884 entries for Government Department

With the change in Government, in February 1983, the new Minister directed that the heads of Bill were to be reviewed, particularly those aspects relating to juvenile justice. At this stage the Department of Justice had submitted its observations on the Bill, particularly in relation to juvenile justice, which ran to 38 pages and ‘identified a number of serious flaws and weaknesses in the proposals’. The Department of Justice firstly observed: In the context of juvenile justice, the Bill apparently provides for a ‘welfare model’. In this model juvenile justice forms part of a more encompassing child care and protection system and it is interwoven with other more general services which the Heads would make available to children and young people. It also involves a high level of interference by the State’s Social Services. Furthermore, it emphasises in the first place the needs of the child irrespective of the act committed or its seriousness; much attention is given to social and psychological conditions surrounding the offence and decisions are aimed at the individual needs and interests of the juvenile. What is generally accepted as the main alternative to this ‘welfare model’ in this area, namely, the ‘justice model’ emphasises the committed act, the responsibility of the juvenile himself, the punishment related to the offence and the guarantees of due process. The Minister for Justice, in responding to the proposals from the Department of Health, is not advocating one or other of those models as being preferable to the other but, he considers that it would be useful for Government to be aware of the international experiences in this area. As far as the Minister for Justice is aware, it has been the experience in Europe – particularly in Holland and in Britain – that where ‘welfare models’ of criminal justice have been operating the countries concerned are reverting in varying degrees to the ‘justice model’.322

On the issue of Departmental responsibility for certain children, the Department of Justice noted that the memorandum: stated, ‘under the new legislation, it is proposed that committal to prison should not be an option in dealing with young persons (15-17 years old) although committals to other forms of institutional care will be possible’. The Minister would be concerned about where members of this age group are to be detained when charged or convicted of what in the case of an adult at any rate would be a criminal offence. The cumulative effect of the Heads seem to be that (a) ‘unruly’ children or young persons (12 to 17 years) on remand or convicted of particular serious offences and (b) convicted persons between the ages of 15 and 17 should be detained in such institutions (other than prisons) as may be ‘designated’ or ‘directed’ by the Minister for Justice. The Minister is assuming that the words ‘designate’ and ‘direct’ is intended to mean that the Minister for Justice should have responsibility for the actual day-to-day running of the institutions. The Minister for Justice, however, has the strongest objection (now that a fundamental revision of the whole area of juvenile justice is being undertaken) to the proposal that young person under 17 should be committed to institutions under his control. The Government will be aware of the outcry from certain groups (some of whose views are reflected in the Task Force Report) when the Government, in 1978, decided that 12 to 16 year old boys should be held in Loughan House under the control of the Department of Justice. At that time the Minister for Justice agreed to make Loughan House available for that age group as a temporary arrangement until such time as the Department of Education would have the secure school at Lusk (Trinity House) ready. Trinity House is now almost ready and on transfer of the boys to it from Loughan House the latter will revert to general prison usage – for which, it is badly needed -around April, 1983. In the circumstances it is strange, to say the least, that a Bill whose guiding concern is for the care and welfare of the child should now be providing that children as young as 12 years of age should be committed to institutions (presumably similar to Loughan House) under the control of the Minister for Justice. Indeed, over 40 years ago – in the Children Act, 1941 – the age at which a youthful offender could be committed to a certified reformatory school under the control of the Minister for Education was raised from sixteen years to 17 years.323

The Department of Justice then outlined: In the Minister’s view, the appropriate age at which youthful offenders should be committed to institutions under his control should be 17 years. However, if the Government consider that 17 years is too high in this context, the Minister would hope that, at least, there would be general acceptance that it would be unthinkable that a new ‘Children’s Charter’ should provide for the detention of anybody under 16 years of age in institutions under the control of the Minister for Justice. The proposal whereby a child or young person of unruly character could be committed to such an institution should, in the Minister’s view, be rejected. Apart from the objections already stated which apply to all children and young persons, such a provision could easily develop into a means whereby agencies who would hold primary responsibility for the care of children and young people could opt out of their responsibility to these young people where they proved difficult to control. To summarise on this point, it is the Minister’s view that nobody below 17 years should be detained in institutions under his control but that if the Government considers 17 too high, he would urge that the age should not be set as less than 16 years. Furthermore, he is of the view that persons under 17 or 16 years (as may be decided) should not be committed to such institutions on the ground that they are unruly. They should be detained in institutions run by caring agencies operating under the control of the Minister for Health or the Minister for Education and those agencies should be required to receive them and provide proper custodial facilities for them.324

When the Department of Justice was contacted by the Department of Health in relation to redrafting the section on juvenile justice, the Minister for Justice replied that: his Department would continue to give whatever assistance was possible by way of commenting on texts and by participating at occasional meetings but made it clear that Justice was not prepared to take over the preparation of the juvenile justice aspects of the bill.325

