Seanad debates

Wednesday, 20 October 2004

1:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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I thank the Seanad for selecting this important topic for discussion relating to the protection and development of children.

I will begin by outlining the context established by the Children Act 2001. That legislation significantly modernises the juvenile justice and welfare systems in Ireland. The Act was developed in response to the recognition that the juvenile justice system had outgrown the statutory confines of the Children Act 1908 and that further development would require to be underpinned by new legislation. The provisions of the Children Act 1908 for children in care were repealed by the Child Care Act 1991. The primary purpose of the Children Act 2001 was to replace the remaining provisions of the 1908 Act and associated legislation with a modem comprehensive statute covering three main areas of the law, including the administration of the juvenile justice system and additional provisions regarding special care and protection to augment the provisions of the Child Care Act 1991.

The Children Act 2001 was enacted by the Oireachtas in June 2001 and constitutes a fundamental revision of existing legislation governing the treatment of children in conflict with the law and non-offending children in need of special care or protection. The considerations behind the Act were that prevention, through early intervention, is desirable and in the medium to long term likely to produce positive results; where a child is apprehended for committing an offence, diversion should, where possible and where the interests of society would not be adversely affected, be the preferred option; where it is necessary to bring a child before the courts on a criminal charge, a wide range of community sanctions should be available to the court; and detention should be a last resort, but where it is unavoidable it should be in institutions where the ethos is educational rather than penal.

The Act provides the framework for the development of the juvenile justice system. It reflects the thinking that young offenders, by reason of their age and level of maturity, deserve to be dealt with in a different manner from adult offenders. The philosophy underpinning the juvenile justice aspects of the Act is that there should be a suitable intervention for every child who commits an offence, no matter what the offence or the circumstances of the child who commits it. The provisions of the 1908 Act protecting children against abuse by persons responsible for their custody, charge or care are being re-enacted and updated and the legislation provides for a family welfare conference and other provisions for dealing with non-offending children in need of special care or protection.

The legislation draws and is underpinned by the fundamental distinction between child offenders and out of control children. Senators will agree that the distinction is often hard to draw in practice when faced with a troubled child. Nevertheless, the legislation draws this distinction.

The Act represents a major change in how children are to be treated within the juvenile justice and welfare systems. There is a significant shift away from residential and custodial care. The expansion of diversionary programmes and the option of a community sanction are being developed in preference to detention where this is judged appropriate.

A key aim of the Act is to retain the distinction between offending children and non-offending children, defined as non-offending out of control children and children whose actions constitute an offence. There are two distinct pathways for addressing their needs. The juvenile justice route emphasises a diversionary and restorative justice approach for the children who offend while the health board welfare route emphasises a care and protection approach.

Reference has been made to restorative justice. We are already aware of diversion from the work of the juvenile liaison scheme. One of the important innovations in the legislation is the idea of restorative justice. In other words, the offender should be confronted in an appropriate context by the victim and helped to realise the consequences of his or her actions. I am glad to say that juvenile liaison officers have been implementing the restorative justice model in their case conferences with juvenile offenders and that they report good progress on this model. It has been piloted by various juvenile diversion officers. There is considerable scope for development along those lines as it is an effective way of reminding not only children, but also parents, of their responsibilities.

We must acknowledge that there will always be some cases where a period of detention for a young person will be appropriate and necessary. The Act modernises the approach to the organisation and management of detention facilities for offenders under the age of 18.

This is complex legislation. It involves three Departments in its implementation, namely, the Departments of Justice, Equality and Law Reform, Health and Children and Education and Science. I have delegated responsibility in all three Departments for the legislation. However, this does not always make the task easier. As Senators are well aware, in our system Departments tend to constitute institutional silos with distinct memory banks of their own. That said, the cross-cutting and interdependent nature of the Act reflects the well-acknowledged need to begin to join up the thinking and the operation of services which relate to children across a range of offices. I am assisted by the National Children's Office in the implementation of the legislation. Despite its complexity, considerable progress has been made towards implementation.

In introducing and explaining the legislation to the Houses in 2001, the then Minister for Justice, Equality and Law Reform made it clear that it would take a number of years to implement the legislation. It was never represented that it would be enacted forthwith. I welcome the fact that the Seanad is having this debate because significant progress has been made in implementing the Act.

In the Children Act 2001 there are three Parts that specifically relate to the health area, Parts 2, 3 and 11. Almost all of Part 2, with the exception of sections 7(1)(a), 10(2) and 13(2), and all of Part 3, with the exception of 23D, were commenced on 23 September 2004. The regulations for family welfare conferences and special care units were commenced on the following day, 24 September 2004. The necessary inspection and certification process is currently under way and should be completed in the near future. The certification process is the one in which the social services inspectorate must vet and certify the various special care units to be deemed fit for the detention of children under the legislation.

Part 2 of the Act provides for family welfare conferencing to be convened by the health boards. This is the first of three conferencing provisions provided for under the legislation. It will provide a forum for making decisions about a child's welfare which makes appropriate plans in partnership with families and agencies. The partnership approach empowers and encourages commitment from families, including young people. This is a mechanism for early intervention at an interagency level for children at risk. The function of the conference is to decide whether a child is in need of special care and protection and, if so, to recommend the appropriate order to be sought by the health board from the court. From the juvenile justice perspective, the welfare conference is a preventative measure that should result in fewer children ending up in the juvenile justice system and is, therefore, of great interest and relevance. If the health boards can identify a problem child before he or she has to be apprehended and brought before the courts and if an appropriate response is devised for him or her, that could be a significant advance.

Part 3 provides for the making of special care orders and the regulation of special care units. Senators will recall the numerous High Court proceedings in which Mr. Justice Kelly gave a number of judgments that made clear the Department of Health and Children and the Government had a constitutional obligation to provide secure placements for children who were out of control. On foot of these judgments, the State made a substantial investment in such facilities. However, while various special care and high support units have been in operation, no legal scaffolding has been established for them.

Generally, a list was taken by a High Court judge exercising the inherent jurisdiction of the High Court to determine how these children would be cared for but I commenced Part 3 of the 1991 Act, which provides for the making of special care orders, in September. This will provide the legal basis for the keeping of a child in a special care unit. A special care order provides for the referral of a non-offending child in need of special care to a secure special care unit. Such an order cannot be made unless a family welfare conference has been held by the health board in respect of the child. The special care order is a measure of last resort when every other available and appropriate care or protection intervention has been availed of and failed. Special care units cater for the main category of child, which, in the past, has fallen between existing safety nets — the out of control or difficult non-offending child. The Act imposes a statutory duty on health boards to institute proceedings in the District Court for a special care order in respect of a child who is in need of care and protection.

There is, therefore, no requirement to take the expensive route of High Court proceedings in regard to these children. The District Court will have statutory jurisdiction to deal with these matters. It is desirable and correct that under these regulations the health board should take the initiative. They are under an obligation to do so as it should not be based on the unilateral presentation by the legal profession of a particular case. A proper assessment is made of the case and, on foot of that, the case will be brought before the District Court. The detention of a child must always be the ultimate resort. The notion that the problems of children can be solved by locking them up must be avoided. I accept the High Court placed an obligation on us to provide these facilities and to give them the necessary, essential legal foundation, which was done through the commencement of this Part of the Act and its associated detailed regulations — I commend the legal service of the Department for its work on them — but this always must be the ultimate option, to which we should be slow to resort. Part 3 also provides for the regulation of private fostering arrangements.

Part 11 of the Act is important, as it relates to all aspects of the legislation, and it places the Special Residential Services Board on a statutory footing. Through the decades, there was considerable confusion within the courts, the legal profession and among social workers about the different residential institutions that existed for children and where children's residential requirements could be met. The board has an important role in advising the co-ordination of special residential services run by the health boards for non-offending children and the Department of Education and Science for offending children.

The board examines the detention schools where offending children can be placed and it also examines the special care and high support units provided by the Department of Health and Children. The board also has a role in determining whether it is appropriate for a health board to apply for a special care order under the legislation. The executive of the Special Residential Services Board has ten staff including the chief executive officer and four court officers. Two additional court officers are due to be appointed before the end of the year, pending Garda clearance. The expertise of the Special Residential Services Board, its chief executive and staff adds an important extra dimension in achieving co-ordinated and appropriate responses in this area. The order commencing this Part of the Act, which placed the board on a statutory footing, came into effect on 7 November 2003.

