Child Care (Amendment) Bill 2009 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

Special care involves the civil detention of a child in the interest of his or her welfare and protection in a special care unit where educational and therapeutic supports are provided to the child in a secure environment. Special care is provided where it is in the best interests of the child, and as a last resort, when other forms of residential or community care are considered to be unsuitable. The objective of special care is to provide a stabilising period of planned care, which will enable a child to return to less secure care or to return home as soon as possible.

During the period of special care, the child and his or her family, are supported by a range of staff including social care workers, social workers, psychologists and teachers who work to achieve the objectives set out in the care plan specifically developed for the child. The special care may include medical and psychiatric assessment, examination and treatment, as appropriate.

The Children Act 2001 amended the Child Care Act 1991 to allow for applications for special care orders to be heard at District Court level. The High Court, under its constitutional power of inherent jurisdiction, is currently hearing applications for children to be detained for special care to be provided to them by the HSE. The objectives of the Child Care (Amendment) Bill 2009 are to amend Part IV(A) of the Child Care Act 1991 to allow the Health Service Executive to apply to the High Court for special care orders to detain children in need of special care services. The Bill sets out the processes to be followed from consideration of the child for special care, the application for the order, the hearing of the case, the granting of the order, the care of the child under the order, right through to the discharge of the order. The Bill also provides for the dissolution of the Children Acts Advisory Board in accordance with Government policy in regard to efficiency savings and the ongoing need for the rationalisation of State agencies.

Part 1 of the Bill comprises sections dealing with short title, collective citations, commencement and definitions. Part 2 provides for the amendment of the Child Care Act 1991. In this respect, the Bill provides, that in determining whether a child requires special care, the HSE must be satisfied the behaviour of the child poses a real and substantial risk to his or her life, health, safety, development or welfare. The HSE must assess the child's care requirements and be satisfied that care other than special care cannot address the child's needs. The Bill provides for the HSE to consult with the child's parents, or a person acting in loco parentis, and also to convene a family welfare conference. The HSE may decide not to consult with the child’s parents, or a person acting in loco parentis, or not to convene a family welfare conference where it is satisfied that to do so is not in the best interests of the child. Where the HSE applies for a special care order without having carried out the consultation or not having convened a family welfare conference, it shall inform the High Court of this and the grounds for not doing so. The Bill also provides that the Health Service Executive will be required to publish procedural guidelines for carrying out consultations and convening family welfare conferences.

The Bill allows the Health Service Executive to apply to the High Court for a special care order for a child between the ages of 11 and 17. If the High Court grants the order, the Health Service Executive will provide special care to the child who will be detained in a special care unit.

The Bill also provides for various circumstances where the child is, or has been, the subject of criminal proceedings, including provisions whereby the Health Service Executive may apply for a special care order, or may continue to provide special care, where a child has been charged. The Health Service Executive may also apply for a special care order for a child who has been found guilty or convicted of a criminal offence and where, following that conviction a custodial sentence has been imposed and that sentence has been served.

Similarly, the Health Service Executive may apply for a special care order or may continue to provide special care where a suspended custodial sentence has been imposed on a child, the making of a children detention order has been deferred or has been suspended, or a Children Act order has been made in respect of a child.

However, the Health Service Executive shall not apply for a special care order where a child is remanded in custody, or where a custodial sentence is imposed on a child, and if these arise while the child is the subject of a special care order the Health Service Executive shall apply to the High Court to discharge it. The Health Service Executive is also obliged to make arrangements to allow the child to meet with any person for the purpose of his or her representation and for the child's attendance in court in respect of any criminal charge.

As mentioned earlier, special care is providing a child with care which addresses his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare. Special care also addresses the child's care requirements. It includes medical and psychiatric assessment, examination and treatment and educational supervision. While such care is provided in a special care unit, it may include the release of the child from the unit during the period of the order. The Bill provides that where the Health Service Executive considers such a release necessary, it is required to apply to the High Court to vary the special care order to authorise the release of the child from the unit.

The Bill provides that such releases may be for placing the child in a children's residential centre or for permitting the child to reside with a parent or a relative for a specified period, or to provide medical or psychiatric examination, treatment or assessment and also for educational and recreational outings from the special care unit. Releases may also be to allow the child reside with a parent or a relative who resides outside the State or to provide medical or psychiatric examination, treatment or assessment to the child outside the State.

The Bill provides that where a special care order has effect, the Health Service Executive shall have the like control over the child as if the Health Service Executive were a parent of that child and may do what is reasonable to promote and protect the child's health, development or welfare and the Health Service Executive has the authority to decide on the special care to be provided to the child. The Bill, in section 23ND, restates provisions in the Child Care Act 1991 in respect of the authority of the Health Service Executive to give consent to any medical or psychiatric examination, treatment or assessment in respect of the child. An amendment has been made to section 23ND of the Bill, during its passage through Seanad Éireann, the effect of which is that while the Health Service Executive can give its consent, it does not affect the validity of any medical treatment decision which can lawfully be made by the parents, guardians or the child. The Health Service Executive is also given the authority to give consent to the application for and issuing of a passport for the child.

The Bill provides that a special care order shall cease to have effect when a child attains 18 years of age. The High Court, in any proceedings under this Bill, is required to have regard to the rights and duties of parents whether under the Constitution or otherwise, and to regard the welfare of the child as the first and paramount consideration and, as far as is practicable, to give consideration, having regard to the child's age and understanding, to the wishes of the child.

The High Court may order that the child be joined as a party to the proceedings and may make an order appointing legal representation for the child. Costs and expenses incurred in the proceedings on behalf of the child shall be paid by the Health Service Executive. The Bill provides that where the child is not a party to the proceedings the High Court may, where it is satisfied that it is necessary in the child's interests, appoint a guardian ad litem for the child. A guardian ad litem shall promote the best interests of the child and, in so far as it is practicable, having regard to the age and understanding of the child, shall convey the views of the child to the court. Costs and expenses reasonably incurred on behalf of the guardian ad litem shall be paid by the Health Service Executive. The High Court has discretion to appoint legal representation for the guardian ad litem.

The Bill provides that a special care order may be up to three months duration. The High Court, on the application of the Health Service Executive, may extend the period of the order by up to three months. Only two such applications to extend the period of the order may be made. The High Court in granting an extension must be satisfied that the child is benefiting from the special care being provided, that the risk of harm to the child posed by his or her behaviour continues to exist, and that the child requires the continuation of special care.

The Bill provides that the High Court will undertake a review, in each four week period for which the special care order has effect, to consider whether the child continues to require special care. The court will take account of the assessment of the child's care requirements and the child's need for special care which the Health Service Executive is required to undertake while the child is in its custody. On foot of a review the High Court may vary the special care order and may make other provisions or directions.

The Bill provides that the Health Service Executive may apply to the High Court for an interim special care order. An interim special care order may be for a period of up to 14 days, including any period which has been granted on foot of an ex parte application for an interim special care order. The Health Service Executive can apply to extend the period of the interim special care order by up to a further 21 days. Only one such extension may be granted.

The Bill provides that an ex parte application for an interim special care order may be made to the High Court by the Health Service Executive. Such an order may be for a period of up to eight days and cannot be extended. When granting an interim special care order on foot of an ex parte application the High Court sets a day, no more than eight days later, for which the hearing of an application for an interim special care order is returnable to the High Court. This hearing is on notice to a parent having custody of the child, a guardian or a person acting in loco parentis and the child’s guardian ad litem.