The Department of Health, however, were of the view, that: The preparation of new juvenile justice legislation is essentially a matter of refining and modifying criminal law and procedure as it affects children. Changes in the criminal law are entirely a matter for the Minister for Justice; similarly, changes in the role and procedures of the Gardaí and the Courts in relation to children are unlikely to take place without the active support and involvement of the Minister for Justice and his Department. Having examined the matter over the last few months I am convinced that the input which this Department is skilled to make in reforming the juvenile justice system and the role which health boards could be expected to play in any new system is limited to: — (i)ensuring that the correct balance is maintained in the legislation between the protection of the public and the provision of care, support and rehabilitation to the young offender; (ii)identifying children at risk of getting into trouble with the law and making available services and facilities which would seek to stem the drift towards crime and vandalism; (iii)extending the range of options available to the courts by equipping health boards to provide counselling and remedial treatment programmes for young offenders who do not require custodial care.326

At this stage, the Department of Health concluded that any attempt to introduce a comprehensive bill to replace the Children Act 1908 and the various Health Acts would face considerable difficulties and instead it was agreed that separate legislation would deal with the core substantive areas of child welfare and protection, adoption and juvenile justice. This series of reforms were agreed by Government and in 1984 a formal announcement of this decision was outlined by the Government in its national plan, Building on Reality, 1985-1987. Building on Reality stated: It is intended to introduce three Bills in relation to the care and protection of children. Much of the existing legislation in this area is now outdated and not sufficiently in keeping with current concepts in regard to the well-being of the child. The first of the new Bills is at an advanced stage of preparation and will provide a wide range of new measures as well as considerable up-dating of the Children Act, 1908, which is the basis of much of the existing law in regard to child care. This Bill will impose a clear obligation on health boards to promote the care and protection of children. It will inter alia; provide for the registration and control of day care services for children; make amendments to the present provision in relation to foster care and give greater protection to children; provide for the registration and supervision of children’s homes; provide better and more flexible arrangements for taking children into care; include a range of new provisions aimed at protecting the child in regard to such matters as volatile substances; and provide protection for children in relation to pornography. The emphasis in the Bill will be on keeping the child in a family setting rather than in residential care....The Government is also committed to bringing forward revised measures in regard to juvenile justice. This will be the subject of a third Bill which is under examination at the moment.327

However, the Department of Health noted that: The plan gave no indication as to which Minister or Department would prepare the third Bill. The Department understood from the Minister that it would be done by Justice while Justice apparently believed that Health were to do it. In the event, neither Department has taken any initiatives in relation to the juvenile justice bill. There the matter rests. There have been no further contacts between the two Departments in the matter, apart from occasional skirmishes about responsibility for answering Parliamentary Questions on the subject. The Department of Justice have availed of every possible opportunity to promote the idea that this Department is responsible for new juvenile justice legislation. Their repeated attempts to have inserted in the Child Care Bill a provision prohibiting the hanging of persons under 18 is a typical example of this campaign.

In drafting the replacement legislation, the Department of Health outlined that: The main differences between the General Scheme and the Bill published by the previous Government are: (i)the distinction between ‘children’ (those up to 15 years) and ‘young persons’ (those from 15-17 years) has been dropped; all persons under 18 years are now defined as children (ii)the provisions regarding the supervision of child minding and children’s residential homes have been revised so as to avoid unnecessary intervention inthe operation of these services and to simplify the bureaucratic procedures involved. (iii)The provisions in regard to placing children in health board care have been reformulated primarily in the light of the constitutional considerations already referred to; (iv)Proposals which would have enabled foster parents to seek the custody of children in certain circumstances have been dropped because of doubts about their constitutionality and because child care interests were, on balance, opposed to them. The introduction of new legislation in relation to child care services has been recommended by various official reports in recent years...Not all the proposals in these reports have been accepted but they have been nevertheless, a major influence in the preparation of the Scheme. Many of the recommendations in the reports were in the area of juvenile justice and the Minister considers that these should be dealt with in a separate juvenile justice bill which would, more appropriately, be the responsibility of the Minister for Justice.331

On the matter of juvenile justice, the explanation given by the Department of Health for the approach of the Department of Justice to the issue was: it was the Minister for Health who established the Task Force (i) it was the Minister for Health who asked the Task Force to prepare a new Children Bill which was, inter alia, to deal with young offenders; (ii) it was the Minister for Health that the Task Force submitted its report; (iii) following the disbandment of the Task Force, the task of preparing a new Children Bill, involving measures in relation to young offenders, devolved on the Minister for Health.332