I will outline an example of how the board makes a practical difference. Everybody is aware of the urban legend that has been reported in our newspapers through the years where the court would say there was no place for the child at a particular institution. The practice was that gardaí, court clerks or a person interested in the case telephoned the institution in question and asked whether a place was available. If there was a negative response, the question was not pursued and the newspapers reported no place was available. The Special Residential Services Board has established a service under which its officers are on call 24 hours a day to co-ordinate the delivery of these places. That will assist us in addressing an issue raised by the Comptroller and Auditor General in his report on the detention centres, which is the maximum utilisation of spaces. Since last spring the board has done this practical and important work and, in doing so, a much better picture is emerging of the location of places, the requirements of various areas and how the places should be utilised.

The board also does important theoretical work. The membership of the board is defined by statute and, therefore, there are no political appointees. It comprises a significant number of persons who are involved in the sector and who give their wisdom and experience to it. The board has published a number of papers on different issues relating to its functions.

The Children Act 2001 is primarily juvenile justice legislation and introduces a wide range of innovative measures that will provide a statutory framework for the future development of the juvenile justice system in accordance with modern thinking and best international practice. The foundation of juvenile justice has always been the juvenile liaison scheme. That was put on a statutory basis under Part 4 of this legislation, which came fully into operation on 1 May 2002. It places the existing successful Garda diversion programme or juvenile liaison officer scheme on a statutory basis. This provides for the introduction of the second type of conference envisaged under the Act, which is based on restorative justice principles pioneered in New Zealand. The child offender is confronted by the victim at a conference presided over by the juvenile liaison officer. There is considerable scope for development in this area. The conference has been piloted in the diversion programme but it could be extended with profit.

Part 6 deals with the treatment of child suspects in Garda stations and it came fully into operation on 1 May 2002, with the exception of sections 59 and 61(1)(b). This Part places the treatment of persons in custody regulations, in so far as they govern the treatment of children in Garda stations, on a full statutory basis.

Part 7 relates to the children's court. It came fully into operation on 1 May 2002 and established the children's court, which is the District Court, when hearing charges against children or when exercising jurisdiction under the Child Care Act 1991. Before transacting business in the children's court, District Court judges are required to participate in whatever training or education course is required by the President of the District Court. I was asked to give a lecture to the judges by the Courts Service. I do not know whether it amounted to training and education but we had an interesting exchange of views.

I also raised with the Courts Commission the question of the condition of the children's court in Smithfield because the commencement of Part 7 means the legislation applies to everyone up to the age of 18. Previously, male offenders over the age of 16 and female offenders over the age of 17 were dealt with in the ordinary courts and not in a specialised children's court. One of the consequences of the commencement of this Part is that children aged 17 can mingle with those aged 13 or 14 in cells. The Courts Commission has worked on that problem.

Part 8 sets out proceedings in the children's court and contains two significant initiatives. The court may adjourn a case and direct the probation and welfare service to convene a family conference, which is the third type of conference provided for under the legislation. The service may formulate an action plan for the child on foot of the conference. The provision was commenced earlier this summer. From a health perspective, the family welfare conference deals with a child who shows very serious symptoms and requires special care and protection but has not come to the attention of the criminal courts. The diversion conference deals with a child at the early stages of offending and is convened by the Garda through the diversion programme. The probation conference, to christen it as such, deals with a person who has come before the courts and the commencement of the provisions in this regard have been particularly significant.

On my appointment as Minister of State, I was faced with the overall embargo on public service numbers but I am glad to say I was able to find the personnel necessary to staff the Special Residential Services Board within the overall allocation to the Department of Health and Children. I was equally assisted in the Department of Justice, Equality and Law Reform in locating in excess of 30 probation personnel to staff the children's court. It is an extraordinary fact that until this year there were no ring-fenced probation personnel to service the District Court in exercising its criminal jurisdiction on children, although this statement is not meant to detract from the professionalism and dedication of the staff who performed the role previously. The necessary sanctions were obtained last year with considerable difficulty in terms of recruitment, on top of which training had to take place. I am glad we have the personnel to provide the elementary probation service at the District Court.

While it is only a start, at least the service is there and conferencing can take place. With the analysis which takes place at conferences, we will be in a much better position to develop community sanctions, which constitute the next key part of the legislation requiring implementation. Community sanctions will give the courts options short of detention in respect of an offender with a serious record whether it is to choose a mentor or intensive supervision order. There are a number of types of order referred to in the legislation. We will be in a much better position to roll out that part of the Act with a probation service on site at the courts to discuss the problems of offenders at case conferences where a view can be developed as to where to go short of detention.

Part 9 sets out the powers of the courts on child offenders and provisions are made on bail. A number of provisions came into force on 1 May 2002 on structures on fines and costs. There has been some public discussion of parental orders and restriction of movement orders. Parental orders were envisaged by section 113 of the Act and give courts the power to order a parent or guardian of a child found guilty of committing an offence to pay compensation where the court is satisfied that a wilful failure of the parent or guardian to take care of or control the child contributed to the criminal behaviour. Section 114 gives the courts power to order a parent or guardian of a child to enter recognisance. While it is very popular to point to the existence of these provisions and the important powers of the courts, a difficulty is that an offender who has committed a great number of offences before coming to the attention of the courts is not a person whose parents are very involved. Parents may not be easily accountable to the justice system. Sections 133 to 136, inclusive, provide for restriction of movement orders or curfew orders. Such orders have been made in some cases.

Part 12, to which I referred earlier, relates to the protection of children and updates a number of provisions in the 1908 Act aimed at protecting children against abuse by persons who have care, charge or control of them. The definition of "cruelty" has been extended and those of "health" and "wellbeing" expanded to include emotional health and wellbeing. These provisions have been commenced. Part 13 outlines miscellaneous provisions, through all of which I will not bring the House.

Those parts of the Act which have not yet been commenced will occupy the time of the Senators to a greater extent than the foregoing this afternoon. With this year's work, more than half of the legislative provisions have been commenced. We must maintain the momentum of progress over the next two to three years to ensure the entire Act is commenced. The remaining sections of Part 2 which relate to family welfare conferences are linked to section 77 of the Act. Section 77 is very important and provides for the courts to order a family welfare conference. Children who appear before the courts on suspicion of committing offences and whose real problem may be a need for care or protection by a health board may have a family welfare conference ordered for them. On commencement, section 77 will enable the courts to refer a suspect offender back to the health board. I commend the positive work of Carl O'Brien of The Irish Times in this area. Among the problems which have existed has been that the courts have not been able to make health boards party to proceedings. If section 77 were commenced it would be possible to do so, although there are financial implications. While we have further work to quantify what the financial exposure of the health boards will be in this context, I am confident we can make progress.

Section 23D of Part 3 empowers the Garda to deliver a child to a health board where he or she is considered to require special care or protection. The section is somewhat problematic as such a child will have been arrested by the Garda and taken to a Garda station. Clearly, the commencement of the provision will require the establishment of an out-of-hours service by the health board and the drawing up of clear interagency protocols to ensure, for example, that the Garda would not refer all such children to the health authorities.

Part 5 of the Act addresses the age of criminal responsibility and is not yet in operation. This part of the Act raises the current age of criminal responsibility from the common law age of seven to 12 years. It makes provision for the transfer of responsibility from the Garda to a health board for children under the age of criminal responsibility who are in conflict with the law and in need of special care or protection. It is indisputable that the current common law age of seven is far too low and proceedings are rarely, if ever, taken in respect of children of that age. The Oireachtas decided on the age of 12 and in so doing transferred responsibility from the Garda to the health boards. The commencement of Part 5 will necessitate the establishment of a substantial service to deal with children under the age of 12 whose conduct amounts to criminal behaviour but who will no longer be criminals. There are plans to address this issue.

I preferred the approach taken in the legislation as originally drafted whereby criminal responsibility would have been introduced at the age of ten and phased up to the age of 12. Such a provision would have made our task in this area a great deal easier. A practical problem which has been drawn to my attention as Minister of State involves the excellent diversion programmes run by the Garda which fund valuable projects in certain areas where they are seen to be of benefit. As the legislation envisages that no one under 12 will commit an offence, the Garda will have no vires to conduct diversion projects in communities which require them to cater to 11 year olds. While I do not like to suggest the Oireachtas was ill-considered in its selection of an age and I acknowledge a legislative determination has been made, this aspect of the Act will give rise to difficulty. Maturation is taking place at ever younger ages and very serious offences such as homicide and rape are now being committed by persons under the age of 12. It will not be easy for any Minister for Justice, Equality and Law Reform to commence this particular provision given some of the conferences it entails.

Part 6 addresses the treatment of child suspects in Garda stations and I have referred to the attendance at stations of health board staff. The above provisions have major implications for the health boards, both in terms of a general build up of family support services and the provision of out-of-hours service. These will be required before the remaining sections can be commenced. The health boards are considering the matter and the necessary preparations are being made to commence the sections.

