Dáil Éireann debate -
Thursday, 21 Nov 2013

Vol. 822 No. 1

Child and Family Agency Bill 2013: Report Stage

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald)

I move amendment No. 1:

In page 12, between lines 10 and 11, to insert the following:

“(2) The Agency shall be a body corporate with perpetual succession and power to sue and be sued in its corporate name.”.

I welcome the opportunity to again discuss the Child and Family Agency Bill 2013 following Committee Stage. This amendment which seeks to insert a new subsection (2) into section 7 is a technical amendment to clarify that the agency "shall be a body corporate with perpetual succession and power to sue and be sued in its corporate name".

Deputy Caoimhghín Ó Caoláin

I have no issue with the Minister's amendment. She has explained it to me in some detail in recent days and I accept it.

Amendment agreed to.

Deputy Caoimhghín Ó Caoláin

I move amendment No. 2:

In page 12, line 14, after “the” to insert “educational welfare,”.

The Minister knows I believe it is very important that when the functions of the agency are specified regarding supporting and promoting the development, welfare and protection of children, educational welfare be explicitly stated in the functions of the agency within the legislation. It is an implicit function, as the Minister has presented in the first and subsequent drafts. However, it is a very important one. The views I expressed on Committee Stage were further supported yesterday by the contribution to the Joint Committee on Health and Children by Dr. Geoffrey Shannon who elaborated on his sixth report as rapporteur on children when he explicitly made the case on the inclusion of educational welfare. He referenced, in particular, the important role played by teachers as perhaps being the most important front-line engagement with children. He said teachers might be more relevant and more exposed to the make-up and needs of a child and what he or she had to face than others, including even those anchoring the home environment. It is very important that we do not confine ourselves to development, welfare and protection. Educational welfare is also critically important, as we know there is a significant link between child welfare and school attendance. This issue has been well aired and demonstrated historically and there is real importance attached to placing particular emphasis on educational welfare, so as not to depend on it being implicit but to make it an explicit part of the agency's functions. Therefore, I commend amendment No. 2 to amend section 8(1)(b) in order that it would read: "(b) support and promote the educational welfare, development, welfare and protection of children,".

Deputy Frances Fitzgerald

I thank the Deputy for his amendment and support for the development of the agency in general. He wants the term "educational welfare" to be specified, but the functions of the National Educational Welfare Board, NEWB, will be transferred to the new agency. The Deputy will accept that this is included in the legislation and that it is very clear that the board's functions will be carried out by the agency. I agree about the importance of focusing on educational welfare. Non-school attendance is very often the first indication that a child is in trouble. It will be a critical part of the agency's work to work with educational welfare officers and ensure the issues regarding school, school attendance and difficulties children are having at school are part and parcel of the agency's work.

The welfare of a child encompasses many aspects and the terms "development" and "welfare" capture the functions which are being transferred from the NEWB. To include educational welfare in the manner proposed would not replace the broad focus of the section that transfers these powers and to which I have referred. Educational welfare is also a responsibility for many others, including teachers, schools, the National Educational Psychological Service and the National Council for Special Education. Consequently, I do not want it to be seen that by accepting the amendment it would be explicitly suggested educational welfare was solely within the remit of the agency. That, obviously, is not the case.

The legislation and functions as set out in the Bill will not in any way diminish the role that was previously carried out by the NEWB under the Education (Welfare) Act 2000. All of the functions of that agency will transfer to the new Child and Family Agency. Section 8(1)(b) which reads, "The functions of the Agency shall be to ... (b) support and promote the development, welfare and protection of children", encapsulates the question of educational attainment and any issue that arises in relation to it. Therefore, I will not accept the amendment.

Deputy Caoimhghín Ó Caoláin

I do not accept the Minister's view that including a reference to educational welfare would give the impression that it would be solely within the remit and responsibility of the new agency. We must recognise that the NEWB will be an integral part of the new agency. Nowhere in section 8 which lists the functions of the new agency is education explicitly referred to. The word appears only in section 8(4)(d) which refers to "psychological assessments in accordance with section 8 of the Disability Act 2005 or with section 4 of the Education for Persons with Special Educational Needs Act 2004". Nowhere in any of the subsections of section 8 does a reference to education appear. I accept that it is implicit and reflected in section 8(1)(a) which refers to the transfer of functions to the new agency.

