4,228 entries for Historical Context

As noted earlier in the paper, legislation was prepared on this basis and the Child Care Bill 1988 was enacted into law by President Mary Robinson on 10th July 1991, as the Child Care Act 1991. The Act superseded the Child (Care and Protection) Bill 1985, which was designed to update and extend the law relating to the care and protection of children.328 The second stage of the Bill was passed in the Dáil on 23rd January 1987 but had not progressed further by the time of the dissolution of the Dáil in January 1987. The Bill had also ran into difficulties when a Supreme Court judgement, in a case known as KC and AC v An Bord Uchtála, cast serious doubts over the constitutionality of two of the key elements; firstly, proposals to make it easier for children to be placed in health board care and, secondly, provisions which would have enabled the courts to grant custody rights to foster parents. A number of non-profit agencies in the area of child welfare were also critical of the Bill arguing that: in the context of the debate on children’s issues over the past two decades this Bill is seriously lacking and fails to address itself to some of the central issues which practitioners, policy makers and legislators have considered.329

In preparing new legislation to replace the Child (Care and Protection) Bill, it was noted that initially: the Bill as welcomed by all the major groups involved in child care. Subsequently, however, it was subjected to severe criticism on two main fronts. On the one side were those who felt it did not go far enough to promote the welfare of children and, on the other, were those who felt that it posed a threat to parental rights and family autonomy.330

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

On the second point, it stated that: The preparation of a new juvenile justice bill is essentially a matter of refining and modifying criminal law and procedure as it affects children and bringing about changes in the methods and approaches of the Gardaí and the Courts in relation to young offenders. Can it seriously be argued that this does not fall fairly and squarely within the remit of the Minister for Justice and his Department?335

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.

In addition, the memo noted: The report of the Committee on Reformatory and Industrial Schools System (the Kennedy Report) recommended in 1970 that responsibility for children’s residential homes should be transferred to the Minister for Health. In 1976 the Department of Education formally recorded its agreement with the Kennedy Report recommendations. Since then the Department of Health has in fact taken the lead role in negotiating with the homes on matters of overall policy in the field of residential child care. More recently the Final Report of the Task Force on Child Care Services recommended the formal transfer of responsibility for these homes to the Minister for Health. The Department of Education, Finance and the Public Service have been consulted and they are in favour of such a transfer taking place.

However, before the transfers could take place, the memo highlighted the financial position of the homes and the necessity of solving that issue. At present the homes are financed by way of a weekly capitation payment in respect of each child. The payment is made by the authority responsible for the placement of the child which, as already stated, means the health board in the vast majority of cases, the capitation rate is revised on an annual basis and fixed by order of he Minister for Education after consultation with the Minister for Health and the Minister for Finance. The Managers of the homes claim that in recent years capitation has tended to lag behind real increases in the cost of looking after children and that, as a result, a number of homes have accrued considerable deficits. The Minister for Health made funds available in last year’s Supplementary Estimates to help clear these deficits. Notwithstanding this, and despite an increase since January 1982 from £54 to £68 in the weekly capitation rate, a number of homes have already this year indicated that they are in serious financial difficulty and anticipate considerable deficits by the end of the current year. The Managers of the homes have persistently expressed dissatisfaction with the capitation method of financing the homes and have requested that there should be an immediate transfer to a budget system of financing.

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.

On 25th August 1982 the Government: (1)agreed, in principle, that the functions in relation to children’s residential homes should be transferred from the Minister for Education to the Minister for Health; and (2)decided that an Interdepartmental Committee comprising officials of the Department of Education, Finance, Health and Justice should be established to review the operation and financing of the homes.

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.

The decision to establish an interdepartmental committee and the deliberations that gave rise to it provide a useful example of the difficulty of implementation in the area of child welfare. The Kennedy Committee had recommended that the system of funding residential care move from a capitation system to a budget system and that responsibility for the administration of childcare be given to the Department of Health. However, this would not be finally agreed on and implemented until 1984 and involved the commissioning of a number of further reports, and the establishment of an inter-departmental committee, before formal agreement could be reached. The transfer of functions relating to Industrial Schools from the Minister for Education to the Minister for Health on 1st January 1984337 effectively centralised all statutory responsibilities for children’s homes to the Department of Health. From that date the Department of Health assumed statutory responsibility for 24 Industrial Schools in addition to the 17 approved homes for which it already had responsibility under the Health Act 1953. The only residential facilities for children in care operating outside the aegis of the Minister for Health were the four Special Schools, which were controlled and funded by the Minister for Education. January 1984 also marked a major change in the funding of children’s homes. Homes in the past were financed from a combination of public and private funds. Grants payable jointly by the State and local authorities in respect of the maintenance of children committed to certified Industrial Schools were provided for in the Children Act 1908. Grants took the form of a fixed sum per child per week – a capitation rate, with half the rate paid by the Minister for Education and half by the local authority. A school’s income from these sources was supplemented by fund-raising. As the number of children committed by the courts to the homes declined, the number of children placed by the health boards increased. Health boards paid the full capitation rate for these children and also for children placed by them in Approved Homes. This system of payment ceased from 1st January 1984 and children’s homes from that point were now funded directly on a budget basis by their local health board, following recommendations by a special inter-departmental committee established by the Minister for Health to examine the financing of all children’s homes.