The High Court may make an order for the purpose of executing a special care order directing a person, having custody of the child, to deliver the child to the custody of the Health Service Executive or directing the Garda Síochána to search, find and deliver the child to the custody of the Health Service Executive. The Bill provides that the High Court may issue a warrant authorising the Garda Síochána to enter, if needs be by force, any house or other premises where the child is thought to be for the purpose of executing a special care order.

Where the High Court makes a special care order, it may, in the interests of justice or the protection of the child, give directions in respect of a named person or persons, which may include a parent, a guardian or a person acting in loco parentis, in relation to the withholding of the special care unit’s address and the access by a particular person or persons to the child while the child is in the special care unit.

The Bill provides that the Health Service Executive may enter into an arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit by a service provider from the private or voluntary sector. Where such an arrangement is made, the special care unit will be subject to any standards and any regulations under the Health Act 2007. In addition, the Health Service Executive is required to supervise and monitor the special care unit under such an arrangement. Where a child is placed in such a special care unit, he or she remains in the custody of the Health Service Executive. The person with whom the arrangement is made cannot apply for a special care order or related orders and the Health Service Executive remains responsible for dealing with any subsequent court proceedings in respect of the child.

The Health Service Executive may release a child where he or she requires immediate medical treatment, assessment or examination, or where the release is required immediately on compassionate grounds. Where this occurs the Health Service Executive is required to inform the High Court as soon as possible.

In respect of court proceedings provided for under the Bill, notice shall be provided to the parent having custody of the child, a guardian or a person acting in loco parentis and to a guardian ad litem, and where the Bill provides for the proceedings to be instituted by any of the foregoing, the Bill allows for notice to be provided to the Health Service Executive. However, where it is considered to be in the interests of justice and the best interests of the child, the High Court may direct that notice not be given or make other provisions in this regard as it sees fit.

Where the High Court makes an order under the Bill directing a person who has custody of a child to deliver the child to the custody of the Health Service Executive, and the person fails or refuses to comply with the order, or removes a child from the custody of the Health Service Executive without lawful authority, that person shall be guilty of an offence and be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding six months or both. Proceedings in respect of these offences will be heard in the District Court.

The Bill provides that where a special care order or an extension of such an order is appealed, the High Court may direct the order to be stayed pending the hearing of the appeal. The High Court may discharge or vary a special care order and may give directions or make an order on any question affecting the welfare of the child as it thinks proper, on the application of the Health Service Executive, a parent of the child, a guardian of the child, a person acting in loco parentis or on its own motion.

The Bill provides that proceedings in relation to special care orders shall be heard otherwise than in public. Subject to a direction of the High Court, the Health Service Executive shall, during the period of special care, take all reasonable steps to locate and provide a parent and a guardian or a relative with relevant information relating to the special care and the child's care requirements.

The Bill provides that a parent of a child who is the subject of a special care order, a guardian or a person acting in loco parentis or who has a bona fide interest in the child, may request the Health Service Executive, in writing, to carry out an appraisal of the child in respect of the special care provided to him or her, the child’s care requirements, the behaviour of the child before the provision of the special care and the risk such behaviour poses to his or her life, health, safety, development or welfare. Where the HSE decides not to carry out an appraisal, it shall notify in writing the person who made the request of the reasons for its decision. That person may appeal the decision within 14 days of being notified. The appeal will be heard by an independent person appointed by the HSE with the consent of the Minister for Health and Children. The HSE will issue guidelines on the procedure to be followed in respect of an appeal. Either the person who made the request or the HSE may appeal on a point of law to the High Court against the decision. A decision of the High Court on an appeal shall be final except that, by leave of the High Court, an appeal from the decision of the High Court shall lie to the Supreme Court on a specified question of law.

The Bill provides for an amendment to section 12 of the Child Care Act 1991. Currently, a garda can enter a building without a warrant if there is not sufficient time to make an application for an emergency care order and there is immediate and serious risk to the health or welfare of the child. The effect of the amendment to section 12 is that a garda who believes there is an immediate and serious risk to the health or welfare of a child can also enter a building without a warrant if there is not sufficient time in the circumstances to obtain a warrant under section 35 of the Child Care Act 1991 to execute an order which has been made by a justice directing that a child be placed or maintained in the care of the HSE.

Part 3 of the Bill provides for the amendment of the Children Act 2001. The Bill provides that a family welfare conference which is convened by the HSE shall consider whether the child requires special care and shall also consider other forms of care which may meet the needs of the child. The Bill also provides that family welfare conferences should be conducted in a manner consistent with fairness and natural justice, and should include a procedure for consulting with the child and for ascertaining the wishes of the child in respect of whom the conference is convened.

Part 4 of the Bill provides for the amendment of the Health Act 2007, which applies the inspection provisions of that Act to special care units.

Part 5 of the Bill provides for the dissolution of the Children Acts Advisory Board. The Children Acts Advisory Board was established under Part 11, section 225 to section 244, of the Children Act 2001 and it has functions as set out in the Child Care (Amendment) Act 2007. In the context of the need to rationalise State agencies, many of the functions of the Children Acts Advisory Board have been subsumed into the Office of the Minister for Children and Youth Affairs. I am satisfied there will be virtually no loss of functions resulting from the disestablishment of the board as much of its work will transfer to my office. For example, my office currently promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children — functions which were carried out by the board until now.

Two of the Children Acts Advisory Board's functions relating to special care for children are not being subsumed by my office, as follows: first, publishing criteria, in consultation with the HSE, for the admission to and discharge from special care units, pursuant to section 227(1)(c) of the Children Act 2001, and, second, giving views on any proposal of the HSE to apply to detain children for the purposes of providing special care, pursuant to section 23A(2)(b) of the Child Care Act 1991. These functions were provided for in the context of applications for special care orders being heard in the District Court. It may be argued that the non-continuance of these functions may impact on children who are the subject of applications for special care orders and their parents. However, the current Bill provides that the High Court will have statutory jurisdiction to decide on applications by the HSE for special care orders. This is a high but appropriate level for such cases given that the effect of a special care order is the civil detention of a child.

It is considered that, given the high level and nature of this jurisdiction, there is no need to specifically provide for the Children Acts Advisory Board functions I mentioned previously that are not being subsumed into my office. Also, the HSE has in place an admissions and discharge committee which examines all proposed applications being considered by the HSE for the detention of children for the purposes of providing special care services. Furthermore, the Child Care (Amendment) Bill 2009 will provide for the HSE to publish guidelines in respect of the procedures for the discharge and release of children from special care units and for the provision of care and aftercare to such children.

Part 6 of the Bill sets out transitional provisions on the commencement of the Act.

Last week, I was pleased to launch the Children Acts Advisory Board's research report entitled Tracing and Tracking of Children Subject to a Special Care Application. The aim of the report is to improve our understanding of what happens to children who have been referred to special care and to inform the debate about special care. The recommendations in the report set out, in very concise terms, how special care might be reconfigured by the HSE to deliver the optimal service to children. The report provides an invaluable guide to the realities of special care, how best we can improve its provision and how we can deliver the best possible service to children. It is my view that all parties must learn from this report — both from its findings and its recommendations. It is also essential that the evaluation of both policy and practice is maintained to ensure that children are provided with the optimal care and intervention. In addition, a clear statutory basis to provide for special care is of the utmost importance and, therefore, I commend the Bill to the House and look forward to hearing the views of Deputies.

I am pleased to make a contribution on the Bill. On behalf of the Fine Gael Party, I welcome its entry into this House for debate. It will have the support of Fine Gael on Second Stage, as it had in the Upper House. I wish to flag that there will a number of amendments on Committee Stage which we can debate. I stress that this is a complex and technical Bill. We will have an opportunity to deal at some length with the detail on Committee Stage.

