Tuesday, 18 January 2011
Child Care (Amendment) Bill 2009 [Seanad]: Report and Final Stages
Barry Andrews (Minister of State with special responsibility for Children and Young People, Department of Health and Children; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Education and Science; Dún Laoghaire, Fianna Fail)
I agree the views of the child should be regarded prior to the HSE taking steps under section 23ND, which includes provision where a child requires medical treatment while subject to a special care order. I brought forward an amendment to the Bill on Committee Stage to insert a new subsection (3) in section 23ND, the effect of which is to ensure that any consent to medical treatment which would have been effective if we had not included the provision which gives the right to the HSE to consent would still be effective. Thus, the HSE's right to consent does not affect the validity of any medical treatment decision which would lawfully be made by any other person who had pre-existing power of consent.
It will be noted that section 3 of the Child Care Act 1991, as amended, provides that, in the performance by the HSE of its function to promote the welfare of children, it shall "in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child". That section 3 has the same effect as the proposed amendments. The HSE is also charged with promoting the welfare of the child under section 23ND, which states the HSE "shall do what is reasonable, subject to this Part, to promote his or her health, development or welfare and protect his or her life, health, safety, development or welfare, having regard to all the circumstances of the child".
With regard to involving the courts when the child is not consenting to the steps being taken by the HSE, to include a statutory provision to involve the courts every time there is a disagreement could well defeat the purpose of special care. It must be remembered that children who are the subject of special care orders require care which addresses their behaviour and the risk of harm it poses to their life, health, safety, development or welfare.
The proposed amendment to section 24 of the Child Care Act 1991 is to delete the words "in so far as practicable". This section, as amended by section 10, relates to proceedings before the High Court dealing with special care orders. The section requires that in such proceedings the High Court shall regard the welfare of the child as the first and paramount consideration and in so far as practicable give due consideration, having regard to his age and understanding, to the wishes of the child. The phrase "in so far as practicable" is included as there are situations where it is not practical or possible to have regard to the child's wishes. In addition, it must be borne in mind that these cases are being heard at the high level of the High Court, which is statutorily charged to regard the welfare of the child as the first and paramount consideration. It is for these reasons that I will not accept the amendments.