Amendments Nos. 1 and 2 are related and may be discussed together by agreement.
Child Care (Amendment) Bill 2009 [Seanad]: Report and Final Stages
I move amendment No. 1:
In page 5, line 22, to delete "and44” and substitute “, 44 and 46”.
These are technical amendments. Amendment No. 1 is required to include a reference to section 46 in the collective citations. Amendment No. 2 is required to provide a collective citation in respect of the Adoption Act 2010 and section 46 of this Bill, which relates to adoption. The amendment was brought forward on Committee Stage.
This is a technical amendment with which I have no difficulty and I thank the Minister of State for considering it.
I move amendment No. 2:
In page 5, between lines 27 and 28, to insert the following:
(5) The Adoption Act 2010 andsection 46 may be cited together as the Adoption Acts 2010 and 2011.”.
Amendments Nos. 3 and 9 are related and may be discussed together by agreement.
I move amendment No. 3:
In page 8, line 35, to delete "detention" and substitute "placement".
The word "detention" in the legislation is significant and we believe it has a harsh ring. The word is used 70 times in the Bill. We are keen to have our amendment accepted by the Minister of State on the basis that "placement" is a more child-friendly term rather than "detention". It seems inappropriate to refer to detaining children, as the Bill does several times. Originally, we had suggested using the word "rehabilitation". On Committee Stage, the Minister of State appeared to be somewhat sympathetic to using the word "placement". I hope that given the discussion on Committee Stage and the Minister of State's views, he might be amenable to considering the Labour Party amendment in a positive way.
I share the view of my colleague, Deputy Jan O'Sullivan in many respects. As I suggested on Committee Stage, we should move away from such words as "detention", "being detained", "detention orders" and "places of detention" and we should look more towards phrases such as "safety" and "security". This is why such wording as "secure care" and in this case "placed in secure care" is preferable to phraseology and language such as "detention", which has penal or custodial connotations rather than such terms as "safety", "security", "help", "assistance" and "care". It is important to move from language that might be described as both obsolete and outdated and, in many cases, unfair.
I heard what the Minister of State had to say on Committee Stage but I am not convinced by his arguments. I call on him once again to be mindful of the importance of language which stresses care, security, assistance, welfare and protection rather than orders and detention. I call on the Minister of State to consider my proposal. In the event that he does not accept my wording, I have no difficulty with the wording put forward by my colleague, Deputy Jan O'Sullivan.
I join with my colleagues who have already spoken on this matter to commend the wording offered by Deputies Jan O'Sullivan and Kathleen Lynch. We must remind ourselves the Bill is entitled the Child Care (Amendment) Bill 2009. As has already been well put, language of the type used in this legislation, that is, detention, suggests punishment and a punitive situation and it should not be within the construction of legislation geared towards child care. This is something we must take on board. Without labouring the point, it is within the gift of the Minister of State and his section in the Department to accede to the collective and unanimous appeal of Opposition voices, to accept the alternative wording offered and to examine the legislation with regard to any other presenting objectionable terminology which does not reflect today's more advanced and, therefore, more correct, thinking in respect of how we and the State relate to children in all situations that present. I commend amendment No. 3 and indicate my strong support for the proposal.
I have listened carefully to the points made. As Deputies have mentioned, they were raised on Committee Stage and in the Seanad. As Deputy Jan O'Sullivan remarked, I had some sympathy for that point of view and explored the possibility of making the amendments suggested by her colleague, Senator Alex White. However, our legal advice is that the word "detention" is appropriate give the circumstances of the Bill.
While Deputy Ó Caoláin remarked that it is called the Child Care (Amendment) Bill, this refers to the Child Care Act, which covers everything including special care, the matter under discussion today. Special care is a unique form of care whereby a child is detained for his or her safety and security under a special care order. It is a unique form of care for very vulnerable children. Our advice is the use of any other word would likely mislead or make the position uncertain for courts, the HSE, parents and guardians.
Currently, the High Court orders which provide for special care are called "detention orders". Successive court judgments have used the term "detention". Judgments have been clear in their distinction between detention in a special care facility and detention under criminal statutes. In terms of special care and judicial review proceedings, the use of the term has not connoted any criminality on the part of children.
When I visited Ballydowd special care unit last September I spoke with some of the children there. They pointed out to me that they were aware they had not done anything wrong. For all their serious shortcomings, HIQA inquiries into special care ensure children are aware of their status and their right to have their views advocated while they are in special care. I understand the concern Deputies have expressed and why the term might carry some stigma. However, there is a requirement for legal certainty and to distinguish between ordinary child care and special care. Children in special care appear to be well aware of their status and the fact that they have not done anything wrong. This is why we argued against the idea of rehabilitation, because there is nothing to rehabilitate if they have not done anything wrong. Rehabilitation is part of the criminal justice system and sentencing would be associated with criminal statutes.
Regarding the proposed amendment of section 23A, it will be noted section 3 of the Children Act 2001 defines a "children detention order" as having the meaning assigned to it by section 142 of the Act. This provides that an order may be imposed on a child for a period of detention in a children's detention school. The amendment seeks a change to the definition of a "children detention order" and the advice is it would cause some confusion.
It is for these reasons that I am not accepting these amendments.
I am disappointed the Minister of State is not accepting these amendments, particularly in view of his comments on Committee Stage.
Language is important in this issue because it involves children. The concept of a child being detained or being in detention has connotations of restraint and punishment. Why not use a more child-friendly term like "placement"? It is a neutral term which reflects that a child has been placed rather than detained.
Children in such cases have very special needs and a relatively small number require the care in question. However, the language used in describing this care is important for the children's self image and how others see them. It can also affect their chances of being able to rebuild their lives. In most cases, the children in question have come from families in which they did not have the same supports most other children have. That is why they end up in such circumstances. We do not want to add to their difficulties by using language which has negative connotations and which may make them feel worse about themselves and cause them greater difficulties. I am disappointed the Minister will not accept the amendment and I urge him to reconsider it.
