Dáil Éireann debate -
Tuesday, 14 Jul 2015

Vol. 887 No. 1

Children First Bill 2014: Report and Final Stages

Deputy Robert Troy

I move amendment No. 1:

In page 11, between lines 33 and 34, to insert the following:

“(10) A provider who is served with a non-compliance notice shall be liable to inspection by child protection staff of the Agency.

(11) A provider who has been served with a non-compliance notice and has been on the register of non-compliance for 30 days consecutively or more may be liable to an offence and on summary conviction may be subject to a class B fine.”.

The amendment specifies that a provider who is served with a non-compliance notice should be liable to inspection by child protection staff of the agency. There seems to be an error. The amendment I submitted provided that the provider be liable to inspection by HIQA. The Bill also specifies that a provider who has been served with a non-compliance notice and has been on the register of non-compliance for 30 days consecutively or more may be liable to an offence and, on summary conviction, may be subject to a class B fine. We debated the measures at considerable length considerably on Committee Stage.

I welcome the main provisions of the Bill and, as I indicated on Second Stage and Committee Stage, my party will support it. It is long overdue and has been promised since the new Government came to office. While I should not call the Government "new" given that it is four and a half years into its term, it has taken four and a half years to bring the legislation to this point. It will put the Children First guidelines on a statutory basis, which will ensure anybody who has child welfare or protection concerns or who suspects abuse or neglect, will be legally required to report the concerns. Wherever children congregate, there will be a requirement that a child safeguarding statement be in place and on display. In the absence of sanctions and consequences for the failure to display a child safeguarding statement, it will not be robust enough.

I looked back at a press release I released in 2014, when the heads of the Bill were published. The Government had previously published heads of the Bill in April or May 2012. At that stage, it was envisaged that there would be robust sanctions for failure to comply with Children First legislation, up to five years in prison. The Minister's Department, led by his predecessor, was ensuring such sanctions. We need to put sanctions in place. Without them, we will not achieve sufficient compliance with the legislation. I suggested providers be liable to inspection by HIQA because HIQA's independence is unquestioned and it has carried out much good work during recent years in inspecting nursing homes and other institutions. Nobody questions HIQA's reports, due to its independence. HIQA would also be well placed to exercise discretion.

When we discussed it on Committee Stage, one of the Minister's main concerns was the cost implications associated with my tow amendments. I do not know if we can, in all conscience, take cost into account regarding child welfare and protection. We must ensure we do not compromise the welfare or protection of children in any way. HIQA will be able to exercise discretion and target areas of greatest vulnerability, issue proportionate sanctions and examine the risks involved in non-compliant institutions. In the business world there are serious sanctions for failure to have a safety statement in place, for example on a construction site or in a factory. If it is appropriate to sanction a business for failure to publish a safety statement, it is appropriate to sanction various institutions which deal with the most vulnerable people in society, children. We should implement sanctions and make non-compliant providers subject to inspection by HIQA. I made the point on Committee Stage, and the Minister asked me to have it costed. I said the Minister would be better placed to do so, given that he had a full Department at his disposal. I would welcome his feedback on it.

Minister for Children and Youth Affairs (Deputy James Reilly)

Section 12 allows the agency to establish and maintain a publicly available register of non-compliance. It also sets out the criteria by which a non-compliance notice may be removed from the register, namely, on receipt by the agency of a child safety statement or the agency being satisfied that the statement is no longer required. Amendment No. 1 proposes a new subsection (10) to provide that a provider who is served with a non-compliance notice is liable to be inspected by child protection staff of the agency. The new subsection (11), which is also proposed to be inserted by the amendment, provides for a criminal sanction for a provider of service which continues to be on the non-compliance register for longer than 30 days. I will address both these together.

