Child Care (Amendment) Bill 2009 [Seanad]: Report and Final Stages

Bill recommitted in respect of amendment No. 1.

Amendments Nos. 1, 3 and 5 are consequential on No. 16.

Is a grouping sheet available?

I will arrange to circulate the information.

I move amendment No. 1:

In page 5, line 8, after "2001" to insert "; THE HEALTH ACT 2004".

I understand amendments Nos. 1, 3, 5 and 16 are being taken together. Amendments Nos. 1, 3 and 5 are technical amendments to the Long Title and to section 1 and are consequential on amendment No. 16, which introduces a new section, namely section 33.

Amendment No. 16 is to amend Part 7A of the Health Act 2004 and is being proposed in order that I will have the necessary powers under that Act to allow the HSE to furnish, in the public interest, information and documentation to me. The purpose of the amendment is to strengthen the legislative base for the provision of information by the HSE to the Minister for Children and Youth Affairs so as to allow me fulfil my role and functions, including political accountability to the Oireachtas, and to create a safe channel of communication for sensitive information from the HSE to me.

The amendment achieves that by placing a duty on the HSE to provide information on its initiative and without delay to the Minister for Children and Youth Affairs; by giving the Minister for Children and Youth Affairs power to require, in the public interest, detailed information and documentation from the HSE free of legal prohibition, and to use such information and documents as necessary for the performance of my functions; and by allowing the Minister for Children and Youth Affairs to furnish such information or documents that are considered relevant to a person appointed by the Minister for Children and Youth Affairs to examine or inquire into any matter.

The amendment will ensure the HSE keeps me fully informed on all matters of which I need to be aware in a timely and appropriate manner. With the amendment, the HSE must inform the Minister for Children and Youth Affairs without delay of any occurrence or development that, in the opinion of the executive, the Minister is likely to consider significant for the performance of her functions. The executive is required to monitor and keep under review occurrences and developments concerning matters relating to its objective and functions which include child care functions. In addition, it must similarly inform the Minister for Children and Youth Affairs of any occurrences or developments that fall within a class of occurrence or development of public interest or concern that has been specified in writing by the Minister. The power to specify will ensure that the Minister can be kept informed of important issues relevant to the public interest or concern. Following the enactment and commencement of this Part, I will have the necessary powers to fulfil my role and functions should I require information and documents from the HSE.

Amendment No. 1 is the Long Title of the Bill and is required in the context of amendment No. 16 so the Long Title reflects the content of the Bill in respect of the amendment being made to the Health Act 2004. Amendments Nos. 3 and 5 are to section 1 which deals with collective citations. The amendments reflect those changes which are to be made to the Bill and which affect collective citations in respect of the Child Care Acts and the Health Acts.

Amendment No. 3 is to the collective citation for the Child Care Acts contained in section 1(2) of the Bill. The amendment is required to exclude from that citation amendment No. 16, namely, in regard to amending Part 7A of the Health Act 2004, which as previously stated will add a new section, namely, section 33.

Amendment No. 5 is the collective citation for the Health Acts and is required in order to reflect the renumbering of sections, which is required on foot of the aforementioned amendment No. 16. It is a technical amendment.

Perhaps this is not the appropriate time to raise this particular issue, but in the context of the programme for Government there is a commitment to the abolition of the HSE itself. When the Minister amends the Health Act of 2004 to abolish the HSE, will that have implications or repercussions in terms of a requirement for further legislation in this regard to deal with the abolition of the HSE? Is it the case that we are passing legislation that we will be amending again in the near future?

If the legislation underpinning the establishment of the HSE changes, as is the intention of the Government, then clearly further legislation will also be required for my Department. In the meantime we need the powers being introduced until such time as other legislation will be brought to the House.

I welcome the amendment. The issue arose previously in the context of the previous Minister trying to access information from the HSE. The situation became contentious at times which did not look good from the perspective of the public given that the Minister was almost being refused information by a statutory body. Was the abolition of the HSE taken into account in the drafting of the legislation? Given that the change has been signalled, is there a seamless way to proceed rather than going through a detailed amendment process?

The issue arose previously. The Deputy is correct to refer to it. When, for example, an independent review of child deaths was established by the Minister of State with responsibility for children and youth affairs in March 2010 the group was furnished with preliminary information by the HSE but it was refused access to individual case files due to legal concerns identified by the HSE on the provision of information to the group. The Health (Amendment) Act 2010 was enacted to strengthen the legislative basis for the provision of information by the HSE to the Minister for Health. That is the matter to which Deputy Kelleher refers. I need to have the same powers in order to access such information. This is a reflection of the legislative power the Minister for Health already has, which was required at that time to enhance the Minister's ability to fulfil his role and functions, including political accountability to the Oireachtas, and to create a safe channel of communication for sensitive information from the HSE to the Minister. That legislation dealt with the issue at that time and now we are doing the same thing so that I have similar access to information as the Minister for Health. When legislation is introduced to change the function or formation of the HSE then the Bill will require amendment.

I support my colleague. As a Member of the previous Oireachtas I remember the situation and the frustration we all shared, not least the then Minister of State, Barry Andrews. I hope we cover all aspects of the issue. We wish the Minister well and fully support her but I do not wish the situation to arise — we can never say never — where the Minister for Health or the Minister for Children and Youth Affairs comes to the House, with the support of the Dáil, to amend legislation to compel a statutory body to give sensitive and badly needed information. We must be sure. In line with the commitment in the programme for Government to abolish the HSE, we will have to go back to the drawing board, but it is a pity we could not get more clarity on the situation.

I understand and support the objectives of these amendments and I will support them.

I welcome amendment No. 16 and echo the comments of Deputy McGrath about political accountability. We all remember when the last Minister — I mean no disrespect to the individual — was reduced to going on national television to coax the HSE to give him documents that he did not have the legal powers to demand. Once the Department of Children is established, it is important for parents to see that it has teeth and can demand the documents it requires.

To pick up on the points made by Deputies Kelleher and McGrath, while the Government cannot address today in the House the issue of what happens after the abolition of the HSE, it is a cause for concern on all sides. People want to know where child protection will fit in the overall context of the restructuring of our health service. However, that is a discussion for another day. Amendment No. 16 is strong and progressive and sends out a message that this is a new Department with teeth. I commend the amendment.

