Joint Committee on Children, Equality, Disability, Integration and Youth debate -
Tuesday, 16 May 2023

General Scheme of the Child Care (Amendment) Bill 2023: Discussion (Resumed)

An Cathaoirleach

We have received apologies from Deputies Brady and Cairns and Senator Clonan.

The item for consideration this afternoon is the pre-legislative scrutiny of the Child Care (Amendment) Bill 2023, which we are resuming. We are joined by Ms Teresa Heeney, chief executive officer, and Ms Frances Byrne, director of policy, from Early Childhood Ireland. From Empowering Children in Care, EPIC, we are joined by Ms Marissa Ryan, chief executive officer, and Mr. Conor Stitt, research and policy manager. From the Irish Foster Care Association, we are joined by Ms Bernadette Neville, interim chief executive officer, and Ms Karen Cahill, co-ordinator of the Irish Foster Care Association helpline. From the Independent Guardian Ad Litem Agency, we have Ms Claire Quinn, director and guardian ad litem, and Ms Nicola McCarthy, guardian ad litem. All of our guests are very welcome. I thank everyone for joining us.

Before we begin, I will go through the normal housekeeping matters. I advise everyone that the chat function on Microsoft Teams should only be used to make us aware of any technical issues or urgent matters that may arise during the meeting and should not be used to make general comments or statements.

In advance of inviting the witnesses who are here today to deliver their opening statements, I wish to advise them of the following in relation to parliamentary privilege. Witnesses who are participating from the committee room are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I cannot permit a member to participate where he or she is not adhering to this constitutional requirement. Any member who attempts to participate from outside the precincts will be asked to leave the meeting. I ask any member who is participating via Microsoft Teams to confirm that he or she is on the grounds of the Leinster House complex.

Each group has been allocated five minutes for their opening slots, after which we will have questions and answers. We will start with Ms Heeney. She will be followed by Ms Ryan, Ms Neville and Ms Quinn.

Ms Teresa Heeney

I thank the committee for inviting Early Childhood Ireland here today to discuss the pre-legislative scrutiny of the general scheme of the child care (amendment) Bill 2023. My name is Teresa Heeney. I am accompanied by my colleague, Ms Byrne, our director of policy.

Early Childhood Ireland is the leading advocacy and membership organisation, working in partnership with 3,900 members nationwide to achieve quality experiences for every child in early years and school age care settings. We advocate for an effective and inclusive early years and school age care system which values, supports and invests in childhood, children and services. We welcome the publication of this Bill and acknowledge that the Minister and the Department are putting children at the heart of this proposed legislation by making the best interests of the child the overriding principle.

Early Childhood Ireland holds an image of the competent child at the centre of all that we do. We work in partnership with our members, policymakers, academia, civil society and other stakeholders to achieve consistently high-quality experiences for every child in early years and school age care settings, both centre-based and in childminders’ homes.

Early years and school age care has changed significantly over the past 30 years. The number of children attending such settings has significantly increased and it is now the norm for many children and families in Ireland. In the years 2020 and 2021, almost 170,000 children participated in at least one of the Department of Children, Equality, Disability, Integration and Youth's funding programmes. The total number of early years and school age care services contracted to deliver at least one Department funding programme was over 4,500.

As both child participation rates and investment in this vital area increase, so too must our attention to the quality of early years, EY, and school age care, SAC, services. We acknowledge the work that has gone into the implementation of the Government’s First 5 strategy, which aims to provide robust regulation, inspection and quality assurance in the EY and SAC sector.

The enhanced enforcement and regulatory powers assigned to Tusla under the child care (amendment) Bill will ensure that early years and school age care services will operate in a more effective system, delivering child-centred leadership and consistently high-quality experiences for every child. While we understand that a single register for EY and SAC services is needed for ease of regulation and administration, we stress that these services are quite different as they cater for children of different age groups and needs. This must be recognised by Tusla when inspecting each service type and we fully expect that it will be.

