Amendments Nos. 1 and 2 are related and may be discussed together, by agreement.
Ombudsman for Children Bill, 2002 [ Seanad ] : Committee and Remaining Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
I move amendment No. 1:
In page 7, subsection (1), line 17, after "established" to insert "Oifig Ombudsman do Leanaí or in the English language".
I propose to insert the title in Irish of the Ombudsman for Children, Oifig Ombudsman do Leanaí, in the two sections referred to in the amendments and I hope the Minister of State will agree to do so.
Níl mé ag glacadh le seo agus ní doigh liom go bhfuil mórán eile chómh fábharach i bhfábhar na Gaeilge ná mé féin agus daoine de mo chuid sa Teach seo. As the importance of the title is that it should be instantly understood and accessible by all children, the English name will appear in the English version and the Irish name in the Irish version. The ombudsman will provide material which is accessible and easily understood by all children, but I do not see any reason to include the Irish version of the ombudsman's title in the English version, particularly since the most difficult word to understand, the word "ombudsman", remains the same in both. It will appear in Irish in the Irish version of the legislation and in English in the English version.
That argument applies to all legislation, which is published in both languages, and it is standard practice for a title to be given in Irish. In upholding the place of the Irish language, we should include it.
If the word "ombudsman" was different in the two languages there might have been some justification for this, but the most difficult word in the title is the same in both Irish and English. There is no reason to include it.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 8, lines 32 and 33, to delete subsection (7).
This amendment seeks to avoid any suggestion of ageism. The original suggestion was that one should not be more than 61 years of age on appointment. Obviously it would be wrong to suggest that the capacity of one to deal with young people and children and to investigate complaints could be determined by age. The post is not age-dependent and it is important that while trying to concentrate on children we do not exclude the rights of others.
Amendment agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
SECTION 7.
I move amendment No. 4:
In page 9, subsection (1), line 44, after "promote" to insert "and protect".
This issue was discussed at length during the Seanad debate. The Minister of State has missed the point in regard to this matter. There is a desire and demand from many organisations working in this area that the dual role of the ombudsman should be stated in the legislation which is to promote and protect rights. The Minister inferred yesterday that this sought to give a role to the ombudsman to protect children. I am not suggesting that because the health boards have that statutory role. However, there is a need to spell out the role that should exist for the ombudsman which is to protect the rights of children. Obviously where he or she sees those rights being denied there would be a role in ensuring those rights are protected. As well as promoting rights, there is a need to protect rights. This is a very important point in regard to the whole role proposed for the ombudsman. I ask the Minister of State to support the amendment.
This amendment seeks to insert the words "and protect". The Minister said on a number of occasions that she cannot accept the amendment. It seems the classic work of an ombudsman is to protect as well as promote and it is strange it is not included. While I totally agree the health boards have a role in protecting, I cannot understand why an ombudsman could not also have that role. It would not in any way undermine the work of the health boards, whose role is to protect, if there is also an ombudsman with the remit to protect children. This would broaden the role in a meaningful way and add to the work of the ombudsman. It would not mean the work would become unduly demanding because the essence of the work of an ombudsman should be to protect children. It is strange this is not included in the legislation.
The Minister of State has not advanced very good arguments for her stance. The ombudsman could look at services and advise the Government on policy in regard to children. It seems protecting children is a basic part of what the remit should be. I ask the Minister to reconsider the amendment which would strengthen the work of the ombudsman, complement the work of the health boards and add an important dimension to the work of the ombudsman.
I can understand that the Deputies would want to offer the greatest protection possible to children, as we all do. However, the legislation already provides for a dual role for the ombudsman, making it different from ombudsmen throughout the world who may just have an investigative role in regard to complaints, whereas this ombudsman will have a promotional role. In promoting the rights of children, there is obviously a built-in protection in that he or she would highlight issues of concern, maladministration and failures, advise Ministers, have an input into legislation and so on and be very public about all this. That will create a greater awareness of the rights of young people and children simply by promoting them and thereby forcing other people to act to protect those rights.
I do not believe a statutory duty should be given to another body to protect the rights of children. Deputies Shortall and Fitzgerald said the health boards have a statutory responsibility, therefore, we do not want a situation where any one group could say someone else has that responsibility. We do not want a situation where we would need to fund a separate structure to protect the rights of children whose welfare might need to be protected by another body on behalf of the health boards. One would end up either duplicating the work of one body or ensuring that neither group would carry out the work, which is not what is envisaged.
The scope of the powers of the Ombudsman for Children are extensive in that in promoting the rights, they will be protecting. However, to build in a statutory responsibility to protect the rights of children would be unduly onerous, unnecessary and may perhaps duplicate the work of others. We should be reminded that the ombudsman is an added voice, not to take over the role of other groups but to add to their work. Because the dual role exists the person will have enough to do and will be able to do it well without having the word "protect" included.
This country signed up without reservation to the UN Convention on the Rights of the Child. It has taken an inordinate length of time for that convention to work its way into the thinking of many organisations and State agencies in terms of their approach to children's issues. The difficulty is that no one promoted the convention. While the Children's Rights Alliance played a role in this regard, no one had a statutory responsibility. This will now fall to the Ombudsman for Children.
The other role of protecting those rights is even more important and goes to the very heart of what the Ombudsman for Children should do. It ensures the services are in place to protect children. The Minister of State is suggesting that we are saying the ombudsman should have a role in protecting children under the child welfare protection services. We are not saying that because the health boards have that responsibility. We also know that despite the health boards having the statutory responsibility they are not providing this service. Governments have not provided adequate funding and they have not made a sufficient effort to ensure staff are available, therefore children are not adequately protected. I gave a number of examples of that yesterday.
There must be a mechanism whereby the ombudsman's office will be able to put pressure on the health boards and other State agencies to ensure they do their job in regard to protecting children, thereby protecting the rights of children as enunciated in the convention. I feel very strongly about this point. To omit the word "protect" in regard to the role proposed for the ombudsman will seriously dilute the role we all hope the ombudsman will have. Therefore, I will be pressing the amendment.
Deputy Shortall's point is very relevant. Why would we say in the national children's strategy and the work the Minister has been doing that we are committed to the UN Convention on the Rights of the Child, which provides for the protection of children's rights, yet not make explicit reference to that phrase when setting up the position of ombudsman? We are saying in the national children's strategy that we are committed to implementing and fully observing the UN Convention on the Rights of the Child, articles 3 and 19 of which provide for the protection of children's rights. Why, therefore, is there not explicit reference to that and why not give the ombudsman this as part of his or her task?