I have been advised that in order to provide for a criminal sanction in a legally sound manner, the Bill would have to provide for very significant operational complexity, including the operation of an inspection regime. After detailed consideration of what an inspection regime would involve, it was decided not to include a criminal sanction. It is my Department's view that introducing an inspection regime would divert significant Child and Family Agency resources away from front line, core child protection work and, therefore, I do not propose to accept amendment No. 1. I understand and share the Deputy's concern that there should be full compliance with the requirement, that providers of relevant services prepare and publish a child safeguarding statement. I expect parents will be a significant ally in this respect and I hope it will become the norm that parents demand that services attended by their children, in both public and private sectors, will, where required by the legislation, have a fully up-to-date child safeguarding statement.

The matter will be kept under review and I will be prepared to revisit the issue if it transpires, following commencement of the legislation, that providers of relevant services fail to fulfil their statutory requirements. Until then, I cannot justify the significant diversion of resources from front line child protection work which would be required for the implementation of the Deputy's amendment.

Deputy Robert Troy

The Minister's position has not deviated at all since Committee Stage. It is somewhat regrettable.

I accept the Minister's point about how, at times of scarce resources, we must ensure the provision of adequate front-line services. In this case, however, it involves front-line services where children are being looked after and there is non-compliance.

I accept that the amendment provides for the child protection staff of the agency when it should be the Health Information and Quality Authority, HIQA. Has the Minister examined the possibility of extending HIQA’s remit to include this area? The authority has already proved it can exercise discretion, target areas of greatest vulnerability and issue proportionate sanctions at the same time without compromising scarce resources for front-line services. We must ensure the best allocation of the Department’s resources. I know the challenges it faces in providing an adequate number of social workers and affordable child care services, as well as many other constraints. However, the best way to ensure compliance is to clearly state there are consequences and sanctions for non-compliance. Until a child care service faces sanction for not having a child safeguarding statement publicised or up to date, this will not work. I am concerned that we are putting an additional onus on parents to ensure they monitor various institutions. If a safety statement was not produced on a building site or in a factory, management would be liable to face sanctions.

Deputy James Reilly

No one is asking parents to monitor organisations. We are merely asking that they satisfy themselves that there is a child safety statement. If it is not in place, they should reconsider whether they should let their child attend that service or organisation. It is important to point out that there are over 25,000 organisations involved. The burden of the Deputy’s proposal would soak up a significant amount of available resources, not just of money but also personnel, even for an organisation such as HIQA. We are not asking parents to monitor the situation but to satisfy themselves that, as one mark of a facility’s or service’s quality, there is a child safety statement. If there is not one in place, it should lead them to ask further questions about the appropriateness of that organisation, facility or service for their child. If reported to the agency, it will take action regarding the register of non-compliance. I have also given an undertaking to keep the matter under review. If I find it is not operating in a safe and satisfactory fashion, we will revisit the issue. In the first instance, however, the approach we have taken is proportionate and reasonable.

Deputy Robert Troy

I accept the Minister’s bona fides in this regard. He has undertaken to review the provision in the future if it is not working satisfactorily. However, that goes for all legislation. The reason we are putting the Children First guidelines on a statutory basis is we believe they are not working adequately and want to ensure there is a legal requirement to ensure their implementation. By virtue of this, we are acknowledging the current system is not fit for purpose and want to improve the status quo.

Parents can satisfy themselves on the standards applied in, say, a crèche. However, what happens if its safeguarding statement is out of date? What happens if it is published one month but not subsequently? If a crèche is reported as a consequence, the Minister considers it is appropriate enough to name and shame rather than have meaningful sanctions.

The proposal to introduce tough and robust sanctions came from the Department under the then Minister, Deputy Frances Fitzgerald, in 2011 when the legislation was first proposed. The proposed sanctions included up to five years’ imprisonment. Why has there been such a change in the intervening period?

The Minister has claimed this provision will be under review. There will be an election in eight months. Without wishing either of us ill luck, who knows if we will be back in this House? With all due respect, a personal undertaking is not worth the paper on which it is written. If this does not work, how we can ensure child care facilities will become subject to investigation by HIQA and face sanction?

Amendment put and declared lost.