While I do not intend to delay the proceedings of the House, it is not good enough for the Minister of State to say legal advice is as follows and he is relying on it. Will he elaborate as to why incorporating the term "placement" is deemed by his legal advice as inappropriate and against the letter of the legislation?
This is not just a case of the Opposition making a point. Various submissions, which I am sure the Minister has seen, from a wide range of NGOs and advocacy groups, such as Barnardos, the Irish Association of Young People in Care and the Irish Foster Care Association, have stated the language used is of some significant concern. The word "detention" is associated not only primarily, but also exclusively with criminal proceedings and the criminal justice system. In securing, assisting and caring for children and their needs, we should be moving away from language associated with the criminal justice system, crime and punishment. Will the Minister of State explain in more detail the reasons the terms used in these amendments are so repugnant and unacceptable?
I agree with Deputy Jan O'Sullivan that language is important and that at times its use has had an impact on improving social rights and the attitudes people have to minorities.
Under the current legislation, children are held under detention orders. This Bill changes this to being detained under a special care order. It would be misleading to talk about this as other than detention. The child will be under a special care order for his or her safety and security and will not be free to go as in a high-support unit. The language has been carefully selected to reflect the true position.
I have sympathy with the Deputies' point but in practice the children in question know their status and that they are not being punished for any wrongdoing. A central principle of this legislation is to ensure children have that knowledge and awareness and they can be helped in securing their lives. Each special care order must be reviewed every four weeks in the High Court.
A unique feature of this legislation, which has not been pointed out enough in debate, is that it will not be enough of an excuse for the Health Service Executive, HSE, to claim it cannot pursue a special care order in the case of a child going through the criminal justice system. Up to and including a child getting a sentence short of actual detention, the HSE can still pursue a special care order. The HSE and the criminal justice system absolving themselves of or avoiding taking responsibility for a child in such circumstances is eliminated by this key feature in the legislation.
Amendments Nos. 4 and 10 are related and may be discussed together.
I move amendment No. 4:
In page 45, between lines 20 and 21, to insert the following:
"where an order to that effect is made by the High Court pursuant to section 23NF,".
This amendment concerns the HSE having the authority to give consent to the application for, and issuing of, a passport to a child or the provision of passport facilities to a child for various purposes which may involve a child having to move outside of the State. My amendment seeks to have such a process require a court order. This matter was raised by Barnardos which felt vulnerable children in such circumstances needed such a level of protection.
We are determined that this should be copperfastened by making it necessary to obtain the approval of the court. This is for the protection of the child concerned and it will ensure that the court will be satisfied there is a valid reason and that it is in the interests of said child to be removed from the jurisdiction. The amendment is self-explanatory and I hope the Minister of State will consider it.
We discussed the matter to which amendment No. 10 relates on Committee Stage. I would have expected that the Minister of State would have given it some consideration in the interim. I am of the view that the powers bestowed upon the HSE under this part of the Bill are wide-ranging in nature and, in some instances, are too far-reaching. As a result, it is important that a mechanism which would give the court a say and which would limit the powers of the HSE — particularly in instances where there is no requirement on the latter to apply to the court to dispense with the matter of parental consent — be put in place.
This is an important issue and I hope the Minister of State is in a position to engage with us in respect of it. Amendments Nos. 4 and 10 are in the best interests of the child. If the Minister of State does not propose to accept them, as they stand, perhaps he might put forward either a form of wording or a solution that will deal with this important issue.
What these amendments seek to achieve is already achieved in the legislation. Both amendments are concerned with the process of a child leaving the jurisdiction in accordance with section 23NF, which states that the HSE may apply to the High Court to vary a special care order to authorise the release of a child for the purposes set out. However, the High Court must authorise, through varying the special care order, the release of said child from the special care unit for the purposes set out. In the absence of such authorisation or if the High Court did not vary a special care order accordingly, the HSE could not release a child from this jurisdiction in order that he or she might receive medical treatment or to allow him or her to reside with a parent or relative. While, under the legislation, the HSE may apply to the High Court, the actual authority to make a variation to a special care order to allow a child to leave the jurisdiction lies with the latter. The policy intention which the Deputies have attempted to capture in the wording of these amendments is already intrinsic to the Bill.
Barnardos was certainly of the view that the position in this regard was not laid out in sufficiently clear terms in the legislation. I share that view. I am not a legal expert but the position would be much clearer if the amendments, as proposed, were accepted. One hears of many situations where, for one reason or another, children travel outside the State. The courts have the responsibility for protecting the rights of children and there should, as a result, be absolute clarity in respect of the authority of the courts in this regard.
I do not understand why the Minister of State cannot accept an amendment which would make this matter clear beyond all reasonable doubt. I accept his statement to the effect that the legislation implies the position. However, I am of the view that legislation — particularly that of the type before us — should make matters crystal clear. There cannot be any doubt whatever with regard to the meaning of the legislation. If such doubt exists, then the interpretation of the legislation will be argued about in individual court cases. That is not what we are seeking in the context of the rights of children. We must ensure that such rights are clearly laid out in legislation passed by this House.
Amendments Nos. 5 to 8, inclusive, and 13 are related and may be discussed together.
I move amendment No. 5:
In page 45, between lines 42 and 43, to insert the following:
"(2) Without prejudice to the obligation of the Executive to have regard to the views of the child, bearing in mind the child's age and understanding, prior to taking steps under this section, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the child does not consent.".
The matter to which these amendments relate was the subject of detailed discussion both in the Seanad and on Committee Stage here. Essentially, it concerns having the views of the child, bearing in mind his or her age and level of understanding, taken into account prior to any steps being taken under this section. I refer, in particular, to any steps which might be taken in circumstances where the child does not consent. Again, this is both self-explanatory and important.