The other point relates to the point made by the Children's Rights Alliance. The Supreme Court decision of 17 December 2001 placed clear limitations on the court's power to intervene to protect the rights and welfare of children. Judge Murray, in expressing the majority view of the Supreme Court, alluded to the exceptional circumstances that must be present before the court can order the executive to fulfil a legal obligation. I will not read the full document which outlines very specific circumstances. The Children's Rights Alliance now asks, in light of the Supreme Court decision which impacts on the Minister for Education's decision in 1995, to whom should the function of the protection of the rights of children fall if not to the Ombudsman for Children. The Children's Rights Alliance which works with senior legal advisers and people like Peter McVerry and others who care about the rights of children are strongly of the view that this Bill should contain the words "promote and protect".
Given the enormous shortcomings in the system, I wonder if the Government fears the inclusion of those words would unduly strengthen the ombudsman's powers. The Minister of State makes the case that the phrase would take away powers from the health boards. Another perspective would be to say it provides a requirement for the health boards and the ombudsman to protect children. Instead of seeing it as a weakening of the work of the health boards, one would see it as an increase in protection and care for children. It allows for a more objective analysis of what is happening because the ombudsman who is independent and has the resources can step in and say children are not being protected and stating what needs to be done. That would provide an objective analysis of what was wrong and put pressure on and encourage Governments to do more in this area. Not to include it would be a weakness in the Bill and incongruent with the Government's national children's strategy.
If the Government's national children's strategy is linked to the UN Convention on the Rights of the Child, why would it depart from it in this way when establishing the office of an ombudsman?
The implementation of the UN Convention on the Rights of the Child is the responsibility of many organisations and groups, statutory and voluntary. If we have signed up, as a nation, to the protection of children's rights, then it is our duty to ensure we do protect them. However, it is important to note that this ombudsman has a dual function to promote and investigate. If the ombudsman discovers the health boards are not doing their duty he or she, having highlighted and investigated the problems and come up with findings of maladministration, can ensure action is taken on foot of that investigation. That will protect the rights of the child regarding those bodies which have statutory responsibility to look after him or her.
If, as Deputy Shortall said, there are shortcomings in the health board, it is then the duty of those of us who are members of health boards to ensure those duties are fulfilled and thus protect the rights of the child. We are all responsible for protecting the rights of the child. We would simply be setting up another parallel structure if we placed this statutory obligation on the ombudsman. What happens if the Ombudsman for Children determines that his or her duty is to protect the right of the child regarding basic needs? Do we then have to provide a system and structure for the ombudsman to provide that service? That is not what is intended. What is intended is that those with responsibility will provide the service. The ombudsman will highlight these issues, promote the rights of children and will have the right to investigate failures or maladministration but he or she will leave those with statutory responsibility in this area to get on with providing the service.
The Minister of State gave an example relating to the health boards but she is well aware that the health boards have no control over the number of people who go into training for social work which is one of the most neglected areas of child welfare and protection. There is no way health boards, even when they have sufficient funding, can get access to necessary staff because agreement on the type of course provided and the numbers taken into the colleges is way beyond their remit. It is primarily a matter for the Minister for Health and Children who has overall responsibility for child welfare; the Minister for Education and Science who has responsibility for training places and the Higher Education Authority which is supposed to advise the Minister of the day on the number of places required.
The Joint Committee on Education and Science discussed this matter in great detail over the past year. We invited representatives in from the Higher Education Authority who told us about their role in advising the Minister. When we inquired about this further, on foot of an FOI request, we discovered the Higher Education Authority had not advised the Minister about the lack of adequate places for the training of social workers. If there is a shortage of social workers – we have been hearing about this for the past ten years – then somebody must take action and ensure training places in our colleges are increased so that enough people are in training to meet the needs of our legislation and services. If somebody had taken responsibility for this some years ago we would now have sufficient social workers to provide the required services.
There is no co-ordination between the Department of Health and Children, the Department of Education and Science and the health boards. The identification of such problems is precisely the kind of role we should be creating for this ombudsman. He or she would be able to do so by virtue of his or her responsibility to protect the rights of the child. Everyone involved in child welfare wants to ensure this ombudsman has real teeth and does not simply undertake promotional work and the investigation of individual complaints, although that is important work. We want the ombudsman to play the very central role of identifying the overall problems affecting children's rights. Such problems, as the Minister of State is aware, cross several different Departments and agencies. The ombudsman must have the power to step in on the basis of the need to protect the rights of children and make recommendations to Government. Nobody is doing that.
Due to the way in which Government is structured, responsibility for children falls between several different stools. At the end of the day, the buck does not stop with anybody. The protection of children is a key aspect of the role of the Ombudsman for Children. We must ensure that person has real teeth and is going to make a difference in this area. It is critical that the ombudsman is given the statutory role of protecting the rights of children.
The arguments against including this phrase are paper thin. I do not know what legal advice the Minister of State received on this but her arguments here today are not convincing, nor were they in the Seanad. The Minister of State is, on the one hand, saying part of the ombudsman's promotion function will be to protect, yet she will not include the word "protection" in the Bill. She is saying it is understood the ombudsman will provide protection but we are not writing that into the Bill. It almost seems that the Minister is afraid of creating a supervisory role by the ombudsman in relation to services for children.
At least seven different Departments deal with various aspects of children's lives. What we have as a result is a very piecemeal approach. The Minister of State's Department bears a particular responsibility in this area while another holds the money in regard to child care and another bears responsibility for children in particular settings. There is a real need for more co-ordination. The ombudsman could play a key role in protecting children's rights by looking at this area, making recommendations and observing where the gaps lie. If the ombudsman is not given the job of protecting children's rights then it would seem there is the potential that a whole area of work will not be developed as well as it could.
Despite the attempts by the Minister of State, which I acknowledge, the deficiencies in the service are appalling for a modern economy. The child care service is in crisis. The Minister of State is making individual efforts and I do not wish to take from them. If one examines what is happening in child care, one will find it is in chaos and crisis. Exceptional cases may be dealt with but case after case of serious child sex abuse is not investigated. The agencies have told me they have to word their letters in a certain way in the hope that the health boards will take up the most serious cases. There is an appalling lack of service to the most vulnerable children. Goodness knows it is difficult enough to get services for children who are attending primary school and who need a psychological assessment or children who have special needs. There is nobody to help children from dysfunctional families. The health boards are doing the work but they are in crisis. Surely, the ombudsman would have a role to examine this area and give an overview, make recommendations, force policy development and force awareness of what needs to happen. To exclude protection would weaken the essential core of an ombudsman. It does not matter how the work of the ombudsman is defined in other countries, what matters is what is done here. It will be a shame if the Minister of State does not accept this recommendation and take the opportunity to strengthen the role of the Ombudsman for Children.
A number of issues have been raised in relation to co-ordination between Departments and the role of the ombudsman. Section 7 covers the promotional role and the protection of rights. On the issue of what the ombudsman can do in relation to advising Ministers etc., the section specifically states that the ombudsman shall advise the Minister or any other Minister on the development and co-ordination of policy, encourage bodies to promote the rights and welfare of children, monitor and review generally the operation of legislation concerning matters that relate to the rights and welfare of children and establish structures etc. Where the ombudsman identifies a need, a want, a lack, a failure, or a direction in which Ministers or public bodies should be going, he or she can advise them that this is the way they should go to protect children and their rights.