Deputy Robert Troy

I move amendment No. 2:

In page 14, between lines 19 and 20, to insert the following:

“(13) A mandated person may be held guilty of an offence if he or she is required to report concerns or allegations of abuse to the Agency under subsections (1) and (2) and fails to do so subject to subsections (3) and (4). A mandated person guilty of an offence will be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.”.

Unfortunately, we have a litany of legacy issues where people in positions of authority ignored the physical abuse of minors in their care and moved predators from one jurisdiction to another. Some of them held kangaroo courts to try to administer justice.

This provision should apply to everybody, whether he or she is in a position of authority or an ordinary citizen on the street. Knowing what we now know about what happened in the Church, swimming clubs, schools, youth clubs and various organisations across the State, we have a responsibility to those who have been abused to ensure we will take all necessary precautions in order that no minor will have to suffer at the hands of an evil predator or suffer neglect or abuse. Someone should never be able to say he or she had concerns, but that Paddy or Johnny was an upstanding member of the community and that that alleviated him or her of responsibility. There must be a requirement that if someone has concerns, they be reported to the appropriate authorities to ensure they will be checked to see whether they are justified. Learning from past experience and past mistakes, it is not something that should or can be left to chance. There should be tough sanctions and consequences for those who knowingly and willfully flaunt regulations and ignore their moral duty to ensure a child is protected. Anyone who knowingly and willfully ignores the welfare and protection of a child is just as bad as the person who abuses or neglects a child. Such a person should also face consequences and sanctions.

I genuinely appeal to the Minister to reconsider accepting the amendment because it is in the best interests of all children that it be accepted. It would improve the Bill which I acknowledge is good, but there are small areas where we can improve it. We are working together on a cross-party basis in the interests of promoting child welfare and protection and this is an area in which improvements could be made to the Bill. I, therefore, ask the Minister to accept the amendment.

Deputy James Reilly

Section 14 provides that certain professionals and other persons in specified occupations, as listed in Schedule 2, are mandated persons for the purposes of the Bill. The section sets out the circumstances where a mandated person is required to make a report to the Child and Family Agency.

Amendment No. 2 proposes to impose a criminal sanction on a mandated person who fails to report concerns or allegations of abuse to the Child and Family Agency. Taking legal advice into account and the need for a reasonable and proportionate approach, it was decided that it was unnecessary to impose a criminal sanction on a mandated person in the overall context of meeting the policy objectives of the proposed legislation. There were very serious concerns that unfounded and misplaced fears of attracting a criminal sanction would result in over-reporting and thereby place the child welfare and protection system under even more pressure. Some low level or inappropriate reporting could have the unintended consequence of delaying the prioritisation of higher risk reports if the ability to process reports was compromised. International comparisons indicate that this, in fact, has been the case in other jurisdictions. For example, in New South Wales the introduction of mandatory reporting precipitated a large increase in reporting rates but with little or no improvement in child protection overall.

There are a number of administrative sanctions or consequences available if it transpires that a mandated person has failed to comply with his or her statutory obligations. The option to report a mandated person to his or her employer or the fitness to practise committee of his or her professional regulatory body remains open to the Child and Family Agency in a case where it transpires that a mandated person has failed to make a report. The Bill includes a link to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The Child and Family Agency will be a scheduled organisation under that Act and in cases where a mandated person has failed to make a report, the agency, following an inquiry, will pass this information to the National Vetting Bureau.

The Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 makes provision for the reporting of relevant information to the Garda. This legislation will operate in tandem with this Bill, when enacted. A person who fails to report to the Garda under the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 could be subject to criminal sanction. I envisage opportunities for administrative arrangements to support the implementation of the legislative requirements; for example, mandated reporting should be incorporated into codes of conduct and contracts of employment for relevant persons. As things stands, many providers of children's services consider a failure to report to be a disciplinary matter.

For these reasons, I am not accepting amendment No. 2. However, as stated previously, I will be keeping the operation of the Act under review and if it transpires that mandated persons are failing to comply with their legal obligations to report, I will be prepared to revisit the issue.