I welcome the amendment, which deals with an important issue that has been raised by all Members. However, I would like to use this opportunity to stress that there is an onus on the HSE to have the data. Now that the Minister has the power to look for it, I want to ensure the HSE will collect the information we need so that we can make decisions and know exactly what is going on, particularly with regard to the issue of child protection raised by Deputy Harris a moment ago. There is an onus on the HSE to ensure it has the information if the Minister asks for it. It has never been clear what information is available and whether it is being collected. I welcome this amendment but I emphasise the responsibility this confers on the HSE to ensure it is collecting the data, so that when we go to look for it, it will be provided to us.

The collection of data has been a major issue with regard to child protection services generally. What we must achieve is consistency. Gordon Jeyes, the new director of child and family care in the HSE, is determined to ensure this because it is incredibly important. We have inconsistent data, for example, with regard to the reasons children are taken into care. We need to be clear about the thresholds that are being applied in different areas. I had a meeting last week with the regional directors of the HSE, who were supporting the director in this wish, and we are determined to work on this. I emphasised how important it was that we had a consistent approach throughout the country. That is one of the reasons we are introducing a new national guidance document, not just on its own but with an implementation plan.

An implementation plan is vital. We know the guidelines are robust in themselves — any review has found them to be so — but implementation is the key issue. We need consistency of implementation and consistency of data collection. As I have said a number of times in the House, our problem is not too much bureaucracy but the opposite: a lack of consistency in record-keeping, as we saw in the Roscommon report and other reports. We must move to a greater standardisation and consistency while keeping the interests of the child at the heart of everything.

With regard to a number of amendments we are dealing with today, when I am introducing the legislation to set up the child and family support agency later in the year, there will be an opportunity to consider the issues of children who come in contact with the criminal justice system, children who come into care and children who need aftercare. What we want is more of a continuum of care for children who access child protection services or the courts system. The needs of the child should be central in the response. We want a more cohesive approach to children who interact with our services at different points. We will have an opportunity to consider some of the legislative needs when we are establishing the new agency.

Amendment agreed to.
Bill reported with amendment.

Amendments Nos. 2 and 7 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 5, lines 12 and 13, to delete "AND CHILDREN".

These are technical amendments to the Long Title and section 2. The amendments are required to reflect the title change of the Minister for Health and Children to the Minister for Health, which came into effect on 4 June 2011 on foot of an order made under section 6(1) of the Ministers and Secretaries (Amendment) Act 1939.

Amendment agreed to.

I move amendment No. 3:

In page 5, line 22, after "31,” to insert “33,”.

Amendment agreed to.

Amendments Nos. 4 and 6 are related and may be discussed together by agreement.

I move amendment No. 4:

In page 5, line 22, to delete "42 and 44” and substitute “42, 44 and 46”.

These are technical amendments to section 1, which deals with collective citations. The amendments reflect those changes made to the Bill which affect collective citations in respect of the Child Care Acts and the Adoption Acts.

Amendment agreed to.

I move amendment No. 5:

In page 5, line 26, to delete "2009 andsection” and substitute “2010 and sections 33 and”.

Amendment agreed to.

I move amendment No. 6:

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.”.

Amendment agreed to.

I move amendment No. 7:

In page 6, line 5, to delete "and Children".

Amendment agreed to.

I move amendment No. 8:

In page 6, between lines 28 and 29, to insert the following:

4.—Section 3 of the Principal Act is amended by deleting subsection (4).

This amendment relates to section 3(4) of the Child Care Act 1991, which deals with the functions of the Health Service Executive, and connects the Child Care Act with the Health Acts. The reason for the amendment is that in the context of the establishment of the Department of Children and Youth Affairs and the transfer of the Child Care Acts to my Department, section 3(4) becomes meaningless. The Minister for Children and Youth Affairs is not provided for in the Health Acts, and in that regard, the necessary amendment is the deletion of section 3(4). It is my intention to introduce at the earliest possible date legislation to give me as Minister for Children and Youth Affairs the requisite powers and functionsvis-à-vis the HSE to ensure the executive is properly accountable to me with respect to services it provides under the auspices of the Department of Children and Youth Affairs.

Amendment agreed to.

I move amendment No. 9:

In page 8, line 35, to delete "detention" and substitute "placement".

This amendment is representative only, because the requirement would be to amend the reference to the word "detention" no less than 70 times throughout the Bill. I remember that point being made by Deputy Jan O'Sullivan here on 18 January; she had gone to the trouble of counting the number of times the word appeared. Rather than putting in a large number of amendments to achieve this, I am asking that the principle be accepted.

It is important that we recognise what the word "detention" represents to people. If we talk about a child being placed in detention or about detaining a child, there is clearly a broad understanding that this is consequent on some illegal act or misdemeanour on the part of the child. There is a criminal undertone, a suggestion of wrongdoing. That is not what we are dealing with in this provision. We have exercised this argument since January. Then, the consensus between the Fine Gael, Labour and Sinn Féin Members and the non-governmental organisations which had engaged with us about this legislation was that the word "placement" was preferable. Not only did it not have the negative connotations that I have already explained but it was more accurate, fitting and child-friendly.

These amendments have not just landed on the Minister. She can call on a wealth of experience in this regard and she has already raced a considerable part of this track. Back in January, we got to an advanced point with this and other amendments. This issue has been well rehearsed and discussed. There was great disappointment, subsequently, when the proposal was not accepted by the then Minister of State, Barry Andrews. At the time, he agreed with the Opposition that the use of language had an impact and it was important to pay due regard to it.

Rather than citing from the contributions on Report Stage on 18 January, I appeal to the Minister to accept this sensible proposition and amend the remaining offensive references to children in these circumstances as detainees. I hope under this Government that they will not be viewed as such.

I commend Deputy Ó Caoláin for tabling this amendment. I followed the last Report Stage debate on 18 January. We do not want to go into what was said then by Deputies Jan O'Sullivan and Charles Flanagan. At the time, I understood the then Minister of State, Barry Andrews, had his hands tied on this matter and was frustrated by the situation. Many of the Opposition Deputies at the time — who now are in Government — were disappointed with the proposals contained in this rushed legislation.

The language used in this legislation is fundamental. There is a huge difference between the term "placement" and "detention", especially for children who have been in care from a young age. I have a sister who has provided foster care for 30 years. Last Saturday, I attended the wedding of one her adopted children. It was wonderful to see the fruitful outcomes of foster care, the parents of which get little support from statutory authorities, who are sometimes opposed and have the heavy hand of the law placed on them.