We all acknowledge that the lack of social workers is causing serious problems in a number of different areas. This is the reason there has already been an increase in the number of social workers being trained with an extra 85 places being phased in.
That is the minimum.
It would be wonderful if one could double the numbers in one year.
The Minister of State has had five years.
That is not possible because social workers who are being trained need to have professional placement. They cannot be placed with people who are in the service for only a year or two. They must be placed with people of a particular standing who have a particular level of professionalism. Unfortunately, it was not possible to do it in one year. It is being spread out over a few years—
The Minister of State had five years.
—to provide 85 new places for the training of social workers. Had there been more people in the system already who were in a position to take some of these social workers for training purposes, it might have been possible to double the number. If the ombudsman finds the health boards are failing in their duty, the role of the health boards, not the ombudsman, should be strengthened to ensure they have the staff, resources and facilities to enable them to respond to their statutory duty.
The area of children crosses a number of different Departments. In preparing the national children's strategy we looked carefully at the whole idea of a Cabinet Minister for children. How does one take the child out of the family? One cannot separate the child from health or remove the child from education as they belong in each of those sectors. That was the reason we decided on the structure of the national children's office which has been established and is working well. It is led by an assistant secretary with staff from the key Departments with responsibility for children: the Departments of Health and Children, Justice, Equality and Law Reform, Social, Community and Family Affairs and Education and Science. Top level staff are co-ordinating the work of those different Departments. Following careful consideration, that was the structure which was devised. Given that extra staff are coming on stream, matters that need full co-ordination will be dealt with. For example, the implementation of the Children Act is being driven by the office with top level senior civil servants working across the different Departments. The ombudsman would be able to highlight issues in relation to co-ordination and advise the Minister and any other Minister as set out in the Bill. He will be able to protect the rights of children through his promotional and investigative role. However, it would not be a positive move to give him a statutory responsibility to protect the rights of children when that is the duty of others.
Amendment put.
The Dáil divided: Tá 48; Níl, 71.
Tá
Níl
Tellers: Tá, Deputies Bradford and Shortall; Níl, Deputies S. Brennan and Power
Amendment declared lost.
Allen, Bernard.
Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas P.
Browne, John (Carlow-Kilkenny).
Bruton, Richard.
Burke, Ulick.
Clune, Deirdre.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Dukes, Alan.
Durkan, Bernard.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McManus, Liz.
Mitchell, Gay.
Mitchell, Jim.
Moynihan-Cronin, Breeda.
Neville, Dan.
Ó Caoláin, Caoimhghín.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Penrose, William.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Shortall, Róisín.
Timmins, Billy.
Upton, Mary.
Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Andrews, David.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Callely, Ivor.
Carey, Pat.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
Davern, Noel.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Foley, Denis.
Fox, Mildred.
Hanafin, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McGennis, Marian.
McGuinness, John J.
Martin, Micheál.
Moffatt, Thomas.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donnell, Liz.
O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Kennedy, Michael.
O'Malley, Desmond.
Power, Seán.
Roche, Dick.
Ryan, Eoin.
Smith, Michael.
Treacy, Noel.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Walsh, Joe.
Woods, Michael.
Wright, G. V.
I move amendment No. 5:
In page 10, subsection (6), lines 47 and 48, to delete "that is for the time being in force in the State".
I do not understand the reason this clause is in the paragraph. We have signed up without reservation to the UN Convention on the Rights of the Child and there is no suggestion that it would be suspended at any point. At the least, this clause seems superfluous, but also dangerous in so far as there is a facility for any future Government, if it chose, to suspend the convention. We should not leave that opening. The clause is dangerous, there is no need for it whatsoever and it should be deleted.
Will the Minister of State explain the reason this phrase is in the Bill? What circumstances does she envisage where this would not be in force in the State? Will she clarify the point of having this in the Bill?
This is the legal definition of the convention as it applies in Ireland at any one time. There is nothing to stop the ombudsman from raising issues the subject of protocols to the convention, whether they are in force in Ireland, if he or she believes this is required. This is simply the legal definition referring to what applies in Ireland at any one time.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
I move amendment No. 6:
In page 11, paragraph (b), between lines 9 and 10, to insert the following:
"(i) taken in circumstances which gives rise to a failure to meet the fundamental rights of the child, in particular where such failure gives rise to an urgent need,".
This relates to the function of the ombudsman to examine and investigate complaints against public bodies. Deputy Fitzgerald and I propose inserting between lines 9 and 10 "taken in circumstances which gives rise to a failure to meet the fundamental rights of the child, in particular where such failure gives rise to an urgent need." This provision would strengthen the functions of the ombudsman and I ask the Minister of State to agree to it.
The amendment seeks to extend and broaden the remit of the ombudsman to investigate an action. It would add to the list of seven and states clearly that if the fundamental rights of the child have not been met and there is an urgent need, the ombudsman could act. This is probably implied in some of the other grounds, but the amendment would spell it out more clearly.
The amendment relates closely to the discussion we had on protection because it implies that the ombudsman could step in. I will not reiterate what was said in that regard, but the powers of the ombudsman as set out cover various matters which give rise to failure – for example, the results of negligence or carelessness and actions taken which were not fair or desirable. The protection element is built into the investigation and promotion, particularly in this context, but does not give the ombudsman another specific power to move in to protect the office. What the Deputies want is implied in the other areas.
Amendment put and declared lost.
Section 8 agreed to.
Sections 9 and 10 agreed to.
NEW SECTION.
I move amendment No. 7:
In page 14, before section 11, to insert the following new section:
"11.–Notwithstanding the terms of section 11(1)(a), the Ombudsman may apply to intervene in any court proceedings involving the welfare of a child as an amicus curiae, and may furthermore initiate such proceedings as it considers necessary for the exercise of his or her functions.”.
This matter was debated at length in the Seanad where the Minister said there was no need to make provision for the ombudsman to be allowed to apply to intervene in any court proceedings involving the welfare of children as an amicus curiae. The Minister said that because of the current system regarding the appointment of a guardian ad litem in proceedings there was no need to extend the power of the ombudsman in this regard. The guardian ad litem system applies in relation to public law proceedings. There is as yet no provision in private law proceedings for a guardian ad litem. Obviously, in such proceedings there is no clear mechanism whereby the voice of the child can be heard. That is the reason for the amendment.