Deputy Robert Troy

I am disappointed with the Minister's reply. I thought he would accept the amendment in the spirit in which it was submitted, that is, to improve the Bill. He talks about the members of many professions being subject to disciplinary action, but that is not something one can say for definite with authority across all professions. He also talks about the withholding of information, but he will be aware that that legislaton only deals with very serious criminal offences. He talks about the National Vetting Bureau. Despite the fact that that legislation was enacted over 18 months ago, it has yet to be commenced. Therefore, I am not confident that these two pieces of legislation will deal with all of the issues with which we want to deal.

The amendment seeks to ensure that in all matters to do with child welfare and protection, if there is serious concern that a child is being abused or neglected, a person would make the necessary report to the Child and Family Agency. Perhaps it might place additional requirements on the services of the Child and Family Agency, but I would much rather see additional requirements being placed on the agency than a scenario, as happened in counties Laois and Offaly, where files would be left to one side. In that instance reports were made but not acted on for a number of years. That is why the Minister had to provide additional support from outside the area. When it comes to child welfare and protection, we cannot be complacent. We must bring forward extremely robust legislation. It was the Minister's Department which proposed to bring forward these sanctions in 2012. I am only following through on what it wished to do three years ago.

Deputy James Reilly

I have already given the Deputy an international example where what he proposes in this amendment hugely increased the workload of the agency concerned without any benefit to children. If an extra burden can be placed on an agency which is to the benefit of children it is something we would not shy away from doing. However, it has been proven internationally, in the case of New South Wales in Australia, that it does not yield any benefit but merely makes more work because people, paranoid about criminal sanctions, report anything and everything lest they be exposed. The Deputy acknowledged that in Laois-Offaly the issue related to a different problem altogether. There was not a problem with the reporting but a failure to deal with the reports in a way that had been agreed via protocols. The issue has been handled by the agency in a very urgent fashion and the chief operations officer, Mr. Fred McBride, has taken personal responsibility and control of the situation and has done similarly in Louth-Meath.

We are listening to people. The Deputy points out again and again that my predecessor and the Department spoke about an approach not unlike the one he is proposing but they have taken the time to consult and have learned that this may not be the best way forward and could even be counterproductive. We have left ourselves a safety valve in that, if we find our approach is not working, we will review and revisit the situation. We will keep it under review as I believe child safety is everybody's responsibility and I know all Deputies have child safety and protection to the forefront of their minds. They want to see that our children are safe and can enjoy their childhood, that they are well connected, protected and involved in contributing into the future.

Deputy Robert Troy

The Minister cites the example of New South Wales but there are many other jurisdictions, such as in Canada and in the United States of America, where sanctions are in place and where, having brought legislation in without sanctions, they later added sanctions. I referred to these places during the Second Stage debate last year, though it was the Minister's predecessor who was in the House at that time. There is always an international experience that can justify the case one wishes to put but, as the Minister confirmed on Committee Stage, the big issue is resources. Tusla, the new, stand-alone agency which was set up specifically to deal with prevention, early intervention and the welfare of children is not adequately resourced and has not been adequately resourced since its establishment. There are not sufficient front-line staff in social work and that is the real reason we are not bringing forward sanctions for people who fail to report. The agency is not fit for purpose in terms of being adequately resourced.

There are areas internationally where there are sanctions for non-reporting and, given the number of inquiries and reports there have been down the decades, we have a responsibility to ensure this never happens again. One of the ways to make sure it never happens again is to hold people accountable who knowingly and wilfully turn a blind eye to cases of abuse and neglect. This legislation gives us an opportunity to make those people face the rigours of the law with sanctions for failing to carry out their moral obligation. It was always their moral obligation to report these things.

Standing Orders allow that the final contribution of the proposer of an amendment can speak without time limit and the Minister should not be worried about the time limit. He should be more worried about ensuring we get this right. We have been waiting for this legislation for four and a half years and it was promised when the new Department of Children and Youth Affairs was established. We are now in the last week of a Dáil term before an election and it is being rushed through with a guillotine. I do not mind the guillotine because there are only four amendments but we should thrash out those four amendments. I accept that we have a difference of opinion but this amendment should be examined.