Early Childhood Ireland welcomes any legislation that improves the quality of services and experiences of children in EY and SAC settings. One size does not fit all. For example, the current regulations relating to full day care services are not wholly appropriate for sessional or part-time services. We, therefore, ask the committee and policy makers to ensure that any new regulations are streamlined and service-appropriate to reduce the administrative burden for early years and school age service providers. We welcome the introduction of fit person regulations as it shows the seriousness and importance of the role of early years and school age care providers and educators. We suggest the regulations, when published, would be similar to the HIQA regulations where fitness is not a once-off assessment but is considered on an ongoing basis. Early Childhood Ireland welcomes the strengthened powers for Tusla to: immediately close an unregistered service; suspend the registration of a setting where it has reason to believe the service poses a risk to children; and allow it to share information with parents. Tusla’s powers will be greatly enhanced by putting immediate action notices and improvement notices on a legislative basis, ensuring that all children will be safeguarded and will benefit from child-centred and high-quality experiences in every early years and school age care setting.

I will make a brief comment on childminding. To ensure quality experiences for all children in all settings and to ensure that all parents can avail of public funding, we look forward to the publication of the childminding specific regulations as soon as possible and to the completion of the national action plan for childminding. We welcome the three-year transition period for childminders to adjust to the proposed childminding specific regulations when they are commenced. These regulations should prioritise the safety and well-being of children who attend childminders and we welcome the Garda vetting proposals for childminders and adults in the childminder’s household.

Early Childhood Ireland thanks the committee for inviting us to discuss the general scheme of this landmark Bill. We welcome any questions the committee may have.

Ms Marissa Ryan

Good afternoon. We thank the Cathaoirleach, committee staff and esteemed members of the joint committee for the invitation to contribute to its pre-legislative scrutiny of the general scheme of the child care (amendment) Bill 2023.

EPIC is an independent children’s rights organisation that works with and for children in State care and young care leavers. A central part of EPIC’s work is the provision of an independent, human rights-based advocacy service to this cohort. The policy development undertaken by EPIC seeks to create positive change in the care system at a systemic level using the evidence from our advocacy service caseload. All EPIC’s work is grounded in the UN Convention on the Rights of the Child, UNCRC, especially Article 12, which provides for the child’s right to be heard and to participate in decision-making, including through a representative or appropriate body.

EPIC acknowledges the progress made by the Oireachtas to date in enhancing the rights of children and young people in care or with care experience. EPIC believes that the general scheme of the child care (amendment) Bill 2023 offers the Oireachtas a real opportunity to ensure that the lives and well-being of children in its care are prioritised and to ensure that provisions are made for these children to transition to adulthood in a manner in which they are supported to thrive and achieve the best possible outcomes. The most notable amendment being proposed by the general scheme is the guiding principles in head 4, which provide an explicit focus on the best interests of the child and centre the voice of the child in decision-making processes and service provision, thus upholding Ireland’s obligations under article 12 of the UNCRC and article 42A of Bunreacht na hÉireann. In EPIC’s experience, successful care journeys are contingent on: the child’s views being sought and considered; efforts being made to gain a clear picture of their wishes, thoughts, and feelings; and children and young people in care being viewed with agency and as rights holders. While in the care system, children and young people are too often expected to contend with a complex array of systems and processes and to engage with a range of professionals and State agencies that most adults would find difficult to navigate. As a result, their ability to ensure their wishes and feelings are heard, understood and taken seriously by agencies can be impeded. The provision of independent advocacy is intended to empower children and young people to express their views and that they are supported to do so. Since 1999, EPIC’s national advocacy service has worked with children when their care is at a critical juncture, and in cases where an advocate can bring clarity and understanding of the child’s perspective, helping to ensure the child remains the focus and contributing to child-centred practice. While not currently enshrined in Irish law, we believe children have a right to independent advocacy while in State care. This is not only recognised in the UNCRC, but has also been recommended by State inquiries, such as the report of the Commission to Inquire into Child Abuse, also known as the Ryan report. Other countries have enshrined this right in national law. For example, the United Kingdom enshrined the right to independent advocacy for children in care in 1989.

Independent advocacy services already exist in Ireland and have proven beneficial to other marginalised groups. For example, independent advocacy for adults with disabilities was established by the Citizens Information Act 2007 and is carried out by the National Advocacy Service for People with Disabilities. Given that the general scheme of the child care (amendment) Bill 2023 proposes to vindicate the rights of a child to be heard in matters affecting them, EPIC believes that access to independent advocacy can tangibly uphold this right and should be enshrined in law.