The word "placement" is far more desirable than the term "detention". Detention has all sorts of connotations going back to the foundation of the State and the 19th century. I appeal to the Minister to accept this amendment. The Technical Group supports this Sinn Féin proposal.

When a young child is placed in care in a residential centre it is termed a "placement". Special care involves the detention on an exceptional basis of an unoffending child for his or her own welfare and protection in a special care unit with on-site educational and therapeutic support. It is very different to an ordinary placement. It is important this is understood from a legal point in the courts.

Thankfully, there are not that many children in such circumstances. The latest figures on 8 July show that 16 children are in special care orders. Several children, three in Scotland and one in the USA, have been placed abroad on the equivalent of special care orders, which shows it is hard to access these kind of care units in this country.

I understand the Deputies' concerns about the term. I have given much consideration to the legal advice on the use of the word "detention". The legislation must be clear that special care involves the detention of a child. Using another word could mislead and make the position uncertain in the courts and for the Health Service Executive, parents, guardians and the children themselves that special care does involve the detention of the child unlike other care services. The word "placement" does not reflect the child's situation.

The High Court makes the orders to provide special care for children which are called detention orders. In successive court judgments the term "detention" has been used. They have also been clear in their distinction between detention in a special care facility and detention under criminal statutes. Its use is not connected with any criminality on the part of the child. I accept Deputy Ó Caoláin's point about the implications of the term in common usage but it is exceptional for a child to be detained for his or her own care.

The Bill provides that the orders made by the High Court will be called special care orders. Nevertheless, the use of the word "detention" makes it clear that a child is detained under a special care order in a secure unit. There is no getting away from the fact that to provide this special care, the child requires to be detained. If this was not in place, the child could theoretically leave the care unit and would not be able to avail of the care he or she needs. From past experience we are aware that children can leave residential care and go missing.

Special care is only provided where it is in the best interests of a child and is used as a last resort when other forms of residential or community care are considered to be unsuitable in the circumstances. The Bill provides, however, that the duration of the order will be no longer than three months and that there will be a review every four weeks to ensure that a child is benefiting from being in special care. Regard is had to ensuring that a child will not be kept for unnecessarily long periods without a review taking place.

As already stated, special care is provided for children who require care to address behavioural issues, taking into account the risk of harm their behaviour poses to their life, health, safety, development, welfare and care requirements. Special care is provided for the most difficult care and welfare cases of children with the most severe social problems. The objective of special care is to provide a stabilising period of planned short-term care which will enable a child to return to less secure care as soon as possible or to return home. A special care order may be extended beyond three months on application to the High Court on two occasions only and to a maximum duration of nine months detention.

On the basis of the information I have provided, Deputies can see that special care is an extremely particular circumstance. Very few children are subject to special care orders. Where such orders are in place, they are subject to fairly rigorous review. I understand the concerns relating to this matter. However, I am strongly advised, from a legal perspective, that in the context of the courts, the Judiciary and the decision-making process relating thereto, it would cause extreme confusion if this term were not used in the Bill in this way.

Did the Minister at any time in the course of her response to the arguments I offered in support of my amendment refer to detention orders or special detention orders? Rather, she referred to special care orders and children placed in special care. It was only once or twice that she utilised the term "detention". We must recognise that language is hugely important. Children can be made the subject of special placement orders and special care provision at the direction of the agencies of the State. However, the word "detention", where it is used in phrases such as "detention orders" and "places of detention", immediately suggests wrongdoing on the part of those who are being detained.

The word "detention" is offensive in the context of the cohort of young people whose interests we are addressing.

I wish to point out for the information of the House that we are on Report Stage. The Deputy will have an opportunity to make a third contribution but his current contribution is limited to two minutes.

Do I have much time left for this contribution?

We can talk our way around matters of this nature. The truth is, however, that outside this institution and in the context of the parsing of language, the understanding within the wider community is that people placed in detention are there on foot of some wrongdoing on their part. As the Minister indicated, that is not the case with the relatively small number of people about whom we are concerned.

Use of the word "detention" is wrong. It is outdated, belongs to a very different era and recalls echoes of an extremely bad past in respect of attitudes to children, mental health and a range of other areas. Thankfully, we have moved on in the context of the language employed in most of the areas to which I refer. Clearly, however, that is not the case in respect of the cohort of children to which I refer. That is a major mistake. I urge the Minister to reconsider the position.

I understand how difficult it is for the Minister to deal with this matter, particularly as hers is a new portfolio. As stated earlier, I completely accept her bona fides.

Like Deputy Ó Caoláin, I am of the view that the word "detention" brings to mind the wrong connotations. As the Deputy stated, the majority of people outside the House would regard detention as being similar to imprisonment. The Minister obtained legal advice in respect of this matter. As everyone is aware, one can obtain legal advice from many sources. I intend no criticism of any persons who have held the office of Attorney General when I say this, but it is possible to obtain legal advice of a certain nature on one occasion and then at a later date the person offering it might put forward a different point of view.

This is an extremely sensitive matter. I am of the view that consideration should be given to changing the terminology used in the Bill in order to make it more user-friendly and get rid of the negative connotations attaching to the fewer than 20 people to which this provision relates. We are all aware of individuals who had to be detained or taken into care, sometimes for their own safety or else for that of their foster parents or members of the general public. We should try to come up with a more understanding and human description of what is involved. Incidents such as those which give rise to people either being placed in care or detained can be once-off in nature or else they can result from someone blowing off steam or whatever.

The professionals who operate in this area know best. However, we are trying to legislate in respect of the greater good of society into the future. I accept that it is difficult for the Minister but I suggest that perhaps there could be a meeting of minds on this matter.

I really do not have much more to say. The word "detention" obviously has different meanings, including those to which the Deputies refer. We must consider that when it is used in the phrase "school detention" it is not assumed to imply criminality.

The Minister is referring to buachaillí dána.

I take the point Deputy Ó Caoláin makes. However, I am strongly advised that in the context of the legal definitions that are required in the legislation, the use of the word "detention" is necessary. It must be made clear that special care involves the detention of a child. To make it appear otherwise would be misleading in the context of what is actually happening. I have already outlined the kind of safeguards that are in place for the small number of children affected by this matter.