Regarding the guardian ad litem system, the reason the Minister of State is saying she cannot accept the amendment, this is an area in need of attention. It should certainly be examined. The situation is that the courts have been given broad discretion to appoint someone to do certain things in children's cases, but the net result of such discretion is a chaotic system of representation for children with significant variations as to the operation of the guardian ad litem provision throughout the State. We have a serious situation where we do not have regulations which ensure a strong role for a guardian ad litem, a provision which has worked effectively in England for years in terms of protecting the rights of children in court. We have set up the system, but not gone to the trouble of ensuring it is comprehensive in order that children's voices are heard in court. It is hard enough for adults' voices to be heard in court, but will be much more difficult for children. That is the idea behind the guardian ad litem system.
The Minister of State is using a weak argument regarding the guardian ad litem system for not accepting the amendment. This role has to be strengthened. We are proposing that the ombudsman would be able to apply to courts and intervene in cases involving the welfare of children as a friend of the child and that he or she may even be able to initiate such proceedings if he or she believes it necessary for the exercise of his or her functions.
The amendment seeks to strengthen the role of the ombudsman in the key area of the courts in which problems are presenting and where the welfare and protection of children are such key issues. A system in which the guardian ad litem and the ombudsman play complementary roles would be a powerful force for children in the courts. Given that the guardian ad litem system is not as developed as it should be, that serious issues involving children are coming before the courts and that children have had poor independent representation in the courts, this is a perfect opportunity to give children a stronger voice through the intervention of the ombudsman. Such occasions would be rare and the ombudsman would have to decide how this system would work. However, this would be a strong provision and could be a powerful force for the protection and welfare of children in court.
I agree with much of what the Deputies said regarding the voice of children in court. Children are the most vulnerable in society and their voices have to be heard. There is a commitment in the national children's strategy to overhaul the guardian ad litem system. That is the way to proceed. I accept that the system has to be revitalised and changed to ensure children's voices are heard. However, in the context of this legislation, where a system is failing or not working as well as it could be regarding giving all children a voice in court, the response should be to change it, rather than placing all the responsibility on a different body. To avoid giving the ombudsman a role which was never intended and duplicating the role of the guardian ad litem, it is my intention, through the National Children's Office, to completely overhaul the system. The views and voices of children can be best looked after in this way, rather than by what is proposed in the amendment.
Section 28 of the Guardianship of Infants Act, 1964, as inserted by section 11 of the Children Act, 1997, extends the role of the guardian ad litem to private law proceedings, but there is a serious absence of detail. This is one of just two sections of the Children Act, 1997, which are not yet in force. The difficulties regarding the guardian ad litem system have persisted for over a decade. In that context, it seems reasonable to propose that the Ombudsman for Children should have powers of referral to domestic or international courts where important points of principle arise.
Cases often arise concerning child policy which could have important effects on child legislation. In that context, it would be useful and necessary to have an independent voice for children and their welfare who would make a submission. This would give the ombudsman an input into important cases involving the development of child policy.
The ombudsman will be able to highlight issues and make proposals and suggestions. However, the amendment proposes that the ombudsman would be able to intervene in court proceedings which goes beyond the role we would envisage for the office. The review and overhaul of the guardian ad litem system will address the issue.
Amendment put and declared lost.
SECTION 11.
Carlow-Kilkenny): Amendments Nos. 9 to 14, inclusive, are related to amendment No. 8. Amendment No. 8 is an alternative to amendments Nos. 9 and 10. Amendment No. 13 is an alternative to amendment No. 14. We will discuss amendments Nos. 8 to 14, inclusive, together.
I move amendment No. 8:
In page 15, subsection (1), lines 11 to 22, to delete paragraph (e).
There is a difficulty in that a number of issues are involved regarding exclusions under the Bill. It would probably be more helpful if we dealt with these amendments separately as there are arguments against the categories of exclusion. However, I will deal with the amendments in my name.
It was pointed out in the Seanad that the intention of this amendment is not to involve the ombudsman in the consideration of an asylum application or to give him or her any role in that procedure. We are proposing that there should not be a two tier system in which Irish children have different rights from those of asylum seeking children. The office of the ombudsman would still have the same requirement to uphold, protect and promote the rights of all children, irrespective of their nationality or status. The amendments make a clear distinction in this regard. The Minister of State is suggesting that we are trying to create a role for the ombudsman in the asylum process, but that is not the case. We are proposing that the ombudsman should have a role in issues involving the welfare and protection of all children.
The examples cited in this regard are the appalling direct provision conditions in which many asylum seeking children live. In some of these inappropriate settings, such as hostels, six or seven members of a family are housed in one bedroom with inadequate sanitation and cooking facilities. Such cramped and inappropriate conditions in which many asylum seeking families are forced to live have led to tragic accidents. There are issues regarding the rights of such children who need to be protected. It is not appropriate to exclude the Ombudsman for Children from investigating any of these complaints. I, therefore, urge the Minister of State to accept the amendment.
Amendment No. 11 deals with problems or issues which arise prior to the commencement of the legislation. I see no basis for excluding such complaints. It is as if the Minister of State is suggesting that only events which take place from now on can be investigated. Where ongoing difficulties exist regarding child welfare and protection services, they should be included, even if they refer to events which took place last year or in five years' time. There is no logical basis for excluding them.
I wish to refer to amendment No. 13. Under the Bill as worded, any Minister could veto an inquiry being undertaken by the ombudsman if such a request is made in writing. This provision removes the power of the ombudsman who should be independent. It should not be possible for a Minister to step in and ask the ombudsman to cease an inquiry or investigation. That paragraph, subsection (1)(e)(iii) should be removed.
I will make a point in relation to children in prisons or places of detention. We know there have been serious difficulties with the operation of St. Patrick's institution where 16 and 17 year old children are incarcerated in what is, essentially, an adult prison. Since the Child Care Act came into effect all persons under the age of 18 are regarded as children. At times 16 and 17 year olds may seem grown up but mentality, attitude, needs and legally they are children. There is no basis or justification for excluding such children or suggesting that such a prison would not be subject to inspection or investigation by the ombudsman.
The issue is further complicated by the recent announcement by the Minister for Justice, Equality and Law Reform that because of the inadequacies and virtual collapse of the juvenile justice system under the Minister for Education and Science he intends to create an additional 20 secure places, possibly in St. Patrick's institution. Because the Minister has a political problem, as a result of public outrage in relation to juvenile offenders, he has plucked this proposal from the sky. This is, in essence, a poorly thought out response to a political problem.
Of course the Children Act, which we have yet to see commenced, precludes the placement of children in such facilities. However, because that Act has not commenced, we now have a situation where the Minister makes a proposal which goes against the nature and thinking of the Act. He proposes that for the time being, in order to deal with his political problems, we arrange to place children in such totally inappropriate circumstances. This means that children, possibly as young as 13 or 14, who the Minister for Justice, Equality and Law Reform may at his political whim decide to incarcerate in a prison, and also those children who have been placed in prisons because there have not been adequate or appropriate places provided to cater for disturbed, troubled children or destructive children, will not now have the protection of an ombudsman.