In the past harrowing reports have been compiled in respect of various cases involving children. In the cases to which I refer, the voice of the child was not heard. The various reports to which I refer all contained recommendations to the effect that it was extremely important for the voice of the child to be heard. The most recent and most harrowing of these reports was that relating to the case in Roscommon. In that instance, it was clear that the children involved had not been able to express, from their perspective, what was happening to them in a situation where adults, parents or others were not present. I accept that the situation we are discussing in the context of the Bill is completely different but the principle is the same, namely, that a child's voice must be heard in the context of his or her welfare. It is obvious, however, that various matters, such as his or her ability to express himself or herself, his or her age, etc, must be taken into account.
This is an extremely important principle in any legislation relating to children. The Minister of State appeared to be particularly sympathetic in respect of it, particularly during the debate in the Seanad. A number of amendments relating to this matter — some of them are similar — have been tabled. There is virtual unanimity among the Opposition parties in respect of this issue. I hope, in the context of these amendments, the Minister of State will listen to the collective voice of those in opposition.
I am anxious to hear from the Minister of State with regard to any deliberations or reflection in which he has engaged since this matter was debated on Committee Stage. The amendments raise a number of important points, particularly in the context of the voice of the child, the importance of consent and the fact that all decisions should be taken following careful consideration and should be in the best interests of the child. I hope the House will not divide in respect of these important amendments. If he is not in a position to accept them, perhaps the Minister of State will indicate how he proposes to deal with the concerns that exist. The concerns to which I refer are both genuine and significant and I hope it will be possible for them to be met before our deliberations on the legislation are completed.
It is interesting that the two previous speakers stated that the voice of the child must be heard. We are of one mind on this issue. It was addressed in an extremely careful manner during the course of the deliberations of the Joint Committee on the Constitutional Amendment on Children. It is important to point out that the voice of the child must not only be heard, it must also be listened to.
Amendment No. 6 in my name reflects the points raised by Deputies Jan O'Sullivan and Kathleen Lynch in amendment No. 5 and Deputy Charles Flanagan in amendment No. 8. The need to make provision in respect of this matter is self-evident. I urge the Minister of State to accept amendment No. 6, which is in line with that with which he previously indicated he is at ease in respect of this issue. Amendments Nos. 5, 6 and 8 address a significant gap in the Bill which was identified by those who work on the front line in this area. The Government must listen to the concerns expressed by those to whom I refer.
In the past harrowing reports have been compiled in respect of various cases involving children. In the cases to which I refer, the voice of the child was not heard. The various reports to which I refer all contained recommendations to the effect that it was extremely important for the voice of the child to be heard. The most recent and most harrowing of these reports related to the Roscommon case where it was clear that the children involved had not been able to express, from their perspective, what was happening to them in circumstances where adults, parents and others were not present. I accept that the situation here is completely different. However, the principle is the same. It needs to fill the legislative gaps and the gaps in service provision accordingly because, clearly, there are consequences in this regard. Its outworking must be appreciated and committed to. Without further ado, I hope the Government agrees to adopt the constructive group of amendments being presented, although I am particularly interested in amendments Nos. 5, 6 and 8. Accordingly, I commend the amendments to the Minister of State.
I agree the views of the child should be regarded prior to the HSE taking steps under section 23ND, which includes provision where a child requires medical treatment while subject to a special care order. I brought forward an amendment to the Bill on Committee Stage to insert a new subsection (3) in section 23ND, the effect of which is to ensure that any consent to medical treatment which would have been effective if we had not included the provision which gives the right to the HSE to consent would still be effective. Thus, the HSE's right to consent does not affect the validity of any medical treatment decision which would lawfully be made by any other person who had pre-existing power of consent.
It will be noted that section 3 of the Child Care Act 1991, as amended, provides that, in the performance by the HSE of its function to promote the welfare of children, it shall "in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child". That section 3 has the same effect as the proposed amendments. The HSE is also charged with promoting the welfare of the child under section 23ND, which states the HSE "shall do what is reasonable, subject to this Part, to promote his or her health, development or welfare and protect his or her life, health, safety, development or welfare, having regard to all the circumstances of the child".
With regard to involving the courts when the child is not consenting to the steps being taken by the HSE, to include a statutory provision to involve the courts every time there is a disagreement could well defeat the purpose of special care. It must be remembered that children who are the subject of special care orders require care which addresses their behaviour and the risk of harm it poses to their life, health, safety, development or welfare.
The proposed amendment to section 24 of the Child Care Act 1991 is to delete the words "in so far as practicable". This section, as amended by section 10, relates to proceedings before the High Court dealing with special care orders. The section requires that in such proceedings the High Court shall regard the welfare of the child as the first and paramount consideration and in so far as practicable give due consideration, having regard to his age and understanding, to the wishes of the child. The phrase "in so far as practicable" is included as there are situations where it is not practical or possible to have regard to the child's wishes. In addition, it must be borne in mind that these cases are being heard at the high level of the High Court, which is statutorily charged to regard the welfare of the child as the first and paramount consideration. It is for these reasons that I will not accept the amendments.
The Minister of State has given some comfort in so far as he has outlined areas where the welfare of the child is required. My concern is that in these situations it is important that we push to the maximum in terms of the voice of the child being heard, primarily given the experiences of the past, where these kinds of enabling terms were used but in practice were not implemented. These children are already in quite a powerless situation. The kinds of situations we are discussing concern what is beneficial to the child where the child needs medical or psychiatric assessment or examination. Where possible, it is important that these children are empowered to at least have their voices genuinely heard as opposed to a position where they may or may not be taken into account.
While I take some comfort from what the Minister of State has said, I would prefer that the wording we have suggested is included in the legislation. It would bring the balance a little more on the side of the child rather than on the side of those who are detaining the child.
That would broadly summarise my position. We are not making much headway in terms of any accedence on the part of the Minister of State to the very carefully considered amendments the Opposition voices are offering. I find it difficult to accept we can settle for something that may not measure up to what amendments Nos. 5 to 8, inclusive, seek to achieve. I am discomforted by it to the point I would ask what would be the net result if a Deputy wished to press his or her amendment at this point in time.
That can of course be tested.