The things to which I refer are not in the distant past and are not just legacy issues but are happening now. People in positions of authority fail to live up to their moral obligation and when they do that there should be a legal obligation. If they fail to live up to their legal obligation there should be consequences for those people. I am pressing this amendment as it is worthy of consideration. I am disappointed the Minister has not taken it in the spirit in which it was intended.

Amendment put:

The Dáil divided: Tá, 29; Níl, 54.

Tá

• Aylward, Bobby.
• Broughan, Thomas P.
• Calleary, Dara.
• Collins, Niall.
• Colreavy, Michael.
• Ferris, Martin.
• Fitzmaurice, Michael.
• Fleming, Sean.
• Fleming, Tom.
• Halligan, John.
• Healy, Seamus.
• Healy-Rae, Michael.
• Mac Lochlainn, Pádraig.
• McConalogue, Charlie.
• McDonald, Mary Lou.
• McGrath, Finian.
• McGrath, Mattie.
• McGrath, Michael.
• Martin, Micheál.
• Naughten, Denis.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• Ó Snodaigh, Aengus.
• O'Brien, Jonathan.
• O'Sullivan, Maureen.
• Pringle, Thomas.
• Stanley, Brian.
• Troy, Robert.

Níl

• Bannon, James.
• Burton, Joan.
• Butler, Ray.
• Buttimer, Jerry.
• Byrne, Catherine.
• Byrne, Eric.
• Carey, Joe.
• Conaghan, Michael.
• Coonan, Noel.
• Corcoran Kennedy, Marcella.
• Costello, Joe.
• Creed, Michael.
• Deering, Pat.
• Doherty, Regina.
• Dowds, Robert.
• Doyle, Andrew.
• Durkan, Bernard J.
• English, Damien.
• Fitzgerald, Frances.
• Fitzpatrick, Peter.
• Harrington, Noel.
• Harris, Simon.
• Humphreys, Heather.
• Keating, Derek.
• Kehoe, Paul.
• Kelly, Alan.
• Kenny, Seán
• Kyne, Seán.
• Lynch, Ciarán.
• Lynch, Kathleen.
• McCarthy, Michael.
• McFadden, Gabrielle.
• McGinley, Dinny.
• McHugh, Joe.
• McLoughlin, Tony.
• Mitchell O'Connor, Mary.
• Murphy, Dara.
• Murphy, Eoghan.
• Nash, Gerald.
• Neville, Dan.
• Nolan, Derek.
• Ó Ríordáin, Aodhán.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Mahony, John.
• Rabbitte, Pat.
• Reilly, James.
• Ryan, Brendan.
• Stagg, Emmet.
• Stanton, David.
• Tuffy, Joanna.
• Twomey, Liam.
• Walsh, Brian.
• White, Alex.

Tellers: Tá, Deputies Caoimhghín Ó Caoláin and Robert Troy; Níl, Deputies Emmet Stagg and Paul Kehoe.

Amendment declared lost.

Deputy James Reilly

I move amendment No. 3:

In page 23, between lines 10 and 11, to insert the following:

“5. Occupational therapist registered in the register of members of that profession.”.

I signalled my intention on Committee Stage to bring forward an amendment to include occupational therapists as one of the classes of mandated persons under Schedule 2. Deputies will recall that on Committee Stage an amendment was agreed specifically to include as classes of mandated persons speech and language therapists and physiotherapists rather than a general inclusion of all potential registrants under the Health and Social Care Professionals Act 2005. It had been suggested to me that occupational therapists should be included as mandated persons as well due to their engagement with children, in particular children with disabilities. I agree with the suggestion and accordingly I propose the amendment to Schedule 2 for this purpose.

Amendment agreed to.

Deputy Caoimhghín Ó Caoláin

I move amendment No. 4:

In page 24, line 20, after “1991” to insert the following:

“including a person taking care of one or more children (other than that person’s own such children) in that person’s home, but not including any such person who is a relative of the child or children or the spouse of such relative”.