I will not labour the point because I have already made my arguments in support of the amendment. A few months ago I reminded the Minister that this is the Child Care (Amendment) Bill 2009. It was presented to the House by the then Minister for Health and Children and the Report Stage debate is being taken by the Minister for Children and Youth Affairs. The legislation was not prepared and presented by the Minister for Justice and Equality.

The Bill relates to children and the word "detention" is simply and absolutely obsolete in the context of child care provision. The word "detention" belongs to legislation prepared by the Minister for Justice, Equality and Defence, Deputy Shatter, and his departmental officials. It is my strong opinion that it has no place in language relating to legislation overseen by the newly-established Department of Children and Youth Affairs. I again urge colleagues to support this amendment and appeal to the Minister to accede to the collective weight of the Opposition voices.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 10:

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.".

The need for this amendment is self evident and I urge the Minister to support it. The amendment addresses a significant gap in the Bill which has been identified by those working on the front line in this area. The Government needs to listen carefully to those informed concerns and needs to fill the legislative gaps and the gaps in service provision accordingly. It is not only those working at the front line who must be heard. As sought by this amendment, the child must be heard. The child must not only be heard, but must be listened to. This is an important principle which should be at the core of the legislation.

A position of unanimity on the part of the Opposition voices on children was taken on this back in January and the then Minister of State, former Deputy Barry Andrews, was strongly urged to accept this amendment. It is regrettable this amendment is necessary again. I would have hoped that some of the amendments for which both coalition parties currently in Government fought so strongly such a short time ago would now be part of the Bill, rather than a cause for argument on amendments presented at this stage. I would prefer to have turned the pages and found at least that this amendment was in the name of the Minister. That would have been something important.

It is important that the voice of the child is listened to. For too long, we have seen many situations where children were ignored. Critical decisions with regard to their circumstances and futures were taken without any regard whatsoever for the children's views, hopes and expectations, which were formed and based on their own experiences. We need to see a Child Care (Amendment) Bill that truly puts children at the centre of consideration but we will not do that if we perpetuate and continue a system that will not allow the child's voice to be heard and heeded.

I will conclude with these opening remarks on amendment No. 10. I strongly urge the Minister to accept the importance of this proposal.

While I do not support this amendment, in the context of a child's age and understanding and in the context of language difficulties, for example children who may not have English as their first language, is there an obligation when assessing children to assess their understanding of what is happening? If there are language difficulties, is there an obligation on the authorities to assess the child's understanding? We could, for example, have a situation where a child has no understanding of what is happening because of language barriers or a situation where the HSE or other authorities might ignore that. Is there any obligation in the Bill to take this into consideration?

I agree with Deputy Ó Caoláin it is of the utmost importance that regard should be given to the views of the child 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. This Bill amends the Child Care Act 1991, where it is provided in section 3(2)(b)(ii) that the HSE in the performance of its functions to promote the welfare of children “shall, in so far as is practicable, give due consideration having regard to his age and understanding to the wishes of the child.”

The point raised by Deputy Kelleher is very interesting and describes a situation that is arising more frequently, not only because of children who do not have English as a first language but also because of the sizeable number of children with speech difficulties. What the Child Care Act would say is that the best interests of the child must be at the centre of decisions. Therefore, if that is the case, the answer to the Deputy's question must be "Yes" and every effort must be made, whatever this implies in terms of interpretation. Whatever effort is needed to ensure that the best interests of the child are considered and that their wishes can be ascertained as far as possible must be made.

Section 3 has the same effect as the proposed amendment. Therefore, what the amendment proposes is already included in the Child Care Act 1991 and it applies to section 23ND. Also, under section 23ND(1)(b) of this Bill, the HSE is charged with promoting the welfare of the child. It states that the HSE should do whatever is reasonable, subject to this Part, to promote the child’s health, development or welfare and to protect his or her life, health, safety, development or welfare having regard to all the circumstances of the child.

I addressed this issue of consent in my contribution on the Bill in the Seanad. On Committee Stage in the Seanad, an amendment was brought forward 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 the provision had not been included, which gives the right to the HSE to consent is still 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, for example, the parents, guardians or the child as appropriate. For those reasons, I do not consider it is necessary to accept the amendment.

I reiterate that the views of the child should be taken into account. It is essential that prior to the HSE taking steps under section 23ND, the wishes of the child are taken into account. This is essentially what the Deputy's amendment proposes, that the HSE should have regard to the views of the child, taking into consideration the child's age and understanding. I assure the Deputy the issue is dealt with and already covered in the legislation.

The views of the child should be regarded by the Health Service Executive prior to any steps being taken under section 23ND of the Child Care Act 1991, as inserted by section 9 of this Bill. I am not convinced by the Minister's proposition that there is absolute statutory provision for this requirement. She and I had a united position on this matter in the past, but that seems no longer to be the case. The Government parties have moved from a strong position of support and united appeal for the acceptance of this particular amendment. Can the Minister point to the section of the Bill where it is provided statutorily that the HSE shall have regard to the view of the child in these matters? I have identified no such provision. The Bill should be comprehensive, providing for all the situations that will present. The child's interest is strengthened by the inclusion of amendment No. 10.

I will write to the HSE's director of child and family services regarding this matter in order to highlight again the importance of taking into account the wishes of the child, as set out in the Child Care Act 1991, and to reinforce the point that this applies in the case of special care orders. The issue the Deputy is raising is as much a practice issue as a legislative issue. It is covered from a legislative point of view, but we must ensure it becomes part of best practice. I will ask the director to bring this requirement to the notice of all persons involved in the procedures relating to special care.

I do not accept that this requirement, as I see it, is covered within the Bill. It is the critical additionality required in order to impose on the HSE and those working under its aegis in the area of child care an obligation that they adhere absolutely to what we are arguing for, namely, the right of children to be heard in the context of their health needs. We are leaving a weakness in the legislation by not taking on board amendment No. 10.

Under section 24B of the 1991 Act, as inserted by section 9 of the Bill, in any proceedings before a court, due consideration must be given to the wishes of the child. As I said, the issue the Deputy is raising is more a question of implementing the legislation than a requirement for amendment. It is a practice issue. There is adequate provision for it in two sections in the legislation, but we must ensure it happens in practice when special care orders are being made.

Amendment put and declared lost.