I would have expected the Minister of State to have availed of the opportunity since Committee Stage to come back with a form of wording that would meet the concerns of the Opposition Deputies, and it is regrettable he has not done so. I do not believe he has reassured those Deputies, including myself, who have put forward amendments that the points raised by us are either already covered or are superfluous or inappropriate. Far too often, legislation becomes reliant upon phrases such as "in so far as practicable". It is in such situations that the State is often absolved of what should be in all circumstances a duty or responsibility. Such language is too often used in legislation to allow the State an "out" which will ultimately give rise to situations where children are not only in a position of vulnerability but will, in effect, suffer.
To give reassurance, in every case in which a special care order is sought, a guardianad litem is appointed in respect of the child. The guardian ad litem is effectively a witness who will outline the views of the child and also outline what, in his or her view, is the best interest of the child, which, naturally, could be two different things. In practice, the views of the child are always before the court.
As we have already pointed out, we are dealing with a statutory process that is overseen at all times by the High Court. I understand the Members present wish that to be the case and it is currently the law that the HSE in its function must promote the welfare of the children and "shall" have regard to the voice of the child. However, there are situations in which it would not be practicable, for whatever reason, particularly in the medical treatment situation, to obtain the view of the child. Nonetheless, at all times a guardianad litem is appointed to give voice to what is in the best interest of the child in the opinion of the guardian ad litem.
While the HSE is routinely assumed to be up to something, trying to dodge responsibility or being inefficient, my experience of social workers is that they have the best interests of the child in their minds at all times. However, that is also balanced by the service that is provided on behalf of the child by the guardianad litem in every single case in which a special care order is sought.
If what the Minister says is the case, and this happens anyway, why not incorporate into the legislation what, in effect, will be a statutory guarantee for the provision of the guardianad litem? There are some cases where, to my mind, it does not happen. I want a statutory guarantee that there will be the provision of a guardian and that such a provision is necessary to protect the best interests of the child. That is the net point. The Minister of State claims it happens anyway. If that is the case, why not incorporate it?
It happens anyway but it remains at the discretion of the High Court. In fact, the High Court, which retains that discretion, allows for a guardianad litem in every case — that is the current state of the law. The Deputy asks why we do not order the High Court to appoint a guardian ad litem.
There may well be certain circumstances where the High Court, at its own discretion, would deem that a guardianad litem is not necessary. In affording the High Court the same discretion it enjoys in many other types of administrative law, we have reflected the possibility that a situation may arise where that discretion is not exercised.
We would not have tabled these amendments on Report Stage if we did not consider them important. Therefore, I will press amendment No. 5. The Minister of State has said we can test the system, and we certainly will test it before we conclude this debate.
I move amendment No. 6:
In page 45, between lines 42 and 43, to insert the following:
"(2) The Health Service Executive shall have regard to the views of the child, taking into consideration the child's age and understanding. Prior to taking steps under this section, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the child does not consent.".
I move amendment No. 7:
In page 45, line 45, after "shall" to insert the following:
"with the consent of either child's parent or guardian, a person acting in loco parentis or the child's Guardian Ad Litem".
I move amendment No. 8:
In page 45, after line 49, to insert the following:
"(3) In any action under this section, regard shall be had to the views of the child having regard to the child's age and level of understanding. Prior to taking steps under this section, the court shall give such directions as are appropriate in the best interests of the child where the Health Service Executive proposes to take steps to which the child does not consent.".
I move amendment No. 9:
In page 46, line 5, to delete "detained" and substitute "placed in secure care".
I move amendment No. 10:
In page 49, to delete line 1 and substitute the following:
"23NF.—(1) For the avoidance of doubt, a child may not be removed from the jurisdiction by the Health Service Executive for any purpose without an order of the High Court providing such authorization to the Health Service Executive.
(2) Notwithstanding the detention of a".
Amendments Nos. 11 and 12 arise out of committee proceedings. The amendments are related and may be discussed together.
I move amendment No. 11:
In page 62, line 16, to delete "a fine not exceeding €3,000" and substitute "a class B fine".
These amendments relate to section 23NP which provides for offences under the Bill. They are required in accordance with section 5 of the Fines Act 2010 which provides that fines between €2,500 and €4,000 are class B fines.
I move amendment No. 12:
In page 62, line 45, to delete "a fine not exceeding €3,000" and substitute "a class B fine".
I move amendment No. 13:
In page 63, between lines 10 and 11, to insert the following:
"(2) Section 24 of the principal Act is amended in paragraph (b) by the deletion of the words “in so far as practicable”.”.
Amendments Nos. 14 to 16, inclusive, arise out of committee proceedings. The amendments are related and may be discussed together.
I move amendment No. 14:
In page 63, to delete lines 23 and 24.
These amendments deal with the appointment, role and function of a guardianad litem who is appointed by the court to ensure the voice of the child is heard in a real and meaningful way. There are some difficulties in regard to the cost of the guardian. As I said on Committee Stage, we should clarify who decides on the matter of costs as incurred by the guardian and the guardian services. If these issues are to be decided by the Health Service Executive rather than the court, there is a perceived conflict.
It is important that there be no such conflict and that the status of the guardian be nothing less than fully understood. He or she is representative of the child's voice. In this regard, we can look to submissions that were made on this legislation but also to national legislation and international instruments such as the Universal Declaration of the Rights of the Child, particularly Article 12 thereof. There must be no confusion such that the position of the guardian is compromised or weakened in any way given that there are occasions when it may be necessary for the voice of the child to be heard outside the remit of the Health Service Executive.
These amendments deal with that perceived conflict which may well give rise to a weakness. Like the earlier amendment, we are dealing with the statutory right of the guardian. That position must be enshrined in legislation in such a way as to ensure the guardian is in no way compromised and that he or she can engage in the type of activity, work and representation that was designed in law to ensure the voice of the child is heard.
The Child Care Act 1991 provides that in care proceedings under Parts IV or VI, where the child to whom the proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the interests of the child and the interests of justice, appoint a guardianad litem for the child. This Bill provides a similar provision in regard to special care. The guardian ad litem provides information to the court on what is in the best interest of the child and what are the views of the child. While guardians ad litem are not appointed in all care cases, they are appointed in all special care cases.
