Child Care (Amendment) Bill 2009: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.

Amendments Nos. 1 to 4, inclusive, are related and will be discussed together.

Seanad amendment No. 1:

Section 13: In page 63, to delete lines 23 to 41 and substitute the following:

"(c) by inserting the following subsections after subsection (2):

"2A) Where the court makes an appointment under subsection (1) (as amended by the Child Care (Amendment) Act 2011), without prejudice to the generality of subsection (1), the court shall give directions relating to the service of documents for the proceedings concerned on the guardian ad litem.

(2B) A guardian ad litem shall for the purpose of the proceedings for which he or she is appointed promote the best interests of the child concerned and convey the views of that child to the court, in so far as is practicable, having regard to the age and understanding of the child.”.”.

Amendments Nos. 1 to 4, inclusive, which are being discussed together relate to section 13 of the Bill. They were brought forward by me in Seanad Éireann last night in accordance with a commitment I gave in Dáil Éireann on Thursday, 14 July on Report Stage. They amend section 13 which amends section 26 of the Child Care Act 1991 and take cognisance of the amendment tabled by Deputy Ó Caoláin on Report Stage. They are also consistent with a proposed amendment tabled by Fine Gael and the Labour Party during the reading of the Bill in the previous Dáil. Their effect is to take away the discretion of the judge as to whether a guardian ad litem is legally represented and provide that a guardian ad litem may instruct a solicitor and, having regard to the circumstance of the case, counsel. The effect is to continue the practice for a guardian ad litem to be in a position to appoint legal representatives in care cases, including special care cases. The judge has discretion in the appointment of a guardian ad litem in proceedings. I hope the Deputies are in agreement with the amendments.

First, I acknowledge, as I would always do, that the Minister has been as good as her word and that the matter has been progressed through the Seanad as she indicated. I welcome the proposed amendments before final conclusion of the passage of the Child Care (Amendment) Bill 2009. Certainly, Seanad amendment No. 2 mirrors well the wording of amendment No. 13 in my name in the course of our Report Stage deliberations. I fully appreciate that the key point on the role of a guardian ad litem concerns the wherewithal to appoint and “instruct”. On the use of the word “instruct”, it is critical that there be independence on the part of the guardian ad litem dealing directly with the interests of the child as against those of the court. “Instructing” is a word about which there would have been concern.

Perhaps the Minister might elaborate a little on Seanad amendment No. 3 and give us, if she can, an example as regards the wording: "The court may, on the application to it of the Health Service Executive, order any other party to the proceedings in question to pay to the Health Service Executive any costs or expenses payable by the Health Service Executive under subsection (2C)". With everything else with which I am wrestling, I have not been able to translate this into actuality. If such an example could be given, we would perhaps be in a position to fully appreciate the Minister's intent. It is perhaps an outworking of Seanad amendments Nos. 1 and 2. I have no objection to it in principle, but I would like to understand it, as I understand the Minister's intent in Seanad amendments Nos. 1 and 2 and, subsequently, Seanad amendment No. 4.

I record my appreciation of the Minister's efforts in recent days on the Bill. While I remain strongly of the view that the Bill is deficient because it fails to statutorily enshrine the right to after-care, nevertheless I recognise the other advances made within the legislation.

I welcome the comments by the Deputy on the changes made in the Bill. On his query on the section, it is not something we would expect to arise often, but it could involve, for example, a parent or guardian who might be making a contribution to expenses.

I appreciate this is probably being protective in terms of instances that might arise in the future and I am not shook up over it.

I utilise the opportunity, with the Leas-Cheann Comhairle's approval, to encourage the Minister in some concluding remarks. In an hour or two we will finish up for the summer recess. The Minister has addressed this particular need with considerable alacrity and the speed that it deserved, for which I commend her. However, I appeal to her, as, I think, my colleague, Deputy McDonald, may have done earlier this morning to utilise the summer recess in order that when we come back in September for the autumn session the long identified needs for legislation in the area of children's rights will have been addressed with specific dates for publication. This is critically important. In the current schedule for much of the legislation that focuses on children's rights and needs it is not possible to indicate the notation. However, I have every confidence in the Minister. I speak from a point of view which I hope is shared where the intent is to move with all speed to bring forward the necessary legislation to which we all have collectively contributed and for which we have pressed for a long period. Specifically, I speak about the establishment of the child welfare and protection agency, the children Bill, the children first Bill — the Ryan report implementation Bill — and, of course, the national vetting bureau Bill. These are absolutely essential in providing for the Children First guidelines in legislation. I urge the Minister to give a brief response before we conclude. I hope she will hit the ground running in September in the case of all this legislation, mindful of the terrible backdrop to the conclusion of this Dáil session — the Cloyne report — and the myriad concerns about other issues, including those within the ambit of the State and State agencies. I am also particularly mindful of the terrible case in Donegal, the full extent of which, perhaps, is not yet realised.