I mentioned that Part 8 had been commenced in terms of probation conferencing. However, we have yet to commence Part 9 which relates to the powers of the courts regarding child offenders. The main element of this Part is a provision for ten community sanctions, eight of which are new. These are an essential component of the Act if effect is to be given to the policy of detention being an absolute last resort. The intention is that where a judge decides in a particular case that the imposition of a community sanction is appropriate, a sanction suited to the needs and misdeeds of the child will be available. Again, this will require significant input from the probation and welfare service. I mentioned earlier that 30 additional staff have already been recruited to implement the provisions of the Act relevant to the service.

Priority is now being given to the phasing in of community sanctions. Proposals to begin pilot community sanctions in 2005 are currently being considered and finalised. Obviously, that decision will rest to some extent on the Estimates process. I am glad we can at least begin to pilot community sanctions next year. The courts always had jurisdiction under a general probation order to decide that a child should do something else rather than be sent to a place of detention. I take the view that the provisions relating to community sanctions are somewhat over-elaborate as they spell out in very precise detail each community sanction.

The Act provides for day centres and training and activity programmes whereby the probation service would link up with FÁS in providing appropriate training courses. It also provides for intensive supervision, a controversial issue in other jurisdictions; for residential supervision; and for care and supervision by way of a foster-type arrangement for juvenile offenders. Locating people willing to foster may be somewhat problematic. However, the legislation makes provision for such an arrangement. The Act also provides for a mentor order, something on which I am very keen. We have piloted mentoring, on the health side, in locations such as Galway and Darndale in Dublin and have found that the effect of the mentor programmes implemented by the Western Health Board and the Northern Area Health Board have been to reduce the demand for secure residential places.

The mentoring idea is that a person, not necessarily a social worker, liaises with the troubled child and tries to guide him or her on a one-to-one basis for eight or ten hours a week towards obtaining a job or participating in leisure activities or educational improvement. The cost of a mentoring arrangement is far less than the cost of residential care. Members will have noted from the Comptroller and Auditor General's report on child detention centres that there is enormous cost involved in providing residential care. One of the reasons for such high costs is that child protection requirements are so strict that a large number of personnel are required to be on duty in these institutions at all times. That is understandable but the costs involved are substantial, far in excess of the cost per detainee of conventional imprisonment in the adult world. That in some ways is very much as it should be. We need to provide full educational facilities for such children. It is impossible to reconstruct in an institutional setting the supports that a good family can give a child. That said, I salute the work done by care staff in these institutions. Such people often work under very difficult conditions.

We are piloting community sanctions in the year ahead. With the placing of conferencing on a statutory basis we are now in a position to start piloting community sanctions. I mentioned in that regard the importance which I attach to mentoring.

Part 10 deals with children detention schools. Responsibility for Part 10 lies with the Department of Education and Science. It provides for the establishment of children detention schools to replace the existing reformatory and industrial schools. This Part has not been commenced, apart from section 159(1) relating to the establishment of the residential services board. While work on the commencement of the educational provisions of the Act is ongoing within the Department of Education and Science and while there is no difficulty in commencing Part 10 in practice, there is a difficulty in commencing it until separate detention facilities are provided for 16 and 17 year olds.

Under an interdepartmental agreement, which underpins the legislation, it was decided that out of control children should be the responsibility of the Department of Health and Children, and rightly so, but that responsibility for the offending children would be divided between the Departments of Education and Science and Justice, Equality and Law Reform with the Department of Education and Science taking responsibility for children up to 16 years of age and the Department of Justice, Equality and Law Reform constructing separate dedicated facilities for 16 and 17 year olds. This is a cumbersome legislative structure. While the total number of children involved would rarely exceed 250 we envisage, under the legislation, eight different types of child detention centre. There will be a child detention school for under 16 year old male, female, remand and committal offenders. A similar structure will also be required for 17 and 18 year olds. There is a limited number of 16 and 17 year old females in the remand or committal structure. The number of female offenders in the under 16 years old category has reduced. The establishment of the health facilities has reduced the demand for female places in the conventional child detention centre context.

The Department of Justice, Equality and Law Reform is reviewing all these issues. However, there is no doubt that the education provisions could be commenced were it not for the fact that that Department has not yet established the detention centres for those aged 16 and 17. The economics of a detention centre for 16 or 17 year old females is questionable. However, 16 and 17 year old males currently attend St. Patrick's Institution or are committed to a detention centre on Spike Island. All of these matters are important. The Department of Education and Science is determined, pending completion by the Department of Justice, Equality and Law Reform of its facilities, to conform to the spirit of the legislation that boards will be established shadowing the terms of the legislation. I am also glad to announce an issue highlighted by the Comptroller and Auditor General in his report on the detention centres as regards the inspection of these institutions has been resolved. The Department has recommenced inspections of all institutions.

The issue of offending and non-offending children in need of special care or protection has been the subject of much controversy over the past number of years, with high profile cases usually concerning the issue of the provision of a placement coming before the children's court and the High Court on a frequent basis. Serious concerns have been raised in the courts and in media circles about the State's ability to provide appropriate accommodation for these children.

There have been accusations of lack of co-ordination between the three Departments with responsibility for these children, of children falling through the net and of disputes in court concerning which State agency should be responsible for individual children. There have also been criticisms of lack of places for both offending and non-offending children. Offending behaviour among young people is an aspect of criminal activity which remains of particular concern to the Government. Regular newspaper reports of violent crime and public order offences involving young people are, sadly, something with which we are all too familiar.

In implementing the Act to date, what has emerged is the importance of a co-ordinated approach. This is being facilitated on my behalf by the National Children's Office. Implementation of the Act is actively monitored by the Cabinet committee on children and I will be reporting to it again shortly with a detailed plan for the implementation of the outstanding provisions. It is also true to say that while we have established a sound statutory framework for a modern youth justice system, some fresh thinking is required with regard to the institutional framework in which it is to be delivered. To this end my colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, and I have taken the initiative of establishing an internal task force in the Department of Justice, Equality and Law Reform to examine specifically, at a national and international level, how the State might better manage and target the delivery of its services in the area of youth justice. It is intended that the task force will report to the Minister so that he may bring recommendations to Government next summer. I should point out that the task force is being handled at the highest level in official circles in the Department of Justice, Equality and Law Reform. I attach a great deal of importance to its work. It will take a detached view of our juvenile justice system and of how we can implement as quickly as possible the outstanding provisions of the Children Act.

To briefly sum up, Senators must agree that much progress has been made in implementing the Act's provisions. Most significantly, the three conferences provided for under the Act are in operation. These provisions seek to plan the best course of action for a child underpinned by a partnership approach, and all seek to ensure that detention is a measure of last resort. The three conferences will support prevention, through early intervention and in the medium to long term will produce positive results and ensure care is provided to each child appropriate to his or her individual needs. This means that all the restorative justice elements, the most original and innovative elements of the Act, are fully operational.

In the meantime I am continuing to endeavour to remove all of the remaining obstacles to implementation and my cross-departmental responsibilities and the cross-cutting role of the National Children's Office is central to the effectiveness of these efforts. Senators will have to agree that progress has been made in implementing the legislation. The three conferences provided for under the legislation are in operation. Those provisions seek to plan the best course of action for a child, underpinned by a partnership approach, all of which seek to ensure that detention is a measure of last resort. The three conferences will support prevention through early intervention and in the medium to long term, will produce positive results and ensure that care appropriate to individual needs is provided to each child. In the meantime, I will endeavour to remove the remaining obstacles to implementation. My cross-departmental responsibilities and the cross-cutting role of the National Children's Office can assist those efforts.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I welcome the Minister of State to the House and compliment him on his grasp and knowledge of this complex and important legislation which was passed in 2001. I agree that some progress has been made in the provisions of the Act but the slogan used by the Government before the general election of, "A lot more to do", would be apt in the case of the Children Act——

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I remind the Senator it was, "A lot done, more to do".

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I have acknowledged that something has been done——

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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A hell of a lot has been done.

Photo of David NorrisDavid Norris (Independent)
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That is unparliamentary language.

Rory Kiely (Fianna Fail)
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Senator Cummins, without interruption.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I am glad the Minister of State has acknowledged that quite a lot remains to be done. There is a long way to go before all sections of the Act are implemented. It is the old question of resources yet again. The necessary resources must be provided to ensure its implementation. The question of resources is always raised by the Government but we are told at the same time that the country is awash with money. However, time after time, Ministers and others tell the House that if the resources were available, they could do X, Y and Z.