Last year, I launched the report of the Children Acts Advisory Board on guardiansad litem and indicated that application of the guidance document would be closely monitored in terms of how it was working in practice. The Ryan report implementation plan provides that the Minister of State with responsibility for children and youth affairs will engage with ministerial colleagues to agree a future policy of management and funding of this service. I have undertaken consultations in this regard and the process is ongoing.
My office has engaged with the Health Service Executive to map the existing guardianad litem provision, determine costs and establish patterns nationally in regard to their appointment. This exercise is examining guardian ad litem appointments under the Child Care Act 1991 and in special care cases. Until I have been able to assess the impact of the guidelines, the provision contained in the draft Bill should not be changed. However, as I have already stated, once this assessment is completed, required changes in legislation may be considered.
I undertook on Committee Stage to put down an amendment regarding the insertion of a regulating-making power into the Bill. I gave that undertaking, subject to legal advice, having agreed in principle with what Deputy Flanagan was trying to achieve. However, I have been advised that because providing for the regulation of guardiansad litem would have potentially far-reaching consequences, that such regulations would affect the discretion currently enjoyed by the court to appoint guardians ad litem and that it would have the potential to affect the manner in which guardians ad litem currently carry out their function, to regulate as provided by the Deputy can only be dealt with by the Oireachtas by way of primary legislation. It is not possible that such primary legislation would include a regulation creating power to deal with matters of detail — such as the nature of the qualifications and other issues sought to be brought into consideration — but the governing principles and policies must be provided for by way of primary legislation. Thus, this is a matter that cannot be provided for by way of a stand-alone regulation making power in this Bill, as envisaged by the Deputy. The point is that the Oireachtas cannot legislate in this area by enacting a regulation making power on its own. It must also enact a range of measures setting out the principles and policies governing guardians ad litem to which the regulation-making power, if one was required, would play a supporting and implementing role.
Delegated legislation by way of regulations is a necessary part of a modern functioning state, but such regulations must do no more than implement the principles and policies which have been provided for in the primary legislation which is required in advance of such regulations being made. I indicated that I would accept that in principle, but the legal advice is that we require primary legislation in advance of setting out such regulations.
That is most disappointing because it means that this legislation will go through, as indeed have earlier pieces of legislation, without any detail as to the role and function of the guardian or their regulation. I had sought to insert such a provision in amendment No. 16. I listened to what the Minister said and I was optimistic and pleased with his reply on Committee Stage. While not holding my breath, it is most disappointing to learn now that my suggestion was for naught.
I will not press amendment No. 16. While, as the Minster of State rightly said, the 1991 Act provided for the appointment of the guardian ad litem, there was no statutory guideline or format as to the criteria for appointment, training, registration or regulation. That should be done and I would have thought that this Bill was the appropriate vehicle for doing so. It is a weakness in the system not to have it. The Minister of State cited legal advice to the effect that we must have primary legislation in order to do it, but I find that to be both unsatisfactory and surprising. The Minister of State has taken that advice, but God only knows when the next piece of primary legislation might be forthcoming in this area. It is regrettable that, despite his endeavours, the Minister of State could not accept the principle of the amendment on Committee Stage.
While I will not move amendment No. 16, the problem with amendment No. 15 is that without ensuring that the guardianad litem may in circumstances obtain legal advice, there is a weakness in this legislation. That is because the guardian and the legal adviser or solicitor are different people with different training, roles and perspectives. It is asking too much to expect that the guardian ad litem would have the same knowledge of the legislation as a legal adviser. If we are talking about the child’s voice being adequately and properly represented, it is equally important that the guardian should not be burdened by having to understand the complex nature of this body of law. The guardian should be entitled, as of right in circumstances, to have legal advice in cases where it is deemed necessary. Without that the legislation is weak and in certain circumstances the guardian can be placed in a difficult, if not invidious, position.
Does the Minister of State wish to make a further contribution?
Yes. It is the High Court, not the HSE, that decides whether legal representation is provided. That is a high level of supervision of cases like this. That power has served the service well. I did say that I take the Deputy's point in principle and I accept the criticism that we need to define exactly the qualifications, type of registration and supervision of guardiansad litem in this country. It is not acceptable that the HSE is currently paying for guardians ad litem, while very often finding itself at odds with them. One of the tasks that will have to be settled is the actual location of the supervisory body to register and provide for the payment of guardians ad litem. It is absolutely obligatory that this needs to be separated from the HSE. My legal advice, however, is that primary legislation needs to be set out in respect of the policies and objectives concerning that question.
I move amendment No. 15:
In page 64, to delete lines 1 to 8 and substitute the following:
"(a) the guardian ad litem appointed may appoint a solicitor to represent them in respect of those proceedings and give directions as to the performance of the solicitor of his or her duties, which may include, if necessary, having regard to the circumstances of the case, directions in relation to the instruction of counsel, and".
Amendment No. 17, which arises from Committee proceedings, is related to amendments Nos. 18 and 19. All three amendments may be discussed together by agreement.
I move amendment No. 17:
In page 67, between lines 25 and 26, to insert the following:
"22.—Section 45 (as amended by the Act of 2004) of the Principal Act is amended by substituting the following section for section 45—
"45.—(1) (a) Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2), assist him for so long as the Executive is satisfied as to his need for assistance and, subject to paragraph (b), he has not attained the age of 21 years.
(b) Where the Health Service Executive is assisting a person in accordance with subsection (2)(b), and that person attains the age of 21 years, the Executive shall continue to provide such assistance until the completion of the course of education in which he is engaged.
(2) (a) The Health Service Executive shall assist a person under this section in one or more of the following ways—
(i) by causing him to be visited or assisted;
(ii) by arranging for the completion of his education and by contributing towards his maintenance while he is completing his education;
(iii) by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(iv) by providing a residential aftercare programme for him;
(v) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years;
(vi) by arranging for any existing or emerging health care needs to be addressed by appropriate qualified persons;
(b) For the purposes of this section, the Minister shall prescribe the manner in which aftercare is to be provided by regulation.