The Children First Bill 2014 is one in a raft of measures designed to further child protection. I acknowledge the Minister's predecessor left the post having done much of the preparatory work and I have no doubt she will very much welcome the fact that we are seeing the Children First guidelines placed into legislation as a result of several years of pressing. Other Bills that come into this particular gamut of legislation include the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 and the National Vetting Bureau (Children and Vulnerable Persons) Act from the same year.

The main measure of the Children First Bill 2014 requires that mandated persons report concerns they have, matters that might present or arise in the course of their roles and functions in society, to Tusla, the Child and Family Agency. It also aims to improve compliance. As I said, the former and first Minister for Children and Youth Affairs sought to place the Children First guidelines into legislation.

Deputy McLellan and I, as the former spokesperson for children and youth affairs for Sinn Féin, have a concern with the section relating to mandated persons. In particular, we see a problem with the listing as it appears in Schedule 2 and the sentence which specifies that a mandated person includes: "A person carrying on a pre-school service within the meaning of Part VIIA of the Child Care Act 1991." Let us refer back to the Child Care Act 1991. It makes reference to childminders caring for four or more children, other than their own, but it exempts absolutely childminders caring for three or fewer children, other than their own. The amendment, developed by Deputy McLellan, seeks to amend the text to include explicitly all childminders caring for three or fewer children, or rather, those caring for one or more, but to exclude relatives.

I raised this in the course of Committee Stage and the Minister will remember that we had an exchange on the matter. I appeal to the Minister again in this regard. I believe it is critical that this comprehensive legislation is as holistic as it can possibly be and that all settings where children are placed, including childminder settings of whatever hue or variety, are absolutely catered to by this legislation. I do not believe it should be down to a numerical count of the number of children. If children are placed in a childminder setting other than their home, irrespective of whether there are one, two, three, four or more children, the reality is that the protections this legislation provides must apply to all and each. This is why we are pressing the amendment and I hope the Minister accedes to the proposition at this stage.

Deputy Robert Troy

I support my colleague, Deputy Ó Caoláin, who has moved the amendment on behalf of Deputy McLellan. It is important that childminders are explicitly included. We talk about being consistent in our legislation. By virtue of the previous amendment, the Minister took the view that there was a need to include occupational therapists and specify occupational therapists in this legislation. This, of itself, justifies the need to specify childminders clearly and explicitly.

There is in the region of 50,000 childminders in operation in this State. It is a totally unregulated sector that has been unregulated in the past. I acknowledge that is not only the responsibility or a consequence of this Government. Anyway, the sector remains unregulated. When the national vetting legislation was going through - the Minister alluded to the vetting legislation previously - we tabled amendments to include childminders. At the time, the Government voted down the amendments to include childminders. As I said, at a conservative guess there are 50,000 childminders working in this jurisdiction, our State. They are dealing with children on an ongoing basis.

Many of them are non-relative childminders and many of them are dealing with children numbering more than three. It is imperative that we refer to childminding explicitly in the legislation. As I stated, good legislation must be consistent. Given that the Minister has referred explicitly to occupational therapists, I would expect him to follow suit with this amendment and refer explicitly to childminders.

Deputy James Reilly

Schedule 2 lists professions or occupations for the purpose of specifying classes of persons to be mandated persons in accordance with this Bill. Amendment No. 4 proposes to include a person taking care of one or more children in the home who is not a relative of the child. The categories of persons set out in Schedule 2 were included in the Schedule on the basis of their professional qualifications and their ongoing contact with children. The focus on a small qualified cadre of mandated reporters will, based on evidence, improve the quality of reports made to the agency. The receipt by the agency of better quality reports from persons who by virtue of their training, qualifications and professional experience are well equipped to recognise harm to a child is likely to have a positive effect on the process of assessment of risk to a child.