The Minister, yesterday, assured us that she would bring forward an amendment to deal with that. It is wrong for the Minister to deceive us in this way. She gave a clear indication that she would remove this section but what she has done now is to introduce an amendment saying that this offending subsection shall cease to have effect on and after such date as may be specified in an order made by the Minister with the consent of the Minister for Justice, Equality and Law Reform. If particular political circumstances allow, the Minister may at some future date cease this section. That is not good enough.
The Minister gave an undertaking yesterday that she would amend the Bill to remove the intent of this section. She has not done that and it is not acceptable. On a regular basis she talks about upholding the rights of children. The rights of children, particularly when they are incarcerated in inappropriate settings such as St. Patrick's, need the protection of the State. The Ombudsman for Children could be in a position to provide that protection and would be the best person to do so. The Minister is denying these most damaged young people in our society any protection by her failure to keep her promise to amend this Bill. It is a poor day for disadvantaged and troubled children.
I have a question for the Minister in relation to refugee, asylum seeking or immigrant children. If those children are in "direct provision" do they have access to the ombudsman? The reference here says, if the action is one "taken in the administration of the law relating to asylum, immigration, naturalisation or citizenship,". We could argue that "direct provision" comes under administration of the law because it is a decision that has been taken by the Government. It has been taken as the way that children should be looked after – in families who are seeking asylum. Under this Bill will children in "direct provision" have access to the ombudsman if there are issues in "direct provision" which adversely affect their health and well-being? This is a key issue and I would like the Minister to reply with a clear "yes" or "no" to the question because the Children's Rights Alliance believes the provision excludes many children of refugees and asylum seekers from the provisions of the Ombudsman for Children Bill, 2002.
There is increasing concern in Europe over the number of unaccompanied children, children being trafficked, and children being moved from one country to another without their parents. States are working out good practice in this area and trying to make the best possible provision for these children. There are probably several dozen such children who have come here who are not getting any services. The statement of good practice in Europe for these separated children would certainly say that they should have access to the ombudsman in the country where they end up. They are vulnerable and it is debatable that they will ever reach the stage where they will begin to get the kind of protection they need because they live marginalised and excluded lives.
We should not add to that by excluding them from the provisions of this Bill which might give them some protection. The code of practice would say that separated children are entitled to the same treatment and rights as national or resident children. They must be treated as children first and foremost and all consideration of their immigration status must be secondary. The Minister has said on a number of occasions that they would have access, but would those children in "direct provision" have access?
We also need to examine the area of children in detention. It is important that children who are in prison places, for example a child in a cell, can have access to redress. Section 56 of the Children Act, 2001 provides that a detained child can be kept in a cell where no other place is available. The situation does arise. Again, the UN Convention on the Rights of the Child provides for the protection of the rights of children and young people in the criminal justice system. Article 37 of that convention refers to the dignity of the child charged with an offence and guarantees detention as a measure of last resort and for the shortest appropriate period of time.
How do we deal with child offenders and what kind of protection do we give them? It is clear that the Ombudsman for Children should be allowed to conduct investigations into prisons or other places used for the custody and detention of children. In New Zealand where there is a specific limitation on the children's commissioner's authority which prohibits him from investigating any act or omission of any court or decision, no such restriction applies to investigating the position regarding children in police cells. Those children would still have access to an ombudsman.
The amendment tabled by the Minister of State today deals with another issue. It is interesting to hear her describe what she intends to do. The Minister for Justice, Equality and Law Reform recently announced extra places, but if the Children Bill, 1997, had been enacted and its provisions brought into force he would not have been able to make that announcement because the Bill would have prohibited him from putting children in such a place. We all know that secure places are needed. This is not an argument about whether those young people should be in secure places. Of course they should and they should have received the kind of assessment and care they needed long ago. However, this panic reaction, the proposal to put into such places young people who have not even been found guilty of anything, would be illegal if the Children Bill that was passed by the House had been brought into force.
The Minister of State is introducing a proposal to include such places under the remit of this Bill while saying that it will not be done until such time as the Minister decides. I am not altogether clear on this so I will wait and hear what the Minister of State has to say about this provision before I make further comments on it.
A number of different issues have been raised. First, the children of asylum seekers and refugees will have access to the Ombudsman for Children in the same way as every other child in Ireland. The only thing that is excluded is the administration of the law, in other words, the procedures for defining and determining whether a person is entitled to a particular status. The administration of the service is a different thing. My understanding is that all the children referred to here will be entitled to access to the ombudsman. A particular case is made for unaccompanied minors. They come into the care of the health board when they arrive but they are also automatically covered. It is almost misleading to list that group under "exclusions"– the children themselves are included but the exclusion refers to the administration of the law.
Deputy Shortall raised the question of actions prior to the Act. The advice from the Attorney General is that we cannot retrospectively make bodies subject to legislation. If something is still going on it is obviously an issue of concern and can be investigated but this is a standard provision in all legislation of this type. The ministerial veto was also mentioned and I must admit I was curious about this when I first saw it, which is why we returned to the Office of the main Ombudsman to see how it works and why it is there. The reason for allowing a Minister to prevent the ombudsman investigating a complaint is to exclude points of judgment for which a Minister is answerable to the Dáil. It is to maintain the responsibility of a Minister to the Houses. The fact that it must be in writing and will be included in the annual report ensures that the ombudsman is also protected. The provision was put into the 1980 Act on the recommendation of an all-party working group in 1979. When we returned to the Ombudsman to inquire about its validity we were informed strongly that even though the provision has not been used—
Is the Minister of State referring to the Office of the Attorney General?
No, I am referring to the Office of the Ombudsman because the provision is currently in the legislation relating to that office. We inquired about the validity of continuing with the provision and we were informed that it offered protection to both sides, to the Minister, who is accountable to the Dáil, and to the office itself due to the written report and so on. Even though it has not been used by a Minister the office strongly recommended that it be maintained as part of the legislation, which is why it is there.
The question of children in detention centres was also raised. There is no doubt that in the legislation as published there is a serious anomaly in excluding a group of children such as this, perhaps the most vulnerable group of children, especially as children in educational detention centres were included while the older groups were not. The provision of new places by the Minister for Justice, Equality and Law Reform was alluded to by the Deputies. Those places will be designated by the Minister for Education and Science under the 1908 Act so they will automatically be covered immediately by the Ombudsman for Children – they will be included under the designation of children's detention centres. That would have left only the likes of the young people in St. Patrick's Institution so I was anxious to discuss this with the Department of Justice, Equality and Law Reform.
The reason we have put down the amendment as it stands is that it is our intention, using the funding and resources which have been made available, to establish the Office of the Ombudsman for Children immediately, despite the amendment I accepted in the Seanad at the beginning for a two-year commencement order. There will not be a two year wait. The money is available and has been allocated so it will be done immediately. The ombudsman is a final port of call for investigation when all other avenues have been exhausted. A number of other avenues exist for various areas – for example, in the education process there are boards of management, the Department and so on. The avenue for prisons and places of detention at present is the visiting committees, where complaints can be investigated, which have been up and running for a number of years.