(3) Any arrangement made by a health board under section 55(4) or (5) of the Health Act, 1953, in force immediately before the commencement of this section shall continue in force as if made under this section.
(4) In providing assistance under this section, a health board shall comply with any general directions given by the Minister.
(5) For the purposes of this section, the reference in subsection (1)(a) to the care of the Health Service Executive includes special care provided under Part IVA (as amended by the Child Care (Amendment) Act 2011).”.”.
This is an amendment of some importance, which was considered on Committee Stage. It is regrettable that the Minister of State did not see fit either to take it on board or amendments Nos. 18 and 19 in the names of my colleagues, which are similar. It is also regrettable that the Minister of State has not tabled a similar amendment at this stage. That is why this amendment is worth putting to the House. We are enacting a piece of legislation without dealing with a most important aspect, which is the after care service plan. I do not wish to rehash any of the issues that were highlighted by Deputies from all sides of the House on Second and Committee Stages.
The reality, however, is that having spent a considerable time in care, too many young people are leaving care without an appropriate plan or level of support for training, housing and assistance for many of the needs young people have if they are to engage with their peers in society. We must bear in mind that these cases, to which after care will be applicable, concern children who have been through the care system. The State has taken upon itself the same obligations to provide for these children up to the age of 18. The evidence suggests that there is serious concern, however. We are all aware from our own constituencies and beyond of the difficult position in which young people can be placed and the real challenges with which they are faced when leaving State care and going into mainstream society.
Regarding foster care, a recent survey shows that almost 30% of members involved expressed serious concern about the future welfare of young people when they move from foster care into society. Without repeating any of the points, it is important that in the move from care and dependence to independence that support services are provided. Otherwise, as we are aware, the criminal justice system becomes involved and young adults face an uncertain future in terms of employment, shelter and after care. It is important that there is statutory recognition of the need to ensure a level of care during that transitional period.
I believe amendments Nos. 17, 18 and 19 are key to this Bill. These amendments address the need for statutory right to after care. I cannot emphasise enough how important I believe that to be. I believe it to be central and crucial to the value of the legislation being considered here this evening.
There can be no valid counter argument to the call for the Health Service Executive to be legislatively required to ensure there is after care provision for young people leaving care at the age of 18 where that care is deemed required. I noted from the Minister of State's earlier commentary that he has suggested only a small minority leaving the care system need such after care. Even if that were the case, and I am not of the view that is necessarily so, it would not be an argument against the placing of a legislative requirement on the HSE to provide after care and to make it a statutory right of all those young people concerned, making it a clear and absolute obligation on the HSE into the future. The Minister's contention that it is only a small minority that need such care does not stand up to scrutiny. The case for a statutory right to after care has been made comprehensively and is irrefutable. I have said in other fora that its absence can only add to the tragically growing numbers of young people experiencing homelessness, addiction and being condemned to a life of misery after they are abandoned — that is not too strong a word to use — by the care system on reaching the new age of majority of 18.
I acknowledge that the Minister of State has ordered a review of after care provision, instructed the HSE to draw up guidelines on the way after care is provided, promised more HSE staff to provide after care and told the HSE that it must provide after care if it has identified that young people coming out of care need it. That is all very well but that leaves a critical fault line in all of this; it leaves the discretion with the HSE.
The Minister maintains there is no need for a legal right to receive after care. I take a contrary view, and I am influenced by a number of commentators and commentary. Focus Ireland has pointed out that a legal right to after care would mean the most vulnerable young people would no longer be at the mercy of the HSE's decisions about what they need. Instead, they would have the right to that after care legislatively enshrined and statutorily enforceable. That is hugely important, whatever number of young people are involved.
The most important intervention in regard to this Bill, and I want to bring it to the Minister's attention, has come from the Ombudsman for Children, and I thank her for it. We talked earlier about listening. I urge the Minister of State to listen to and act on the advice of the Ombudsman who has stated:
The Bill needs to be amended to impose a positive obligation on the State to provide aftercare for every child in care whether they are in voluntary care, or in care under a care order, supervision order or under a special care order at least until they are 21. The care plan for each child should address this issue at least two years before the child's eighteenth birthday and foster care support should be extended to cover the entire period of aftercare of the child or young person. The young person should be involved in the case review of the care plan and his or her concerns should be noted and addressed in the review prior to leaving care. Where special difficulties arise, a connection with an appropriate support agency should be made in advance of the exit from care.
I am anxious to hear the Minister of State's response to Ms Logan's recommendation. It is important that we have a clear understanding of from where the Minister and his colleagues in Government are coming in regard to this area.
I conclude with the observation that, too sadly, we have seen a litany of lives lost and lives condemned to despair post their being placed in care and having reached 18, the age of majority. We must ensure there can be no slipping through the net, that nobody can be lost. Those critical years, having reached 18 years, are hugely challenging. In real terms people are still coming to terms with all the challenges of adult life before them. Without the certainty of the after care and the supports that are needed, the word "abandonment" I used earlier is not an over the top reference in this instance but, all too sadly, an appropriate reflection on what has been happening.
I want to make it clear to the Minister that no matter what pantomime is taking place in any proximity to this institution this evening, I intend to press this amendment.
This is the most important group of amendments in this legislation. We will test the waters and press one or other of these three amendments to a vote.
It will be some vote tonight.
Irrespective of the other matters being dealt with by other Members of this House, the children about whom we are talking here are far more important than the issue being discussed elsewhere. These children are coming out of care and are in a most vulnerable situation. They are falling through the cracks and are ending up homeless, with drugs problems and in all kinds of vulnerable situations. Many of them end up dead, as we know from cases that have been made public. It is not enough that they may have the right to after care. They do have that right. That is why we want to have these amendments inserted in the Bill.
