Health Board must take the blame

There should be no doubt that the information disclosed to the North-Western Health Board in the 1979 to 1984 period detailing the physical violence and sexual abuse suffered by the McColgan children should have resulted in the health board taking care proceedings. The fact that issues relating to sexual abuse are better understood in the last half of the 1990s than they were at the end of the 1970s or in the early 1980s is no excuse for the health board's inaction.

Harry Ferguson's thesis in The Irish Times recently that we must put these events in "perspective", and his suggestion that the health board's actions should not be assessed on the basis of what "we now know" as compared to what was known in the 1979 to 1984 period, is disingenuous. Judged by the standards of the time, the health board's failure throughout the period of the McColgan children's childhood is inexcusable and should be seen as nothing but gross negligence.

It wasn't until some years after the passage of the Health Act 1970 that health boards assumed sole responsibility for bringing court proceedings to take children into care. In the decades following the passage of the Children's Act 1908 and in the early part of the 1970s such proceedings were usually brought by social workers employed by the ISPCC.

In the years immediately preceding health boards assuming sole responsibility in this area, the law firm of which I have been a partner for over 20 years, Gallagher Shatter (then known as Richard F. Gallagher & Son), acted on behalf of the ISPCC in the bringing of a number of court applications for children to be taken into care under the 1908 Act. Most of the cases brought resulted in children being taken into care upon proof of them suffering abuse of a nature which fell far short of the horrors to which the McColgan children were subjected.

It can be stated categorically that what the health board knew of the violence within the McColgan family in 1979 and the years immediately following could and should have led the North-Western Health Board to only one possible conclusion - that the McColgan children should be taken into care - and should have resulted in the bringing of appropriate court proceedings pursuant to the Children's Act 1908 in the District Court.

Any suggestion that the Children's Act was in some way inadequate in this context is also incorrect. Under section 58 of that Act, a care order could be made where parents failed to exercise "proper guardianship". This provision conferred a broad discretion on district judges to make care orders in circumstances where they were necessary to protect children who were victims of violence or were otherwise at risk. It was this section which was principally relied upon by health boards in the vast majority of court care proceedings brought throughout the 1980s and up to the autumn of 1995, when the Child Care Act 1991 came into force.

Harry Ferguson accused Mr Paul Gilligan, director of services within the ISPCC, of making statements out of touch with historical reality in describing the health board's intervention in the McColgan family's tragedy as completely inadequate. He describes Mr Gilligan's comment as "peculiar" having regard to the trenchant criticism by the ISPCC during the 1970s and the 1980s of our child protection laws.

As one of those who was throughout the 1970s and right into the 1990s also a trenchant critic of our child care laws and services, I believe it is wrong to use the inadequacies of the then law and general child care practices as an excuse for the North-Western Health Board's appalling failures.

The reforms introduced by the Child Care Act 1991 (which came into force only in the autumn of 1995) should have been introduced years earlier. However, there should be no doubt that the then existing law contained in the Children's Act 1908 provided the necessary substantive mechanism to provide either residential or foster care by way of court order for the McColgan children.

Insofar as the suggestion arose during the course of the court hearing that the health board might have been advised towards the end of the 1970s or early 1980s that it could not successfully invoke the Children's Act 1908 to protect the McColgan children, no explanation has been given as to why the possibility of having the children taken into care by invoking the Wards of Court jurisdiction of the courts was not considered.

In the 1980 to 1982 period, there was a substantial public spotlight on child battering and child abuse. During an 18-month period, two cases came to light in which children died at the hands of parents in circumstances in which health boards should have provided essential protection to the children concerned. For example, in one such case a father was convicted of battering to death his 13-month-old child after previously spending nine months in prison for beating up his three-year-old daughter.

The publicity attached to cases such as these should have rendered health boards like the North-Western Health Board particularly sensitive in providing correct responses where children suffered the type of violence disclosed by the McColgan family to the North-Western Health Board.

There is no doubt that in the late 1970s and early 1980s there were serious deficiencies in the manner in which health boards fulfilled their obligations to children. I frequently spoke of these deficiencies in the Dail following my first being elected as a TD in June 1981. Many of the deficiencies derived from the failure of the health boards themselves to comply with the then guidelines that they were obliged to follow to provide their own health board staff with the training they needed to properly apply the then existing legal protections.

The Department of Health is also to blame for not properly monitoring the performance of health boards in the area of child-care services. Based on the standards of the time, the North-Western Health Board can be properly regarded as grossly negligent in its dealings with the McColgan family. I do not believe that there is anyone other than the North-Western Health Board's insurers who take seriously the health board's refusal to admit liability for negligence in the settlement which it rightly but very belatedly concluded with the McColgan family.

Alan Shatter TD is Fine Gael spokesperson on Health and Children. This week, the Dail is debating the second stage of his Private Member's Bill, The Children (Reporting of Alleged Abuse) Bill, 1998.