I also take the opportunity to wish the Minister for Children and Youth Affairs well during the summer recess and hope, as Deputy Ó Caoláin stated, that she will hit the ground running in the September term. It is important to point out on this Bill that the parties in government have reneged on the commitment given while in opposition to place the provision of after-care on a statutory footing. Deputy Ó Caoláin re-tabled Fine Gael's amendment, but the new Government voted it down. It is unfortunate to see such a discrepancy between a party's policy in opposition and in government.

We have had a momentous couple of weeks in this brief, with the publication of the Cloyne report and the various issues arising from it. On the implementation of the report and her plans in respect of mandatory reporting, I urge the Minister to undertake an assessment during the summer period of the resources needed in that regard. That is of critical importance. That has been the flaw in what we have seen in the past week. There will be resource implications and, without the accompanying resources, good intentions may well not be brought into reality.

I thank Deputies for their comments. I have referred the Donegal case to the HSE group responsible for the review of serious incidents to carry out a review of the circumstances there. I hope to have a report from the group in the near future. Certainly, we must understand precisely what happened, if other interventions could have been made and we must analyse exactly the role of the various agencies and people involved.

I take the point about the priority child protection legislation should have. I assure the House that child protection legislation is a high priority for the Government, as evidenced by the establishment of the Department. It is a sign that we intend to put these issues at the heart of Government. I have already given a commitment to the House that the wording of the referendum will be available in the autumn term and that we will then proceed with the Bill and the required legislation to ensure that we can hold a referendum in the new year.

I thank Deputies for their contribution during the passage of this important Bill. The main objective of the Child Care (Amendment) Bill 2009 is to safeguard the best interests of children in need of special care. The processes enshrined in the Bill will support the achievement of this outcome. Special care is a last resort but it is an important part of child care and it meets the express needs of the small number of children in need of such care when other forms of residential or community care are considered to be unsuitable. This is a small group of children but we must have high standards and be vigilant with regard to the experience of these children. This type of care involves complex constitutional matters and it is appropriate that it should continue to be presented to and determined by the High Court. This approach will allow for a consistent, well-managed structure, presentation and consideration of applications for special care orders.

One unique aspect of the Bill includes specific provisions for when a child may be in need of special care services and may be charged or convicted of a criminal offence. The provisions clarify when the HSE may apply for a special care order or continue to care for a child under such an order. In summary, where a child is in need of special care, the HSE is in a position to apply to the High Court to allow it to provide that care to the child. In addition, the care requirements of the child who is the subject of a special care order will be kept under the supervision of the High Court. This is very important. The High Court will carry out a review of each four week period for which a special care order has effect. There is careful monitoring of the use of these special care orders, as there should be.

I thank Deputies for their contributions and comments on the priority which child care and child protection and welfare legislation should receive. I look forward to their support when we present the legislation.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 13: In page 64, to delete lines 1 to 17 and substitute the following:
"(a) the guardian ad litem concerned may instruct a solicitor to represent him or her in respect of those proceedings and, if necessary, having regard to the circumstances of the case, may instruct counsel in respect of those proceedings, and
(b) where a guardian ad litem instructs a solicitor or counsel or both pursuant to paragraph (a), the costs and expenses reasonably incurred for that purpose shall be paid by the Health Service Executive and the Health Service Executive may apply to the court to have the amount of any such costs or expenses measured or taxed.”,”.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 13: In page 64, to delete lines 19 to 25 and substitute the following:
""(3A) The court may, on the application to it of the Health Service Executive, order any other party to the proceedings in question to pay to the Health Service Executive any costs or expenses payable by the Health Service Executive under subsection (2C).", and".
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 13: In page 64, to delete lines 26 to 28.
Seanad amendment agreed to.
Seanad amendments reported.