The list of mandated persons was developed following detailed consideration of both the objectives of the legislation and the research paper on how mandatory reporting is dealt with internationally. As already indicated, the persons included in the list have been selected on the basis that their qualifications, role and professional expertise mean they are aware of risks to children and their responsibilities in that regard. It is anticipated that reports from these persons are likely to be of high quality, and this will assist the agency in carrying out assessments of risk in a more effective and efficient manner.

The childminding sector is not an homogenous one. A wide variety of arrangements, including personal family arrangements, pertain. In that context, it was considered overly onerous to impose a mandatory requirement on such an heterogenous group of providers. However, it is important to note that, while not required to do so under this legislation, any person can and should report any concern about a child to the agency in accordance with the Children First national guidelines, which will operate in tandem with the legislation. This position applies to childminders in addition to any other person who has contact with a specific child or children, whether in the context of service provision or otherwise. By comparison, the formal childminding sector, comprising crèches, will be covered by requirements relating to child safeguarding statements and mandated reporting. The Deputy's concern to protect this group of children should be alleviated by the fact that there are many other professionals in contact with this roup of children, including nurses, who are mandated persons, and also general practitioners. In this regard, the recent extension of GP medical cards to children under six should ensure greater contact between this group of children and their general practitioners, who are themselves mandated persons under the legislation. For these reasons, I am not accepting amendment No. 4.

Deputy Caoimhghín Ó Caoláin

I listened to the Minister's closing sentences. It is not about alleviating my concerns but about eliminating all of the circumstances in question. One should make no mistake about the fact that we will not get the chance to revisit this legislation in the foreseeable future if we are to exclude a reference to the childminder sector. The sector comprises a significant body of people right across the country who are providing daily care and oversight in respect of children in a variety of settings, but primarily the home of the childminder rather than the home of the child, although it is the latter in some instances.

It would be a major omission not to include a reference to childminders and childminding. I know this is the view of a substantial number of voices in the non-governmental sector, who have lobbied strongly in this regard. We are very clear in the amendment, tabled by Deputy McLellan, that we are not talking about including a relative of the child or children or the spouse of such a relative. That is not the setting and the Minister made reference to that in his response. We are talking here about children unconnected to the provider.

It is essential that we put into practice the oft-quoted reference within the Proclamation to cherishing all children equally. There can be no exceptions. If we allow this legislation to proceed without the inclusion of a reference to childminders, we will be failing abysmally. I will not be an obstacle to the passage of this legislation. It is important and I support it but it is deficient and will not have achieved all that it needs to and could achieve. These are the closing moments in which to ensure we pass on legislation that is truly worthwhile and inclusive. I urge the Minister again to reconsider the amendment in the name of Deputy McLellan.

Deputy James Reilly

I do not want to let the opportunity pass to respond to a statement made by Deputy Troy. He said the Child and Family Agency is not fit for purpose. I reject that because I believe it is. There will always be a case for more resources. I made it very clear that in the upcoming Estimates process I will fight for more resources for the agency. I expect that the agency will give me a good evidence-based business plan that will support its case.

With regard to Deputy Ó Caoláin's concerns, I have already made it very clear, in respect of our first two amendments, that we are to keep the operation of this legislation under review. If what we intend is not the result, we will revisit the areas that are required to be revisited. However, I do not expect childminders will comprise one of the issues to be revisited.

Deputy Caoimhghín Ó Caoláin

While I would love to be able to concur with the Minister, I am sorry I cannot. This setting could very likely present as one of real, current and topical concern, just as many such settings, both domestically and internationally, have been the focus of not inconsiderable concern and the focus of substantial sections of the media.

Deputy Troy referred to some 50,000 children. I am not able to confirm that number but I have no doubt it is at least as great as that across this State. It is essential that we recognise it is not just about four or more children, as referred to in the 1991 Child Care Act. The first, second and third children, in any combination and as catered for in any of the childminding settings across this State, are equally deserving of the full protection of this legislation. They should be "children first" in equal measure. Again, I appeal to the Minister to address this. He is missing a real and important opportunity. Speaking of keeping the legislation under review and revisiting it in time is a very inadequate position to adopt. This is our time and I hope current Members of this House will be able to pass on to those who will follow us legislation that is truly fit for purpose and inclusive. That is why this amendment is before the Minister once again.