For my sins I was a member of a school attendance committee for approximately 20 years. It was often very sad to come across cases where children who were not attending school were put through the courts system. Many of these children were from very underprivileged families. Their parents were unable to look after themselves, let alone the children. It was very sad to see those children being put into reformatory schools. It is a pity that early intervention was not available then because that is what was required. An interagency approach was needed. As the Minister of State said, that approach is gradually coming on stream with the health boards becoming more involved, but there is still a long way to go.

A number of sections of the Act which could play a role in early intervention have not been commenced. The Minister of State mentioned some of these sections. With reference to the area of community sanctions, he said a pilot project would begin in 2005 and that is to be welcomed. It could act as an alternative sanction to custody and would play a significant role in ensuring that children break the cycle of offending. The Minister, Deputy McDowell, gave some indication that these sanctions would come into play in mid-2004. The Minister of State stated they might be introduced in mid-2005. At least a pilot project is promised for 2005 and that is to be welcomed. I am glad it will happen because of availability of resources.

Another significant part of the Act which has not commenced deals with the area of criminal responsibility to which the Minister of State alluded in his contribution. The age of criminal responsibility is to be raised from seven to 12 years. When is it proposed to take action in this area? I realise the difficulties involved in transferring responsibilities from one Department to another and from the Department of Justice, Equality and Law Reform to the health boards. I suggest that something be done as soon as possible in order to make progress. Nothing seems to have happened to date.

On the subject of detention schools for children between the ages of 12 and 16, the aim of which is to reintegrate back into society the children referred to them, this is to be done mainly through the provision of appropriate educational and training programmes and facilities. What progress, if any, has been made in this area which is critical to the whole concept of early intervention?

Last year, the Minister for Justice, Equality and Law Reform, Deputy McDowell, expressed concern about the problem of the delay between detection and trial, particularly in the case of juvenile offenders and that the current pattern of delay fundamentally undermined the capacity of the system as a whole to respond effectively to crime and to its deterrence. Not only does the delay lessen the chances of conviction and increase the overall costs to the State, it also blurs for the offender the necessary link between the offence and the resulting sentence. More critically, it will hold back any targeted intervention in terms of sentence.

Addressing this problem of persistent young offenders by reducing the delays in the system became a British Government target after the 1997 general election. A pledge to halve the time between the arrest and sentencing for persistent young offenders was achieved in 2001. It has been sustained for the past three years. The key to delivering this has been interagency co-operation which has been developed at national and local level in the UK. I suggest we can learn from our neighbours. Rather than the Minister expressing concern, he should act decisively at this stage and deal with the problem of delays between detection and trial, as was effectively achieved across the water.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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The Minister has met the groups who were responsible for organising the system.

Rory Kiely (Fianna Fail)
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The Senator, without interruption, please.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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Gabh mo leithscéal.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I thank the Minister of State. I am glad the Minister is acting in this regard. We should not be afraid to imitate a success story.

The Minister of State announced last September the commencement of the family welfare conferencing and special care provision in Parts 2 and 3 of the Act. It is to be welcomed that these provisions of the Act are finally off the starting blocks. It is of paramount importance that this system is now in place and that each health board has these services available. The two core principles underlying family welfare conferencing are that the child's interests are paramount and, in so far as possible, the child is best cared for within his or her own family. That is not always possible but I am pleased that resources are now in place to insist on the implementation of these principles. I presume the health boards will report on the implementation of those provisions once a period of time has elapsed.

The Garda juvenile diversion programme has been in place since 1963, providing an opportunity to divert juvenile offenders from criminal activities. The programme operated initially on the basis of the common law principle of police discretion and it is now provided for under the Act.

I pay tribute to all those involved in the juvenile diversion programme on their 40 years of work and dedication, which should be applauded by all. They play an important role as regards juvenile offenders.

Our spokesman on health and children, Senator Browne, shall deal in greater detail with the health and children area of the Act. While we have made progress and that is welcome, I hope further resources will be made available as soon as possible to progress the many other important sections and ensure the Act, in its entirety, is put into operation.

I commend the Minister of State on his work and wish him well.

4:00 pm

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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This is important legislation, the implementation of which is even more important. There was a recognition that the juvenile justice system could no longer continue to develop within the statutory confines of the Children Act 1908 and that further development would have to be underpinned by new legislation, namely, the 2001 Act. That Act is designed in such a way that all its provisions dovetail into one another. I agree with the suggestion that it is imperative that all aspects of the Act be brought into operation. I commend the Minister of State on the work he has done so far.

The Act provides the framework for the development of the juvenile justice system. It reflects the thinking that young offenders, by reason of their age and level of maturity, deserve to be dealt with differently from adult offenders. That is true because they are in a different age category and are still only developing. As a consequence, the implementation of the Act and the regulation that emanates therefrom would have to be designed to cater for those who are still at a developmental age. That is what this legislation does.

The philosophy underpinning the juvenile justice aspects of the Act is that there should be a suitable intervention for every child who commits an offence, irrespective of the nature of the offence or the circumstances of the child who commits it. It re-enacts and updates the provisions of the 1908 Act to protect children against abuse by persons who have the custody, charge or care of them. The Minister of State made the point that detention or custodial care should be the last resort. I agree totally with that view. As one who worked in a care profession for many years, that has been widely recognised in the psychiatric profession for some time. With the advent of Planning for the Future, the psychiatric services clearly recognise that point. The application of this legislation is comparable to that policy. It provides for a family welfare conference and other provisions for dealing with non-offending children in need of special care and attention.

The Minister of State dealt with the various Parts of the Act that have been implemented and referred to those which have not been implemented. I shall touch on a number of aspects of the Act and the position as I see it as a public representative and as a parent. When a child gets into trouble he or she has to be dealt with. One could use the term "crisis intervention" where the victim confronts the perpetrator, whether old or young. The same applies when people are dealing with those who have an addiction. They are confronted by those closest to them such as a spouse, partner, employer or best friend. It is only in that way, if it is possible to get through to them at that level, that they begin to realise they have a serious problem and start to do something about it.

An issue on which I have always harped is parental control. I regret to say that children control their parents very well in many cases. In fact, there is absolutely no control. That is what has to be dealt with. Parental control and responsibility is central to all of this issue. Certainly the State, the Garda, the caring institutions and the educational system have a role to play but parental control plays a pivotal role. We have all heard of latchkey children. For many children who are home at 4 o'clock, the door is on the latch; that is when many fall in with the proverbial Fagin of Dickens fame. They are not nicking a wallet or pinching a pocket or two but are pushing drugs and engaging in all their attendant evils, especially in urban areas. That has been proven. Children of a relatively tender age have been known to come into the clutches of drug pushers and drug barons.

We know parents have to work. There is one section of the community to which I wish to pay tribute not because I want to be patronising, but because I want to be honest. I am married to someone I call the minister for home affairs. Women play a pivotal role in this area. Given that many women have to go out to work there has to be a recognition by the powers that be that although much has been done in regard to the provision of crèches and so on, more needs to be done. Parents are central to the issue.

Another area that needs attention relates to those children who suffer from ADD and ADHD. I arranged at one stage for these children and their parents to be received by the committee of which I am a member, the Joint Committee on Health and Children, and by the Joint Committee on Education and Science. If those children are not detected they will come under the unfavourable eye of the law. Many end up in the psychiatric services because nobody knows what to do with them and they cause huge problems at home. This is an area into which money must be invested. While resources have been allocated to date, more are required. It is imperative that the condition ADD-ADHDis recognised, diagnosed and treated. It has been proved that if it is treated there is a large measure of success.

Senator Cummins referred to school attendance. We all know that school attendance by children from certain deprived areas around the country is low. However, we should not give up. The Garda has a role to play as well as other support services. Unfortunately, in some cases, sufficient action is not being taken.

The gravity of the offences committed by people has to be brought home to them. We saw on the television news where two murders were perpetrated on the one day, one in Dublin and one in Mountmellick, by juveniles of a tender age. I can say from professional experience that there are those, irrespective of age, who harbour serious thoughts about causing damage and hurt to others. It is not enough to say they will grow out of it, as has been said in the past. I regret to say that in the main they do not grow out of it. They are dangerous people who need institutional or residential care because society must be protected, irrespective of the age category of the potential offender.

The adverse impact and influence of television must also be appreciated. Some of the television programmes being broadcast, particularly on satellite channels, are absolute dirt. They are filthy and unfit to be viewed by adults let alone by children, which is regrettable. It has been proven beyond doubt that children are influenced by some of these programmes. We must examine and be conscious of what is broadcast on television in particular and take corrective action when inappropriate material is transmitted. I do not refer to our national television stations but rather the filth and rot broadcast by other channels.