The Bill is very much court-oriented in content. It is somewhat difficult to grasp a sense from this legislation of the overarching direction the Government is taking in respect of child protection. It is the first amendment to the Child Care Act 1991 since the publication of the Ryan report. There is no doubt but that the grave problems in the State's child care services require both a strong and clear vision and a formidable commitment to driving through the reform which is necessary to address the deficiencies and dysfunction, given the extremely serious consequences for vulnerable children in society.

There is something of a contradiction I have found difficult to grasp, particularly in recent times when dealing in some detail with the Minister's portfolio and the departmental portfolio. I have noticed in the House in recent years that, on the one hand, we have, for example, the justified outrage and horror expressed by the Government in respect of historic child neglect and abuse, and, on the other, this is coupled with a certain unwillingness to make the necessary changes to ensure the vulnerable children of today are all properly cared for by the State. There is some level of doublethink which is not morally, logically or legally sustainable. While the appointment by this House and by the Government of a Minister of State with responsibility for children was a positive step in the right direction, given the importance of the issues involved, I believe the position should constitute a full Cabinet post. The scale of the challenge is too great for this post to be a subdivision of another Department — the Department of Health and Children, which is itself beset by myriad complex difficulties and massive deficiencies.

It is not easy to get a sense of the extent of the Government's commitment to child protection. On the one hand, an Oireachtas committee was established with the specific remit of drafting a wording for a proposed amendment to the Constitution to grant children specific rights under the Constitution but, on the other, since that wording was published earlier this year, little action has taken place and a host of obstacles have been cited when we on this side of the House question what the delay might be. On the one hand, reports such as the Ryan report are commissioned and then published while, on the other, facilities such as Ballydowd special care unit continue to be used on a day-to-day basis despite HIQA having declared the unit unsuitable, inadequate and unsafe. On the one hand, the Minister of State, Deputy Andrews, has committed to addressing the lack of social workers but, on the other, a recent HSE report reveals that up to 800 children in the care of the State do not have an allocated social worker. The figure was placed higher, at 912, by the child advocacy group Barnardos last April.

Moreover, the failure to provide for social workers outside office hours is nothing short of an ongoing scandal and a matter that must be addressed as one of great urgency. For some time, the Garda has been warning that the absence of social worker provision outside office hours has created a dangerous situation in which children in need of the greatest care must sometimes spend nights in police station cells, as there is nowhere else for them to go because the Government has consistently refused to provide the vital social worker service and backup that are necessary.

The Minister of State may argue that he is not a magician and cannot solve all of the problems overnight. The fundamental problems that must be addressed are not being addressed. Unsafe special care units cannot remain operational. Children in State care cannot be left without social workers. The neglect of those who require a social worker in the middle of the night cannot continue. The Government cannot continue to stonewall calls for the referendum on children's rights eight months after the draft wording was not only published, but agreed on an all-party basis.

The Bill allows the HSE to enter into an arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit, that is, with a service provider from the private or voluntary sector. Such units are subject to the Health Act 2007 and would be under the supervision and monitoring of the HSE. Given the bleak findings of the recent and many HIQA reports on standards of many care units, however, the provisions of the Bill may be meaningless. At the end of August, HIQA's report into the special care unit at Ballydowd in west County Dublin declared the unit unsuitable, unsafe and inadequate. That report came almost a year after the same body warned that Ballydowd was "no longer fit for purpose". The HSE promised to close the unit, yet it remained open and, to the best of my knowledge, is still operational. How can we be sure the Bill's guarantees that care units will be subjected to agreed standards is anything but meaningless given what is occurring in the State care sector?

When the Minister of State is making his closing comments, will he outline why HIQA was ignored last year in respect of Ballydowd? How can we be sure that any of its warnings will be heeded? What action has he taken since the two HIQA reports on Ballydowd were published to ensure that care units around the country are safe, appropriate and fit for purpose? What are the standards his Department employs in respect of the private care operators? I am given to understand it is relatively easy for anyone to set up as a child care operator in the private sector. One can stick up a plate and advertise one's services. What is the position regarding standards, vetting, suitability and appropriateness? There are certainly deficiencies, to use the Minister of State's own word.

I commend statutory agencies like HIQA and the Office of the Ombudsman for Children for their important work in this area. Furthermore, I pay tribute to the child advocacy groups and their ongoing campaigns to improve State care for children who require such intervention. In particular, I commend them on the essential work they all carry out at the coal face. Their experience and advice are of great assistance to us as legislators when draft legislation such as the Bill before the House is being examined, discussed and amended.

Following the passage of this Bill through the Seanad, Barnardos, the Irish Association of Young People in Care, IAYPIC, and the Irish Foster Care Association, IFCA, continued to express concerns about certain aspects of the proposed legislation. Particular concern has been expressed in respect of section 23ND. The three organisations have sought clarification as to whether the provisions of section 23NF, as they relate to section 23ND, require the HSE to obtain a High Court order before removing the child from this jurisdiction. They believe this is a basic requirement to protect the best interests of any child in special care, subject to removal from the State for the purposes of medical and psychiatric assessment or treatment.

Concerns have been expressed by many experts regarding the Bill's guardian ad litem provisions. The Government promised deliberations on the regulation and expansion of the guardian ad litem services. Progress in this area is moving too slowly, given that provisions for the guardians ad litem were introduced almost 20 years ago in the Child Care Act 1991. The childrens ombudsman’s office and the Children Acts Advisory Board have identified the need for the guardian ad litem to be regulated and for funding and management issues to be addressed. In her submission on this legislation, the ombudsman stated: “Indeed, in the absence of a regulatory structure, it is unclear how the requirements of the guidance with respect to the selection and approval of guardians ad litem, the maintenance and updating of panels of approved guardians and the continuing professional development and training of guardians can be addressed.” Moreover, the ombudsman and a number of expert groups have recommended that the Minister of State remove payment of guardians ad litem from the HSE. Her statement in this respect is worth noting:

In so far as it is possible that there may be a conflict between what is sought by the HSE in the course of care proceedings and what is recommendation by a guardian ad litem, the independence of the guardian could potentially be undermined by the fact that his or her costs are also paid by the HSE. A guardian ad litem’s costs should, therefore, be paid from an independent governmental source with no potential conflict of interest in the case.

The Office of the Ombudsman for Children makes a cogent argument of which I am supportive. I would be anxious to hear any rebuttal by the Minister of State that might be able to persuade me otherwise.

Barnardos and the other groups have sought clarification on whether the proposed changes to section 26 of the Child Care Act 1991 change the current status of guardians involved in special care order proceedings and care proceedings in the District Court. Whether the guardian is considered a party or a notice party to proceedings, Barnardos, the IAYPIC and the IFCA believe the guardian rather than the court should have responsibility for instructing the lawyer to avoid possible interference with the independence of the guardian as a representative of the child. Barnardos and the other groups further recommend that the provision of a guardian ad litem be guaranteed in all cases affecting children subject to special care orders to vindicate the best interests of the child. Will the Minister of State address this recommendation and is he willing to accept it? If not, what are the grounds for rejection?

In the Seanad, concerns were raised regarding what "reasonable expenses" constituted in respect of guardians ad litem. The Minister of State pointed out the need to keep legal costs down, a principle we all support, but such cost savings must be rational rather than blunt. Given his stated desire to keep legal costs down and having regard to the highly court-oriented nature of the Bill, will he outline the extent of the in-house legal expertise available to the HSE? Does the HSE have in-house lawyers to handle cases or is there always a need to hire external lawyers? In this regard, it should be noted that, between 2007 and 2009, the HSE spent €2.4 million on child care cases in Dublin and surrounding areas. The Minister of State must address this matter. On the basis of public expenditure, senior counsel must be approved by the court before they can get an audience. This is State money. Some €300,000 was spent in the Dublin District Court on senior counsel, which I find extraordinary. At the outset I stated that the legislation being piloted through by the Minister of State is highly court oriented so it is timely to consider the management of legal fees within the HSE. What is the position regarding the HSE’s in-house legal advice? Why does it always appear ready to hire external lawyers? There is little point in paying lip service to the concept of keeping down legal costs if they are not being properly managed by agencies, in this case by the Health Service Executive.