In support of strengthening a rights-based, child-centred protection and welfare system that recognises the separate and complementary roles and safeguards provided by social workers, guardians ad litem and advocates, the nature of individual care orders should not impact on a child’s rights while in care. This is why we welcome elements of the proposals by the Department to address critical issues in sections relating to voluntary care, supports for children temporarily out of home and the efforts to address critical gaps in the co-operation of State bodies in meeting their duty of care. However, there is still significant room to strengthen these provisions. Regarding voluntary care, dealt with in head 7, we welcome moves to assess the continuance of a voluntary arrangement and the underlining of voluntary care as a temporary arrangement. However, we recommend that a maximum period be inserted after which a judicial review of the arrangement would automatically be triggered to consider the options outlined in the proposed new subsection (3).

Regarding supports for children temporarily out of home, dealt with in head 8, while these proposals reflect a departure from the current model, EPIC has observed instances where the current section 5 has been used when children required welfare and care protections beyond their immediate need for accommodation. This has resulted in their needs often not being met. Section 5 appears to operate in isolation from the rest of the Act to a point where children under this section are not deemed to be in care and do not have the welfare and protection they require. The section must be strengthened further to resolve this.

Regarding the duty to cooperate provisions in head 10, we have long held that when the State is acting in loco parentis, there is a duty of care across relevant Departments and State agencies. However, we observe that the Department of Children, Equality, Disability, Integration and Youth and the Child and Family Agency, Tusla, are too often left with responsibility for all matters relating to children in care and young care leavers, including matters that should be addressed by bodies that have the statutory obligation and capacity to do so. The impact of this can result in children in care and young people leaving care sometimes being left without entitlements critical to their development, welfare and protection. This is sadly all too common in areas such as health, including access to child and adolescent mental health services, CAMHS, disability and housing and homelessness.

The negative outcomes for children and young people which transpire from breakdowns in interagency collaboration are well documented. The new legislation must seek to resolve this or children will continue to be failed by a lack of guidance and the clear, unambiguous delegation of duty that is required to meet their needs. We are disappointed to see that certain critical provisions for young people have not been brought into the general scheme, including the aftercare eligibility criteria under section 45, a dedicated section to support unaccompanied minors and a much-needed update to the in camera rule. During the pre-legislative session last week, the Department indicated a willingness to address key issues relating to aftercare eligibility and unaccompanied minors in its contribution. We believe that a commitment to report on such matters can be legislated for to acknowledge these much-needed reforms and to ensure they are conducted in a timely fashion.

In conclusion, we look forward to discussing these proposals and how they may be improved further. We have also circulated a submission on same to committee members to aid their ongoing deliberations. We thank members for the opportunity to contribute and look forward to answering their questions.

Ms Bernadette Neville

On behalf of the Irish Foster Care Association, IFCA, I am grateful for the invitation to address the Joint Committee on Children, Equality, Disability, Integration and Youth this afternoon on the pre-legislative scrutiny of the Child Care (Amendment) Bill, 2023. I am accompanied by Karen Cahill, co-ordinator of IFCA's national helpline service.

The Irish Foster Care Association is the national organisation that supports foster families and the wider fostering community. We advance and promote best practice in foster care through support, learning and advocacy. We believe in a society where the importance of fostering is recognised, valued and supported. We support foster families and the fostering community through the provision of a spectrum of supports, namely, the national helpline; national advocacy and counselling services; learning and development, including publications on research and best practice in foster care; support to foster carers involved in local branches and hubs; and an annual conference which brings together the wider fostering community, including children in care and the children of foster families.

I acknowledge and commend the Department of Children, Equality, Disability, Integration and Youth on the extensive consultation process it engaged in, beginning in 2017, to which IFCA provided a written submission in 2018. It is encouraging to see the value placed on hearing and including the voices of those involved in the lives of children requiring safety and protection. On reviewing the proposed changes, I note the child is consciously being placed front and centre in the decision-making process, which enables children to be more visible and supports his or her engagement and participation, and that learning from policy and practice developments since the introduction of the Child Care Act 1991 has been identified and integrated into the Bill. I note also the value being placed on transparency, accountability and inclusivity in the delivery of practice.

At the end of January 2023, there were 5,597 children in care, 64% of whom are cared for by general foster carers, with 25.9% cared for by relative carers. Currently there are 4,124 foster carers comprising general and relative carers. Caring for children who have experienced harm, neglect and abuse in the context of their primary and formative relationships is extremely challenging. The fostering task is often made more complicated and stressful by structures and practices within the care system which, at times, are experienced as being at odds with the care philosophy.

