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Dáil Éireann debate -
Wednesday, 11 Nov 2015

Vol. 896 No. 1

Children First Bill 2015: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Long Title: In page 5, line 12, to delete “and to provide for related matters.” and substitute the following: “to provide for the abolition of the common law defence of reasonable chastisement and, for that purpose, to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.”.

Children First is no longer a national aspiration but a constitutional reality with the enactment of this legislation. Within decades of children in this country having been demonised, brutalised and criminalised for their audacity to be poor, different, abandoned, orphaned, troubled or just plain neglected, with Children First they are recognised and constitutionally protected as citizens of the Republic in their own right. For this Government it was, and remains, a first but important step in creating an Ireland where the ideas and experiences of childhood are recognised, respected and protected. As a country we have a lot to be proud of but we also have a lot to be ashamed of and a lot to be sorry for. It remains in our psyche as a nation.

When this Government was elected in 2011, I was determined to undo some of the wrongs done to our children and other fragile members of our society. We have introduced the National Vetting Bureau (Children and Vulnerable Persons) Act, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act, the Child and Family Agency Act, the Children and Family Relationships Act and the Gender Recognition Act of 2015. Children First is not a political amulet to hang around Ireland's neck to protect us from the misdeeds of past generations. Rather, it is truly reforming legislation that recognises our children and protects their position under the Constitution, Bunreacht na hÉireann. It establishes them as individuals with their own separate rights and their own discrete needs in terms of respect, dignity and protection. We were determined to make Children First something that Ireland could and would be proud of, both in legislation and in practice. At the same time, we were adamant that in our determination to forge a new and proper child protection reality in this country, we would move with all speed to protect a child in danger but would not commit the critical error of making up for past shortcomings and major lapses towards our children, catalogued in report after report, by taking a sledgehammer to crack a nut. We had to make sure that no institution, regardless of its origin, would ever again trump the best interests of the individual child and his or her needs, rights and dignity. That is why under Children First, in any cases of competing interests, it is the child's best interests alone that take precedence.

Children First is not a child protection panacea nor a social or national salve. Rather, it is comprehensive legislation that protects the child and actively promotes his or her best interests at all times. The family, in all its modern and compassionate forms, is the basis of society. Whenever possible, it is better for a child to remain within its family unit. Sometimes, however, this is simply not possible. The cases publicised by the child care law reporting project show the significant need for intervention and protection and for family and individual support. These and other cases show that across Ireland there are children marooned not in lives, but in an existence of neglect, violence or abuse, with no functioning adult in the family to provide not just practical things like meals, hygiene and protection, but also the love, respect and dignity that can make a child and determine his or her future.

As I have said before on many occasions, I am anxious to reassure families that Children First is not and will not become a charter for trespass by the State and its agencies into their lives and the lives of their children. In fact, the Government resolved that Children First would clearly set out and demand that any actions taken be first and always in the best interests of the child and that they be judicious, timely and proportionate. Of course, accountability is the way to guarantee the public responsibility commensurate with such public power in what are intensely private and personal circumstances. I pay tribute to the social workers and care workers who do such a magnificent job with our children and families. They deserve our highest respect. We all depend on them to make the legislation work.

The Government did not draft this legislation in a vacuum. It is integral to our commitment and our plan to do more for our children and to do better for our families. Even at the height of the economic crisis, we put all our children first by creating a Department of Children and Youth Affairs with its own designated senior Minister. It is clear in many cases that when we are intervening, we are already too late. We must catch children and families before they fall. We must support families from day one if we are to give them the future and opportunity they deserve. Good and proportionate intervention is not interference, be it parenting programmes, family support services or the chance of an early education. It is how we truly support all our children and every family, in terms of health, nutrition, learning and social opportunities, now and into the future. That is good for our children, families, economy and society. We know that the rate of economic return on good early years investment is significantly higher than for any other stage in a child's life, so if not then, when? It is the way to a secure home life, access to education and later a good job and a place in society. This is our idiom of care as a government.

Finally, I pay tribute to the Minister for Children and Youth Affairs, Deputy Reilly, and his Department for delivering on this legislation today. I also pay tribute to the Members of this House and of Seanad Éireann, particularly Senator Jillian van Turnhout, for their support, guidance and good counsel. I am delighted to have had the opportunity to say these few words on the passing of this legislation. May it keep our society, families and children, now and into a prosperous future, rich in opportunity, compassion, safety, respect and dignity.