A new inspector of prisons, Mr. Justice Dermot Kinlen, is being appointed and I believe he is taking up his position today. This will lead to an inspectorate of prisons, which will inspect and report on prisons, detention centres and other places under the aegis of the Department of Justice, Equality and Law Reform. Because that is only now being set up, the Minister and the Department are anxious that it should have some time to establish itself so that its roles will become clear with its relationships with the visiting committees and the ombudsman. If this Bill were not to come into effect for two years there might be no difficulty in automatically removing the exclusion but because the two will be happening in tandem it is felt very strongly that time must be given to the new inspectorate of prisons to become established and to be that extra port of call.
The amendment is a positive one which states "shall cease to have effect". I know it states that this will happen when the order is made, but at the end of every year the ombudsman will make a report and lay it before the Houses of the Oireachtas to highlight issues. The fact that the order has not been made or needs to be made will constantly come before the House. We are awaiting the establishment this week of the inspectorate of prisons. We will give it some time to become established and following that the exclusion of young people in detention centres will cease to have effect.
I return to the final point made by the Minister of State. All people under the age of 18 are children and should come within the remit of the Ombudsman for Children. Setting up an inspectorate of adult prisons, however badly needed, is not the appropriate inspection mechanism for places of detention for offenders of 16 and 17. This issue came up when we were debating the Children Bill, 1997, and I asked the Minister for Justice, Equality and Law Reform to explain his rationale for having a dividing line at the age of 16 whereby any offender under 16 was the responsibility of the Minister for Education and Science and any over 16 was the responsibility of the Minister for Justice, Equality and Law Reform. The Minister replied that it was a historic provision and that was the way the system worked.
However, given recent thinking on the needs of children, responsibility for all offenders under 18 – all persons who are legally regarded as children – should be the responsibility of the Minister for Education and Science. It does not make sense that 16 and 17 year olds are at the mercy of a Department which deals primarily with adults. Rather than leaving the circumstances of 16 and 17 year old offenders to inspection by the prisons inspectorate, it should be covered by the ombudsman. In talking about young offenders, what is the justification for a 15 and a half year old having access to the ombudsman and a 16 year old not having that access? It does not make sense. A much more satisfactory way of dealing with the inspection of prisons would have been to provide in this Bill for inspection of adult prisons only, while offering the protection of the Ombudsman for Children to those under 18.
There has been a mistaken tendency to regard 16 and 17 year olds as almost adults. This misguided thinking has meant that 16 and 17 year old offenders have been treated in the same way as adult criminals. Many young offenders have been failed badly, particularly by the education system which should respond to the needs. That young people quickly become out of control and get involved in serious crime is due in part to the State's failure to put in place educational services to cater for them. The State is often quite happy to leave young offenders in the hands of the adult prison authorities, which is particularly unacceptable given the provisions of the United Nations Convention on the Rights of the Child. I call on the Government to remove responsibility for children aged 16 and 17 from the Department of Justice, Equality and Law Reform.
I get the impression that the Department of Justice, Equality and Law Reform has had a strong say in the creation of this Bill. It seems reluctant to allow an independent office to examine the regime it operates for children. Those aged 16 and 17 are children and should therefore be the responsibility of the Department of Education and Science and particularly the Minister of State with responsibility for children, Deputy Hanafin. That these issues have not been addressed properly in this Bill represents a retrograde step in the area of children's rights. This opportunity to make the changes I have mentioned has been missed, an error which has been compounded by the announcement last week, of the Minister for Justice, Equality and Law Reform of additional places. The Minister of State, Deputy Hanafin, knows in her heart that the Government is taking the wrong approach in relation to young offenders. It is a serious mistake to facilitate the Department of Justice, Equality and Law Reform's approach to issues affecting those under the age of 18.
I do not see how the fact that the new position of Inspector General of Prisons and Places of Detention is being filled today is relevant to the protection needed by those under 18 in places of detention. The Minister of State is using the argument as a cover for the fact that young offenders aged 16 and 17 are to be treated as adults, but it is an irrelevant and inaccurate point to make as it is not linked to the matter under debate. Essentially, it has been decided to give protection under this Bill to certain young people, but others will not be protected if they are in certain centres of detention. This mistake has been exacerbated by the decision of the Minister for Justice, Equality and Law Reform last week to create an extra 25 places.
As Minister of State with responsibility for children, Deputy Hanafin is aware of the contradictions with which we are dealing. She must be embarrassed as she knows that if the provisions of the Children Act, 2001, had been brought into effect, 16 and 17 year olds could not be placed where this Bill proposes to place them. She knows that this Bill will not allow those aged 16 and 17 to benefit from the protection of the Ombudsman for Children. She is varying the order in an attempt to retain discretion in these matters, but she knows this is not the best way in which to operate. The ombudsman will be interested in a number of problems faced by young people when they move from one residential care centre to another. Many people working in such centres are worried about the problems that will arise when young people transfer from a prison to a place of rehabilitation in preparation for a return to the wider community. Those who work with young offenders have expressed concern about what will happen to them in the interim period and wonder how they will be helped in the long term, after their departure from detention centres.
This Bill represents a quick fix political solution, introduced by the Government in a panic. It is obvious that it is far from ideal. As Deputy Shortall said, young people in prisons need somebody to evaluate and comment on their circumstances and the Ombudsman for Children should be in a position to do so. We should not exclude the provisions of my amendment, as the Minister of State suggests, on the ground that this matter will arise every year. Will it arise in the ombudsman's report? Who will ensure that this is dealt with more appropriately?
As I made clear, the 25 new places will automatically be covered as they will be designated by the Minister for Education and Science. It is not intended that the new places should be seen as a long-term solution, as they are to be put in place pending the completion of the Department's €32 million capital building programme, which will increase to 181 the number of places available for those under 16. When the programme has been completed, it is intended that the need for the Minister for Justice, Equality and Law Reform to provide extra places will no longer exist.
What about the existing places?
It is untrue to say that the facilities to which I refer are prison places per se, as the Special Residential Services Board, which has been established to co-ordinate the use of places, is working actively between the Departments to ensure that they are facilities for children. It is widely recognised that the standard of education provision in St. Patrick's Institution is superb. It is worth noting that the Social Services Inspectorate, established by this Government to investigate other residential centres, has highlighted that the education service in such centres is of a high quality. Such education services make a key difference to young people in such institutions, who will automatically be covered by the Ombudsman for Children.
The distinction between those under 16 and those aged 17 and 18 relates to the fact that the age up to which a child is compelled to attend school has been raised to 16, as well as the historical background to such matters. Responsibility for children under 16 has to rest with the Department of Education and Science, but the system of tracking young persons to ensure they benefit from education and training continues until the age of 18.