Bringing in the words "educational welfare" is important and adds to rather than takes from this section. Given all the other information we have, both in terms of the recent past and of the evidence presented in the sixth report of the rapporteur, Dr. Shannon, it is important that educational welfare is explicitly referred to here in regard to the functions of the new agency. The case I have put stands on its merits. It is self evident and I ask the Minister to reappraise her reply.

Deputy Denis Naughten

I support Deputy Ó Caoláin's amendment which has huge merit. We cannot disconnect the issues of education and welfare. For many school age children, the first indications of issues relating to welfare arise within the school setting. On a number of occasions here, I have raised with the Minister for Education and Skills and the Minister for Social Protection the issue of truancy and the failure to link that with child benefit.

This morning, the Minister for Social Protection has commented on the number of children attending school - 20% - who have no breakfast or who go to bed hungry at night. The proposal I have put to both Departments and which now through this legislation comes into this Minister's brief is that there should be a direct connection between the payment of child benefit and school attendance. This would assist in encouraging some families to ensure their children maintain a good attendance. I spoke on this issue in the House a number of weeks ago and brought to the attention of the Minister for Social Protection instances that have been given as case examples by the National Education Welfare Board. When parents have eventually been brought before the courts and fines imposed on them, the child's attendance record has improved significantly. However, it should not take 12 months of dragging parents through the legal system for that to happen.

The great benefit of linking school attendance and child benefit is not only that this would act as an early warning system of welfare issues in particular families and as an incentive for those families to ensure their child attends school, it would also eradicate approximately €100 million of fraudulent payments relating to children who do not exist or are not resident in the country. Some of that money could be rechannelled towards supporting families where there are welfare issues. The Minister and the new agency face a huge challenge in regard to the resources available to meet the challenging needs of families, yet there is a pot of money being paid out on an ongoing basis for children who do not exist or who are not resident in this country. People should not be in receipt of these payments. Based on the Department of Social Protection's figures, the sum involved is approximately €100 million annually. Some of this money could be channelled towards supporting children where there is an issue of truancy and other underlying family difficulties.

On a related issue, I came across an amazing statistic in recent weeks, namely, that some 1,500 children a year finish primary school but never appear in the second level education system. There may be legitimate reasons for some of these absences, but these 1,500 children should not disappear completely from the education system in the space of one academic year. If school attendance was linked with child benefit, we would identify very quickly where the problems are and where those children are and ensure adequate resources and supports are put in place to ensure those children stay within the system.

Deputy Frances Fitzgerald

This is an issue of how, in legislative terms, we approach the welfare and protection of children. The particular issue we are discussing today is school attendance. Two weeks ago, I launched the most up to date school attendance records that are available. The good news is that there have been extraordinary improvements in school attendance in the country. All of the evidence suggests that the way to deal with non-attendance is to take a whole-school approach, where the teachers put huge emphasis on daily attendance and there is follow up on children who do not attend and there is high quality home school liaison. That is where we are seeing results. I have seen the results of the two pilot projects done on this, in Ballymun and the inner city in Dublin, which have resulted in enormous improvements in attendance. I have seen similar improvements in other areas also. This is the way to deal with issues regarding school attendance and we must also work directly with families.

With regard to dealing with the issue in the context of legislation and how best to frame the needs for working with children, let me go back to the Child Care Act 1991. In regard to the functions of the health boards at the time, that Act states that it should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. Therefore, the need is framed in terms of "adequate care and protection". I emphasise that it is clear in section 72 of this Bill that all of the functions vested in the National Education and Welfare Board or under section 10(1) of the Education Welfare Act 2000, shall on the establishment day stand transferred to the agency. If we consider the legislation that created the Department of Children and Youth Affairs, the section on education welfare deals with all of the issues relating to schools and attendance. One of the reasons for that is that attendance is central to children's progress.

I accept the point made by Deputy Naughten regarding fraud in the area of child benefit. In making his point about children disappearing from the system during the transition from primary to secondary level, I am not quite sure what suggestion he was making. These children may be out of the country, there may have been fraud involved or there may be other issues. These issues need to be addressed, but as far as this Bill is concerned, the functions of the National Education Welfare Board are a central part of the work of my Department and are central to the agency. Those functions are captured in the Bill in section 8(1)(b), which speaks of the functions of the agency as being to support and promote the development, welfare and protection of children.