Amendments Nos. 11 and 12 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 are technical amendments to section 23NP of the 1991 Act, as inserted by section 9 of the Bill, which provides for offences under the Bill. The amendments are proposed in accordance with section 5 of the Fines Act 2010 which provides that fines between €2,500 and €4,000 are class B fines.

Amendment agreed to.

I move amendment No. 12:

In page 62, line 45, to delete "a fine not exceeding €3,000" and substitute "a class B fine".

Amendment agreed to.

I move amendment No. 13:

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”.

This is an important proposal dealing with the statutory rights of the guardianad litem. We must provide for a full understanding of the role and responsibilities of the guardian ad litem within this legislation in order to ensure there are no fault lines which allow for a loss of power to act in the interest of the child. The guardian ad litem must have full authority to seek all legal advices in the child’s interests, whether from a solicitor or a barrister, as the situation might require. It is important to have this certainty enshrined in the legislation. The interest of the child, through the role of the guardian ad litem, is strengthened in a clear and unequivocal way by the acceptance of amendment No. 13.

The Child Care Act 1991 provides that in proceedings under Part IV, that is, care proceedings, 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 in the interests of justice to do so, appoint a guardianad litem for the child. The provision of a guardian ad litem service is extremely helpful in terms of protecting children’s rights. Having done some work as a guardian ad litem when I worked as a social worker in the United Kingdom, I am aware of the importance of the service. There is a requirement for legislative change to review how the service is being operated and managed and to provide greater clarity on criteria and so on. I will consider that requirement in bringing forward legislation to establish a child and family support agency.

The guardianad litem provides information to the court on what is in the best interests of the child and informs the court of the child’s view. While guardians ad litem are not appointed in all care cases, they are appointed in all special care cases. The initial objective of section 12 of the Bill is to provide a similar provision in regard to special care. I am sympathetic to the view that a child who is the subject of a special care application should have a right to legal representation and to a guardian ad litem. There are very few children in the country affected by special care orders and those who are have substantial care needs. Moreover, they are usually in a crisis situation and require the type of detention and support services we have spoken about.

I have given every consideration to the Deputy's amendment, but I cannot accept it. However, following consultation with the Attorney General's office, I propose to bring forward an amendment to section 12. The amendment I propose will in essence delete subsection (2C)(a) of section 12(c) the effect of which will be to take away the discretion of the judge in the area of the appointment of legal representatives to guardians ad litem. Therefore in this aspect of the guardian ad litem service there will be no difference to what is currently the situation. As a result of this amendment, other amendments within the section may be needed. While I am not in a position to make this amendment this morning, I will bring the amendment to the Seanad next week and I will return to the Dáil for its approval of the amendment.

I hope this goes someway to reassuring the Deputy on the matter, even if I am not accepting his amendment. I will obviously take account in drafting the alternative amendment the drafting of Deputy Ó Caoláin's amendment. I will bring it to the Seanad and it will return to the Dáil.

I thank the Minister for her response, indicating that she intends to bring forward an amendment in the Seanad. May I clarify if the Bill will come back to the Dáil before the end of the session?

Will we have the chance to conclude all stages of the Bill?

Where I stand in all of that will be decided when I move my next amendment. I welcome the Minister's willingness to take on board what I proposed in amendment No. 13, as tabled on the Report Stage amendment list. I look forward to seeing the outworking of that by the Minister.

I greatly welcome the Minister's commitment to re-examine this proposal in the Child Care (Amendment) Bill and to examine Deputy Ó Caoláin's proposed amendment which very much mirrors Deputy Charles Flanagan's proposed amendment when this matter was discussed during the previous Dáil. We are all very aware of the importance of the guardianad litem in proceedings. Indeed, the guardian ad litem is the only person really who acts in the best interests of the child and one of the important amendments introduced by this Bill is to define the role of the guardian ad litem and to state specifically that they promote the best interests of the child and convey the views of the child concerned to the court. It is, of course, increasing common practice for guardians ad litem to seek and be represented in court. The reality is that it is not always required for a guardian ad litem to be legally represented in court, much less to obtain the representation of counsel in court. I fear that were Deputy Ó Caoláin’s amendment to be adopted today, the result would be that the costs incurred by a guardian ad litem in the reasonable discharge of their duties would be borne by the HSE, or effectively by the Exchequer. However, the effect of saying that the guardian ad litem may appoint a solicitor to represent them and “if necessary, having regard to the circumstances of the case, directions in relation to the instruction of counsel,” would seem to run contrary to the provision that only costs in the reasonable discharge of their duty be discharged by the State because it would effectively encourage or almost require a guardian adlitem to be legally represented in court.

I think it would create a great deal of legal confusion and for that reason I greatly welcome the Minister's commitment to have this matter further discussed in the Seanad before its return to this House. I think that demonstrates this Government's commitment to the rights of the child and to ensure that the rights of the child are vindicated in any child care proceedings before the court. On that basis I greatly welcome it.

How stands amendment No. 13?

On the basis of the Minister's indication, I am happy to withdraw it. I look forward to seeing the wording of the Minister's amendment.

Amendment, by leave, withdrawn.

I move amendment No. 14:

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 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.

(b) Where 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 or she 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 or her to be visited or assisted;

(ii) by arranging for the completion of his or her education and by contributing towards his or her maintenance while he or she is completing his or her education;

(iii) by placing him or her 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 or her;

(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 may be provided.

(3) In providing assistance under this section, the Executive shall comply with any general directions given by the Minister.

(4) 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 represents the key amendment required to the Child Care (Amendment) Bill 2009. It addresses the need for, and I believe, the absolute right to statutory aftercare. It should be a statutory right of all young people placed in State care that provision be made for their aftercare.

I remember putting the comments of the Ombudsman for Children on record in January. They merit reiteration:

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.

That is a very strong statement from Ms Emily Logan on the requirement to amend this Bill, as amendment No. 14 seeks to do.