The power of the Ombudsman for Children to investigate does not preclude him or her from promoting and highlighting issues relating to children in detention. The ombudsman will not be stopped from talking about the wider conditions of detention, but he or she will not be allowed to pursue individual investigations based on complaints. When the inspectorate of prisons has been established, which I envisage will happen quite soon, the ombudsman will be the next voice. The inspectorate will cover all detention services, including detention units under the Department of Justice, Equality and Law Reform, although Deputy Shortall may not agree that this will be the case.
Deputy Shortall spoke of the anomaly of including certain people and not including others. We will create a welcome anomaly by agreeing to the provision contained in my amendment. A 17 year old in St. Patrick's Institution will be covered by the remit of the Ombudsman for Children, but the 18 year old with whom he is sharing a room will not be covered. There are anomalies in many services and I agree that we are creating another one, but I was anxious to remove the clear anomaly that children in detention centres run by the Department of Justice, Equality and Law Reform were being excluded altogether. Real progress has been made by ensuring that although certain anomalies exist, we can ensure that other layers of protection exist. The ombudsman will not be called on to investigate everything, but will be allowed to concentrate on his promotional role.
I do not understand why the Minister referred to people over 18 as we are discussing an ombudsman for children and the Minister of State has responsibility for children, that is persons under 18 years of age. All of the arguments which she put forward for an office of ombudsman for children are sound and we welcome the legislation and the office, but there is no justification for the exclusion of offending 16 and 17 year olds from the ombudsman's protection. The Minister cannot deny that. It may be inconvenient and I am sure that the Minister for Justice, Equality and Law Reform does not want any interference with the services provided by his Department as that kind of tradition clearly exists within that Department. The Minister has probably said to her that he does not want a do-gooder poking his nose into the Department's business.
The fact is that 16 and 17 year olds are the Minister of State's responsibility and should be the responsibility of the ombudsman. That such children are being denied access to an ombudsman is an entirely arbitrary distinction with no basis in logic nor in what we would like to see as a new approach to children. All children should be regarded as such and given the protection children require. The Minister, by allowing this section, is ensuring they will be excluded indefinitely. Her own amendment is meaningless and I agree with Deputy Fitzgerald that when we get the annual report, we have no guarantee that the issue of the exclusion of young offenders will be raised. We have no reason to believe that the Department of Justice, Equality and Law Reform will be anxious to do anything about it. Given that Department's responsibilities for prisons, the Garda, courts and so on, offending children will be low down on its list of priorities, which is why, as I stated before, it is wrong that those children continue to be its responsibility instead of coming under the Department of Education and Science. The Minister is compounding this by excluding these young people from the ombudsman's protection. Her amendment will allow a Minister to change that if that Minister so wishes.
The word is "shall."
There is no guarantee that a future Minister will wish to do that, or even be remotely interested in doing so. This is window dressing and no guarantee to 16 and 17 year olds, which is not good enough from a Minister of State with responsibility for children. This is a serious mistake and we could be open to criticism in terms of our obligations under the UN convention the next time the Government goes before its committee.
There is no doubt that if the Minister were being true to the convention and best practice, she would include these children. I do not understand why they are not included. It would be important, given the history of the criminal justice system and the difficulty in creating, as she stated herself, the children's strategy which includes the aim to see children who come before the juvenile justice system being catered for by child-centred services that will aid rehabilitation and give them a future. Therefore, it is important to give the ombudsman a role and it is a shame to take away the protection of the law. When the Government next makes its presentation on the implementation of different conventions, this will emerge, and I am sure that the law will be changed.
As I said at the outset, I accept that these young people should be included and that it is an anomaly that they are not, but I also accept that because the ombudsman's investigation of a complaint is to be a last port of call, we should allow the other avenues to be exhausted first. As they come in tandem with the establishment of the inspectorate of prisons, we should allow it time to establish its structures and procedures so that young people can have resort to them and then allow them access to the ombudsman. I hope that all four of us in the House now will be back after the election and that, whatever role we play, we will continue to press for this change to be implemented soon.
I believe that these children will be included which is why the words "shall cease to have effect" are included in the amendment. Young people in such institutions will be included, which I am certain that we and the ombudsman will ensure. It is just not practical to do so immediately and I want to set up the office without any delay.
Amendment put and declared lost.
I move amendment No. 9:
In page 15, subsection (1)(e), to delete lines 12 and 13.
Amendment put and declared lost.
I move amendment No. 10:
In page 15, subsection (1)(e), to delete lines 18 to 22.
Amendment put and declared lost.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 15, between lines 39 and 40, to insert the following subsection:
"(2) (a) Subsection (1)(e)(iii) shall cease to have effect on and after such dateas may be specified in an order made by the Minister with the consent of the Minister for Justice, Equality and Law Reform.
(b) An order made under this subsection shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.
Amendment agreed to.
Amendments Nos. 13 and 14 not moved.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 15:
In page 18, between lines 41 and 42, to insert the following subsection:
"(9) The Ombudsman for Children may as amicus curiae, on his or her own initiative, refer a case to the High Court, or the Supreme Court when exercising its appellate jurisdiction, in respect of the contravention of a right of a child in so far as it affects the rights of all children.”.
We have effectively discussed this already. It concerns extending the ombudsman's role so that he or she could, on his or her own initiative, refer a case to the High Court or the Supreme Court in respect of the contravention of a right of a child in so far as it affects the rights of all children. It seeks to allow the ombudsman to be a voice for children in those courts.
This idea has been debated here before and the intention is that the ombudsman would complement the role of already existing people and offices, not replace them, albeit that those offices may need to be reformed and enhanced. However, this role is not envisaged for the ombudsman.
Amendment, by leave, withdrawn.
Section 13 agreed to.
Sections 14 to 21, inclusive, agreed to.
FIRST SCHEDULE.
I move amendment No. 16:
In page 25, to delete line 3.
There is more evidence of the hand of the Department of Justice, Equality and Law Reform in this legislation with the exclusion of the Garda from the remit of the ombudsman. What is the justification for this? The Schedule lists a number of agencies that have responsibility for investigation and basic service providers are included under the remit of the ombudsman. Departments, health boards and so on are included. I understand the Garda complaints board is not listed for the same reason as the Equality Authority and other inspection agencies but, as a basic service provider, the Garda must be included.
I do not understand why the Garda is listed as one of the bodies excluded under the Schedule. What is the difference between a child or adult making a complaint against a social worker or teacher and doing so against a garda? There is no basis for this and it is more evidence of the Department of Justice, Equality and Law Reform's complete distaste and dislike for inspection of what it does.