I suggest to the House that combining the functions articulated there and in section 72, which deals with the transfer of the agency, adequately ensures the education welfare issues will get the kind of attention the Deputies suggest they should get. I believe their concerns are well captured in the Bill, particularly by the transfer of functions and by the phrase about "promoting and protecting the development, welfare and protection of children." There are many other aspects of children's lives we are not capturing at the micro level in terms of the functions, but we are using a phrase that states it is the obligation and function of the agency to promote the care and protection of the child, in the same way as the Child Care Act originally did and which has served us well in terms of care and protection. The functions of the agency are outlined and the element where education welfare is most effectively captured is in section 8(1)(b). That is the reason I suggest it remains as it is.

Deputy Caoimhghín Ó Caoláin

We battled on this on Committee Stage and the Minister does not intend to change her view. I believe strongly that the National Education Welfare Board is an integral part - one of the three elements - of the new agency. The new agency brings together three different and separate entities.

It is imperative that we reference educational welfare among the functions of the agency. It is not there. I believe the legislation should be explicit and that this should not just be implied, as the Minister suggests. However there is no point in prolonging the exchange. I indicate my intention to press the amendment.

Deputy Denis Naughten

I wish to clarify that the €100 million I mentioned in fraudulent payments consists of overpayments and inappropriate payments. Connecting child benefit and school attendance would bring about these savings, which could be better spent in supporting children where there are challenges in the home. There are legitimate reasons for some of the 1,500 children who did not make the transition from primary school to secondary school - their parents might have emigrated, as sadly more and more are doing - but consistently over recent years, a thousand children per annum have not made the transition from primary school to secondary school, and according to the most recent figures the number has spiked at 1,500. The concern is that a large percentage of these children are falling out of the education system. If there were a connection between child benefit and school attendance it would ensure these children made the transition into secondary school.

We still have a huge problem with truancy, with one in ten primary school children and one in six post-primary schoolchildren absent for more than 20 days per year, which is a month of the school year. I accept that the Minister is correct in saying we need a whole-school approach on this, and the pilots have shown this, but we also need a whole-of-government approach. There should be a link between the National Education Welfare Board, the Department of Education and Skills and the Department of Social Protection so that we can link the databases available to each to identify these vulnerable children, support them and ensure the proper resources are allocated to these families.

Amendment put and declared lost.

Deputy Caoimhghín Ó Caoláin

I move amendment No. 3:

In page 12, line 15, to delete "families" and substitute the following:

"all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above".

I seek an amendment to section 8(1)(c), which reads "support and encourage the effective functioning of families". This is one of the specified functions of the new agency, but the construction of this gives an interpretation that has applied historically to the word "family" and does not at all reflect the definitions that appear in the opening section of the legislation, where it is clearly stated that "family" means "spouse, parent, grandparent, step-parent, child (including a step-child), grandchild, brother, sister, half-brother, half-sister, and any other person who, in the opinion of the Agency, has a bona fide interest in the child".

The idea and understanding of family make-up today in Irish society is very different from what it was when I was a child. Accordingly, we should reflect in legislation our shared understanding and acceptance of this new reality. I have sought to do this by changing the provision to read "support and encourage the effective functioning of all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above", which is the provision we discussed with regard to amendment No. 2. This better reflects the intent of the legislation. It gives clarity to the agency's role and function and to our understanding and acceptance of the reality of family and families in Irish society today. I commend the amendment.

Deputy Frances Fitzgerald

I refer the Deputy and the House to page 10 of the Bill as amended on Committee Stage. The definition of "family" included in the Bill is "spouse, parent, grandparent, step-parent, child (including a step-child), grandchild, brother, sister, half-brother, half-sister, and any other person who, in the opinion of the Agency, has a bona fide interest in the child". The Deputy will agree this is a very encompassing definition of family, and it is one I am very pleased to have in the Bill. This definition is what must be borne in mind when one examines section 8(1)(c).

Section 8(1)(c) is sufficiently broad to capture the intent of the amendment proposed. It is important to note the definition of "family" already in the Bill is broader than just parents and guardians. We must take full account of the definition of "family" in section 2. The insertion of "the role of parents or guardians therein as integral to the achievement of paragraph (b) above" does not add anything to create or recognise a specific role for parents or guardians in supporting and promoting the development, welfare and protection of children. This is also provided for under the Constitution. We already have a very broad definition that is intended to apply throughout the Bill. The legislative framework and other legislation relating to the function of the agency are all framed and found in the constitutional commitment to the family.

