enter into arrangements with voluntary bodies to provide child care and family support services on their behalf. Section 10 makes provision for grant aid from the health boards to the voluntary bodies which provide such services.
Part III deals with emergency circumstances to enable the Garda or health board staff to intervene quickly where there is an immediate and serious threat to the welfare and safety of the child. Section 12 permits a garda, without a warrant, to remove a child to safety where he or she perceives an immediate and serious risk to the health or welfare  of the child and where it will not be adequate to await application for an emergency care order. The section also makes provision to allow a member of the Garda to be accompanied by other persons in exercising this power of removal. However, in these circumstances it is absolutely explicit that the health board must provide for an emergency care order as soon as possible. The child may be retained in the custody of the board for up to three days pending the hearing of the application.
In section 13 a district justice is empowered to make an emergency care order requiring that a child be placed or maintained in the care of a health board for up to eight days where there is an immediate and serious risk to his or her safety.
I would like, finally, to congratulate the Minister on all the work he has done on this Bill and also to congratulate him on his recent appointment and to wish him well. I hope that he brings the same imagination to his new post as he did to the one he has just left.
Minister of State at the Department of Justice (Mr. N. Treacy): I thank the many Senators who contributed to the debate on this Bill. Their contributions have been both informed and positive. I am pleased with the support which it has received from all sides of the House and the generally constructive and positive tenor of the debate here. I am also glad to say that the Bill has been generally welcomed by all of the statutory and voluntary agencies concerned with child care.
A large number of issues were raised during the debate, and although time is of short duration, I will do my best to respond to as many as possible. Other points which were raised will require more detailed consideration. I wish to assure the House that I will consider them between now and Committee Stage where we can have further discussion on various points of detail and information.
The question of resources was raised by a number of Senators. I accept that the implementation of the Bill will require the allocation of additional resources to the child care area. We are well aware that the success of the Bill will  depend on the allocation of additional resources to fund the improvement of existing child care and family support services, the development of new, preventative strategies and the appointment of additional social workers and other staff. It will require a significant increase in spending on the child care services. It will cost a lot of money, but the cost of not doing so in terms of human raisery and the suffering of young children would be a great deal more. I want to assure the House that despite the hard economic times in which we find ourselves the money for improvements in our child care and family support services will be found. It will necessarily be a gradual process, but our policy of directing a greater proportion of available resources to community services will, in particular, benefit child care and family support services.
The process of increasing expenditure in the child care area has already begun even before this Bill is enacted. In this year's budget of 1991 a sum of £8 million was provided for the development of community care services. My Government colleague, the Minister for Health, Deputy O'Hanlon, has allocated £1 million of this extra allocation to the child care area. It is intended to use this to bring forward a number of developments this year. These include the establishment of a new unit for disturbed adolescents by the Eastern Health Board. A similar development in Limerick is being planned by the Mid-Western Health Board. Arrangements are under way to increase the number of hostel places for homeless young people. It is also intended to increase the number of social workers to deal with the continuing rise in the incidence of child sexual abuse. These are just some of the examples of the initiatives that we are taking. I want to assure the House that the Government are committed to making the necessary resources available to bring the Bill fully into operation as soon as possible.
A number of Senators raised questions about the provision for taking children into care. As I indicated in my opening speech the provisions in the Bill and particularly those in relation to taking  children into care, have been very carefully drafted in the light of relevant constitutional provisions and judicial interpretations. Article 42 (5) of the Constitution expressly provides for intervention by the State where parents fail in their duty towards their children. The Supreme Court has ruled that while there is a constitutional presumption that the welfare of the child is to be found within the family, this may not always be the case, and there may be exceptional cases where children would be better off if they were removed from their parents' care. The legislation proposed in this Bill is to cater for these exceptional cases. The Bill envisages the care proceedings will be taken only in exceptional cases where the parents have failed to care for their children or where there were other compelling reasons why the welfare of the child was not to be found within his family. I do not, therefore, anticipate any constitutional difficulties with the provisions of the Bill. I am confident that these provisions, if challenged, would be found to be inconformity with our Constitution.
A number of Senators have referred to the definition of “foster parent” contained in section 35 of the Bill and have questioned the fact that relatives are excluded from the definition. I would like to make it clear that there is no sinister or ulterior motive in this, nor is there any question whatsoever of us trying to deprive certain people of their entitlement to be paid foster care allowances. On the contrary, this Bill gives health boards, for the first time, specific authority to place children in care with relatives where this is in their best interests.
I would refer the House to section 35 of the Bill. This provides that the health boards, in providing accommodation for a child in care, may make a number of arrangements. They may place the child in foster care or in residential care or where he is eligible for adoption they may place him for adoption or — and this is relevant here — they may place the child with a relative. Thus, we envisage children being placed in the care of relatives, indeed, in many cases this might be the most desirable arrangement.