When we think about the supports and changes required to meet the needs of children in care, we also need to have in our minds the families who open their hearts and homes to children with traumatic life stories and complex needs. Although foster carers are not directly involved in the processes whereby children are received into care, the child’s entry into the system and their experience of this travels with them into the home of the foster family and can influence the child’s readiness or capacity to engage with the foster family. If their entry experience has been poor, this can be an added complicating factor impacting on the stability of the placement.

Today, I offer a practice perspective which will help us think about the proposed changes from the viewpoint of children in foster care and foster families. When considering the effectiveness of services, we often ask what difference the service or supports have made. This helps us to evaluate and determine impact. I will apply this measure in my assessment of the most significant changes identified in the Child Care (Amendment) Bill 2023. The insertion of a set of guiding principles into the Act is to be welcomed. These will ensure the decision-making process adheres to the best-interest principle, where the voice of the child is sought and heard and where the child is visible in proceedings. IFCA believes the involvement of children will improve the quality of decisions made. The naming of the factors to be taken into account by the courts in assessing and making a determination on the basis of the child’s best interest, and which must be applied by those working with children, is important in developing a shared language and understanding among the network of professionals and services working with, and advocating for, children.

IFCA welcomes the requirement for decisions relating to children to include a consideration of the capacity of the placement to meet the child’s needs. This is very important in light of the current shortfall in the availability of foster families. With the pool of foster carers decreasing, the ability to match a child and have the best fit possible with the right foster family for the child is a real challenge. IFCA supports and values decision-making which is informed by a questioning of the impact on the child of professional decisions made regarding their placement with a foster family. This is extremely significant and to be welcomed. Our experience from supporting foster carers dealing with placement breakdowns leads us to have concerns that the impact of a change in placement on children is not always fully considered. We know that with every experience of placement moves, the chances of success in subsequent placements diminish, leading to poorer outcomes for children. The challenge in meeting the best-interest principle will be in its translation into practice, in particular how practitioners engage in meaningful conversations with children and seek their views in a child-centred way.

The current difficulties retaining social work staff means that some children in care experience multiple changes in social workers. This does not allow for the development of a relationship in which children feel safe and where they trust the adult to communicate their thoughts and wishes. The one constant is often the foster carer who has a relationship with the child. Social workers seeking the views of children need to consider involving foster carers as an enabler to supporting the child to participate in the decision-making process. This may be particularly the case for neurodiverse children who need additional support to be enabled to actively participate in the decision-making process.

Children enter the care system in one of two ways, namely, via a voluntary arrangement where parents give consent for their child to be received into care or via the court system in the form of an order granted by the courts. In 2021, 520 of all admissions into care were voluntary admissions, with the remaining 442 being made on foot of an application to the court. We are, therefore, seeing slightly more children come through the voluntary process. Of concern is the manner in which voluntary agreements are allowed to drift as there is currently no oversight structure and review of these. IFCA’s practice experience is supported by research conducted in Ireland by Brennan, O'Mahony and Burns in 2021 on voluntary care arrangements. I strongly urge members to review this research as it draws attention to the inherent weaknesses of the current system such as loose regulation; weak mechanisms for ascertaining the views of children and promoting child participation; unlimited duration, and lesser safeguards than provided by court-directed orders. The overall message is that children in voluntary care arrangements fare worse than children on care orders. This is hugely concerning.

The current Bill proposes some changes to voluntary arrangements which are to be welcomed. Specifically, it recommends that voluntary care arrangements be reviewed at regular intervals no less than every six months. The Bill does not go far enough, however, in terms of the safeguards required to ensure good oversight. It could be strengthened in line with the recommendations of the Brennan, O'Mahony and Burns report, with a limit being placed on the duration of voluntary care arrangements; a limit on the amount of times the agreement can be renewed; having formal reviews before the expiry of the agreement, with a review of the care plan to take place alongside this; and for children to have access to independent advocates who participate in the reviews.

It is positive that an information pack is suggested which will help children and parents understand the purpose and proposed duration of the voluntary care arrangements, as well as the roles and responsibilities of the Child and Family Agency. It will be important that this information pack is constructed in such as way that the information is accessible both to children and their parents, that there is a child friendly version and that parents and children are supported in understanding the process in which they are engaged.