The Deputy's amendment would narrow the broad definition already in the Bill. Such a provision is not required to underpin the role of parents, as any statutory provision is to be interpreted within the constitutional framework. The definition in the legislation is clearly spelled out. When we discussed this on Committee Stage some Deputies recognised that the definition in the legislation is already very broad and encompasses the points made by Deputy Ó Caoláin.

Deputy Caoimhghín Ó Caoláin

We both cited the explanation of the term "family" from the opening pages of the Bill. The truth is that it is under the explanation of the word "couple" that we find a much more explicit reference to the understanding of family, in terms of a married couple; civil partners within the meaning of Civil Partnership and Certain Rights and Obligations of Cohabitants Act; a man and woman who are not married to each other but are cohabiting as husband and wife; or two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and woman who are not married. It is all about clarity, and the interpretations are there. My sense of it, and the argument I have put, is that the expansion of section 8(1)(c) to read, as I indicated in the amendment proposed, "all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above" is very important. Not all children are necessarily in all of the circumstances explained by "family" or "couple". Some are placed in a variety of settings, including many of those who are in State care due to fostering. The wording "all families" would reflect the actuality with regard to a child's circumstances in all family settings. I do not believe the amendment as presented weakens, disturbs or distorts any of the intent of the legislation.

It offers the clarity that is needed and that many in our society would welcome. Again, I commend the amendment to the Minister and reiterate that the intent behind it is self-evident.

Deputy Frances Fitzgerald

The definitions contained in the Bill are very expansive. For example, the definition of "couple" refers to a married couple, civil partners within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a man and a woman who are not married to each other but who are cohabiting as husband and wife or two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and a woman who are not married to each other but who are cohabiting as husband and wife. There is no need for the additional provision contained in the amendment because the definitions contained in the legislation are sufficiently expansive and encompass the points the Deputy makes.

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

Amendment declared lost.

Acting Chairman (Deputy Bernard J. Durkan)

Amendment No. 4 in the name of Deputy Caoimhghín Ó Caoláin is out of order because it would involve a potential charge on the Exchequer.

Deputy Caoimhghín Ó Caoláin

If I could make one comment-----

Acting Chairman (Deputy Bernard J. Durkan)

The Deputy is not allowed to make a comment. As we are both aware from our many years of experience as Members of the House, the debate on amendments being ruled out of order is ongoing. We will take it as read that the amendment is deemed to involve a charge on the Exchequer and, as such, is out of order. I cannot grant any latitude in the matter.

Deputy Caoimhghín Ó Caoláin

If ensuring the prevention of harm to a child is deemed to represent a potential charge on the Exchequer, shame on all of us.

Acting Chairman (Deputy Bernard J. Durkan)

Point taken.

Amendment No. 4 not moved.

Deputy Caoimhghín Ó Caoláin

I move amendment No. 5:

In page 13, line 10, to delete "and accountability" and substitute ", accountability and consistency".

The intent behind this amendment is to change section 8(5) which relates to the functions of the agency and currently reads, "The Agency shall, in the performance of its functions, demonstrate high standards of performance, transparency and accountability". I want to alter the subsection in order that it would read "accountability and consistency". This is extremely important. In recent months and years the inconsistency of approach to the application of specific measures in respect of children has been highlighted. It was highlighted again recently in the context of the views of children being taken into account, particularly by the courts in circumstances relevant to a child's interests and future. The difference in the approaches employed by people who are trained to the same level as professionals is a matter of great concern and was discussed by the Joint Committee on Health and Children on Tuesday in the context of the presentation made to it by the special rapporteur on child protection, Dr. Geoffrey Shannon. We must expect consistency across the board in all matters pertaining to the interests of children. Such consistency has not been present heretofore. The functions of the new agency under section 8(5) would be strengthened and enhanced by inclusion of the term "consistency".

Deputy Charlie McConalogue

I support the amendment. One of the key reasons put forward by the Minister and the Government for the establishment of the new Child and Family Agency is the need to draw together the various child and family services throughout the country in order to ensure consistency of approach across these services. As it stands, section 8(5) states, "The Agency shall, in the performance of its functions, demonstrate high standards of performance, transparency and accountability". If the amendment were accepted, the term "consistency" would be added. It goes without saying one would expect consistency, but it is highly important that this be clearly reflected in the legislation. If the term "consistency" is included, it will place very important legal obligations on the new agency in the context of ensuring cases in various parts of the country which are dealt with at different times will be treated in a consistent manner. It should not be the position that a particular decision will be made in one case and a completely different one in another. It is important that the term be included in the legislation. I will be interested to hear any rationale as to why it should not be included.