In respect of the future development of the court structures an interesting point was made by the Ombudsman for Children who recommended the creation of "a more unified court process at a regional level, with specially trained and properly resourced judicial personnel, looking at the full spectrum of children's care needs". That is a most interesting suggestion. It is not one I believe can be resolved by the intervention of, or even by the recommendation of, the Minister of State with responsibility for children. None the less I ask the Minister of State, Deputy Andrews, to indicate whether he is open to discussing such a proposal with his colleague, the Minister for Justice and Law Reform because it could make a great deal of sense, especially in the context of the technical and complex nature of the sections of the Bill before the House. This proposal or recommendation is worthy of further investigation on the part of the current Minister.

The Ombudsman for Children also recommended to the Minister of State that the Bill be strengthened to guarantee that the voice of the child is heard. The current language of the Bill states that the wishes of the child will be taken into account "in so far as practicable". The Ombudsman for Children has pointed out that the approach being taken is somewhat out of sync with Article 12 of the UN Convention on the Rights of the Child and could be in conflict with said convention. Many of the complaints the Ombudsman for Children receives arise from a failure to take children's wishes into account when major decisions affecting their welfare are being taken. I would like to hear the Minister of State's views on this.

Another issue which has been well aired but not addressed is after care services. This was a point of considerable deliberation in the Seanad where the Minister of State is on record as having stated that only a minority of children require after care. This assertion has been disputed robustly by many groups who work at the coalface who cite their own experience as well as international research supporting the assertion. The need for after care service is dependent on the assessment criteria used. Will the Minister of State be more open to what practitioners tell him about the need for such a service? Letting a vulnerable young person slip through the cracks because of a lack of after care service makes a mockery of all the effort put in while the child was in State care. Advocacy groups state that regardless of their best intentions, foster carers require an after care service for the young people who live with them regardless of how capable such a young person might be. The support may be financial until the young person starts employment or continues to third level education. It may be support in obtaining grants for education or in helping the young person achieve independent living. Many care leavers may not have a strong relationship with their carers and many have limited support from their family of origin. These young people will be dependent on the State. They are dependent on the HSE and social services to enable them make what is a vital transition to independent living. They require support over a number of years to make the gradual transition from dependence to independence. It is essential that these points, which were well made, are taken on board.

The advocacy groups seek amendments to the Bill to provide for appropriate level of after care for all children leaving the care system, depending on their level of need. They describe such a statutory provision as "the best way to ensure the provision of such services consistently across the State". Similarly, the recommendations of the Ombudsman for Children in respect of this Bill place a heavy emphasis on after care, pointing to the potential consequences of an absence of after care for vulnerable children, including basic matters such as homelessness. The ombudsman's submissions remind the Minister that the UN committee on the rights of the child recommended that this State strengthen its efforts to ensure and provide for follow up and after care to young persons leaving care and that attention has been drawn to this issue by the Ombudsman for Children in her most recent submission to the UN committee prior to its examination of Ireland's most recent periodic report.

There is a clear need, therefore, for this matter to be addressed, as there is an urgent need for professional longitudinal studies of children in care to address comprehensively issues, including after care. I am pleased and acknowledge that the Minister of State indicated he is open to commissioning such research. I hope he will. Ultimately, any effective policy is informed by such research which must be ongoing. Policies and practices must be sufficiently flexible to ensure new research-based recommendations can be put into practice efficiently and effectively. I accept that anecdotal evidence on a case by case basis is not sufficient but even if there is no research, that is no excuse for not moving on matters. I ask that the Minister of State undertake the research as he indicated he would so do. In this regard he might elaborate on what he has in mind when he referred to using the "research capacity" of his office for new studies in this area. He made this point on Second Stage in the Seanad but it is not one I saw revisited in the course of the debate. Will he specify exactly what he has in mind in that regard?

I mentioned and acknowledged the very positive and consistent contribution of the child care advocacy groups. In their regard I ask the Minister of State to clarify the level of consultation his Department carried out when this Bill was being drafted with agencies such as those I mentioned. Did his office liaise with the Ombudsman for Children, for example? What level of consultation with stakeholder organisations does the Department generally engage in when drafting a technical Bill with complex wording such as the one before the House? The Children's Act 2001 provides for the promotion of inter-agency co-operation, publishing criteria for the admission to and discharge from special care units as well as guidance on the qualifications and training of guardians ad litem, the organisation of seminars and conferences, conducting research, and providing views on any proposal of the HSE pursuant to section 23A(2)(b), Part IV A of the 1991 Act in respect of special care applications made by the HSE to the District Court for an order to detain a child to provide special care services for him or her.

I ask whether an audit of the board's effectiveness has been carried out. This, indeed, may well provide an opportunity to establish what the board did well, where there was room for improvement and where it failed, because we must learn from mistakes to deliver and provide a better service in the future. The Minister of State, Deputy Andrews, hinted when introducing this Bill in the Seanad that there was some duplication between his Department and the board. I remind him that he said, "My office promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children, functions also carried out by the Children's Acts Advisory Board".

Obviously, with resources being scarce, it is necessary to eradicate any form of duplication so as to ensure that resources are placed into the areas of greatest need and that funding is used effectively in those areas. I would hope the transfer of the functions of the Children's Acts Advisory Board is carried out professionally, with best practice identified and replicated for the future.

Finally, my Seanad colleague, Senator Cannon, stressed the importance of early intervention in respect of troubled children and families. I believe we are all of the view that early intervention in terms of support mechanisms is far preferable to taking a child into care when a dangerous threshold of neglect has been reached. The Minister of State has visited family resource centres in his constituency, as most Deputies will have done. We all agree that their work is very impressive, but there is a challenge for these centres in terms of reaching out to the families that might most need them. I would welcome the Minister of State's views on what can be done to promote awareness of facilities such as family resources centres, and what he envisages for them in the future, with particular reference to ongoing funding and budgetary endeavours.

In conclusion, I broadly welcome this legislation. I look forward to pursuing the detail on Committee Stage and I hope we have an opportunity to reach agreement on the matters of contention that have arisen. The Minister of State might indicate his target timeframe for when the Bill will ultimately be enacted, but there is every reason why this should be on the Statute Book by the end of this year.

I, too, welcome the Bill, but I have a number of issues I want to raise today with the Minister of State. I also have a number of amendments to table, when we get to Committee Stage. The main purpose of the legislation is to provide for a statutory scheme, whereby the High Court will have exclusive jurisdiction in special care cases. This is sensible in so far as it involves amending the original Act while providing a more coherent framework in which to deal with these very difficult cases.

My first point is that it would have been better if we had the bulwark of the constitutional referendum behind us in the context of this legislation. In some ways it is to put the cart before the horse, although we will be introducing a referendum at some stage in the near future, which will put the rights of children into the Constitution, assuming that is what the people decide to do. This is the backdrop from where we should be discussing this legislation, and indeed we can discuss it in that context, knowing what the agreed wording of the all-party committee is. Again, I call on the Minister of State and the Government to inform the public as to when we can expect that the referendum will be put before the people. We need a date as a matter of priority.