Legal parental responsibility for the child in care is held either with the birth parents or the Child and Family agency but the day-to-day activity of parenting is carried out by the foster carer. Irrespective of the legal care status of the child, foster carers have no automatic legal power to consent to medical treatment or for the ordinary everyday activities of children’s lives, such as school tours and the making of passport applications. However, there are provisions whereby foster carers can apply for enhanced rights if the child has been in the care of the foster carers for more than five years.

The current system, however, is impractical for children in long term care with the same foster family. IFCA welcomes the proposal to reduce from five years to three years the amount of time a foster carer is required to have been taking care of the child before an application for enhanced rights can be made. It is imperative that foster carers are made aware by the Child and Family Agency of the steps required to secure enhanced rights and are actively supported to engage in the process.

IFCA notes the intention to place the current practice of assessing and managing allegations, as set out in the child abuse substantiation policy, CASP, on a statutory footing. CASP has been in operation since June 2022 and is still being experienced by foster carers as a new and different approach. It is positive to note that an independent review of the implementation of CASP is currently under way. We ask that the learning from the review be taken into account to inform and strengthen best practice around the management of allegations against foster carers.

In conclusion, when we improve the structures and systems around the child, we enable foster carers to do what they do best, namely, to love, care and attend to the child who has joined their family. Although there are many positive improvements embodied in the Bill, in order to realise the potential of children and foster carers it is important to support and enhance approaches to working with them, strengthen oversight and have review systems in place to evaluate the continued impact of the changes.

Ms Claire Quinn

The Independent Guardian ad Litem Agency thanks the committee for the invitation to appear. I am joined by my colleague, Ms Nicola McCarthy. TIGALA welcomes the opportunity to comment on the proposed general scheme of the child care (amendment) Bill 2023. We believe TIGALA can provide a unique insight into some of the proposals in the general scheme by outlining issues that have arisen in the cases of our guardians.

TIGALA is an independent provider of guardians ad litem for court proceedings taken under the Child Care Act 1991. Guardians are appointed to children and young people by the court for the duration of those proceedings. We ensure the voice of a child or young person is heard and advise the court of our professional opinion on the best interests of the child or young person. This ensures his or her participation in the proceedings and that the court has an independent view in respect of his or her best interests. TIGALA is a service provider that operates nationally and we have 29 guardians within the service. Our guardians bring their skills and knowledge of working with children and young people in court proceedings. We ensure a consistently high level of practice standards for all guardians within our agency. All our guardians have a minimum of ten years of experience and are fully Garda vetted. Their qualifications are verified and there is confirmation of ongoing professional standards. We work throughout the country and strive to work collaboratively with all stakeholders in the court process to ensure the best outcomes for children and young people.

I will speak now to heads 7 and 27 of the general scheme. Head 7 provides for amendments to section 4 of the principal Act, relating to voluntary care. TIGALA supports the amendment to section 4 of the Child Care Act 1991. In particular, we welcome the intention for voluntary agreements to be the subject of ongoing review and monitoring. This is particularly welcome as the majority of children and young people in the care of the State are subject to such voluntary arrangements. However, TIGALA believes further and greater oversight is required to ensure uniformity of service provision for children in the care of the State. In particular, the right of a child or young person to be involved in the decision-making process of their care should not be purely contingent upon the decision-making of his or her parents. Children and young people are stand-alone rights holders and must be recognised as such. The rights of children or young persons in the care process must be the same irrespective of whether they are the subject of voluntary care or in court-ordered care. It must follow, therefore, that all children and young people in care must have access to a guardian and provision should be made for same. Our guardians have worked on cases with voluntary agreements of indefinite durations and have experience of cases where children or young people have been left without the long-term care planning, oversight, aftercare and supports which children in care on foot of care orders have received.

TIGALA offer the following example for consideration to bring this to life for the committee. Child A is 12 years old and has been in the care of Tusla since she was four years of age. She is the subject of a section 18 order. When the order was made, a number of standard directions sought by the guardian were made. In particular, the court ordered that the case would come back before it for review if there was a placement breakdown, the case had an unallocated social worker for more than six weeks, there was no fostering link worker or the placement was not long-term matched within six months. It ordered that the matter would come back before the court for aftercare review before child A’s 17th birthday. In this instance, child A derives the benefit of court oversight, which ensures all planning is completed and the child or young person is safeguarded. In addition, the views of child A are considered as part of that planning.