The abuse of alcohol by children in their early teens is another growing trend. The Midland Health Board carried out a survey in recent years, the results of which leave one gob-smacked in terms of the percentage of boys and girls in their early teens who are drinking on a regular basis. The figures are worrying and we must deal with the issue.

The impact of health board services must be appreciated. In so far as their responsibilities lie, the health boards have done a good job. In many cases, they have taken on difficult situations when children had to be taken into care by social workers doing their duty, which I applaud. However, in some cases, there is little public support for health board social workers' actions and we must compliment them because they are doing a good job in difficult circumstances. I do not want to highlight the fact, but we must now recruit social workers in South Africa and other far-flung countries because people are not entering the profession in Ireland. Much has been done, but more needs to be done.

We could do more to provide sports facilities. In this context, I acknowledge the work of the GAA as well as the soccer, rugby and other sporting clubs. They need our support because they are occupying young people and burning up their surplus energy by providing facilities. Unfortunately, however, there is a category of young people who will not avail of such facilities.

I wish the Minister of State well. He has done tremendous work with this portfolio and, as has been acknowledged by Senator Cummins, he has a tremendous grasp of his brief. I ask him to take particular notice of the ADD and ADHD organisations as well as the Dyslexia Association of Ireland. Children who suffer from such conditions, if they are not detected in time and corrective measures taken, can find themselves on the wrong side of the justice system and may end up in the psychiatric system in inappropriate circumstances.

Photo of David NorrisDavid Norris (Independent)
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I welcome the Minister of State to the House. He is a very good person to be in charge of this area.

I am now of an age that, when I was a child, terms such as attention deficit disorder and dyslexia were not recognised. Any child who was disruptive, of whom there were many, was battered into submission. I saw it happening in the school I attended and I am not sure it was a very good idea. However, there has been a relaxing of physical sanctions and the phenomenon of latchkey children has grown. Although one cannot apportion the blame entirely to any of these, there is no doubt that children have changed like the rest of society. There is a violent element among young people which I do not recall from my youth or at least it was held in check.

Senator Glynn referred to two recent appalling cases in which children committed murder apparently for possession of mobile telephones. However, one of the boys indicated he was hell bent on committing murder before he set out and grabbed the telephone. Moreover, he said he would have preferred to kill his father. I wonder what process of desensitisation is going on in such cases. Senator Glynn also referred to television but I do not believe television has a significant role to play. However, I wonder about video games because they may well have a tendency to desensitise children. When I was small, we played cops and robbers or cowboys and Indians and we got a great thrill from pretending to be dead through dramatic clutchings of the chest and falling to the ground.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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The Senator was a natural in the role.

Photo of Mary WhiteMary White (Fianna Fail)
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Poor Indians.

Photo of David NorrisDavid Norris (Independent)
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I always enjoyed playing. Nowadays it is not acted out in that way. Rather, it happens in front of a screen in an impersonal and dispassionate manner as one is simply splatting a very realistic target. I wonder if these technological advances and games may lie behind one of the most chilling aspects of one of the cases, namely, that the young person accused sat through the court proceedings almost catatonic. He displayed no emotion whatever, despite the fact that he had horribly and savagely murdered a young teenager of his own age with a hammer and left his victim's mother bereft. As far as I know, the woman did not have a partner and her son was her only child.

The inability of the accused child to imaginatively comprehend what he had done is worrying. The greatest preventative measure against violence and criminal behaviour is to encourage young people to imagine the experience of the other person and feel for themselves what it would be like to be on the receiving end of the hammer or what it would be like to be a middle-aged person from whom their only offspring has been brutally, capriciously and unnecessarily removed.

There is something new in these cases. Our society is changing in many ways and there is much greater violence from adults and, astonishingly and regrettably, also from children. Perhaps it stems from the fact that there is a complete lack of a moral centre in Ireland because we have been so let down. The State has been found in breach of its obligations to children. I am glad the Minister of State has included in the Bill provisions to protect children in institutions against bullying and being terrified and against physical and sexual abuse because it was routine in the institutions to which the State surrendered such children in the past.

The State has failed to be a moral centre and we also have the terribly sad situation whereby the church has lost moral authority because it was not honest about human sexuality. While it was making po-faced statements about perfectly respectable old poofs like myself, priests were simultaneously moving around the place like a three card trick version of find the lady. Some of these priests were serious and serial child molesters. Unfortunately, apart from those who have individually won the right to respect, like Bishop Willie Walsh of Killaloe and a few others, and there are wonderful people still in the church, as a body it has lost its respect. Society has lost its moral centre. There are many things to respect and to look up to. In terms of the general protection of children, I agree with much of what was said earlier about the need to provide positive role models and positive activities for them, although perhaps that is a discussion for another day.

I have some points to make that are directly relevant to the Bill, but in terms of the welfare of children we have heard about the drugs, the interventions of society and all the rest of it. I make this point and I will keep making it to every forum, whether it is appropriate or inappropriate, on the basis that one day some well-intentioned Minister will carry this point back to Government. In the area in which I live the one measure that will really help to reduce anti-social behaviour by children is the Breaking the Cycle scheme in terms of teaching, but it is defective. In some ways it is worse than if it was not in place. I see these wonderful, beautifully presented, well mannered children in Marlborough Street who are a real credit to their parents, but I know that in five or six years the majority of them will be on the needle. They will have been dumped off, having been given a glimpse of their potential through the Breaking the Cycle scheme, but then that assistance will be taken away.

If we want to save these children, we should continue that scheme. We should spend the money that is taken from the drug people and that is taken out of the veins of the people in these poor areas. We should put such money back into providing for these children not only all the way through primary school but through secondary school and university. The first few architects, lawyers and doctors who come through the system will be the role models for this society. That is where we should be investing the money. I very much hope this will happen.

I wish to ask about a clause covered in earlier legislation. It is an important section that was introduced in this House by Senator Ryan and me. It is the guardian ad litem provision which I understand has not been fully operated. Unfortunately, I will not be able to stay to hear all the Minister of State's reply but I will read it. I would be interested to know about the operation of the guardian ad litem provision. The House will remember this provision was introduced in Britain in the wake of the Maria Colville case where a girl was surrendered back to her parents by a local authority whom they then done to death. This provision was introduced to protect the rights of the child. We put this clause into legislation but for a certain period it was not operated because of financial constraints. There is a partial operation of this system now and it would be useful if the Minister of State would give a report to the House on where we stand in terms of its operation.

I point out because I am non-partisan that it was a Fianna Fáil Government that introduced this provision and it was introduced through this House. There was a major argument about it, but the then Minister of State, Deputy Treacy, brought the Bill back to Cabinet. The Bill had to be recommitted and the Minister of State did not get a very warm welcome in Cabinet when he did so, but he did it because he knew it was to provide for the welfare of children. At what stage is the operation of that provision?

In terms of the behaviour of children, attention deficit disorder was not recognised in my time nor was the impact of diet on behaviour. I listened to much commentary on this on radio. I heard one woman interviewed who had a disruptive child who would go into tantrums and who brought him to a special dietary consultant. It turned out that the ingestion of very ordinary food like sugar had an impact on the child's behaviour and when his diet was altered, his behaviour became perfectly normal. We have to bear in mind these stories and also have compassion for those parents who try to control their children who are completely and wildly out of control. They appeal for help from the State, but they do not always get it. It is perhaps because of a lack of money, but this excuse can be pleaded less and less these days when substantial revenues are accruing to the Exchequer.

My colleague, the Minister of State, is also a distinguished lawyer. The courts have played a role in this area in terms of reprimanding the State and the Oireachtas for neglecting the provision of residential accommodation. Judges have refused to sentence young offenders. They have said it is ridiculous to send young offenders to completely inappropriate institutions where young people are put in with hardened criminals or sent to institutions which are already over-crowded. If we care about our children, we need to provide the necessary resources. I welcome very much what the Minister of State said about the diversion programme in justice — that is the long-winded heading under which the juvenile liaison officer scheme is dealt with in the report. This scheme is a marvellous idea. It is being put on a statutory basis and I gather some funds and personnel have been made available to implement it. This is the type of measure that is necessary.

In my area there is a terribly decent young garda whom I met during the week. He recently married another garda and they are a delightful couple. He is a liaison officer and I remember sitting in the Cobalt Cafe in North Great George's Street having coffee with him and talking about the problem of juvenile delinquency. He pointed out that an awful lot of these children do not have the regulation family structure and what they ache for is a father figure. A Garda juvenile liaison officer in the community can be just this kind of figure for them, a person to whom they can learn to look up to and who can give them advice and be available for them albeit only on a fairly limited basis. I welcome that measure. It is the way to go.

