Brian Lenihan Jnr (Dublin West, Fianna Fail)

I indicated to the Senator on Committee Stage that this was an issue we should revisit on Report Stage. My officials have assisted me in carrying out considerable research on the issues involved, and there is an explanation. Having regard to what is provided for in the legislation, the Health Service Executive is necessarily a party in this regard. The foster parent or relative to whom the order was granted is also a party. That is not a plurality of persons in that the foster care can take two forms, namely, relative foster care or a foster parent. The other two categories referred to are the person who has custody of the child at the relevant time or a person acting in loco parentis.

In regard to the 1991 Act, where the question as to who should be served with proceedings arises, the Act provides that under section 4(2) a child cannot be taken into voluntary care against the wishes of a person having custody or of any person acting in loco parentis. Section 4(3)(b) of that Act provides that when a child is taken into voluntary care, the HSE shall have regard to the wishes of the parent having custody or of any person acting in loco parentis in the provision of such care. In the context of a section 4 application where a child is surrendered voluntarily into care, the persons who do that are the persons having custody or the person acting in loco parentis. Therefore, there is an inner logic in providing in their case that they again become the party who are notified.

Section 4(4) of the 1991 Act provides that the HSE shall take a child into care if, among other things, a parent having custody of him or her is missing. Section 6(4) of the Act also provides that the HSE shall not take a child into care for the purposes of adoption against the wishes of a parent having custody or of any person acting in loco parentis. Section 12(4) of that Act provides that when a child is removed to safety by the Garda Síochána, the HSE returns the child to the parent having custody, or to any person acting in loco parentis or seeks an emergency care order. Section 14(1) of that Act provides that when a child is delivered up, or placed into the custody of the HSE in an emergency, the HSE informs the parent having custody or the person acting in loco parentis.

When we dealt with the Bill on the last occasion I mentioned section 17(2)(b) of the 1991 Act which deals with interim care orders. This has been amended by section 267 of the Children Act 2001. Again in this instance the parent having custody or the person acting in loco parentis is the person on notice. Likewise, an application for an interim care order for an extension of an order must be made on notice to the same parties in section 17(3) of 1991 Act. Section 18(7) and (8) of that Act provide that when a care order is made the court may require the parents of the child or either one of them to contribute to the HSE for the care of the care. I want to return to that point because it is the only example where the parents are referred to. Under this legislation the parent has a very wide meaning. I will return to that point.

The 1991 Act also provides that a supervision order shall authorise the HSE to visit a child on occasion and give the child's parents or person acting in loco parentis any necessary advice as to the care of the child. That is the supervision order machinery which is the lesser machinery in the Act. There is the care order and the supervision order, which is a lesser form of control. Again, that is exercised against the parent or person acting in loco parentis under section 19(2) of the 1991 Act.

If a parent or person acting in loco parentis is dissatisfied with how the HSE has exercised its authority — the word "parent" is included in this subsection — he or she has a remedy under section 19(3) of the 1991 Act. Section 19(4) of the 1991 Act provides that the supervision order can require the parents of a child or the person acting in loco parentis to have the child attend a medical or psychiatric examination.

In addition to the points Senator Tuffy made in this regard, she mentioned the question of access. That is dealt with section 37(1) of the primary Act. It provides that the HSE shall facilitate reasonable access to a child in its care by the child's parents, any person acting in loco parentis or any other person who, in the opinion of the executive, has a bona fide interest. Section 37 of the 1991 Act protects the position in regard to access.

For the sake of completion, section 42(2)(c) of the primary Act provides that reviews of cases of children in care require that the HSE considers whether it would be in the best interests of the child to be given into the custody of his or her parents. An important point, which I overlooked on the last occasion — although I am not saying Senator Tuffy overlooked it but it seems we both did — is that this Bill is an amendment to the 1991 Act. The Senator will note that the bulk of the sections of the 1991 Act involve notice being given to the person in custody or the person in loco parentis. This is not because of some legislative intent to disadvantage or to discriminate against any other party. It is because the child care legislation is a code for the protection of children. In the first instance, that protection has to be exercised against the person who has the actual custody of the child or who stands in the relationship of a parent to that child.