Child B is 12 and has been in the care of Tusla since she was four. She is the subject of a voluntary agreement. There are no court directions in being. Due to staff shortages, child B has no allocated social worker from the age of 13. She has never been allocated an aftercare worker and no long-term planning is made for her upon reaching the age of 18. Child A and child B are both in the care of Tusla but, as a result of the different ways they came into care, they are left with completely different service provision. We submit that no part of the 1991 Act should serve to render some children in care at a disadvantage compared with others.

The recommendation of TIGALA, therefore, is that all children or young persons who become the subject of a voluntary care agreement should have access to a guardian, even on a review or periodical basis, to ensure their rights are heard and for their views to be firmly ensconced in the care planning that it is enshrined in statute.

I will now speak to head 27, which contains amendments to section 47 of the principal Act. TIGALA welcomes the proposed amendments to section 4 and recognises that these amendments support interagency co-operation, which is vital. That said, TIGALA believes that the court requires further powers to ensure these amendments have the desired effect for children and young people. We believe the court should have the power to make directions for services to additional public bodies to maximise this interagency cooperation. For example, child C is a young person with profound disabilities who is the subject of a full care order. She is non-verbal and requires long-term residential care as she approaches 18 years. Child C will need an interagency plan as she transitions into adulthood. Her aftercare plan is before the District Court for review and, to date, no long-term planning has been completed. In this instance, the guardian brings an application pursuant to section 47 to obtain a long-term care plan for child C. The HSE is joined to this application but the District Court has no clear statutory jurisdiction to make directions that bind the HSE in the welfare interests of the child. The court, therefore, has limited powers and in some instances has declined jurisdiction to engage with applications due to the lack of clear statutory authority to act. We recommend that section 47 provide the court with the jurisdiction to make directions in the welfare interests of specific children. The guardian or the person bringing the application must show the direction is necessary and for the welfare of the children. The powers of the court should be clearly expanded to public bodies in addition to the Child and Family Agency where it is in the welfare interests of the named child. This would result in better and more effective service provision for children where interagency co-operation is required and ensure greater accountability through direct court oversight.

In conclusion, TIGALA thanks the committee for the opportunity to attend and welcomes the opportunity to answer any questions members may have.

An Cathaoirleach

I thank Ms Quinn. We will move to questions from members. Senator Seery Kearney has had to leave to attend the Seanad. Several members will be in the Seanad because the redress scheme for mother and baby homes is currently being discussed. The timing is unfortunate.

Deputy Sean Sherlock

I thank the witnesses. Hearings such as this are very helpful in the pre-legislative scrutiny process to help crystallise further one's thoughts on where the legislation needs to go. It is nascent but this session is very helpful and each of the submissions has posed several questions. Even if the Government decides not to take on board the views of the witnesses, members will, obviously, have the right to amend.

I foresee that we will be seeking to amend on Committee Stage along the lines of the submission.

With that in mind, I will start with Early Childhood Ireland, if I may. I would like further clarity in respect of the regulations and Tusla powers. In her opening statement, Ms Heeney said:

One size does not fit all. For example, the current regulations relating to full day care services are not wholly appropriate for sessional or part-time services. We, therefore, ask the committee and policy makers to ensure that any new regulations are streamlined and service-appropriate to reduce the administrative burden for early years and school age service providers.

I have a lot of sympathy for that view. I deal a lot with early childhood care and education, ECCE, providers and the challenges they face to meet regulatory and staffing burdens, and so on and so forth. Our guests may not have the answer to the following today but they might come back to us with a further written submission. How should that work in practical terms? How would our guests delineate between the multiple types of providers in terms of the regulatory regime?

Ms Frances Byrne

I thank the Deputy. There are a number of ways to delineate. One of the things that impacts across the board is the burden of regulation and the administration of programmes. That would certainly need to be taken into consideration. For example, our members find themselves in settings around the country and collecting and reporting on information that is duplicated across all the reporting requirements. They have to report into seven agencies and a Government Department. The inspectorate is only one part of that and there are two inspectorates, namely, the Department of Children, Equality, Disability, Integration and Youth and the Department of Education. That is an issue. Added to that is the fact that, as we said in our submission, there is no such thing in an Irish context as a typical setting. As the Deputy has said, we have ECCE or preschools. We have preschools that might open in the morning with a breakfast club and to accommodate older children being brought to the school down the road, which is an extra service for children. Some institutions offer pure ECCE preschool care for three hours per day. Some ECCE institutions open again in the afternoon. There is also full day care and school-age care within full day care. There is stand-alone school age care and school age care within schools. The ages of children and what is being delivered, to shorthand the matter for the sake of the conversation, and the nature of service delivery, need to be recognised when the time comes for developing regulations and implementing them through the expectation. That is what we mean.

