10,992 entries for Inspections - State

The background to the drafting of the Children Bill 1982 by the Department of Health lay in the Government decision of October 1974 to transfer the ‘main responsibility’ for childcare services to the Department of Health. In a memo to the Minister for Health in 1987, the background was outlined. Having outlined the recommendations of the Task Force on Child Care Services, the memo observed that: The question of who was to take over responsibility for the new juvenile justice legislation was not settled at that time nor has it been since. This Department was prepared to co-ordinate the preparation of a comprehensive Children Bill with the juvenile justice aspects being drafted by the Department of Justice. The Department of Justice, on the other hand, held that it was up to the Department of Health to formulate the proposed bill in its entirety. Justice offered to comment on the proposals once they had been prepared but would take no part in their preparation. Faced with this attitude and under strong political pressure, the Department of Health attempted to prepare the outline of a comprehensive Children Bill, which would include provisions on the treatment of juvenile offenders, reform of the Children’s Courts and the age of criminal responsibility. Without the assistance and expertise of the Department of Justice it proved an almost impossible task. However, just before the change in Government in December 1982, the Minister (Dr. Woods) directed the Department to circulate for comment to the other Departments involved the (as yet incomplete) Heads of a Children Bill.321

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.

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