I have been advised that it is proposed to group amendments Nos. 1 and 3 together for the purposes of the debate.

I understand that we are discussing amendments Nos. 1 and 3 together but I wish to make a few introductory remarks before referring to those amendments.

Today, we enact important legislation, as the Taoiseach has just said. This legislation is important for Ireland's children. The legacy of child abuse in Ireland casts a dark shadow over our Republic, a republic that declared in its Proclamation that it would cherish all our children equally, but it did not do so. We know that the Ireland of the past was too willing to tolerate silence on the issue of child abuse, reassuring ourselves that our worst suspicions could not be well founded and allowing the abuse of children to go unchecked.

There is no silver bullet that will bring the abuse of children to an end but this Bill is an important statement of our collective obligation to put children first and to recognise that the rights of children are no less important than the rights of any adult. The passage of this legislation honours the commitment in our programme for Government to put key elements of the Children First guidance on a statutory footing for the first time.

As passed by this House, the Bill contained three main elements relating to child welfare and protection and following a Government amendment in Seanad Éireann, the Children First Bill also includes a provision to abolish the common law defence of reasonable chastisement.

The first of the three original elements of the Bill is to oblige certain professionals and others working with children to report child protection concerns to Tusla, the Child and Family Agency, and assist, if requested to do so, in the agency's assessment of risk. Second, the legislation requires those providing services to children to be proactive about child protection. They must assess the risk of harm coming to a child while using their service and produce a child safeguarding statement setting out the steps they are taking to mitigate that risk. Third, the Bill places the Children First implementation group on a statutory footing. The group, which includes representation from all Departments, Tusla, the Health Service Executive and An Garda Síochána, will promote compliance with Children First across the public sector. It will also monitor implementation of the legislation and report annually to the Minister for Children and Youth Affairs.

The Government committed itself to reforming provision for children and families, and this legislation is an important addition to the architecture protecting the safety and welfare of children. It requires those who know about risk to children to alert Tusla and ensures the agency will have the information and co-operation it needs to address concerns about children's welfare or protection. It is a manifestation of the reality that children's safety is all of our business.

Following a Government amendment introduced in Seanad Éireann, the Bill also abolishes the defence of so-called reasonable chastisement. The Government had committed itself to removing this defence, and following a proposal made by Senator Jillian van Turnhout, who is present in the Gallery, an amendment was introduced to remove entirely this outdated legal defence. I strongly commend the Senator on her initiative and Senators on their strong endorsement of this measure.

This issue has been under consideration for too long, having been considered by the Law Reform Commission as far back as 1994. It is not uniquely Irish, however, as international human rights bodies continue to highlight shortcomings in legal frameworks to protect children from violence in the developed and developing world. While physical assault against children is already illegal, specifically in section 2 of the Non-Fatal Offences Against the Person Act 1997, which deals with the assault on any person, and section 246 of the Children Act 2001, which deals with cruelty to children, it is only in respect of assaults against children by their parents or persons acting in loco parentis other than teachers that it is possible to argue in defence that it was reasonable for the parent to assault his or her child. Removing this defence in no way diminishes the primary importance of parents as the key educators and carers of their children. It does not challenge legitimate parental authority. Rather, this is an issue of fundamental human rights, a clear and unqualified statement that children have the same unqualified legal protection against physical assault as is afforded to all citizens. It is a practical and tangible manifestation of children's rights.

The Children First Bill is part of the Government's much broader agenda of advancing children's rights and protections through significant statutory structural and strategic change. The drive to enhance a prevention and early intervention rather than crisis intervention approach to child protection is at the core of our efforts. This important orientation is evidenced in the Child and Family Agency Act 2013 and the Bill before us.

While simple in form, the amendment can have a considerable impact in future for the good of children, their parents and wider society. The Children First Bill constitutes an important step forward in children's rights and protections. It is fundamental to establishing a culture that categorically proclaims that all children in this State are to be protected and that individuals, professionals and organisations will all play their part in ensuring this is the case.

I thank Senators and look forward to thanking Deputies for their contribution to the passage of this Bill. I look forward to the co-operation of all parts of society in making Ireland a safer place for children and to the realisation of the proclamation that we will cherish all our children equally and treat them as our fellow citizens, with respect and the dignity all our citizens deserve.