However, the Department of Health took the view that the decision of October 1974 was not as unambiguous as the Department of Justice were indicating. The Department of Health took the view that: The Government decision of October, 1974, allocated to the Minister for Health the main responsibility in relation to child care. It did not assign him the main responsibility in relation to children. It was never intended that Health should take over responsibility for each and every service and piece of legislation that affects children. (If that were the case, the Department of Education should by now, have been subsumed into Health). The contention that juvenile justice legislation ‘belongs’ to Health simply because it affects children defies any reasonable interpretation of the Government decision. (emphasis in original)333

The justification by the Department of Health for allocating to the Department of Justice responsibility for preparing new juvenile justice legislation was that firstly that the public mood for a welfarist approach had dissipated since the mid-1970s and secondly that since in its essence, the legislation was in the criminal justice domain, it was not appropriate for the Department of Health to be the lead Department. On the first point, the memo stated: In 1974 the demand was for a shift to a welfare-oriented approach to juvenile offenders in which the health boards and social workers would play a lead role. Thirteen years later the social climate has changed dramatically. There has been an increase in crime and vandalism, much of it attributed to juveniles. In addition, the involvement of juveniles in such horrific cases as the Fairview Park murder and the killing of two youngsters in Ballyfermot in a so called ‘joy-riding’ incident has dampened enthusiasm for any relaxation of the law. The campaign for the raising of the age of criminal responsibility has lost much of its edge. In the situation in which we now find ourselves, the involvement of the Department of Heath in the preparation of new juvenile justice legislation is, to say the least, questionable, if not entirely inappropriate.334

It was not until the early 1990s that responsibility was primarily allocated to the Department of Justice to prepare new juvenile justice legislation. At this stage, debates on formulating juvenile justice legislation on either ‘welfare’ or ‘justice’ principles were to a degree superseded by attempts to devise legislation on ‘restorative’ grounds.336 In December 1996, a Children Bill was published and the second stage was completed in the Dáil in February 1997. However, the Bill fell on the dissolution of the 27th Dáil, but in September 1997 it was restored to the order paper. In excess of 150 amendments to the Bill were put forward and, on this basis, it was agreed that a new Bill be prepared, the Children Bill 1999. This was eventually enacted as the Children Act 2001 as highlighted earlier in the paper.

In August 1982, a memorandum for Government was prepared on the transfer of responsibility for children’s residential homes from the Minister for Education to the Minister for Health. In addition to seeking to transfer the homes, the decision also sought ‘the allocation of the necessary funds to wipe out the accumulated deficits of these homes and to place them on a proper budgetary system’. The justification for the transfer to the Department of Health from the Department of Education was that: (i)the homes should now be regarded as child care establishments rather than educational. This is particularly so at present in the situation where, in all but two of the homes, the children attend outside schools, thereby reducing significantly the involvement of the Department of Education with the homes; (ii)the vast majority of the children in these homes are now the responsibility of the various health boards. The health boards pay for the children in the homes at the approved capitation rate and have the responsibility of providing supportive social work services for the children and their families as well as being responsible for the after-care of the children; (iii)the transfer of ministerial responsibility to the Minister for Health would be consistent with the objective of unifying, as far as possible, responsibility for the child care services under one Minister.

The justification for moving from a capitation system to a budget system was that it would give ‘health boards greater control as regards the overall policies and afford the homes the benefit of the board’s expertise in the management of resources with particular reference to staffing, their major cost factor’. It was estimated by the Department of Health that £1.5 million would be needed to wipe out the accumulated deficits of the residential homes as at 31st December 1982 and to achieve the objectives of clearing the deficits and transferring the homes: The Minister for Health proposes that as a preliminary step to a formal transfer of responsibility for these homes a group of officers of the Departments of Education, Finance and Health should analyse the statements of accounts and estimates submitted by the homes, with a view to arriving at a firm figures for the wiping out of the accumulated deficits of the homes and of transferring from capitation to a budget system of financing. This proposal has the support of the Departments of Finance and Education. He further seeks a commitment from the Government that the necessary funds be made available to him by way of a special allocation to allow him act on the findings of the group. In that connection the Minister would also look critically, in association with the health boards, at the present manner of operation of each residential centre particularly with a view to ensuring that children suitable for fosterage or other community based types of care are not institutionalised. Department of Finance consider that it would be inappropriate for the Government to make any decisions on the future financing of these homes and liquidating their deficits until the proposed inter-departmental committee has completed its examination of the homes financial position. However, the Minister for Health would not be prepared to take over responsibility in a situation where he would be faced with demands for additional funds necessary to put the homes on a sound financial footing and where such funds were not made available to him.

In December 1983, following receipt of the report of the interdepartmental committee, a memo was sent to Government formally seeking to transfer children’s homes from the Department of Education to the Department of Health.