Deputy Frances Fitzgerald

There is no question but that consistency is a key element of performance, transparency and accountability. The Bill states, "The Agency shall, in the performance of its functions, demonstrate high standards of performance, transparency and accountability". Clearly, having a high standard of performance would ensure a consistent approach; therefore, I do not believe a separate expression is required because a lack of consistency in the delivery of services would raise key performance questions. What is sought in the amendment is already encapsulated in the language used in the subsection. Obviously, I am committed to the concept of consistency in access to services for children and families. I do not disagree with the Deputies in respect of the fact that we should demand consistency in the delivery of services. A lack of consistency has been a problem across the services being delivered to children and families. We have been careful to outline in the legislation the key aspects of governance and management in order to ensure there will be a governance system in place and that the agency will be accountable to the Minister of the day and the Department. We have also clearly outlined the responsibilities of the staff and management of the agency in the context of the services they are obliged to deliver.

Provision is made in the legislation for strong governance and performance oversight, which is new. This is more modern oversight and represents a departure from what was done in previous legislation on the establishment of new agencies. Stronger demands will be placed on those running the agency to be accountable for the work they do, to report back on a regular basis and to ensure the agency meets the necessary standards in carrying out its functions. As the Deputies are aware, I have put in place a very competent board led by Ms Norah Gibbons to oversee the work of the agency. The combination of this strong legislation in the context of key demands it makes, the clarity it provides in respect of the agency's functions and the governance structures it imposes and the experience of the members of the board, particularly their background knowledge of the services delivered, will make a difference in the delivery of consistent services.

The main reason for putting the Child and Family Agency in place is to ensure the correct focus will be achieved. There will now be 17 managers instead of 36 and their key responsibility will be the development of child and family services in their areas. The Deputies will be aware of the story commonly told that in the past the issue of child and family services rarely made it onto the agenda of the relevant HSE board. The overriding focus of the new agency will be on the range of child and family services provided throughout the country and its key objective will be to ensure these are delivered in a consistent and effective way. It will also be charged with ensuring the children who are most in need will have access to such services. The combination of legislation, governance structures and clarity in respect of functions will ensure consistent services will be delivered. It is understood consistency is a key element of performance. It does not need to be spelled out in the legislation in the way the Deputy suggests.

Deputy Caoimhghín Ó Caoláin

I absolutely disagree. It certainly does need to be explicitly stated in the legislation. The Minister used the word "consistent" not only in reference to the amendment, as presented, but also with regard to her expectations in terms of the agency's performance.

Consistency flowed out naturally, yet it is not stated in the text as a requirement. Inconsistency in the approach to children has been very much in evidence across all the agencies and services, not only in recent years but for decades. How can it be in any way a challenge to provide that the agency shall, in the performance of its functions, demonstrate high standards of performance, transparency, accountability and consistency? A requirement to be consistent is not implicit and must, therefore, be stated in the interests of children and also of the way in which the State relates to and engages with their interests. Consistency is what we want and we have ample evidence of inconsistency in the State's response to cases in which children were central in the recent past. I will make further reference to this inconsistency when we discuss the next amendment.

I urge the Minister again to accept the amendment. It is imperative because consistency is about treating all children equally in every circumstance that can present. The amendment makes absolute sense and I believe the Minister recognises that.

Deputy Charlie McConalogue

In her response to the proposal to insert the word "consistency" in the relevant line, the Minister outlined several reasons that consistency is important and noted that the need for consistency was one of the key factors in establishing the agency in the first instance. She then stated that, for the reasons she had outlined, it was not necessary to include the word "consistency" in the legislation. Her line of argument does not add up.

Is consistency referred to elsewhere in the legislation? Is it made clear in the Bill that consistency is expected of the agency, especially given that it was a key objective when establishing a single agency? If the word "consistency" will not be included on the basis that consistency is taken for granted, why is the Minister going to the trouble of inserting the words "performance", "transparency" and "accountability"? If one uses her logic, these characteristics should also be taken for granted. Will she set out the reasons for including these three words, while refusing to include the word "consistency", which is of equal importance?