I also welcome the fact that where parents wilfully ignore, disregard or even encourage criminal behaviour that affects other citizens, there should the power to require them to compensate the victims of the crimes committed by their children because of the lack of control that they exercise over them.

I also very much welcome the paragraph in which the Minister of State deals with the powers of court in regard to child offenders where community based options are available. Having committed an offence against society, the young person can be directed by the court not to waste his or her time in inappropriate detention but instead can be required to do something positive and put something back into society. That is part of a healing process. A child who does something wrong and perhaps even feels guilty about it can be required to do something positive. That does not diminishing the child but helps to develop the child. That can only be a good thing.

I welcome the fact that money has been provided and that 30 additional staff from the probation and welfare service have been made available to this unit. This has been an important report from the Minister of State. There is progress. He referred to the remaining obstacles to implementation. That is usually a code for the Department of Finance.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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Or the Department of Justice, Equality and Law Reform.

Photo of David NorrisDavid Norris (Independent)
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Or that Department. The Minister of State has the support of this House in continuing to remove these obstructions because this is the will of the Oireachtas. We require and demand the full implementation of this legislation. Bellyaching about not having enough money will not wash in this climate. We are prepared to beard the Department of Justice, Equality and Law Reform in the interests of the children of this country who I have no doubt will benefit from this kind of legislation.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I am glad to be here for the debate on this progress report. As the Minister of State was speaking I was thinking we should get progress reports on Bills that have become Acts and which are in various phases of implementation. We pass legislation and live by it and it is consigned somewhere. Legislation becomes a statue and then we do not hear anything more about what has happened in respect of it. It is a good idea to get a detailed progress report such as this on the various parts of legislation that have been enacted and what has happened in regard to the Act.

As the Minister of State was speaking, I heard of many measures with which I am familiar at local level, but I did not know they were part of this legislation. One must bear in mind that the genesis of the 2001 Act was the 1908 legislation and later 1991 legislation. The 1908 legislation was based on centuries of developments mainly of a custodial and penitential nature for young people and it was then amended by 1991 legislation and later by the 2001 Act. Much that is good and of great value has arisen from this legislation.

We mostly hear of the cases in which the judge quite rightly utters a tirade against the Department or various Ministers who are not executing orders that he gives them. Everybody is very distressed about this matter. We also hear of cases such as those mentioned by Senators Glynn and Norris. These cases are very disturbing to us all. We all have sympathy for the mother in the case of the murder in Laois. The impact statement that she was unable to read in the court was welcome because it demonstrated graphically to us all the distress caused by what had happened. It was a very powerful and emotive statement. Why would it not be? The mother was but 16 when she had her son and he was murdered when he was 14. I know this was the crime of one person but we are all involved in society in one way or another and should consider what we could do to help in every case.

On the implementation process, I commend the Minister and his officials for being able to skirt the provisions of the Department of Finance on numbers such that they were able to get 30 extra personnel under the global heading of the Department. This was very necessary. The Act represents a major change in how our children are to be treated within the juvenile justice and welfare system. There is a significant shift away from residential and custodial care.

When I was Minister for Education, there was a constant barney over who had responsibility for the various institutions. Nobody wanted responsibility and it was hanging between all the Departments.

If something dreadful happened in one of the institutions everybody ran away from it as fast as they could. The purpose of the Minister of State is to do away with this shirking of responsibility. All blame will fall on his office.

I like the term "diversionary programmes" and the option of community sanction. When the Minister of State is replying, I would like him to state exactly what is a community sanction. What can a young person do in preference to a custodial sentence? We know the kinds of community tasks that can be done by adults and I suppose the community sanctions that apply to juveniles are versions thereof.

I pay tribute to juvenile liaison officers. We have always had one in Athlone, where I live, and I know much good work was done by that person.

On the basis of what we read in the report, the Minister of State has done considerable work on the issues in question. That so much has happened is of enormous benefit.

Let me refer to a matter that is not referred to in the progress report but which is in itself important, namely, the great pressure under which parents labour to rear their families and pay huge mortgages. I believe Senator Glynn touched upon this. It is now the norm in most households to have two parents working, whether they want to or not. This is because of penal mortgage rates and the need to keep the family and home together. I know this is not the Minister of State's preserve or his baby — that is the wrong analogy — but perhaps he will update us on the issue of child care. What is wrong is that the issue is nobody's child, so to speak, and it is talked about very randomly. If the Department of Finance talks about it, it does so in terms of taxation; if the Department of Justice, Equality and Law Reform does so, it is a capital matter. However, it is now the norm that a couple's monthly child care cost exceeds that of their mortgage. When one is not involved at this level one says the cost of child care is dreadful and moves on, but it really is dreadful, as I have occasion to know from my family's family. It is horrendous and a significant burden on parents, yet they must bear it if they are to provide for their children. If there is more than one child, paying for child care practically becomes an impossibility.

To return to the progress report, will the Minister of State outline in his reply whether the perpetrators of the recent murders of children in Laois and Dublin had come under the provisions of any Act prior to the murders? Had they come under the purview of a juvenile liaison officer or whoever is responsible for working through the kinds of difficulties they might have been encountering, or had school reports, for example, been examined, might early signs of what was to happen have been revealed? I do not know if this can be worked through.

The issues raised in the report are of great interest to us all. We have all come across examples of them. We realise that custodial treatment is not always the answer for young people caught up in the perpetration of terrible crimes or petty crimes. In many cases they need guidance, care, foresight and a belief that they can be helped if the correct line of action is taken. I hope we will have further progress reports on this important matter.

Kathleen O'Meara (Labour)
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I, too, welcome the Minister of State to the House and commend him on reporting back to the Seanad so comprehensively on his management of the implementation of the 2001 Act. It is certainly very comprehensive and important legislation. It has been brought into sharp relief by the constant reiteration by the media of very serious matters relating to children, specifically in terms of justice.

The fact that children have been involved in murder has confronted us all, as it should. I do not agree with Senator Norris that it indicates that our moral centre is lacking. It is a case of young people, children, who have murdered people. It confronts society and we need to consider it as a society. I do not agree that we should simply be blaming parents. We need to examine the circumstances in which parents feel unsupported and in which children commit murder. Regardless of whether one is a parent one knows that children do not arrive in the world with a gene that turns them into psychopaths or murderers. There may be a psychiatric problem or a chemical imbalance but, as we know, this is a different issue. Although children do not arrive in the world as offenders, they grow up in families with serious difficulties and in communities that are unsupported, such as west Tallaght. A report published this week stated that, despite the fact that we can now pride ourselves on being a very prosperous and wealthy country, we have pockets of great deprivation, disadvantage and poverty. Last Wednesday, I attended two pre-budget briefings, one in the morning by the End Child Poverty Coalition and the second at lunchtime by a forum which included the National Women's Council of Ireland and the National Children's Nursing Association. I am pleased that organisation is represented here today to hear the debate. Arising from the briefings, I asked the Leader of the House to arrange a debate on child care issues and we are here today, which is great. There are many other child care issues which I hope the Minister of State will debate with us in the future, specifically the whole area of the cost and provision of child care.

Before I deal with that matter, I want to raise the issue of poverty, children and child care. The whole area the Minister of State raised is not unrelated. The provision of child care is related to how we as a society view the care of children. As an economy with virtually full employment, which has almost 50% participation by women in the workforce, we have a huge number of children being cared for each day outside their own homes by people who are not their parents. There is nothing wrong with this because it works well. The Minister of State knows that one of the reasons it works well is the regulation which was put in place by his predecessors and for which he has responsibility. This is working, except for one thing, namely, the cost of child care, which was raised by the Leader of the House. The cost of child care is such that women are beginning to leave the workforce, particularly if they have a third child. The other aspect is that people who provide child care find it increasingly difficult to meet the increasing costs of being providers without creating a situation where people cannot afford to use their services.

This is a very serious issue for our economy and for providers. It is an extremely serious issue for parents but the bottom line is that it is a very serious issue for children, which is what the debate must be centred around — the welfare of children. We are lucky in this country that the providers of child care are people who want to have very high standards when it comes to providing the best possible environment for the children under their care, which is generally the case. However, we as Members of the Oireachtas and the Government must ask where our commitment to children stands. We could range this question over the area of the legislation about which Minister has spoken and what I am focusing on, child care. The fact is that investment in child care can be, and has been shown to be, an important and useful vehicle for tackling inequality. Children who live in poverty, in particular, their parents and the communities in which they live need the support of child care. I ask the Minister of State and the Government to examine how they can use high quality child care provision to ease the effects of poverty in this country.