These vulnerable young people cannot be left in any doubt but that they are entitled to this care. We have had representations from a variety of sources including, as Deputy Ó Caoláin said, the Office of the Ombudsman for Children. It is the job of the Ombudsman for Children to advocate on behalf of these vulnerable young people. Deputy Ó Caoláin quoted from what the ombudsman's office has said. I quote from another section of her submission where she states:
It is essential that the State acknowledge that the obligation to provide support to children who are leaving care is no less important in principle than the obligation on the HSE, under section 3 of the Child Care Act 1991, to provide care and family support services to those under the age of 18. This is especially important when one considers the particular vulnerability of children who have been in care and the fact that they are at greater risk than their peers of experiencing difficulties, such as homelessness.
Every public representative knows or has encountered some of these young people, many of whom cannot get into hostels, are drifting from one place to another and have no proper support. Obviously, they do not have family support. They are being thrown out into the world at the age of 18 with no family to support them and with no right to a home or to the ordinary supports that any 18 year old would get from a supportive family. It is vital that we insert this amendment into the legislation.
The UN Convention on the Rights of the Child imposes a duty on the State. In 2005, a committee of the Council of the European Union issued a recommendation to member states on the rights of children living in residential institutions. One of the basic principles contained in that recommendation was that a child leaving care should be entitled to appropriate after care support.
We have a number of international obligations in this regard. However, any of us who have encountered these vulnerable young people and know the situations they end up in, which are so threatening to their lives, health or ability to live any kind of positive life, know that they need more than just the possibility of support after the age of 18. They need to have the right to that support.
It is rare for three parties to agree absolutely on the course of action to be taken. We are a great country for taking absolute positions about children, whether before or after they are born, when they go to school, when they start secondary school or, as in this case, when they reach the age of majority and the State bears no further responsibility for them.
We are enacting this legislation because the State has put itself in the place of the parent. We can talk in legalistic terms about the State's responsibility, the age of majority and whether there is an after care service in some areas. There is a service in some areas and not in others. That is the difficulty we face.
We are putting legislation in place that we are unlikely to come back to in the next few years. Once again, we are abdicating responsibility for children for whom we have absolute responsibility. When I look at legislation of this sort, I ask myself what I would do if it applied to my child. How would I frame this legislation if I were framing it in order to protect my child? What would the Minister of State do if the Bill applied to his child? Would he tell his child to go because he was 18 years old and his parents were no longer responsible for him? I do not think he would.
I am a great believer in the privileged classes. There are two distinct classes. These children fall into the category of those who are not as privileged and do not have the same access as other categories of people. That is why we should be even more careful to legislate to ensure that whatever we can do will be done. It is not enough to legislate that it may be done, but that it will be done. If we are to have a referendum on the rights of the child and if we continue to talk about the child's voice being heard and the child being central to family law and child protection law, why are we still legislating to dump children out of care at 18 and not giving them after care? It is left up to the local HSE areas to decide whether to provide after care.
I live next door to an institution known as the Foyer. It has 12 self-contained apartments for children between the ages of 18 and 25 who are in danger of becoming homeless. This local authority initiative is very well run. It has hiccups from time to time, but one expects that when one is dealing with young people. There would be hiccups in one's own home also. The young people have no absolute right to that care or to live there. If they were not living there they would be on the streets. The 12 young people who live there are extraordinarily lucky. There are hundreds more who do not live there and do not have such a space.
I cannot take seriously any proposal regarding a children's referendum if we continue to legislate to ensure that people do not have a right to after care. I ask the Minister of State to go away and think about this again. When he is framing the legislation, he should ask himself if his child would be safe on the street at 18.
I always think about the children who came out of institutions up to the mid-1970s or early 1980s. I met some of them in England. When they got their feet under them at 16 they made a run for it. They got on ferries and trains in England. How did they manage to avoid the pitfalls ahead of them? They did, but only just. Those pitfalls are still there and this time we cannot use the excuse that we do not know about them. These children deserve our protection and to be protected in the same way as the Minister's children will be protected.
Deputy Lynch referred to the proposed referendum. A child ceases to be a child at the age of 18. The children's referendum does not propose to extend its remit to 19 and 20 year olds.
That is semantics. We are talking about a different category or children.
It is not semantics. No Member of the Oireachtas has proposed that the remit of the constitutional referendum would extend to young adults. I am not having a go at Deputy Lynch. We are dealing with the after care of young adults aged between 18 and 20. The amendments do not deal with children.
After care has been highlighted as a key element to achieving positive outcomes for young people leaving care. After care services have been developed to assist young people in bridging the transition, as Deputies have mentioned. The services are based on the needs and requirements of each individual leaving care. They can provide information on the various items set out in section 45. After care is provided under that section.
The amendments proposed by the Deputies include the amending of section 45 to change the word "may" to "shall", thereby obliging the HSE to provide after care services. The assumption is that the HSE is not so obliged. However, the current legislative provisions have been reviewed and I am assured on the basis of strong legal advice to which Deputy Ó Caoláin referred, that the existing wording in the Act creates a statutory power whereby the HSE as a recipient of this power must put itself in a position where it can exercise the power should the need arise. My legal advice is that this provision places a mandatory obligation to provide——
Who determines the need?
Deputy Lynch's own proposed amendment suggests that the determination of need be carried out by the HSE. This is what the Government——
However, no absolute right to that——
It is a mandatory obligation to provide after care where need has been established for such care on foot of an assessment. In addition, the HSE is under a duty to form a view in respect of each person leaving care as to whether there is a need for assistance and this also constitutes an obligation. The advice is that the request to change "may" to "shall" should not be acceded to, as it is well known that the word "may" in statute often is interpreted as imposing a mandatory obligation.