There is no doubt adults and children have difficulties with the Garda. Very often children are not well served by the force and there are issues relating to alleged inappropriate handling of cases involving children. The ombudsman should have responsibility in this regard. Will the Minister of State explain why on earth the Garda is excluded from the provisions of the Schedule and why children should not be entitled to protection from inappropriate behaviour on the part of gardaí as they are from inappropriate behaviour on the part of teachers or health board person nel? There is no basis for this at all. Why has this provision crept into the legislation? What is the Minister of State's justification for retaining it?
There is a difference in making a complaint against a teacher or social worker because there is no independent inspection process in place for them. It is conducted in-house. A new totally separate complaints procedure has been established for the Garda to deal with complaints. The legislation deals with the investigative role of bodies and because there is an independent investigation procedure in place for the Garda which is open to everybody, the Ombudsman for Children will not cover the force. Equally, the Ombudsman does not cover the Garda. A separate independent appeals mechanism exists.
That is similar to saying that because there is an inspection service in the prisons, the Minister of State will not bring in a more specific child-oriented service such as an ombudsman to address issues that may arise. She is saying that because there is an investigation board to cover the Garda, it is not relevant to extend the remit of the ombudsman to cover the force. That argument is quite weak because the reason we are establishing an ombudsman for children is specific services are needed for children which must be child proofed, similar to equality or poverty proofing.
There are specific issues relating to young people aged under 18. Different services are required if children's needs are to be put at the centre and, while there may be an investigations board, the question of how it would deal with the rights of young people who come before it or how it would promote or understand their rights would be quite different qualitatively to a service specifically targeted at helping children. It is a different body and the Minister's argument does not provide a good reason to exclude the Garda.
The Defence Forces are excluded but young people aged under 18 are allowed to enlist. They should not be allowed to enlist or, if they are, they should come under the remit of an ombudsman. It is ironic but this point is relevant in the context of the worldwide debate about the abuse of child soldiers in armies.
It is a shame that the opportunity that has been presented by the legislation has not been fully grasped by the Minister of State to tidy the anomalies that exist in Defence Forces recruitment, the treatment of children by the Garda and the custody of children by the Department of Justice, Equality and Law Reform. These issues could have been addressed. I am aware of the difficulties in dealing with the Department, to which the concept of accountability is anathema, but the legislation provided an opportunity to force these issues. It is a pity the Minister of State has not availed of it. The Bill and her reputation would have been strengthened if she had been prepared to take on the Department on these issues.
We recently passed legislation to provide for an ombudsman for the Defence Forces. That will be an independent body, which will cover investigations involving young people as well as all other members of the Defence Forces. The same argument applies to the Garda. The new independent complaints body will undertake investigations.
The legislation addresses individual investigations of complaints. There is a mechanism in place and the ombudsman can highlight issues relating to young people in the Army or their relationships with the Garda and detention centres. He or she will not be able to investigate individual complaints. A key role of the ombudsman will be to ensure the ombudsman for the Defence Forces deals in a child-friendly manner with young people and the Garda complaints body establishes procedures to deal with children. The opportunity exists, through the establishment of this new body, to ensure this is done.
We should not try to give the ombudsman responsibility for everything. However, the office should have responsibility to ensure every group works in a more child-centred and child-friendly manner. That is the way to move forward.
Amendment put and declared lost.
First Schedule agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Deputies for their consideration of the Bill. I am reluctant to say this may be the final legislation of the 28th Dáil, but everything indicates that it may be. I thank Deputies for their role in highlighting issues relating to children. Both continually raised on the Order of Business the need for this Bill, which assisted me in getting it this far. It is important legislation and is a huge step forward for children and young people. It indicates that the Government and the House recognises the need to do more for children.
I intend to move immediately to establish the office. I envisage that children will be involved in the appointment of the ombudsman to ensure he or she can relate to children, listen to them and act on their behalf. I am confident the office will help highlight to a greater degree for children and young people their rights and needs and that it will work effectively with public bodies. It will ensure we continue to put pressure on those bod ies to fulfil their statutory duties and that the Government continues to invest in them to provide the resources for young people which are badly needed. While recognising that a great deal has been done, a great deal needs to be done if we are to protect not just the current generation but future ones.
I thank the officials in the Department of Health and Children and other Departments who had an input into this. It is simple but major legislation and a great deal of work was done on it, especially with the Attorney General's office. I thank those with whom I have worked in a wide variety of areas in child care which link into the legislation. Tá súil agam agus sinn ag teacht chun deireadh na Dála seo go mbeimid go léir ar ais anseo chun níos mó a dhéanamh ar son páistí.
I welcome this important legislation and am glad it has been dealt with in this Dáil. The office has the potential to be a powerful voice for children. It is important it is well resourced and staffed and that it receives the support from Government it needs.
I hope we do not see too many letters from Ministers vetoing investigations by the ombudsman. I am not happy with that part of the legislation. Deputy Shortall and I highlighted a number of areas where the legislation could have been strengthened. We also highlighted the exclusions about which we are concerned. I have no doubt that, as the office develops and as we learn from the experience, changes will be made to the role and remit. It is important the office is being established. I join the Minister of State in thanking the officials. A great deal of work is done behind the scenes on legislation such as this.
I am delighted the Bill will be on the Statute Book. Never was an ombudsman for children more needed in a country which is ten to 20 years behind other European countries which have this position in place. The office has the potential to be a powerful voice in a country where children have not been centre stage, as is evidenced by the information we have about child abuse in residential centres and by the shortage of places for troubled teenagers and young people. We see a chaotic and understaffed service having difficulty delivering services to children.
The Bill is important because it will create a place where children's needs will be centre stage and it will influence policy and practice. I congratulate the Minister of State on bringing it through the House.
I welcome the passage of the Bill and commend the Minister of State and her officials for the work which has gone into its preparation. The Office of Ombudsman for Children has the potential to be an extremely powerful one. The extent to which it will be depends on two factors.
The first is the calibre of the person appointed as ombudsman. We have discussed this and it is self-evident in many ways but it is critical that the person appointed understands children and their needs. That might be a simple thing to say, but there are many people, sometimes in senior office in Departments, who are far removed from where children are at. A good academic and service record does not necessarily guarantee that a person will be good in dealing with children's issues. The selection of the person is critical.
The other point is that the office will only be as effective as the extent to which it is resourced. We all accept, irrespective of political differences, that a vast amount of work remains to be done in terms of upholding and protecting the rights of children. Our record over many years has been abysmal in this area. There are major issues relating to children, especially those classified as disadvantaged, where we do not provide the type of protection and services they require. It could be argued and the case has been made that there was a better protection service ten years ago because there were public health nurses, parents were more involved in the rearing of their children and there was a greater sense of community. Much of that has been lost and for that reason many children are being left to their own devices and are in serious danger of neglect or abuse.
A vast amount of work remains to be done. We have a poor history as a country in the area of children's rights. We have much ground to make up and I hope the new ombudsman will play a key role in bringing our services up to a modern standard which will ensure children's rights are protected.
Question put and agreed to.