As colleagues from other organisations have said, there has been extensive consultation. It is certainly the experience of Early Childhood Ireland that Tusla wants to hear from us and hear from settings. It is a red flag to say that we hope that follows this.

Deputy Sean Sherlock

I appreciate that. Writ large today is the theme around the idea of the independent advocate for young adults or children. The submission from TIGALA mentioned child A and child B, which crystallises the situation for us in respect of the experiences of a child under a court order and a voluntary agreement. I ask the representatives of EPIC for a concrete example of how access to the independent advocacy system, if one were to be devised, would work for the child.

Ms Marissa Ryan

I will speak about the way independent advocacy functions at the moment for children in care. I am conscious that not everybody understands the difference between a guardian ad litem, who is an independent advocate for a child for the purposes of care proceedings, and advocates, who work with children at all stages throughout their care journey and in child-in-care reviews, addressing minor or major issues, depending on what they themselves want. The vast majority of our children and young people currently self-refer for advocacy. Elsewhere, we get referrals from social workers, guardians ad litem, foster parents and so on. Other countries have legislated for independent advocacy, after which the work is done through, for example, local authorities. In the UK, our sister body, for example, would provide independent advocates at local authority level, which would then be run through the equivalent of our Departments. It is similar to the guardian ad litem Bill, in a way, in that the idea for the provision is brought within Government and then legislated at local administration level.

Deputy Sean Sherlock

Is that formalised in law at present?

Ms Marissa Ryan

It is not. There is no right to an independent advocate. We are funded by Tusla, which, as the committee heard last week, gave robust support for independent advocacy to be enshrined, as did the Ombudsman for Children. At the moment, there is no provision so we are funded through a service level agreement and we have nine advocates to service the entire country.

Deputy Sean Sherlock

I have questions for TIGALA. The examples of child A and child B in Ms Quinn's submission was a Eureka moment for me. Until now, I was struggling to understand how this legislation was going to work. There is a juxtaposition between the experience of a child under a care order versus a child under a voluntary agreement. In practical terms, and in practical, simple language for those watching these proceedings, what would our guests do for the child or what should the child who is under a voluntary agreement have? How would TIGALA compel the statutory agencies, which are presumably going to be working together under this legislation, to work for such a child? Our guests will correct me if I am wrong, but if a child is under a voluntary agreement, the parents or guardians, or whoever has applied, have done so voluntarily. It is not the subject of court proceedings. How would TIGALA, for want of a better word, impose advocacy around the child in those circumstances? Does my question make sense? If it does not, I will clarify it.

Ms Claire Quinn

It makes sense. In bringing examples to the committee, we hope to bring the child's experience alive because the child has to remain at the centre of all of this. In practical and real terms, if a child comes into care on a voluntary basis, we would advocate for a review six months down the road to be built in. That review would include all the stakeholders, with the parents and child at the centre. Perhaps six weeks in advance, a guardian ad litem would be appointed so that he or she can work with the child in advance of the review to ensure the child's participation. As the committee has heard, the role of the guardian is twofold. It is to bring the child's voice to the decision-making process and to offer a professional opinion as to what is in the best interests of the child. On a practical level, and depending on the case and child in question, after six months, there may be a number of different scenarios. Within those six months, a parent may not have engaged whatsoever with the State, Tusla or the child. In that case, a decision might be considered by the stakeholders or Tusla that it would be in the child's best interests to commence care proceedings. There may be a case where the parents have engaged well. In such a case, a reunification plan might be considered at a review. It is important for the child's voice to be a part of the decision around a reunification plan. We work with children and adults with mental health difficulties, addiction issues and a variety of needs. It could be that after six months, a parent is not yet in the place he or she wants to be. We know that addiction issues and things like that are complex and a parent may not be where he or she wants to be within six months so voluntary care might be required for a little longer.

That would be decided at the six-month review. That is how we envisage it working in practical terms.