In its submission last week, the End Child Poverty Coalition highlighted a number of issues. First, 66,000 children in Ireland live on an income below the poverty line and experience the deprivation of such basic items as a substantial meal over a two week period, or must go without heating due to lack of money. The figure of 66,000 equates to 6.5% of children as measured in the living in Ireland survey 2001 undertaken by the ESRI. The key recommendation of the End Child Poverty Coalition, which includes the National Youth Council of Ireland, the Society of St. Vincent de Paul, Focus Ireland, Barnardos, Pavee Point, the Children's Rights Alliance and OPEN, was to extend medical card coverage to children because of the well known link between poverty, inequality and ill-health. This is something that can be done and which we have debated in the House on several occasions. The rolling out of the Government's commitment on medical card eligibility is extremely important for many children. An increase in the FIS income threshold was referred to in the document. It states that child care provides not just the opportunity for parents to take part in the workforce, but valuable developmental opportunities for children. Child care can give children in disadvantaged areas a head start in life. I know much is happening and I am aware of this in the community in which I live. However, I am thinking specifically of disadvantaged areas and how high quality child care provision can make a difference in tackling poverty.

A good friend of mine is involved in parenting courses. She is finding a huge demand for the service she provides in a number of deprived areas in this city. There is no question but that linking the issue of parenting and child care is very important not in the context of blame, but in the context of support, which is where child care provision comes in. How can we support the many single parents who are under pressure? I meet many single parents and I always ask them when are they doing a training course and getting to work. They say they cannot work because of the cost of crèches and there are support places in Nenagh for single parents. This is how we should examine how to support parents, identify problems and take responsibility as a society for our children in particular.

I hope we will return to this debate and give more time to the whole issue of the cost of child care. The fact that so many parents are now at work is great for the economy. I want to emphasise the importance of examining and developing a policy around support for the child care industry. Approximately 20 years ago when I began in journalism, one of the main issues about which I used to write was crèches and pre-school provision. In those days, while it was very difficult to get a good quality place for a child, one could hardly get the issue on the agenda. The issue is now on the agenda but we pay lip service to it. While almost 50% of the workforce is female, the fact remains that we do not attach sufficient importance to child care. The fact that there is not paid parental leave is an indicator in this regard as is the fact that we do not provide support for child care providers and parents for whom, according to the submission by the Irish Congress of Trade Unions to the forum last week, the cost of child care is like a second mortgage. Increasingly, half people's wages are going on child care.

Central Statistics Office figures indicate that while the rate of participation by women was at 50.7%, in May 2004 it went down to 49.4%. Surveys indicate that parents, the vast majority of whom are women, are leaving the workforce because of the cost of child care with which they cannot cope. The Government must pay attention to this aspect. I will be asking that we return to the subject again and that we put the matter at the top of the agenda.

Margaret Cox (Fianna Fail)
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I wish to share my time with Senator White. I am delighted the Minister of State is here today. He gave a comprehensive review of the Act and the work being done. I wish to focus on and widen the debate. The Minister of State does not have responsibility for child care and its cost, but it is important to use this opportunity to address the issues, particularly as we are facing into the budget. I am sure the Leader will allow another debate on child care in the near future. However, it would be remiss of me to let the opportunity pass without speaking on the matter today.

I wish to place my remarks in context by recognising the work that has been done and the successful initiatives that have been put in place regarding the way in which we deal with the issue of looking after the children of our nation. I smile each time I see the bumper sticker which says be nice to your children because they pick your nursing home. Our children are our future. Every penny we invest in our children and their future will be repaid hundreds of times over in terms of increased peace and prosperity, a stable society and economic growth. This area deserves the greatest attention and investment.

I welcome the appointment of the Ombudsman for Children. When the Minister for Education and Science, Deputy Hanafin, was Minister of State with special responsibility for children, she brought that legislation to this House. We were excited by the concept and it is marvellous to see the work that has been done in that regard.

The national children's plan is a fantastic document. It sets out the strategic role with regard to the Government and the objectives which we should work towards. We see all types of initiatives, such as playgrounds, throughout the country which reflect commitment in this area. When I was elected to the House in 1997, there were not as many playgrounds in Ireland. Now they are sprouting up all over the place. Those types of initiatives and facilities are important and I commend the Government in this regard.

In 1997, people received IR£38.10 child benefit for a first and second child; in 2004, the amount is €131.60. People receive €165.30 in child benefit for a third and fourth child. According to a book published by CORI, there is widespread support for increasing child benefit if child poverty is to be eliminated. Child benefit is also an effective component in any strategy to improve quality. It remains a key route to tackling child poverty and is of particular benefit to families on the lowest incomes. It is up to the Minister of State and his Cabinet colleagues to ensure that, as we approach the budget in 2005, we continue the increases in child benefit and that we do not stop and think our job is done. It is not done.

I want to address the issue of child care costs, although I will need to return to it in another debate. I am not sure if the Minister of State or his colleagues understand the point I wish to make. I employ a childminder and I pay this individual a salary and PRSI out of my net income. None of that is tax deductible. It is ridiculous. We must bring this to the attention of the Minister for Finance, Deputy Cowen. We are running around in circles, wasting money and not getting the benefit of it. We have improved the number of crèche places, child care services and childminding and education facilities. That is wonderful but it is not enough. Some 30% of people pay more for child care than they do for their mortgage. It is a startling and frightening statistic and we must do something about it. I look forward to another debate on the issue.

Photo of Mary WhiteMary White (Fianna Fail)
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I thank the Minister of State for his comprehensive explanation of the Bill. I do not want to repeat what my colleagues have said. However, I experienced a physical reaction and pain when thinking of the children who need this law to protect them. It is disturbing and upsetting.

Representatives from the national nursery association are sitting in the Gallery. Some of us were at the association's press launch last week. I support the tremendous job its members do.

Some of my colleagues and I met with the Minister for Finance today to discuss the matter of child care. One if the issues we raised is that capital allowance is a total disaster. It is as non-beneficial to child care costs as the first-time buyer's grant. The capital allowance that developers receive is increasing the price of property before it gets to the provider. I ask the Minister of State to encourage the Government to address the failure of capital allowance to provide an economic child care cost.

The Government's response to child care through the children's allowance scheme is ridiculous. Last year, the then Minister for Finance said it would continue to address the costs for child care through the children's allowance. However, many people do not use it for that purpose. If child care costs €180 or €190 per week, the monthly children's allowance is not adequate. It is ridiculous and useless.

The Government has an opportunity to initiate a modern child care policy. It is a complex issue. We told the Minister so. The report is a 26-page document. The issue of child care crosses 11 Departments. The Minister of State mentioned the concept of a silo. If we had vision, we would bring child care under the remit of one Department. I do not know whether that will be achieved. The Government must start, in the next budget, to find a solution for child care for different income groups and disadvantaged children.

Fergal Browne (Fine Gael)
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I welcome the Minister of State to the House and congratulate him on his reappointment. There is no real disagreement on this important topic. The points raised are universal. There is a need for greater psychiatric care for troubled children. The recent case of a child being murdered for his mobile telephone proved that point. There was perhaps a psychiatric difficulty. It is vital appropriate resources are given where needed. The child care Act was enacted in 2001, but I am not sure what progress has been made in three years. A substantial section still remains. How wise is it to have it spread across three Departments? It must be hard to administer. I am not sure if there is a solution but it is an issue worth bearing in mind.

Teachers have no difficulty in identifying the children in their class who have behavioural difficulties. The problem is getting the necessary help for those children. The idea of the former Minister for Education and Science, Deputy Noel Dempsey, of introducing standardised testing is concerned mainly with the identification of learning difficulties but is connected with the issue of behavioural difficulties. Such a measure will achieve nothing because we already know the children who need help. The issue is what teachers should do when they know there is a child in their class who has either learning or psychological difficulties. Invariably, it takes a year or two for such a child to be assessed and to receive the necessary help. This is where the difficulty lies.

I am aware of one 12 year old who was brought to the Garda station in Carlow by his mother because he was so drunk. It is terrifying to imagine. He has been picked up in the town on numerous occasions by gardaí, sometimes for verbally abusing teachers. When one imagines a 12 year old, one pictures a small, angelic creature but, unfortunately, this is not always the case.