I referred earlier to Focus Ireland. It is important to remember that Focus Ireland is providing aftercare and dealing with the consequences of the failure of the State to provide aftercare for children attaining their 18th birthday. The views of the Ombudsman for Children cannot be ignored in this regard. I will give voice to the views of two young people who have benefited from Focus Ireland's support services. I refer to Focus Ireland's own website on Focus Ireland's Right to Aftercare Campaign. There were more than 5,000 e-mails lobbying the former Minister in regard to calling for a legal right to aftercare. I wonder what is the situation since the establishment of the Department of Children and Youth Affairs. I wonder if there has been extensive lobbying on this matter over the period leading to today's deliberations. The Internet campaign hosted by Focus Ireland was launched by two young people who had used Focus Ireland's aftercare services and one of the young people concerned stated:

Most people don't realise that when a young person in care reaches 18 the State no longer has any legal obligation to support them. People can be left to fend for themselves and can run into many problems including becoming homeless if they do not have any one to turn to for support

Another young woman of 19, who was previously homeless, who had recently moved from Focus Ireland's aftercare project to temporary accommodation to help her make the transition to independent living said: "I think it is really important there is a legal right to aftercare to support young people and to help prevent them from becoming homeless in the first place".

During the brief discussion on the facilitating motion at the outset of the debate, I referred to the absolute need to recognise that this is an essential part of the legislation.

I referred to the argument of the previous Government, anticipating how the Minister might respond. She is taking exactly the same position as her predecessor, the former Minister of State, Barry Andrews. He argued there was strong legal advice stating that the provision of aftercare is non-discretionary and must be provided when a care professional judges there is a need. The argument is that "may" means "shall". I wish it did but it does not, all too sadly, and because of that there is a need for a statutory requirement on the care services and the State to ensure young people in State care, on attaining their 18th year, are not left on their own facing the prospect of homelessness and facing, as some sadly have, the woes that come from an oftentimes all too short life engaging in drug misuse, crime and serious antisocial behaviour.

The current Minister was the Leader of the Opposition in the Seanad when Barry Andrews addressed the Seanad and said the provision of aftercare for young people leaving State care situations was a postcode lottery and that it needed to be worked on even if additional resources were required. It is sad that the amendments proposed by the Opposition last January were not accepted by the House. We would be compounding the hurt and disappointment if this amendment was to fail also at the second bite at it. The Government is now made up of the two main voices for the arguments in support of this amendment last January. I fully supported the amendment and, with minor adjustments, my wording mirrors the amendments tabled by Deputy Charles Flanagan, who was then the Fine Gael spokesperson on children, and the Minister of State, Deputy Jan O'Sullivan, who was then the Labour Party spokesperson on health and children. We made a strong argument in support of the amendment, which created a division in the House. It was defeated not by the margins we know in the House today, but by 79 votes to 67. Compared with current numbers, we ran the Government of the day close. I hope the two major parties involved in proposing that amendment, who are now in government with such a huge majority, will ensure the statutory entitlement to aftercare is enshrined in this legislation.

This is of such importance that it influences our position in regard to this legislation and its passage through this House today and next week if it is to come back, as indicated by the Minister. It is of such crucial concern that we would be failing in our duty to young people if we were not to guarantee the right to aftercare for all young people placed in State care. I again appeal to the Minister to respect the voices from the component parties previously in this House, to respect the views of the Ombudsman for Children, and to respect the views of a plethora of NGOs, including Barnardos, which have campaigned strongly to enshrine a statutory right to aftercare.

I ask the Minister to recognise the imperative because this is not just something that can be taken or not taken. This is a litmus test of how the new Department of Children and Youth Affairs will go about its work and how serious it is in ensuring the rights of children in State care are guaranteed not only in respect of time in care placements, but that they will also be cared for afterwards and given a good start in adult life.

The Department will pass that test because I am committed to the provision of quality aftercare service. I mentioned how critical I believe it is and section 45, the aftercare provision, will be examined to see if there is merit in making regulations to make clear that children who require aftercare get the service they need. The legal advice is that there is an obligation on the HSE to provide the aftercare service under section 45 of the Child Care Act 1991. It is non-discretionary and my Department has been in contact with the HSE to make that absolutely clear. This is not a discretionary service but one the HSE must provide if there is a need for assistance and if the HSE forms a view to provide services in accordance with the section, subject to resources as it always will be. The Department has made it clear to the HSE on a number of occasions that an appropriate aftercare service must be developed.

A national aftercare policy is being developed by the HSE in co-operation with the stakeholders in this area. We are determined that there will be consistency. An aftercare implementation group is also working on this, with representatives of some of the organisations mentioned by Deputy Caoimhghín Ó Caoláin and from the organisation that represents young people who have been in care. Some ten additional after care posts are in the process of being filled. The contracts will include a need for flexible hours. The legal advice is that the provision of aftercare under section 45 is legally sound but I will monitor the implementation of it and, if necessary, I will introduce regulations to spell out what is implied by the legislation, as has been done in the north of Ireland. My Department will work on this and, when we introduce the new legislation to establish the child and family support agency, this is an area I will examine.

We need time to bring together practice and experience around the country in respect of aftercare. I need more information on what is happening but there is a legal obligation for young people who need aftercare. There has not been enough focus on this area and the importance of ongoing services and support to a young person brought up in residential care is underestimated. Young people who have been in residential care are often very vulnerable. There have been dreadful instances of young people left to fend for themselves. It is very frightening and challenging for them. I listened to these young people telling the story of what happened to them. That did not happen in a State that respects the United Nations Convention on the Rights of the Child.

I was struck by the Ombudsman's report on this issue. She referred to the UN guidelines on the alternative care of children and the systematic way the State should approach helping young people who have been in care to plan for life after care. It refers to the standards and that the process of transition from care to aftercare should take into consideration the child's gender, age, maturity and particular circumstances and that it should include counselling and support, notably to avoid exploitation. It states that children leaving care should be encouraged to take part in the planning of after care life, that children with special needs need particular help and so on. There is a way that aftercare should be prepared for and implemented and every child who has been in care should have their needs for aftercare properly assessed during the course of their period in care and coming up to the time when the care period, from a legal point of view, is over. I have no problem examining whether we need regulations but the legal advice is that there is a statutory obligation on the Health Service Executive to provide this type of service.

There are practice issues. I want to examine the practice throughout the country, bring the report of that together and determine if statute and regulations would help to ensure that what exists in law is being implemented for children who are leaving care.

There is a lot in what the Minister said about her intention to examine, evaluate, check this and check that. She referred to an obligation on the HSE. What we need is a statutory responsibility on the HSE. It is not that young people leaving State care at 18 should be at the mercy and the discretion of the HSE, which has often been the case. It is fine for the Minister to say it is the practice she wants to address. It is the practice I want to address but I believe that one of the essential tools in addressing it is the statutory responsibility in the first instance and this is a golden opportunity because we are getting a second bite at it. The last Government failed to conclude its work in this regardvis-à-vis the passage of this Bill and we found ourselves in a general election. I would have thought, all these months later, that the suggested action the Minister is proposing to take to examine, investigate and so on would be done.