I very much welcome the passage of this Bill. As the Minister will be aware, the Fianna Fáil Party has supported this very important legislation since its inception. As we approach the centenary of the 1916 Rising and having placed the children's rights referendum before the country almost three years ago, it is important we enshrine the rights of children in the Constitution.

The main element of the Bill will make the reporting of child protection concerns a statutory duty. We must learn from the mistakes of the past and ensure that never again will any person or institution place his, her or its good above the interests or well-being of children. In welcoming the Bill, I should point out that many of its provisions could have been strengthened. After four years of gestation, the legislation does not go far enough in applying sanctions to people who fail to report child protection concerns. This amounts to a watering down of the legislation originally promised by the Department, albeit when the Minister's predecessor was in situ. Initially, the Bill provided for significant and robust sanctions to be applied to persons who failed to comply with its provisions. For my part, I sought to strengthen the legislation during the various Stages in the Dáil by proposing amendments that would have made it a punishable offence not to report child abuse concerns or for a provider to continue to provide services to children without a child safety certificate, having been on the register of non-compliance for 30 days. These were constructive proposals but the Minister did not believe it necessary to accept them. I will hold him to the commitment he gave at the time to keep the matter under strict review.

While legislation is critical, the policies adopted and the budgetary decisions and changes made have a direct impact on the legislation. It is good that we had a referendum on children's rights, that the rights of the child are being enshrined in legislation and that this Bill will be enacted today. However, we cannot ignore the simple fact that in 2013, 11.7% of children, or one child in eight, were living in consistent poverty and 37% of children were experiencing deprivation. In 2014, UNICEF published a study on the impact of recession on children which ranked Ireland 37th out of 41 countries in a league table measuring relative changes in child poverty. We were close to the bottom of the list.

The Taoiseach alluded to the good work being done by social workers and care workers and no one could take that away from those professionals. However, the Minister will be aware from our discussions on Committee Stage and from previous debates that child care and social workers have been put to the pin of their collars. The most recent report by the independent Ombudsman for Children, Dr. Niall Muldoon, reveals serious deficits in the child protection and care systems administered by Tusla. His audit found that last year Tusla managed to deal in a timely manner with only one fifth of all reports of child abuse. By any measure, this is a gross systems failure on the part of the Minister and the management of Tusla. The Child and Family Agency was established with the purpose of strengthening the child protection system in place under the Health Service Executive. We now know that the agency is failing to investigate child abuse claims immediately.

This is not Second Stage. We are dealing with amendments from the Seanad.

I appreciate that. The Minister and Taoiseach were provided with an opportunity to give an overview of the Bill.

I have given the Deputy a fair bit of rope.

I appreciate that but the kernel of the issue is that we can bring forward every piece of legislation we like but if it is not matched with the necessary resources, it will not be good enough. The proof of the pudding is in the statistics I have highlighted. The Taoiseach is right that we do not want to be intervening at a late stage. We must intervene and prevent problems from happening. That is why we should support institutions and services such as the family resource centres.

On the amendment from the Seanad, I compliment Senator van Turnhout on her work and the Minister on taking it on board. It comes about as a direct consequence of the requirement in an EU directive that we ban the reasonable chastisement of children. That is right and proper. We must acknowledge that there are parents who need support over and above other parents. We must put in place positive parenting programmes to support parents who find it difficult to bring up their children. It cannot always be about punishment. It also has to be about supporting parents to do the job. As the Taoiseach and the Minister said and as I agree, in 99% of cases, the best place for a child is in his or her home. Some homes need more support than others and it is our responsibility to put those supports in place. I support the passing of the legislation through the Oireachtas today.

I presume the Deputy is supporting the amendments.

I welcome the passing of the Bill and commend the Minister on his work on it. It is a good day when the Bill is eventually reaching a conclusion. I welcome the important amendments to remove the defence of reasonable chastisement from the Statute Book and I commend Senator van Turnhout on tabling the amendments and the Minister on accepting them. I thank the Children's Rights Alliance and the ISPCC which have been to the forefront of the campaign.

Cuirim fáilte roimh an Aire agus, go mórmhór, roimh an mBille seo. In accepting the Minister's remarks on reasonable chastisement, it is important to acknowledge that it is a positive amendment and to commend Senator van Turnhout and the Minister on it. We were out of step with Europe and had that look of austerity about us in the context of what the Council of Europe referred to as the violation of young people's rights.