I have been reading reports in the newspapers of cases in the children's court; it is depressing reading. Last September, one quarter of cases in the children's court in Dublin had to be adjourned because of the absence of juvenile defendants' parents. This sends the wrong signal and must be rectified immediately. Three of the four convicted of the horrific gang rape in County Limerick were on bail at the time of the crime. The ring-leader should have been in jail as he was less than half way through a three-year prison term. He had absconded several times from different detention places, including Oberstown in Lusk from which he was released because of a shortage of beds. He was returned there when his criminal behaviour continued only to abscond a number of times before being sent in 2003 to Trinity House for more serious offences. He absconded from there after threatening staff with a screw driver. It was after that he was involved in the rape.

This is a consequence of the breakdown of services. As a teacher, I was not confident that social services would deal properly with children whose difficulties I reported to them. In one case, the social services were asked to investigate when pupils from one family were missing school on a regular basis. We received no reply and, upon inquiry, learned that social services staff had visited the pupils' houses but, finding nobody there, had taken no action. The social services must follow through on queries in order to prevent a disastrous situation such as that in Limerick. I am aware of the case of a father who is in court pleading for psychiatric care for his 17 year old daughter who was released by the social services when she was 14. This family is in a desperate situation, having acknowledged there is a problem but without receiving the help it requires and deserves.

The important issue is early intervention, which has been a common theme in the House today. Other countries have considered the efficacy of open detention centres versus closed prisons and most Members would welcome this approach of seeking to rectify the problem rather than creating a more serious one down the line. The idea of a children's prison in St. Patrick's Institution is a cause of concern to some people. The Minister for Defence, Deputy O'Dea, got some cheap publicity from this area during his time as Minister of State by speaking of curfews and parents of vandals being made to pay fines. In reality, there has been one case in the past few years in this area so words have not been matched by actions. Many judges are apparently quite confused as to the powers they possess and they have not implemented the law as it currently stands. I am sure the current Minister of State, Deputy Brian Lenihan, with his legal background knows more about this than me. If it is the case that judges are not implementing the law as it stands, something must be done to rectify it. If the law is weak, it should be fundamentally strengthened.

There are many issues to consider, one of which is housing for children in view of recent reports which indicate that some children live in dire housing. An issue brought to my attention in September is the back to school footwear and clothing allowance. This is a simple scheme which has been underspent by €4 million this year. I am not surprised by this as the limits have not been changed for 11 years which means that many people do not qualify. Parents who urgently need money to prepare their children for school are getting off to a bad start. I understand that many health boards have also underspent in many of their areas. This would normally be good news but it is worrying that health boards are underspending with regard to key welfare payments because it means people are not getting the benefits to which they are entitled. The Minister of State should review the limits even before the budget and investigate whether the health boards are underspending in key areas. If so, the threshold should be raised. I ask him to consider the clothing and footwear scheme in particular because it is causing hardship and preventing children from making a good start to the school year.

5:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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I thank Senators for their contributions and welcome the House's debate on the implementation of the Children Act 2001. I have not been disappointed by the quality of the contributions. It has been a most informative debate and I appreciate the support extended to me by Members regarding my work in three Departments. Senator Browne queried the necessity of involvement by three Departments but this was a decision made by the Oireachtas in 2001. I assure him that I have often questioned the wisdom of this arrangement. It is the system for which the legislation provided, however, and it is my job to implement it in a robust manner.

It is important to appreciate that we are discussing a very troubled group of youngsters. I have responsibility in the Department of Education and Science for the Education (Welfare) Act which aims to address the problem of non-attendance. This group does not consist only of students who did not attend school in the past. In the Department of Health and Children, I have responsibility for children taken into care. Again, some of the children we are discussing have been taken into care and others not. These are the children coming to the attention of the law and not just through the diversion scheme, appropriate and important as it is. The most difficult group consists of those who come habitually before the courts.

Senator Cummins started from a good point of departure when he referred to the experiments which took place in the United Kingdom, whereby the objective of bringing offenders to justice in a more rapid manner was achieved on foot of a pledge given by the British Prime Minister, Mr. Tony Blair, prior to his election. It was discovered that with the same level of investment but better interagency co-operation, a dramatic reduction could be achieved in the time between bringing an offender before the courts and the disposal of the offence. The Minister for Justice, Equality and Law Reform, Deputy McDowell, and I met the consulting group which piloted that programme in different metropolitan areas in Britain, such as the greater Manchester area. One of the issues being considered in the review of the juvenile justice system by the Department of Justice, Equality and Law Reform is the one highlighted by Senator Cummins at the outset.

Senator Glynn showed tremendous insight of the type of problem we are facing with juvenile offenders. I agree entirely with his analogy with the psychiatric service and that incarceration must be the last resort. It is popular to call for it and to criticise Ministers for not providing enough of it. It must only be a last resort, however. I discussed this issue in my opening statement and will not develop it any further.

Senator Norris was anxious about the question of the guardian ad litem service. It is available in proceedings under the Child Care Act so that the separate interests of the child are fully safeguarded in those proceedings. The amendment which Senator Norris successfully carried through in 1998 was to extend the guardian ad litem service to private law proceedings, for example, where there is a custody dispute between two parents. I regret to advise the Senator that this has not yet been implemented. However, the National Children's Office engaged a consultant who has completed a study of the guardian ad litem service and a steering group is considering its extension.

There is a cost attached to everything and the question of resources was referred to by a number of Senators. In terms of both the justice and health aspects, there has been a significant increase in the level of resources committed to this area in recent years, as is essential. Senator O'Rourke referred to her experience of the Department of Education and Science and asked who would take responsibility for these children. The Senator is right. That is also my experience in the Department. It is for that reason the special residential services board is important because it brings the whole together and makes clear where responsibility lies. However, we must revisit this issue in the context of the current justice review. I am not convinced that the tripartite division of responsibility is wise. The issue will be examined. However, the examination of that issue will not delay the implementation of other provisions of the Act.

Senator O'Meara and others referred to recent murders by young people and there was much reflection with regard to the kind of country into which we have evolved and how we respond. I have some difficulty with the idea that the age of responsibility should be fixed at 12 years of age, but I do not support the idea that seven and eight year olds should be sent to jail. However, some high profile offences have been committed by 11 year olds in European countries in recent years. I am not sure whether the Oireachtas considered that when the legislation was enacted. It would be difficult for any Minister for Justice, Equality and Law Reform to commence a section which would exempt an 11 year old murderer from the stigma of offending.

Senators O'Meara, White and Cox discussed the important question of child care which is related to this issue and is a subject worthy of a separate debate. The Minister for Justice, Equality and Law Reform, Deputy McDowell, is responsible for the equal opportunities child care programme and I am responsible, through the Department of Health and Children, for the legal regulation of the standards that apply. Senator White also mentioned the involvement of many other Ministers and agencies. There has been significant investment under the equal opportunities child care programme, but we must extend that programme on the capital side. The issue also involves current staffing costs in disadvantaged areas. The programme must be extended when it expires in 2006.

The question of tax incentives is constantly raised, but I must strike a cautionary note in this regard. Senator Cox asked why expenses on child care are not tax allowable. Giving a tax break increases the cost of the service being rendered. It is an economic cast iron argument that the supplier makes a greater profit from the service when the State provides tax incentives. This was the result with the first-time buyer's grant. We must examine how we can reduce the cost. This may mean we must consider more supply side measures to reduce the cost. I accept that argument and the argument made by several Senators that we must do what we can to reduce the cost of child care provision. I have had much contact with this area because I have represented the Minister in his dealings with many of the county child care committees that do marvellous work in liaising with the Department on the needs of their particular areas. They have also produced a marvellous audit of our national needs.

Reference was made to various tax incentives. We must remember that these have resulted in the establishment of a substantial infrastructure, for example, in workplaces, of high quality crèche places. However, besides these areas and the other sectors mentioned, child minding is still important in the context of child care.

Another issue we must consider, to which almost every Senator referred, is early education. We must consider what we are going to do not just to set standards for early education, but to ensure it is provided to two, three and four year olds. This is vital.

Photo of Mary WhiteMary White (Fianna Fail)
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It is a critical stage.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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One of the problems with the programme in the Department of Justice, Equality and Law Reform is that it is focused exclusively on providing additional places rather than on early education. It is expressly designed, and has been well executed and implemented by the officers of the Department, to increase the number of places. However, it is not designed to address the issues of early education which fall within the remit of the Department of Education and Science.

I have wandered from the main subject, the implementation of the Children Act. I welcome the Department of Justice, Equality and Law Reform's decision to conduct a high-powered review of its responsibilities under its legislation and its responsibilities for juvenile justice generally. I take this as a signal that this area will be addressed in a concrete way in the immediate future.