In order to ensure there was no doubt about the matter and to emphasise the importance of after care services, I issued a policy directive to the HSE in June 2010 clarifying the issue and directing the HSE to formulate and implement after care policies and as Deputy Ó Caoláin has pointed out, that work is ongoing. In addition, following the publication of the Ryan report, the Government published an implementation plan in July 2009, which included a commitment to the provision of after care services. Additional funding of €1 million was provided in 2010 by the HSE to support the provision of after care services and this continues to be available to the HSE this year. I believe that with these initiatives and protocols and a correct legal understanding of the Child Care Act, together with the funding to provide additional staff and better services, we will have better outcomes. It is due to the determination of Deputies and NGOs who have pressed this issue strongly that this is the case. This is a significant reform and constitutes a significant advance on the position as it stood before 2009. I should point out that the Ombudsman for Children's office made a representation in this regard. The recommendation did not have regard to "need", as Deputy Ó Caoláin read it out. It simply was to be provided whether the need arose or otherwise.
I attended the Irish Foster Care Association's conference in Westport last November and one is struck by how foster care is an extremely fulfilling experience for children in the vast majority of cases. Consequently, after care is not always needed in such circumstances. While Members set out in their amendments what is proposed to be done, as I have stated, the current legal position is that it is a mandatory obligation on the HSE to provide after care where the need is identified and this is exactly on all fours with the policy intention behind all these amendments. In response to Deputy Ó Caoláin, I do not suggest that only a small minority need after care but that of the cohorts of children in care, only a small minority of the overall number of children in care are leaving care. While many of them are very small children, only a small number are 17 and are in the process of leaving care. I made this point to emphasise this should not be a huge expense on the HSE because one is dealing with 5,800 children in care at present, of whom only approximately 200 leave care each year. Therefore, it should be possible to establish a world-class after care service in Ireland. The Government is working towards this through additional funding, a clear understanding and the establishment of protocols with the various NGOs.
I wish to make three brief points and am glad the Minister of State adverted to the Ryan report and also spoke of the implementation plan. However, the Minister of State will be aware that specific reference is made in the Ryan report to the vulnerability of young people in the transitional period from State care to independent living, which highlighted a real and serious problem. The Minister of State stated that under the implementation plan, a sum of money was allocated. Why not take the opportunity now to enshrine the commitment of which the Minister of State speaks in legislation and ensure there will be a mandatory level of after care for future reference?
My second point pertains to Question No. 251 of 19 October 2010 tabled in the name of my colleague, Deputy Timmins, on the matter of after care. In a written reply, the Minister of State stated that the Irish Association of Young People in Care, IAYPIC, is currently funded to provide a national after care service. However, this is not correct because the aforementioned body, which engages in good and positive work, only has a remit for the Dublin north-east region. Consequently, it simply is insufficient to suggest that a single after care worker has national responsibility or a national remit and the record should be put right in this regard.
My final point reverts to the initial point I made, which I must stress in the short time available, and which pertains to the current after care services throughout the State. Members present represent different parts of the country and they all know and share a common awareness of the problems in this area regarding the vulnerability of young persons moving from care to independent living because of the haphazard nature and lack of uniformity in the services. The only way in which this can be met adequately is by taking on board the letter and spirit of these amendments.
The Minister of State's observation in respect of the Ombudsman for Children's own arguments and the particular section that I cited is important. In the amendments tabled, it is clear in respect of section 45(1)(a) that what Members seek is that:
Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2), assist him or her for so long as the Executive is satisfied as to his or her need for assistance and, subject to paragraph (b), he or she has not attained the age of 21 years.
The exception to this pertains to educational pursuits already undertaken and they may not have been concluded by the age of 21. However, it is clear that what Members here seek to do is to require the HSE to provide after care where the case is clear and where the need is present, obvious and identified. This would be a hugely important step that would help enormously to avoid some of the serious tragedies of which Members are cognisant, as well as the many of which they are not. I cannot recall the exact phrase but many, on attaining the age of 18, may bolt for the first door that opens and one does not know the direction they take or the story of life that will unfold for them over the following time. Members must ensure that as much as is humanly possible, the State provides for the most vulnerable among our number and these children most certainly are such. Moreover, a number of them will continue, after the age of 18, to require the best supports and guarantees that can be offered to help them face the lives before them.
The Minister of State appears to be stating that in effect, there is an obligation on the HSE to form an opinion as to whether a child needs after care and then there is an obligation on the executive to provide it, if it forms that opinion. However, were that the case, those children who need it would all have after care but they do not. Many vulnerable young people do not have after care, having left the care of the State. It is my firm view that Members must include this provision in the legislation to be able to put beyond doubt that such children are entitled to the care they require.
In reply to the Minister of State, I met a young woman recently who had just come out of care and was reunited with her mother. She assured me her social worker, who was very active with her, was excellent and had been of enormous help to her. The difficulty is that is not always the case and in this Bill we are trying to ensure that is always the experience. The only way that can be done is by enshrining in the Bill that after care shall be provided. In some cases it may not be necessary and people are wise enough to know the difference, but in the event that it is necessary it should be available. The experience of the young woman to whom I referred was good and I hope that if we pass the proper legislation the experience of all young people leaving care would be as good. That is all we are asking for.
I tried to deal with those issues in my first contribution and I reiterate that is an area on which I have done a lot of work. I have tried to push the issue as hard as possible because the one lesson from the Ryan report is that in the history of the State institutional care led to damage to many people in terms of addiction, homelessness, marital breakdown and poverty. If there was any danger that our policies and provision of services today were to repeat that it would be a total failure to learn those lessons. That is why I was anxious to push this issue as far as I could. In ensuring now that there is an absolute understanding among all providers that there is a mandatory obligation to provide after care and a duty to investigate whether that need arises we have pushed this reform to the utmost.
In 2010 we provided for the recruitment of ten additional after care workers, a financial support package for young people moving into after care from foster care, residential care and supported lodgings, the maintenance and refurbishment of existing after care premises and the funding of IAYPIC to develop a national advocacy and support service for young people. I can check the issue raised by Deputy Flanagan in regard to the question to Deputy Timmins.
The Government has maintained foster care payment in each of the past two budgets without any of the reductions which might have been expected, given the other reductions in social welfare. It is an acknowledgement that we are dealing with especially vulnerable group of people and whatever supports we can make available for them are well worth it. I hope the developments which have occurred in this area will be reflected in more fulfilled lives for young people who emerge from care with the challenges they have already experienced in their lives.
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