Deputy Frances Fitzgerald

The term "high standards of performance" in respect of children's services clearly encapsulates a requirement to provide a consistent service. One other point that needs to be made is that it is clear, for example, in terms of the volume or location of services, that one must take account of local need and variations in need. One must ensure that responses are being provided. While we want consistency in the application of specific interventions, we must also allow for relevant and necessary assessment of specific circumstances. Clearly, there will be variation in the responses provided in terms of the precise services provided in any one area at a given time. We need to be careful that such variation is permitted under the legislation and that we do not provide precisely what must be provided in every geographic area. If one inserts the word "consistency" in the definition, it could be interpreted in a manner that would preclude the type of local intervention and specific assessment that is needed in a variety of areas. On the other hand, we also want consistency of approach in the provision of services.

The requirement regarding high standards of performance, transparency and accountability gives a clear direction to the agency about the standards that need to apply and the consistent services. While I use the word "consistent", it should be applied in the application and development of services. One has to allow for local variation and need.

Deputy Caoimhghín Ó Caoláin

The Minister refers to local variation and need. High standards of consistency, which would be required if the subsection were amended, do not disallow flexibility in response to given circumstances which can and will present. The Minister's comments suggest, for the first time, that inconsistency is what she wishes to provide for. The only logical conclusion one can draw from her statement is that she regards inconsistency as meritorious in respect of the legislation and the agency it establishes. I cannot wear that view, which is absolutely wrong. Having the highest standards of performance, transparency and consistency would not preclude those entrusted with performance of responsibility on the part of the State from responding to circumstances as they require in light of all the facts that apply.

The Minister's argument is a convenient way of refusing to accept further straightforward and logical amendments that seek to improve and strengthen the legislation in the interests of children and as a means of building confidence across society in the State's role in respect of children. Such confidence has been significantly weakened in the recent past as a result of certain actions and decisions which have clearly shown a lack of consistency or equality of response in relation to all children.

Having made the case for accepting the amendment again, I do not propose to add anything further, as it would be wearisome to do so. The amendment stands on its merit and it is a great disappointment that on Committee Stage and now on Report Stage, the Minister has not been able, for whatever reason, to accept the most straightforward, meritorious amendments which are designed solely to improve the legislation in terms of preparing for the role of the agency.

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

Amendment declared lost.

Deputy Caoimhghín Ó Caoláin

I move amendment No. 6:

In page 13, between lines 10 and 11, to insert the following:

“(6) In the performance of its functions, the Agency shall have regard to the principles of equality and non-discrimination.”.

The amendment proposes to insert a new subsection in the section setting out the functions of the new agency. The principles of equality and non-discrimination must be central to the agency's function and responsibilities. We must bear in mind that we have seen, not only in times long past but very recently, some of the most worrisome examples of questionable practice where inequality and discrimination may well have been practised. That is unacceptable. All children must be treated equally and it is essential that the principle of equality applies, not only to those who were born on the island of Ireland, whether of the indigenous population or newcomers who have settled here in recent years, but also those who are now among our communities across the length and breadth of the country. It must also apply to the children of the Traveller community who have not always experienced equality and know a little about discrimination.

It must also apply to children in the family situations that apply across Irish society today, and to which we have already referred in some measure. It must also apply to young people who may be of lesbian, gay, bisexual or transgender make-up. Irrespective of their domicile geographically, their make-up as individuals, their background, their disposition, their sexuality, children must all be treated the same and there is ample evidence that such has not always been the case. This legislation needs to state absolutely and explicitly that equality and non-discrimination must be cornerstones of the new agency's remit.

There can be no question of the colour of the hair or the eyes of a child being a factor in whether he or she can be brought into State care or not. There are many questions about recent actions taken and we hope that those answers will soon be forthcoming following on the inquiry being undertaken by the Ombudsman for Children, Ms Emily Logan. I only cite those two experiences of the recent past, but there are so many. This new agency must put a marker down for a new reality in the State's relationship with children across the board and we must state firmly and absolutely that every child is treated equally, is respected fully and is provided for in a non-discriminatory way for all his or her needs in preparation for adult life.