That has to be the scheme and purpose of the legislation. Were it otherwise, those whose duty it is to implement the legislation would be obliged to make their investigations and see that the child is in the custody of a particular person or that a particular person is acting as parent in respect of that child. If we were to go down the path Senator Tuffy is advocating then the HSE, through its servants and agents, would have to make further inquiries about all the other persons who might have some relationship to that child, legal or factual, in a context where the child is in need of care and protection. That is why the legislation provides as it does in the bulk of the matters that it is the person having custody or the person standing in the relationship of a parent to the child who has to be notified.

In the 1991 Act the Legislature has not omitted to address the concerns raised by Senator Tuffy because section 3 of the Act, the first substantive section dealing with the functions of the health boards — and now by adaption the HSE — states that it is the function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. It further states in subsection (2):

In the performance of this function, a health board shall—

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise—

A specific obligation is imposed by section 3 on the health board to have regard to the rights and duties of parents, whether under the Constitution or otherwise. It is not limited to parents under the Constitution, who of course would be parents of a family founded upon a marriage. The Senator will note the expression used is that it extends to all parents "or otherwise". That relates to the entire operations of the HSE in the context of the implementation of this legislation.

I mentioned that the two crucial sections from the point of view of taking children into care are sections 4 and 18. Section 4 of the 1991 Act deals with the taking of the child into voluntary care. Clearly that is done on consent and it cannot be done against the wishes of a parent having custody of the child or a person acting in loco parentis to the child. Such a person would have to be put on notice of any application to obtain one of these orders under the new legislation that would give foster parents rights. Given that the parents consented to place the child into care, clearly they have a veto on the foster parents obtaining any rights in respect of the child.

The other circumstance we have to address relates to section 18. This is the section that permits children to be taken into care. Again, I have checked out the matter because that section is silent in respect of what party should be put on notice of an application for a primary care order. The matter is dealt with by rules of court. The relevant rule of court provides the exact same statutory formula as is used in the Act. The care application must be made on notice to the person having custody of the child or a person standing in loco parentis to the child. That is the rule of court and it is implemented in section 18.

I draw the attention of Senator Tuffy to a further section because it is of particular importance in the context of the point she raised. I refer to section 24 of the 1991 Act which will apply to the amending legislation. Section 24 provides that in any proceedings before a court under this Act in regard to the care and protection of a child, the court must have regard to the rights and duties of parents, whether under the Constitution or otherwise, so all parents fall within the intendment of section 24. By virtue of section 24, the District Court clearly has to have regard to the status of parents under the Constitution and parents otherwise. That is a function of the District Court under the legislation.

In the context of a section 18 application where a child is being taken into care, plainly the court, under its own rules, is only obliged to serve the person in loco parentis — the person having custody of the child — but the court may well join a further party having regard to the provisions of section 24. The court has that inherent power by virtue of section 24 of the Act. Having said all that and given that the Child Care Act scheme in regard to these matters is considerably broader than the scheme in many other items of legislation, there is no reference to the position of the legal guardian. Senator Tuffy is correct on that. I made the point earlier that I understand the scheme of the legislation because the anxiety is to give the social worker the power to deal with the position that he or she faces — a child who is in the custody of a person or who stands in a relationship of parent-child with a particular person. Clearly that is the person in the first instance with whom the social worker must deal.

Some of the sections of the Act, such as section 18 and the section with which we are dealing in this Bill, can have far reaching consequences. For that reason I will revisit the question raised by Senator Tuffy. I hope I have reassured her that there is provision in the legislation which goes considerably further than either of us envisaged on Second Stage. That said, I am prepared to look at the issue of whether the guardian of a child would, in appropriate circumstances, at least be able to apply to the court for a hearing. The word "parent" is already used in the legislation and used without qualification as to status, be it by way of guardianship or the constitutional definition of the family or otherwise.