The Ceann Comhairle does not want us to give Second Stage speeches but Deputy Troy referred to the ongoing ills he raises every time he gets a chance. He has a point in terms of how one brings forward the rights of the child. The current Dáil and Seanad have seen the committee system move forward through its pre-legislative scrutiny. The Ceann Comhairle has allowed us to do that and deserves credit for doing so. The committee system has dealt forensically with the children's legislation. While I am digressing slightly, I disagree with the Ceann Comhairle's suggestion that we should not have a committee week. We should have a committee week where we can bring the scrutiny work we do to the floor of the Chamber. To be fair to Deputies Troy and McLellan and Senators van Turnhout and Henry, we have worked in the committee in a non-partisan way to do what is best for children. The legislation demonstrates amply, as do other Bills, the collaboration and collective responsibility involved. While I am biased, I consider that the Committee on Health and Children has worked very well in putting forward suggestions and amendments, which is a credit to our members.

Today is a reforming day. It is about legislation being enacted and the child being recognised. Deputy Troy's point that it is about parents and positive parenting being given an opportunity to shine is equally true. We had a briefing this morning with Senator Eamonn Coghlan on the healthy city initiative. One of the things we must do if we are to learn from the past is to be proactive with parents to empower them and work with them to ensure their parenting is positive and that they have the skills and resources to become better parents. In reflecting on the past, is it not brilliant and extraordinary that a child can be recognised in his or her own right under the Constitution? It requires us to learn from the past. Those of us who were in the previous Seanad discussed the reports on child abuse and the shock and horror associated with it. I said during the debate on the Cloyne report that I was in the position of knowing some of the people who were abused and some of the abusers. It was an extraordinary reflection on society that we were forced to deny things. In a cathartic exercise, we were able to debate and give people the freedom to be who they were in the context of the legacy of the past. Just last week, the Joint Committee on Health and Children heard testimony on the adoption (information and tracing) Bill. We heard of the powerful personal experiences of some of the mothers and women, which was extraordinary. We were moved at the committee meeting to hear from women who were treated appallingly by the State. With this Bill, we again see the Oireachtas reflecting on the past and learning from it. The Taoiseach was right to praise the work of social workers. They are tremendous people who do great work in all our cities and counties.

Deputy Troy mentioned the budgetary effect. The previous budget included a child care package and we have had an increase in child benefit. We have seen an increase in the number of teachers being employed to reduce the pupil-teacher ratio. It is all about assisting families and children for their greater good. We have a collective responsibility in this Dáil and Seanad. I am very proud of the men and women who serve on the Joint Committee on Health and Children. They have done powerful work in analysing legislation. I support the amendment.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 14: In page 14, line 8, to delete “mandated”.
Seanad amendment agreed to.
Seanad amendment No. 3:
New Section: In page 20, after line 21, to insert the following:
Abolition of defence of reasonable chastisement
28. The Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following section after section 24:
“24A. (1) The common law defence of reasonable chastisement is abolished.
(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.
(3) This section shall not affect the operation of section 24.”.”.

Seanad amendment No. 3 was already discussed with Seanad amendment No. 1.

Is it in order for me to respond to some of the issues raised by Deputy Troy?

Yes, if it is in relation to the amendment only.

It is. I will be very brief. Deputy Troy mentioned the issue of criminal sanction in relation to people who run services for children not having a safety statement. The matter was discussed at length on Committee Stage and in the Seanad. The rationale is straightforward. It would require a huge amount of time and money to put in place an inspectorate with all the judicial requirements around that. It was felt by many that this was not an appropriate use of scarce resources when the choice was between that and providing services to children. It is a matter we will keep under review, however. If what we have designed fails to deliver, we will certainly take action.

Deputy Buttimer has addressed child poverty. There was an increase in funding of €38 million for Tusla and another €27 million to clear any so-called backward debt. There was an increase of 33% in the €260 million to bring it to €345 million for child care packages. Free GP care, increased child benefit and more teachers were also provided for. The budget shows that Tusla has the funding to address its core objectives and services. There will always be a need for more and as the country continues to recover economically, more money will be available to invest in this area.

I thank the Members for their co-operation on the Bill. I commend specifically our social workers who have an extraordinary record in an international context. Our attrition rate is much lower which is a reflection on their commitment to the service they provide.

Seanad amendment agreed to.
Seanad amendments reported.

A message will be sent to Seanad Éireann acquainting it accordingly.

Sitting suspended at 1.40 p.m. and resumed at 2.40 p.m.