The Minister of State came before the Joint Committee on Health and Children recently, where this issue was raised. Deputy Charles Flanagan was in attendance as well. The Minister of State informed the committee that there is ongoing consultation among a number of Departments on how the proposed wording might affect the delivery of responsibilities in their remit, whether education, health or whatever. At that time I expressed some concern, as I do now, as regards my belief that in some cases Departments might be quite conservative when it comes to protecting the status quo. In some ways the representatives of the people across all parties might be more progressive in terms of strongly guaranteeing the rights of children in the Constitution. Again, I wanted to express that view here today. The Minister of State, to some extent, is the guardian of the public representatives in this regard, to ensure that we get a wording which is as strong as possible and reflects all-party agreement as regards amending the Constitution.

The Bill also has to fulfil our obligations under the UN Convention on the Rights of the Child and the European Convention on Human Rights. Indeed, there are number of recommendations from the Ryan report, and others as well, indicating that they are focusing on the issues we are discussing in this legislation. Obviously we are talking about the most vulnerable of children as well as some of the most difficult and chaotic young people in the country. I well understand that it is not an easy area. On the one hand we have to balance the rights of these young people, while providing, too, that the State has an obligation to ensure they are appropriately protected, while others must be protected as well in the context of their detention. I say this because I am aware of the type of chaotic behaviour that sometimes is characteristic of such young people. We therefore have to ensure that the places of detention are appropriately staffed and properly run both in the interests of the young people and the staff, because it is a very difficult area in which to work.

Deputy Charles Flanagan referred to the submission of the Ombudsman for Children, as well as others that we have received from bodies such as Barnardos, Focus Ireland etc., which represent the interests of children in care, specifically. I shall just quote from the submission of the Ombudsman for Children, which I presume the Minister of State has taken into account. I would also ask whether he has met Ms Emily Logan in her office, in the context of the legislation. She said in her submission:

Depriving young people of their liberty for their own protection constitutes one of the most serious interventions the State can make in a young person's life. The making of a special care order is appropriate in only the most difficult cases, where a young person's life, health, safety, development or welfare is at risk.

That comes from the advice of the Ombudsman for Children on that particular Bill. In depriving young people of their liberty in this way, it is essential to ensure the care they receive is appropriate to their needs. Again, I share the concern around the HIQA report on Ballydowd, in particular, and its conclusion that it was unsuitable, unsafe and not fit for purpose. I understand it is still open, but that considerable work has been done in relation to the physical building. Perhaps the Minister of State might clarify the situation. I also understand that, literally, there is nowhere else at the moment that is appropriate for these young people. There must be somewhere, but in the event, it must be appropriate to their needs.

The other two places where they can be detained are Gleann Álainn and Coovagh House. I have some knowledge of the latter because it is in my constituency.

I understand a number of cases have been taken or at least initiated by staff with regard to the behaviour of young people in that place of detention. The facility does not house the numbers for which it is designed — it is about half full generally — and does not appear to be good value for money. I know that such places are extremely expensive to run as they require large numbers of staff as well as experts. However, it is important that we provide for the maximum number of young people based on what was intended and that there is no waste of money. I understand there is quite a high turnover of staff in Coovagh, although I am not sure about the other two centres. My concern is that these are difficult places in which to work. We must ensure that the people working there are appropriately trained, but also that they have the appropriate level of experience to work in those challenging conditions.

In the Seanad, there was some discussion about what exactly happens in these places of detention. In particular, it was felt that there should be a strong therapeutic element to the care provided. On Committee Stage there was a long debate on the language used in the Bill, particularly with regard to whether such children should be referred to as being in detention or in placement, and the Minister of State was somewhat positively disposed towards using the word "placement" rather than "detention", which is used many times in the Bill. I accept that language will not be the determining factor in what happens in these places and in how these children are treated, but it is important. I ask the Minister of State to consider this, because he did have some sympathy for the points that were made by Senators.

I also have concerns about whether the number of social workers is adequate. This is something I have raised many times with the Minister of State, and I know there is a commitment to employ more social workers. The Minister has expressed a strong wish to establish more early intervention facilities for families, and this requires more social workers. If we are to have meaningful early intervention for families, we must have an adequate number of social care workers who can intervene at those early stages. Barnardos is doing good work in this regard in my own constituency, particularly in the regeneration areas. It is tedious and time-consuming work, but the results can be life-changing for young children who are growing up in dysfunctional and difficult families. There is no alternative to early intervention; intervening at a later stage cannot undo damage that is done when children are young.

I have some sympathy with the difficulty experienced by Minister of State in trying to juggle the available resources for all the different elements of support these children need, but we should provide more resources for early intervention. It is not specific to this legislation, but the Bill is required partly because so many children are growing up in very difficult family situations, with older brothers and sisters whose behaviour is not the kind of example one would want to give any young child. I know of many small children in my own constituency who are living in dysfunctional families, and the only hope for those young people is strong early intervention, support for schools and preschools in their areas and, as Deputy Charles Flanagan has just said, support for community bodies such as family resource centres. There are many interventions, funded in a variety of ways — some voluntary, some statutory — but we need to ensure they are supported and they do not fall through the cracks due to the difficult budgetary decisions that will be made in the near future. It is important to have a safety net in the form of a floor below which the level of service is not allowed to fall.

I also have some concern about private providers of care and the need to ensure they are appropriately vetted and up to standard. We are more used to care being provided statutorily through the HSE and other bodies, and there is some suspicion that private providers might not be as effective. It is important that we are absolutely assured they are appropriately vetted.

Deputy Flanagan spoke about the possibility of establishing a separate senior ministry, which is something we brought up before. There is a case for it, at least on a temporary basis. I am thinking back to the time when Mervyn Taylor had the brief of equality and was able to make progress on that agenda over a specific period of time. That ministry no longer exists as a separate ministry, but it allowed for a focus on those issues and there were some fine achievements. The welfare of children is another area that requires a focus over a specific period of time, so that we can learn from the horrific acts that were perpetrated on children, many of whom were in the care of the State — perhaps in religious institutions, but placed there by the State — and many others who were not protected while in the care of their own families. We must focus on ensuring that changes we make to the Constitution, the legislation and other systems are strongly supported. A separate Minister for children would be a positive step in that regard.

A couple of other issues were raised in the Seanad and by some of the bodies that have contacted us, as well as in the House today. I refer in particular to the right of the child to be heard and represented, which was mentioned by the Ombudsman for Children and by Barnardos. The Ombudsman for Children refers to the fact that section 24 of the Bill qualifies the requirement to consider the wishes of the child by stating that such consideration shall be given "in so far as is practicable". The Oireachtas Joint Committee on the Constitutional Amendment on Children, in its proposed wording for the constitutional amendment, recommended the following:

The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including: [. . .]

(iii) the right of the child's voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child's age and maturity.

This is stronger in its wording than what is in the Bill. In addition, Article 12 of the UN Convention on the Rights of the Child provides that "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child". I will be proposing amendments in this regard. It is important that we strengthen the right of the child to be heard.

The UN Committee on the Rights of the Child expressed a concern that the right to be heard was not adequately protected in Irish law and called on the State to ensure that children are provided with the opportunity to be heard in any judicial and administrative proceedings affecting them and that due weight is given to those views in accordance with the age and maturity of the child, including the use of a guardian ad litem as provided for under the Child Care Act 1991. The Ombudsman for Children suggests that we would be more in harmony with the UN Human Rights Committee if we worded that the legislation in that way.