A huge amount of work, examination and exploration was done in advance of dealing with this Child Care (Amendment) Bill 2009 in advance of its address here on Report and Final Stages in January 2011 and we are still kicking the can down the road in regard to the statutory right of young people to aftercare on attaining their 18th birthday.

I read some of the contributions from the debate last January. These were good and strong voices and I wish that they were still in this House arguing and fighting these particular corners today. They are people for whom I have a long respect. I speak of the Minister of State, Deputy Kathleen Lynch, who, in response to the same position being articulated by the then Minister of State, Deputy Andrews, stated:

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 fully concur with those views.

Deputy Ó Caoláin must conclude.

Is my constituency colleague telling me my time is up?

Thank you. I did not notice the change of course in the Chair.

I ask the Minister of State to listen to all of these voices. I could citead nauseam and also from the Ombudsman for Children. These are important voices that must be respected, and kicking the can down the road is not good enough in this regard. We need to do this, and we need to do it now.

Thank you, Deputy Ó Caoláin. I had acted as a constituency colleague and allowed you a little extra time.

I take the opportunity of congratulating the Minister on her appointment. I know it is some months ago now but I have not had an opportunity to do so in the House and wish her well in her new position. As she will recall, we soldiered together in the Upper House, as did the Acting Chairman, on many issues, including on this one. We were also members together on the constitutional committee dealing with the children's referendum, with others. Knowing the Minister as I do and listening to her again this morning, there could be no doubt in any reasonable person's mind of the Minister's commitment on the question of the provision of aftercare.

I do not believe there is any quarrel with anything Deputy Ó Caoláin said at some length in regard to the arguments and the rationale for aftercare provision. There is not a quibble about anything he has said. He asked where were all the voices that were here last year and in January. They are still here. Some of us were in the Upper House and are here now. There are others who have come into this House and some who were here previously. Those voices have not changed their minds on this issue, notwithstanding Deputy Ó Caoláin's attempt to portray the position otherwise. We do not need convincing in regard to the vital necessity of the provision of after care. We do not have to be persuaded, with all due respect, either by Deputy Ó Caoláin or anybody else. The argument is forceful, compelling and it cannot be denied.

The issue is the bringing about of the practice, as the Minister has said, the introduction of the service. I do not underestimate the importance of a statutory provision, and I do not criticise Deputy Ó Caoláin for making the point that if something is set out in a statute it has considerable force, but we had the argument repeatedly about "may" versus "shall" in the Seanad and it is not clear to me how productive that debate is. If Deputy Ó Caoláin genuinely felt that the continued use of the word "may" was inserted in the Bill in bad faith, in other words, to facilitate a Minister or a Government in not doing what is stated was the intention to do, I would have some sympathy with Deputy Ó Caoláin in his criticism of the use of the word "may" as opposed to "shall". The fact is that this service shall be provided and in my view will definitely be provided, given what the Minister said. If it requires statutory underpinning or underpinning by way of regulation the Minister has given a solemn undertaking to this House that she will do that. I am prepared to accept that undertaking from the Minister and from the Government. I do not see any reasonable basis for doubting that commitment the Minister has given.

I am glad Deputy Ó Caoláin has resumed his normal, more familiar reasoned stance in the course of this debate, which was absent for a little while earlier this morning, and that he is in better form now in regard to this issue because I believe he will see, as a reasonable person, that this clear intention articulated by the Minister will be implemented.

I am aware that professionals are in the process of being recruited or are already appointed in this area. Employing people and appointing them to positions to do a job is an instance of the Government's good faith and intentions. If it was hiding behind the word "may" and pretending it would do something, saying one thing in here while intending to do something else would not be consistent with appointing people to do the job. One should not be concerned that anybody on this side of the House, be he in the Labour Party or Fine Gael, is resiling. I can only speak for myself, and perhaps my colleagues in the Labour Party, on the issue of children's rights. The Minister can speak ably on behalf of the Government thereon. There is every intention to provide the service committed to. It is a vital service.

Deputy Ó Caoláin quoted Focus Ireland. Focus Ireland has been a leader on this issue and deserves the respect of us all. It has offered advice and has lobbied, as is its right, and has continued to make its argument in a very compelling way. Its argument and lobbying have translated into a commitment on the part of the Government. That is a solemn commitment that will be honoured. I appeal to colleagues to recognise that the commitment to provide the service will be honoured and that regulations will be introduced, if necessary.

Deputy Ó Caoláin, in the course of discussing this amendment, prevailed on this side of the House to listen intently to what he had to say. We listened to his Cassandra-like outburst on the Order of Business this morning, his somewhat calmer interjection on the debate on the motion and his much-more-reasoned arguments just now. If I understand him correctly, he acknowledges there is a statutory duty to provide an after-care service but is concerned it is not being provided in practice. He accused the Government of kicking the can down the road. However, he has not listened to what we on this side of the House, particularly the Minister, have had to say. He has not noted what she has done since taking office to meet the obligation to provide an aftercare service.

I join my colleagues in the Labour Party in applauding the Minister for her efforts, which include the introduction of a national aftercare policy, the establishment of an aftercare implementation group and, in particular, the recruitment of ten new staff to deal with this very important matter, notwithstanding the public service recruitment embargo. These are not the actions of a Government that wishes to hide behind words or semantics, as was pointed out. They are the actions of a Government that is intent on vindicating the rights of children and those who are no longer children but who are still vulnerable as a result of what they experienced as children. The latter, aged between 18 and 21, are the people to whom the Deputy referred in his amendment. I suggest that Deputy Ó Caoláin recognise, as we have recognised, what the Government is actually doing. On the basis of what I have said, I believe Deputy Ó Caoláin's amendment is redundant.

I echo the words of my Labour Party colleagues in welcoming the Minister's commitment in this area. We are very fortunate to have a Minister responsible for children and who has practice experience. As a practitioner, I believe there has been a void in this regard.

The HSE has committed to providing an aftercare service for the vulnerable people but the reality is that there is no consistency in how it is applied throughout the country. It is often personality driven andad hoc, which is not good enough. The Minister has committed on the floor of the House today to ensuring regulations will be introduced, if required. This is to be commended.