Deputy Frances Fitzgerald

I assure Deputy Ó Caoláin that the Equal Status Acts of 2000 and 2012 apply absolutely to the provisions of the Child and Family Agency and, therefore, do not need to be restated in the Bill. As he will be aware, once there is primary legislation that is absolutely clear about discrimination and equality, there is not a need to repeat it in the Bill but it applies absolutely to the work of the Child and Family Agency.

The general scheme of the Irish human rights and equality commission Bill, as published in 2012, imposes a positive duty on the public sector which, I believe, addresses the issues of concern in this regard that Deputy Ó Caoláin raises as well. Head 36 of the general scheme proposes, "A public body shall in the exercise of its functions have due regard to the need to eliminate prohibited discrimination, promote equality of opportunity and treatment and protect the human rights of its staff and the persons to whom it provides services.", and any further developments in this regard should apply in a consistent manner to all agencies. We already have the Equal Status Acts on non-discrimination, and the human rights Bill repeats that public bodies and agencies will have a positive proactive obligation to eliminate discrimination, promote equality of opportunity and treatment and protect the human rights of its staff. That obligation, which Deputy Ó Caoláin correctly highlights as an important one, is already in legislation. As I stated, there are further legislative proposals in that area that will copperfasten it as well.

The issues Deputy Ó Caoláin raises are well covered by legislation already. As he will be aware, one would go to the primary legislation and it would not be the practice to repeat it in this or in any other legislation contemplated.

Deputy Caoimhghín Ó Caoláin

It must be evident to the Minister and to all concerned that the legislation to which she refers has been in place yet some of the instances of inequality and discrimination are more contemporary than the legislation's passage. It has not actually made the critical difference.

It is important that in the functions of this new agency we emphasise and lay down a clear marker and indicator that the elected voices of the people of the State will not tolerate inequality and discrimination in relation to children in any circumstances across society. The legislation the Minister cites affirms that, but in relation to this agency, and, specifically, now that there is no question as to the weakened confidence in society on the State's position vis-à-vis children and the question of children at risk, there needs to be an absolute statement clearly outlining the importance in the view of these Houses that equality and non-discrimination will be cornerstones of the new agency's approach to dealing with children henceforth. It is in the Minister's and her Department's interest to ensure that such is affirmed strongly and clearly in this legislation. I believe that there is a public demand for that and that such is the least response that we could offer at this point in time, given all that has happened over recent months.

Deputy Charlie McConalogue

I support this amendment. I take on board the Minister's points about other legislation in place, but the Bill would be strengthened by explicitly placing it here. It gives clear guidelines as to what exactly is expected of the new Child and Family Agency and how it is expected to do its business. Children are the most vulnerable sector of society. More than anyone, they can be subject to situations whereby they are not treated equally and are subject to discrimination.

It should be put in explicitly to the Bill. The Minister has not offered up a strong reason as to why it should not be there. I would support its insertion.

Deputy Frances Fitzgerald

I disagree with Deputy McConalogue. I have given the strongest reason, that it is already in legislation. One does not have to repeat it. When one has strong legislation in place to deal with a particular issue, that is, equality and non-discrimination, it is not the practice to repeat it in new legislation. That is the reality of the situation.

However, I take the point Deputy Ó Caoláin has made, that often there is failure in implementation. Of course, that is the purpose of the new agency as far as children at risk are concerned, to ensure that the focus is on children and on promoting the welfare of those children who have been failed by the State in the past.

What we have now done is put in place an implementation plan to ensure that we do not repeat what happened in the past and that we operate in a different way. It will not be done overnight. There is a bad legacy in this regard. There have been changes, but there is a great deal of work to do to get to the kind of national standards in the delivery of these services that we need to. The way we have framed this legislation and the way we have brought the agency together, and the various services that provide for children, is what will make the most difference to how children receive these services.

We have in legislation already the principles of equality and non-discrimination. We now have a mechanism to implement the services in a way that they have not been implemented previously and that is what will really make the difference.

What we are passing here today in the Bill is an implementation of the Government decision to have a separate agency so that we can deal with those failures of the past and begin to deliver services in a much better and more cohesive way to the children who need them most, particularly those 6,000 children who are in care but also those children at risk in the community. There are 40,000 referrals every year. There is an increasing number of cases of neglect being referred to the services around the country. There are 1,500 cases of confirmed child sexual abuse every year.

We have serious ongoing child protection issues in this country. These have to be faced up to not only by the Child and Family Agency but also by communities and everybody will have a part to play in ensuring that where children are vulnerable there is intervention so that they get a second chance.