Barnardos has provided us with statistics that reveal a guardian ad litem is appointed in only 25% to 30% of care cases. The charity is in favour of a stronger commitment to the provision of guardians ad litem. I understand it is an assumption in Northern Ireland, England and Wales that such a provision will be made unless there is reason to do otherwise. I am aware that provision has been made for the courts to appoint a guardian but I ask the Minister of State to consider a form of wording that more strongly favours the assumption of such an appointment and ensures that the voice of the child is heard.

The provision on aftercare is very important and needs statutory support within the legislation. I am aware that guidelines are in place and understand the HSE is developing national standards on aftercare but while this is welcome, there is no commitment on putting in place a dedicated budget. Aftercare should be included in the legislation as a statutory right. Some 5,419 children are in care at present, or double the number of 20 years ago. Research by Focus Ireland suggests that two thirds of young people leaving State care experience homelessness in the subsequent two years. Focus Ireland has been campaigning strongly for the statutory right to aftercare. It has found that many young people pass through various homeless services after they leave the care setting and need the outreach support that aftercare can provide.

Homeless agencies in the Dublin area are undergoing an extensive reorganisation of services, including aftercare. Focus Ireland is involved in this reorganisation. A number of cases have been highlighted in this House involving individuals who have died or became dependent on drugs. Many other young people live despairing existences with little support from anybody. Aftercare is important to these individuals, who in many cases have moved from placement to placement and who lack confidence or a positive self-image as a result of being taken from their parents and put into care. When they leave care, they need certain supports that may not be required by an 18 year old who had the benefit of growing up in a happy family.

I will be tabling amendments to the Bill on behalf of the Labour Party, some of which arise from the debate in the Seanad. The Minister of State accepted one or two Seanad amendments and expressed his agreement with other proposals. I am concerned to ensure children's voices are appropriately heard in court proceedings. I am probably the only speaker thus far in this debate who does not have legal training and I realise the legislation is quite complex. However, it is a duty of the courts to ensure young people's voices are heard when their futures are being decided. The other issue concerns what happens to these young people in the care environment. We must be able to provide for their needs in a way that gives them a chance to live a normal and fulfilled life. In many cases, that involves proper aftercare. I will not be opposing the Bill on Second Stage but I will be proposing amendments.

I will be sharing my time with Deputy Blaney, by agreement.

I welcome the opportunity to contribute to this debate. Like Deputy O'Sullivan, I do not have legal training but, while complex legal issues arise in respect of the Bill, it should not be seen as necessarily technical in nature. The facts that underpin the requirement for this legislation are common and recognised by all of us in public life who come across tragic circumstances on an almost daily basis. Social dysfunction in many areas generates problems that are manifested in the destroyed lives of young people. It is incumbent on us to protect children. The appointment by the Government of a Minister of State with special responsibility for children is a long overdue recognition of the importance of this area and I am sure future Governments will continue to work to meet the needs of children. For far too long, children's interests were brushed under the carpet and it is only now we see the disrupted lives that result from cruel treatment at the hands of those who failed to meet their responsibilities. It is important that we continue to develop legislation in this area.

The Bill before us further enhances the protection of children, particularly as they relate to the responsibilities of the HSE and the State. The Minister of State has outlined the main provisions of the Bill in regard to inherent powers, emergency interim care orders, guardianship issues, civil proceedings, conflict between civil and criminal proceedings, special care orders, quality in special care units and the Children Acts Advisory Board. I agree with Deputy O'Sullivan that we should concentrate our resources on aftercare because it is vital that children who have passed through the machinery of the State have available to them a proper programme of reintegration which would allow them to live independent lives. All children should be given the capacity to provide ultimately for themselves and live normal lives, notwithstanding the traumas they may have experienced. The importance of aftercare services for young people leaving the care of the State is widely recognised.

Aftercare is highlighted as a key element of achieving positive outcomes for young people leaving care. I am aware that children in residential care or detention often come from a background of social disadvantage and emotional trauma that most of us could never comprehend. We must ensure that such children do not experience further disruption and instability as a result of coming into the care of the State. Even though we might recognise the benefits brought about by State care, it can be difficult for children to accept that or comprehend what is involved, considering the trauma and disruption in their lives, often at the hands of abusive parents.

As policy makers and service providers, our joint aim has to be to make sure that when young people leave care and detention systems, they are in better circumstances than when they first arrived into care. We must ensure that children and young people are provided with the support they need on leaving that care. Where children benefit, they may become somewhat dependent on that care, so there should be a process of acclimatisation for the children when they leave care. We must ensure they are provided with the support they need, and the implementation of an effective aftercare policy strengthens the position of young people leaving care. It supports their transition to independence and reduces the possibility of homelessness and social exclusion.

I am aware that the Minister of State met with Focus Ireland this year. I understand that he had a constructive exchange of views on aftercare, particularly about the organisation's concerns with the current regulatory position and service delivery. I do not think we can underestimate the role of NGOs in this area and the important work they do in providing benefit to these children. We have to recognise the expertise of NGOs and figure out how to harness that in a way that benefits the children.

Preparatory work for the Child Care (Amendment) Bill 2009 has been beneficial in identifying options that may be available to address the issues of aftercare. The Minister of State has given consideration to the options proposed to address the provisions of aftercare services, particularly the legal position on the provision of aftercare services in respect of the existing legislation. I commend the Minister of State for the open and transparent way he has gone about his business. He has taken an inclusive and consultative approach to his deliberations, and the Bill before us, which is not being opposed by the Labour Party, indicates the consultative nature of his approach. Nobody has a majority of wisdom when it comes to dealing with sensitive social issues. It is clearly important that we continue in that vein and try to find a consensus on the best way to deal with important matters.

Aftercare service has been subject to uneven delivery across the country in the past. That was highlighted in the Ryan report and efforts have been made to ensure that the delivery of aftercare is standardised and in line with the recommendations of that report, provided by the health care teams from the HSE. The report of the Commission to Inquire into Child Abuse states that the "provision of aftercare by the HSE should form an integral part of care delivery for children who have been in the care of the State, and it should not be seen as a discretionary service, or as a once off event that occurs on a young person's 18th birthday". It is vitally important that whatever mechanism is in place, it has to continue in some kind of supportive role and ensure that while a child might require a special care order and a period of detention, that would only be one aspect to the care. We must then find a path to reintegrate the child into society, run in parallel with other State provisions that are there in a way that acts as a kind of crutch to assist the child in becoming a more rounded citizen with the capacity to live independently. It is easy enough to talk about this challenge here, but in practice each child's needs are unique to the individual concerned. Care has to be unique to those needs, and this poses the greatest challenge.

I often despair when I read commentary in the media that seeks to pour scorn on the Minister, the Government or the HSE when referring to children in care. The commentary seems to suggest that children in care are the same group of people with the same issues and that it should, therefore, be possible to develop a method of care that can be repeated for each child. That is not the case. Every child's problems are different and so it is not enough to apply a body of evidence to each individual case. At best we have a framework that tries to identify the problems and in so far as possible, find a resolution. However, it is not possible to get through to the child in some cases and to prevent the child developing a criminal background, but we must provide the best possible support to the child concerned.

The report refers to the necessity for the HSE to ensure the provision of aftercare services for children leaving care in all instances where the professional judgment of the allocated social worker determines it is required. It states that the HSE should, with their consent, conduct a longitudinal study to follow young people who leave care for ten years, in order to map their transition into adulthood. The HSE and the Department of the Environment, Heritage and Local Government will review the approach to prioritising identified "at risk" young people leaving care and requiring local authority housing. It is important to ensure that these children are facilitated within communities. There is a role for the Department of the Environment, Heritage and Local Government and local authorities to ensure that appropriate housing is available in a way that benefits the community, so that the children have the support of an appropriate community setting.