This Government is different from its predecessor because it has a vision on how to deal with children. There was a void in regard to child protection during the term of the last Government and there was no talk of establishing a child protection agency. The current Government has a vision; it knows where it is going and knows what it wants to do. The issue has been kicked down the road by many Governments over the years. We are committed to looking after vulnerable young people and ensuring the provision of quality aftercare. As matters stand, an aftercare worker could be assigned to a child but this would not imply the child is receiving a service. The Minister is committing, therefore, to ensuring we find out what is taking place and how children are being cared for. This is one of the strongest statements one can make, particularly in respect of an area that has been neglected in recent years.

We are very lucky to have a full Ministry for children for the first time in the State, and to have a Minister with practice experience and knowledge of this issue, which is broad and difficult to tackle. The partners in the Government are committed to dealing with this issue over the coming years.

I thank the Deputies for their comments on the provision of the aftercare service. It is clear from what they said that the importance of the aftercare service is recognised. I understand Deputy Ó Caoláin's reason for highlighting this. The service is critical because the practice has not been good in the past. As my colleagues stated, there is a move towards a national implementation policy, recruiting staff, examining consistency of practice and ensuring that aftercare is regarded as critical for those who need it. Not all young children who leave care need or want such a service; some are independent and get on with their lives.

The legal advice is that the provision in question establishes a mandatory obligation to provide aftercare where a need has been established for such care on foot of an assessment. The HSE has a duty to form a view on whether each person leaving care needs assistance. It is not correct, therefore, to state legislation that puts an obligation on the HSE in this regard is missing. The UN obligations to which the Ombudsman for Children referred require that an assessment of need be carried out by the HSE in regard to all children in care. There is a need to assess whether a child or young person needs an aftercare service. The advice is very clear. I reassure Deputies that the legislation, as drafted, obliges the HSE to do what I have outlined.

To ensure there is no doubt about this matter, and to emphasise the importance of after-care services, in accordance with subsection 45(4) of the Child Care Act a policy directive was issued to the HSE last year clarifying the issue and directing the executive to do the work required in this area. There has been contact with the relevant authorities, therefore. I have discussed the matter in the presence of the national director of children and family services of the HSE. We recently attended a conference run by young people who have been in care through EPIC, the group that supports young people who were in care and works with them highlighting this issue. There is a quantum change in the understanding of the importance of aftercare, not least because of the work young people themselves have done.

The legal advice is absolutely clear in that there is a mandatory obligation to provide aftercare. It has been provided in a discretionary manner in the past but it is now mandatory. It is now a matter of ensuring that practice reflects what the legislation stipulates. I hope this clarifies the concept of aftercare. There is no lack of support on this side of the House and no underestimation of the importance of aftercare. We want to see proper aftercare provided for young in care and those who still have needs when they leave care. The HSE has an obligation to provide such aftercare.

The issue of resources will always arise in the provision of services but there is a legal obligation to provide aftercare and there are improved actions in regard to providing and developing the aftercare service. New staff are being recruited. There is a new understanding that this is an important part of providing care to children who have been in the care of the State.

I do not know how to describe the circumstances that obtain. With respect to Deputies White and McNamara, there was an almost jocund effort on their part in reference to my efforts this morning to ensure we had this debate. We would not have had this debate but for the fact that I argued the case for it. It was only before coming into the House to deal with Report Stage of the Bill that I received notice that my amendment would not be taken. I make no apology for putting forward the strongest challenge I could to this decision and I have told the House twice already that I welcome the move to overturn that decision and to allow us have this debate. I hope Members recognise that it is very important that we did.

There is no unreasonableness on my part. I do not have to be convinced of the bona fides of the Minister, Deputy Fitzgerald. I have acknowledged it on many occasions and there is no stronger voice in support of the establishment of the Department in this House than mine. All that said, we are failing to recognise an important point. It is not good enough to state there is a mandatory obligation. I believe there is a mandatory obligation on the House to ensure there is a statutory requirement and an enforceable right for young people on attaining their 18th birthday to have the necessary State care and support they will need facing out into the world at that young age, coming from the circumstances they have and without many of the supports familial, communityet al that so many of us enjoyed in embarking on those first steps into young adulthood. Making commitments, however genuinely expressed, are not enough at this point. This is a Bill which has spent two years going through various stages of address and a second bite in a six-month period and we cannot get this firmed down. The statutory right should be enshrined in the legislation and I strongly hold to this view. I will not add further to this. I have put the arguments and heard the responses.

I have told the Deputy it is statutory and mandatory as it stands at present.

Amendment put.
The Dáil divided: Tá, 24; Níl, 110.

  • Adams, Gerry.
  • Collins, Joan.
  • Colreavy, Michael.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Donnelly, Stephen.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Fleming, Tom.
  • Healy, Seamus.
  • Higgins, Joe.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Brien, Jonathan.
  • O’Sullivan, Maureen.
  • Pringle, Thomas.
  • Stanley, Brian.
  • Tóibín, Peadar.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Browne, John.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Niall.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Cowen, Barry.
  • Creed, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Dooley, Timmy.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Terence.
  • Fleming, Sean.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Heydon, Martin.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Keaveney, Colm.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kelly, Alan.
  • Kenny, Seán.
  • Kirk, Seamus.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Shane.
  • McFadden, Nicky.
  • McGinley, Dinny.
  • McGrath, Michael.
  • McGuinness, John.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mathews, Peter.
  • Mitchell, Olivia.
  • Mitchell O’Connor, Mary.
  • Moynihan, Michael.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Naughten, Denis.
  • Nolan, Derek.
  • Noonan, Michael.
  • Ó Fearghaíl, Seán.
  • Ó Ríordáin, Aodhán.
  • O’Dea, Willie.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Mahony, John.
  • O’Reilly, Joe.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Smith, Brendan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Troy, Robert.
  • Tuffy, Joanna.
  • Varadkar, Leo.
  • Wall, Jack.
  • Walsh, Brian.
  • White, Alex.
Tellers: Tá, Deputies Aengus Ó Snodaigh and Catherine Murphy; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.

As we have passed 2 p.m., the time fixed for completion of the Bill, I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Children and Youth Affairs and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.

I am pleased to record that the Bill is agreed.