Deputy Caoimhghín Ó Caoláin

One could pick any of the other functions set out in the Bill and say "that is implicit". For whom is the message designed? Is it really designed for the board of the new agency? Is it designed for those who will be working at the helm or the coalface in terms of the agency's 4,000 employees on its establishment? It is definitely also designed for public reassurance. There can be no question this is not just a brief or terms of reference for the new agency. It is a public statement of the agency's role and functions in order to give a public assurance. I believe it is necessary to state clearly there will be no countenance of the practices of the past in respect of inequalities and discrimination, as they have applied across not just the areas I referred to in my opening contribution on this amendment but to all circumstances. We want to see the highest standards of performance and the elimination of practices that discriminate against children on the basis of inequality. Those are practices that must be banished and left to the past. This is a new beginning and we need clearly to state it publicly as well as for the agency and its board. That is why it should be there. I am pressing the amendment.

Debate adjourned.

Amendment put:

The Dáil divided: Tá, 37; Níl, 73.

Tá

• Broughan, Thomas P.
• Browne, John.
• Collins, Niall.
• Colreavy, Michael.
• Crowe, Seán.
• Daly, Clare.
• Doherty, Pearse.
• Donnelly, Stephen S.
• Dooley, Timmy.
• Ferris, Martin.
• Flanagan, Luke 'Ming'.
• Fleming, Sean.
• Fleming, Tom.
• Grealish, Noel.
• Halligan, John.
• Healy, Seamus.
• Healy-Rae, Michael.
• Kelleher, Billy.
• Kitt, Michael P.
• Mac Lochlainn, Pádraig.
• McConalogue, Charlie.
• McGrath, Finian.
• McLellan, Sandra.
• Murphy, Catherine.
• Naughten, Denis.
• Nulty, Patrick.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• O'Sullivan, Maureen.
• Pringle, Thomas.
• Ross, Shane.
• Shortall, Róisín.
• Smith, Brendan.
• Stanley, Brian.
• Tóibín, Peadar.
• Wallace, Mick.

Níl

• Bannon, James.
• Barry, Tom.
• Breen, Pat.
• Butler, Ray.
• Buttimer, Jerry.
• Cannon, Ciarán.
• Carey, Joe.
• Coffey, Paudie.
• Conlan, Seán.
• Conway, Ciara.
• Coonan, Noel.
• Corcoran Kennedy, Marcella.
• Costello, Joe.
• Creed, Michael.
• Deasy, John.
• Donohoe, Paschal.
• Dowds, Robert.
• Doyle, Andrew.
• Durkan, Bernard J.
• Farrell, Alan.
• Feighan, Frank.
• Ferris, Anne.
• Fitzgerald, Frances.
• Fitzpatrick, Peter.
• Flanagan, Charles.
• Gilmore, Eamon.
• Griffin, Brendan.
• Harrington, Noel.
• Harris, Simon.
• Heydon, Martin.
• Howlin, Brendan.
• Humphreys, Heather.
• Humphreys, Kevin.
• Keating, Derek.
• Kehoe, Paul.
• Kenny, Seán.
• Kyne, Seán.
• Lawlor, Anthony.
• Lynch, Ciarán.
• Lyons, John.
• McEntee, Helen.
• McGinley, Dinny.
• McHugh, Joe.
• McLoughlin, Tony.
• McNamara, Michael.
• Mitchell, Olivia.
• Mitchell O'Connor, Mary.
• Mulherin, Michelle.
• Murphy, Dara.
• Murphy, Eoghan.
• Nash, Gerald.
• Neville, Dan.
• Nolan, Derek.
• Ó Ríordáin, Aodhán.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Mahony, John.
• O'Sullivan, Jan.
• Penrose, Willie.
• Perry, John.
• Phelan, Ann.
• Phelan, John Paul.
• Rabbitte, Pat.
• Reilly, James.
• Ryan, Brendan.
• Sherlock, Sean.
• Spring, Arthur.
• Stagg, Emmet.
• Stanton, David.
• Tuffy, Joanna.
• Wall, Jack.
• Walsh, Brian.
• White, Alex.

Tellers: Tá, Deputies Brian Stanley and Sandra McLellan; Níl, Deputies Emmet Stagg and Paul Kehoe.

Amendment declared lost.