Some of the social housing operators in the UK try to build an appropriate model that takes people from different backgrounds and tries to include care for children who have come from difficult backgrounds and settling them in areas where there are older people who will assist them in developing life skills. That kind of inclusive model needs to be examined here.

Youth homelessness has evolved from children who come from difficult backgrounds. The Government has shown significant commitment to tackling this and the youth homelessness strategy that was launched in 2001 gives effect to this. The strategy provides a framework for youth homelessness to be tackled on a national basis. The HSE has led responsibility for the implementation of that strategy and it prepared a detailed action plan to address youth homelessness, in line with objectives set out in the strategy.

I thank the Minister of State and his Department for their ongoing efforts on behalf of the children of this country. I look forward to the development of legislation that seeks to ensure that we never see the depravity of the past in the care of the State and delivers the appropriate protections for our children in the future.

Thank you, a Chathaoirligh, for allowing me to speak on this Bill tonight.

This Bill relates primarily to the circumstances surrounding application for special care orders and issuing of same. Unfortunately, special care orders are a requirement of modern society. While I say unfortunately, I also acknowledge the services dedicated to caring for those children affected by special care orders. We must be very grateful to have such services.

There have always been families in trouble, families that require assistance with children and families that are simply unable to cope unassisted or unable to cope at all. In these circumstances, the HSE becomes of vital assistance to society. Traditionally, social services were viewed as a last resort for families in trouble — the kind of people one would not want involved with one's children or family. Thankfully, those views have been changing, although perhaps some would say not quickly enough.

The intervention of the HSE or social services should be viewed as a helping hand for those finding it difficult to cope. This is slowly becoming the case. We, as a society, however, still have some way to go to accept this fact and to making the child our primary concern. Thankfully, the days of pushing things under the carpet are disappearing. In our modern society, we are well aware of the difficulties facing children and we must provide ultimately for their protection as required.

Child safety and protection must always come first, regardless of the adults who may be involved. For me, the one profession which stands out is teaching. We see it as being there to provide an education to young people. The teaching profession plays a major role in shaping children for the society of the future and trying to make them role models for their communities. Perhaps at times we do not give it enough appreciation for the work it does and the load it carries in providing a service over and above the education requirements.

I wish to highlight the work of many of those involved with the HSE in caring for children in trouble, whether a responsible teacher, a nurse, a caring individual who alerts the HSE to children in need of attention, social workers who make the initial contact with the family in trouble, psychologists, therapists, medical professionals who provide tremendous assistance and treatment, foster carers who provide a vital service, or residential care workers who do tremendous work in caring for children in need of guidance and supervision. I commend the work of many gardaí who deal with vulnerable children each day, mostly under the radar and often in very difficult circumstances. In many cases they provide untold assistance to the HSE and social services. There have been too many cases in our history of children being mistreated and the measures introduced in the Bill are vital. I encourage the continuation of the process.

This Bill deals with children between the ages of 11 and 17 whose needs cannot be met through community or residential care assistance. Special care orders are a last resort in the interests of the safety and protection of the child. That is the important message. This Bill deals comprehensively with the process in regard to special care orders as a whole, from consideration of the child for special care through to the application for a special care order to the discharge of the order.

I commend the Minister of State on his endeavours with this Bill to ensure that all the child's needs are met, including health, safety and education needs. I am very much aware of how well the Minister of State equipped himself before introducing this Bill. He has met many care groups and youth groups in my constituency and has taken on board many views. I do not believe my constituency is different from any other.

A child being placed in special care deserves an opportunity to experience things in life that previously were not afforded to him or her. These vulnerable children deserve a second chance and it is our duty to ensure they get a second chance. It is vital that serious measures are adopted to ensure children proceed to a safe and protected environment subsequent to the discharge of a special care order. It is essential that no child leaves special care with the same problems as entering it, or with even worse problems. With compounded problems, many supports and measures are required post special care.

I am pleased this Bill deals with children who may require detention in a special care unit for their own safety but who may also be subject to criminal charges. It is vital these children are not solely left to the rigours of the law and are taken under the wing of the HSE, even in the event of a criminal charge or prosecution. It is imperative that such vulnerable children do not fall between two State agencies but rather face the rigours of the law while also being protected in many other ways by the HSE.

Many families require support from the HSE and social services. Some are wise enough to seek it but others have it visited upon them. Perhaps a role for us as legislators is to end the stigma. While it has been somewhat diluted compared to a decade or two decades ago, the stigma still exists in some quarters. We must send the message that social services do not exist to attack a family or children but simply are a support measure for the health and welfare of the children involved.

Some children slip through the net and those who do require the most focus at this stage. Many children do not get a fair start in life and require attention. This Bill deals effectively with those suffering from severe hardship and I commend the Minister of State on his continued sterling work in child protection. There are many facets of child protection and much work has been done in recent years to ensure the system identifies these children as soon possible.

There will always be a case for more supports and more intervention in some circumstances. It is worthwhile acknowledging how far we have come while looking at what can be done in future. We, as a society, must share responsibility for child protection, whether families, neighbours, friends, teachers, gardaí and others I mentioned. We, as legislators, must continue to provide the framework for society to carry that responsibility effectively, and this Bill does just that.

I welcome the opportunity to speak on the Bill and I thank the Minister of State for his contribution which outlined the principles behind it. The points I wish to raise will not be new to him and I commend him on taking an interest in them. He is the first Minister of State I have encountered who has taken a genuine interest in the issue of separated children. These children are in HSE care and in residential facilities.

When we talk about legislation which will put new provisions in place for the care of very vulnerable children and children coming from very difficult circumstances, it is important we review what is going on currently in regard to vulnerable children in the care of and who are the responsibility of the HSE. The agency has failed to acknowledge its failures in the care of separated children. I question how we can introduce more legislation giving further responsibility to the HSE when it has failed hundreds if not thousands of children in the system.

Going over some notes before coming into the House, I came across an article from June of this year which highlights the problem we face. The headline read: "Missing Minors traced to Chinese Restaurateur." The article stated: "Gardaí are to recommend a wealthy Chinese restaurateur be charged with the trafficking of several Chinese children who disappeared from state care at accommodation hostels for unaccompanied boys and girls in the past few years."

Gardaí had raided three restaurants in July 2009, including a very popular high end restaurant, after receiving intelligence that some 34 missing children had been in contact with this particular businessman. I commend the Garda Síochána on the work it has been doing in that case and many others which are extremely complex.

The gardaí in this particular case had identified that the individual had not paid tax since he had opened his restaurant in 2002. That, in itself, raises other issues that must be addressed regarding the resources and the focus that has been put by the Revenue Commissioners on some of these operations. As we are aware, it can be very difficult to secure convictions for trafficking but there are other ways people can be prosecuted under other legislation. I raise that case because there are huge difficulties in securing convictions in regard to the victims of trafficking, especially children who are being trafficked.

I raise a case going back to 2008 that I have raised here on numerous occasions regarding a young Nigerian lady, Joy Imifidon, who was picked up in a brothel in Kilkenny city. She came before the courts in July of that year. In court the detective garda who was investigating the case stated: "We are worried that she may be a minor and a victim of human trafficking." The judge in the case said that there was a possibility that the woman was in fact a minor and was vulnerable. She was brought to the Dóchas Centre in Mountjoy Prison. She came back before the courts, was placed in the care of the Health Service Executive and subsequently disappeared from that HSE accommodation. In terms of her disappearance, no charge has been made or conviction secured in respect of the brothel in question regarding the trafficking of children for the purposes of sexual exploitation.