Obviously, different considerations  apply to the placement of children with relatives, or placement with foster parents who are not part of the extended family. Health boards are required to apply very strict tests in assessing the suitability of persons to act as foster parents. However, different approaches must be adopted in deciding whether to place a child with a member of the extended family. That is why we have made separate provision for placement with relatives rather than incorporating it within the foster care provisions generally.
I want to emphasise that the separate treatment of foster parents and relatives is not motivated by any desire to save money or foster care allownces. Relatives looking after children on behalf of health boards will have to be financially assisted by the relevant board in doing so. I am prepared to give a commitment on that to the House today and I hope this will help to allay the fears that have been expressed on this point. It is something we can discuss in more detail on Committee Stage.
The introduction of a legal duty on certain persons to report suspicions of child abuse to the appropriate health board was raised by a number of Senators. This is something that was examined by the Law Reform Commission in their report on child sexual abuse. The commission recommended the introduction of such procedures but went on to say that given the advanced state of the Child Care Bill it would be more appropriate to incorporate such a provision in separate legislation rather than trying to deal with it in this Bill. This report was accepted by the Members of Dáil Éireann when the Bill was considered on Report Stage before Christmas. I hope Senators will agree that it would be better to leave this matter to separate legislation.
A number of Senators called for the establishment of a national children's council. Any proposal to establish a new organisation to be funded by the Exchequer has to be very carefully considered. The Government would have to be satisfied that there is a pressing need for the proposed body and that the work  envisaged for it could not be undertaken by any existing State agency. I am not convinced that such is the case in relation to the proposed national children's council. The main role envisaged for such a council is providing advice to the Minister for Health and the health boards on child care policy. This must be viewed in the light of the fact that the child care area has been the subject of numerous reports, studies and investigations in recent years. There is now a broad consensus among the different shades of political opinion and the various interest groups as to what needs to be done.
The major work now is getting sufficient resources to bring about all the necessary changes and improvements. I do not believe the establishment of a national children's council would help to resolve this difficulty. On the contrary, the operational expenses of a council, which could be over £100,000 per annum, would only divert resources from the front line services out in the community where they are needed. However, the Government are not opposed in principle to the establishment of some form of consultative and advisory body in the child care area. If the financial situation were to improve, and the need for it were to be more clearly established, the Minister for Health could avail of powers under the Health Acts to appoint consultative bodies to establish a national advisory body on child care. This is the legal basis for the National Council for the Aged. However, for the reasons I have mentioned, we are not disposed towards making special provision for a national children's council in this Bill.
It was claimed that Part VIII of the Bill, which deals with the inspection and supervision of services for pre-school children, does not go far enough and that we should introduce a system of registration for the services. I have to say that I do not accept this view. I am anxious to avoid creating an elaborate supervisory system which could interfere with family arrangements and ordinary neighbourly help. It has been estimated that over 60 per cent of pre-school children of working mothers are being looked after by grandparents and other relatives, or by non-relatives who reside in the family home.  I believe that arrangements of this kind, for example, should not be subject to State intervention.
There are two main types of services which will be subject to statutory control under the Bill: firstly, nurseries, creches and other pre-school services which operate on commercial lines and, secondly, community playgroups and other services which operate on a non-commercial basis. All of these services will be required to comply with regulations, which the Minister for Health will make following consultations with the Ministers for Education and the Environment. Health boards will be required to have the services inspected, 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 persistent 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 being 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 it would involve.
Furthermore, in response to a point made this morning, I would point out that failure to notify the health board or to abide by the regulations would be an offence with the provision of a fine of up to £1,000. I believe that these sanctions are sufficient to ensure that persons carrying on pre-school services will comply with the provisions of this Part of the Bill.
Senators Ryan and Upton spoke at some length about the area of juvenile justice and of children who are in trouble with the law. The first thing to be said is that the Bill does not purport to reform our legislation in relation to juvenile justice. That is a complex area and would require major legislation of its own. The Government are very much aware of the difficulties that currently exist in this area, particularly the shortage of places for young offenders requiring secure accommodation. I want to assure the  House that this is being tackled as a matter of urgency by my Government colleagues, the Ministers for Health, Education and Justice, and their respective Departments. Arrangements are well underway to bring additional places into use and this will greatly ease the problems currently being experienced by the courts in securing places for children appearing before them.
When initiated, the Child Care Bill contained nine Parts, 64 sections on 28 pages. After outstanding debate and dialogue over a full year in an excellent all-party committee, we achieved an exceptional consensus on improving the Bill. It was revamped on Committee Stage to contain ten Parts, 68 sections on 32 pages. Report Stage was given a lot of time in the Dáil and every section and amendment was reappraised. In an exceptional display of parliamentary flexibility, we further restructured and revamped the Bill. It now contain ten clear Parts and 76 sections on 40 pages. This is the Bill at present before this House as we conclude this Second Stage here.
Mr. O'Reilly: I would like to put the view that it would be prudent to delay Committee Stage for at least two weeks because of the complex nature of the legislation and to give us time to prepare amendments. Ideally, three weeks would be required.
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