Deputy Robert Troy

I support my colleague. This matter was debated at length on Committee Stage. It is regrettable that the Government is not taking the amendment on board.

The Minister puts forward an amendment to clearly and explicitly name occupational therapists. It is not unreasonable to suggest that the amount of work occupational therapists do with children is far less than the amount of work childminders do with children. Why does the Government fail to acknowledge a profession of people who work full time as childminders in their own homes? The Government refused to accept previous amendments tabled by my party in the Seanad and the Dáil that would have ensured that any person working as a childminder would have go through the vetting process. One would imagine that this would be only right and proper in the interests of the child and would protect the person minding the child.

Here we have an opportunity, as Deputy Ó Caoláin noted, to get this legislation right. We have waited for it for four and a half years. The Department has brought it forward here this evening at the end of the Dáil term and there is an opportunity to get it right. The Minister has explicitly outlined occupational therapists. In the interests of consistency, if nothing else, why is he not taking this amendment on board?

An Leas-Cheann Comhairle

I understand that Deputy Ó Caoláin is pressing the amendment.

Deputy Caoimhghín Ó Caoláin

We are pressing the amendment.

Amendment put:

The Dáil divided: Tá, 25; Níl, 56.

Tá

• Aylward, Bobby.
• Broughan, Thomas P.
• Calleary, Dara.
• Colreavy, Michael.
• Ferris, Martin.
• Fitzmaurice, Michael.
• Fleming, Sean.
• Fleming, Tom.
• Halligan, John.
• Healy, Seamus.
• Healy-Rae, Michael.
• Mac Lochlainn, Pádraig.
• McDonald, Mary Lou.
• McGrath, Finian.
• McGrath, Mattie.
• Martin, Micheál.
• Naughten, Denis.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• Ó Snodaigh, Aengus.
• O'Sullivan, Maureen.
• Pringle, Thomas.
• Stanley, Brian.
• Troy, Robert.

Níl

• Bannon, James.
• Barry, Tom.
• Burton, Joan.
• Butler, Ray.
• Buttimer, Jerry.
• Byrne, Catherine.
• Byrne, Eric.
• Carey, Joe.
• Coffey, Paudie.
• Conaghan, Michael.
• Coonan, Noel.
• Corcoran Kennedy, Marcella.
• Costello, Joe.
• Creed, Michael.
• Deenihan, Jimmy.
• Deering, Pat.
• Doherty, Regina.
• Dowds, Robert.
• Doyle, Andrew.
• Durkan, Bernard J.
• English, Damien.
• Fitzpatrick, Peter.
• Harrington, Noel.
• Harris, Simon.
• Heydon, Martin.
• Humphreys, Heather.
• Keating, Derek.
• Kehoe, Paul.
• Kelly, Alan.
• Kenny, Seán.
• Kyne, Seán.
• Lynch, Ciarán.
• Lynch, Kathleen.
• McCarthy, Michael.
• McEntee, Helen.
• McFadden, Gabrielle.
• McGinley, Dinny.
• McLoughlin, Tony.
• Mitchell O'Connor, Mary.
• Murphy, Dara.
• Murphy, Eoghan.
• Nash, Gerald.
• Neville, Dan.
• Nolan, Derek.
• Ó Ríordáin, Aodhán.
• O'Donovan, Patrick.
• O'Mahony, John.
• Rabbitte, Pat.
• Reilly, James.
• Ryan, Brendan.
• Stagg, Emmet.
• Stanton, David.
• Tuffy, Joanna.
• Twomey, Liam.
• Walsh, Brian.
• White, Alex.

Tellers: Tá, Deputies Caoimhghín Ó Caoláin and Robert Troy; Níl, Deputies Emmet Stagg and Paul Kehoe.

Amendment declared lost.

Bill, as amended, received for final consideration and passed.