My point is that not only are we ignoring these children and leaving them in very vulnerable positions but we are also allowing the abusers to get away scot free because we are putting the children back into the same dangerous position from which they came. It allows the traffickers to pick up the children again and re-traffic them. As a result of that it is extremely difficult to secure convictions and without securing convictions this country will never be able to send out a message that this jurisdiction has a strong and severe attitude in terms of prosecutions for people involved in the exploitation of children.

Child trafficking is a reprehensible business but, sadly, it is on the increase. As the Minister is aware, the statistics that have been provided to me by the HSE clearly show that the trend has been growing in recent years and that is has not been reducing. Report after report has been produced regarding the use of Ireland as a springboard into industries that are involved in the exploitation of children either for labour or sexual exploitation.

A report was produced which stated that the easiest trafficking route into the United Kingdom for children is through Ireland. One particular report pointed out that since 2004, some 330 children have been known to have been trafficked into the UK through various routes via Ireland. That is believed to be only the tip of the iceberg yet this issue has been ignored continually by the HSE. The HSE has stated that many of these children have been rescued from desperate circumstances, yet it took until earlier this year for the HSE to even publicly acknowledge that there is a problem with the way it is caring for those particular children.

The legislation before the House is providing for a special care order and gives control of the care of the child to the Health Service Executive. In effect, the HSE is taking on the role and responsibility of a parent. I must question whether the HSE is the organisation to do that when a report from the Ombudsman for Children has been critical of the way separated migrant children have been treated in care and the fact that more than 500 separated children have gone missing from HSE provided accommodation since 2000, over 440 of whom still remain missing, and no one is asking what happened to those children and what is being done to address that problem.

Since taking office the Minister of State has begun to implement policy to ensure that the hostel accommodation currently in place for these children will cease by the end of this year. The Minister, in his response, might update the House on the progress he has made in that regard. I hope that significant progress has been made.

The Minister of State is also aware that there is a commitment in the national children's strategy to appoint a guardian for separated children because the reality is that no one is asking questions when these children disappear. If a guardian is appointed who is prepared to ask the tough questions of the HSE, the practice of these children disappearing into thin air might cease once and for all.

The policy has been put in place, and I acknowledge the work the Garda and the HSE have done in establishing a protocol for children who go missing but that protocol was to be reviewed last October. The last time I checked with the HSE the review had not even commenced. That does not show the level of priority that should exist in regard to 500 children going missing from HSE accommodation.

That is the reality of what is happening currently regarding HSE run and supervised accommodation. Children are disappearing from that accommodation. A commitment should be given to put protocols in place to ensure that when those children go missing, the gardaí are informed. It is surprising that the gardaí are not informed in some cases but that is the reality of what has happened and, as the Minister is well aware, of the 500 children who have disappeared, some of them are not even on the missing children website run by the Garda. The Garda Ombudsman has highlighted that specific issue and has said that an explanation should be provided as to the reason those children are not on the missing children website. We still have not had an explanation in that regard. Twelve months after that review was supposed to have happened, I am not sure it has taken place or whether the changes have been implemented.

I am still for waiting for answers to questions I submitted last July on the issue of separated children. This is not acceptable. We are being asked in this Bill to give more powers to the HSE, similar powers to those it has with regard to separated children, despite the fact it has failed that cohort of children. One must ask whether the HSE should be given the authority to take responsibility for children who are extremely troubled, come from difficult backgrounds and will require a significant amount of care and attention when children from vulnerable situations outside of this country who arrive and present themselves on our shores evaporate into thin air or end up in brothels where they are abused. Gardaí pick them up in these situations and they go before the courts and the judge, who believe they are vulnerable children who have disappeared from HSE provided accommodation. Serious questions must be asked in that regard.

As the Minister of State is aware, last December 12 months he gave me a commitment in this House that he would deal with the issue. I accept his bona fides on the issue, but in the six months following that commitment more children had gone missing than had gone missing in the previous 12 months, but towards the end of the year matters improved. Hopefully, when I eventually get the statistics for the current year — whenever the HSE decides to give them to me — we will find that the situation has improved this year.

The Minister of State mentioned in his contribution the appointment of a guardian ad litem and how important that is with regard to care and provision for children, to ensure their best interests are protected. He also mentioned that he is committed to the appointment of a guardian or adviser for migrant children, but this person may not have the same legal standing as mentioned in this Bill. That does not make a significant difference. What we need to ensure is that an advocate is appointed who will ask the questions, such as should a vulnerable migrant child disappear from HSE accommodation. We need to have someone who will ask the questions and find out what is being done to find such children and ensure their best interests are protected. The skin pigment of the child should not matter. If the child is vulnerable, he or she must be protected, must have adequate legal representation and have suitable care accommodation, education, language support and health care provision. This is crucial.

The HSE's record with regard to these vulnerable children has been appalling, yet we are now being asked to give additional powers to the HSE in the matter of another vulnerable cohort of children in this country. Two wrongs do not make a right. There is an onus and responsibility on the HSE to get its act together with regard to children for whom it already has overall responsibility on a day to day basis. The HSE is de facto the parent of those children and should surely get its act together in that regard before it takes on additional powers. I question whether the HSE should take over this role and look forward to the Minister of State’s response.

I would also like a response from the Minister of State on the issue of children who were, in the past, placed in psychiatric hospitals. Some of those children with an intellectual disability still remain in psychiatric hospitals. I hope expedient progress is being made that will deal once and for all with this situation and that we create an effective inspectorate to deal with residential facilities for all persons with a disability. A number of children with profound intellectual disabilities are in residential care and it is important their rights are protected and that they are not left vulnerable to exploitation just because they cannot put the questions or advocate for themselves. Previous speakers mentioned the lack of an adequate out-of-hours service and we have had numerous examples of situations where the system has failed to provide social service supports that back up the Garda Síochána. The Garda is not a child minding service for vulnerable children.

With regard to the issues raised concerning the children to be provided for by this Bill, it is pointless to enact this legislation unless there is a clear commitment that the required resources will be put in place. In the current economic climate, it is difficult to see how the Government will implement the provisions unless it provides a specific ring-fenced budget to ensure the legislation is implemented. It is important the resources are made available for this cohort of children from challenging backgrounds. As we all know, if we do not deal with the issues raised, the cost to society will be astronomical. It makes more sense in the short term to deal with the challenging behaviour of these individuals rather than leave it to be dealt with by the prison system down the road.

An issue that came to a head this past summer is the issue of the children who were used in vaccine trials in the 1960s and 1970s while in residential care. As we are aware, this issue was referred to the Laffoy commission, but because of court determinations the commission did not investigate it. However, the Department and the commission has a significant amount of documentation relating to the vaccine trials that took place and the background to those trials. I have raised this issue at length previously, but I urge the Minister of State to contact the officials involved in the Department and ensure that all of the available documentation regarding the trials is put into the public domain. If, for some reason, some of the information cannot be put into the public domain, the Minister of State should, perhaps, allow a senior counsel to review all of the files and produce a report. This would help provide some answers regarding the exploitation of those children. The issue arose in the public domain during the summer. All these people want are answers and explanations. That is the least they deserve.

The issue of child care and the lack of such care is evident all around us. Unfortunately, most of the exposure on the issue in the media is of the bleaker, more violent and abusive aspects of childhood for many children. While we all aspire to an ideal of child care and protection, reality is far from the ideal outcome described in the textbooks. This Bill proposes to amend the Child Care Act 1991 and the Children Act 2001.

Given the problems with child care in this State, such an amendment would not be before time. Now that it is before us, it fails to meet the more pressing needs relating to child care and this is most frustrating for those engaged in this sector.

Debate adjourned.