Deputy Sean Sherlock

If we are to proceed with this legislation, and if I am correct that the delegates are advocating access to a guardian where there is a voluntary agreement, there will have to be very specific language in the legislation. In essence, that is what the delegates are saying. To my mind, it seems logical and reasonable. Is there potential for conflict if we go down both the guardian and independent advocate routes for voluntary care agreements? Am I misinterpreting or misreading the landscape? I am here to be educated.

Ms Marissa Ryan

In our view, a child’s best interests are served when the social worker, guardian ad litem and advocate work closely together. Our roles are complementary and do not replace each other. We do not try to duplicate what guardians ad litem do, nor do they try to duplicate what advocates or social workers do. However, it depends on all three pillars of the system being present.

Many of our children and young people have guardians ad litem and work extremely well with them, which is very welcome; however, there are parts of their care journey in which they do not have a guardian ad litem, and that is where EPIC and independent advocates are very important. Sometimes but not always, the fact that a guardian ad litem has been appointed by the High Court can be confusing for a child or young person. They might feel they need the additional layer of somebody who, in their view, works for them. This is how they view an advocate because they self-refer for one. That is the view of some of our children and young people. In this context, we believe it is really important to have all three pillars of child protection and welfare support – guardians ad litem, advocates and social workers – coming together.

Senator Lynn Ruane

I thank everyone for their submissions. I have a few questions. I will go through them all first and the representatives might take notes. Many of the questions are for the representatives from EPIC but I will highlight those that are not.

Some of Deputy Sherlock’s questions touched on points I want to make about independent advocacy. There is a lot of talk about ensuring the child’s view is heard. I am not sure I fully grasped how this is going to be achieved in a very real, concrete and sustainable way. Could the representatives from EPIC, and others if they have views, comment on the methods or measures that can be used within or in addition to independent advocacy to ensure a child is encouraged to express a view and that this view is incorporated?

My next question is for the representatives from EPIC and potentially TIGALA. How should “in loco parentis” be interpreted under head 4? I am wondering whether there is a need for interpretation in respect of the reference to due weight. Siblings may not be in a position to take care of a child, but should they still be able to advocate for that child? What is the role of extended families who cannot apply for guardianship in the sense of acting in loco parentis without being able to take full care of the child? How do we interpret that?

My next question is on the in camera rule and its impacts. In the context of criminality, in particular, some violations of the rule are subject to arrangements involving juvenile liaison officers. That was said to us recently and I thought it was strange. I do not know whether the information is accurate.

What is the position concerning children being able to fully express themselves online or engage while supervised on social media? I am not getting into the question of children being on social media but that is where life exists for many people. How do we ensure privacy arrangements and in camera arrangements do not infringe on a young person’s existence in various ways?

Could the delegates from EPIC outline briefly what the joint protocol is and perhaps offer some insight as to how it works, including in the sense of there being no over-delegation of responsibility? My questions are for EPIC and TIGALA but maybe the Irish Foster Care Association representatives could respond on the joint protocol and whether it should be tied to the duty to co-operate, as under head 10. I refer to allowing clear indicators in regard to delegation, especially when we consider mental health needs and other additional needs. Could the delegates speak about the private family arrangements and the effect of not having protections for children in the sense of their not having support?

Maybe the representatives of the Irish Foster Care Association and EPIC could state the stage at which children in care receive therapeutic support. It is appalling that they do not have a right to therapeutic support, so I am wondering when somebody does receive therapeutic support and about the impact of not receiving it.

Regarding people under supervision orders, we sometimes forget about young people who are under State supervision but do not necessarily end up in care. Potentially, they would not be entitled to any aftercare support. Even though they never entered the care system, they have been heavily supervised by the State on the grounds that they may be at risk, having been supported within the family. Is this a target group we are failing regarding the continued supports?

My next question, on the childminder’s home, is for Ms Heeney and Ms Byrne. It is related to caring for non-relative children. Am I correct in saying the number has to be five plus? I think there is a number but I will have to check.

An Cathaoirleach

I am informed it is four.

Senator Lynn Ruane

I am asking about the position if a person is not registered to access some of the State supports. I have done a lot of work on spent convictions and it always creeps into my head when I think of some who may fear registering because of a past conviction, especially in working-class communities that have been over-policed to a high degree. The conviction may be minor and would not necessarily have anything to do with the task of childminding. Maybe the mother in the house is the one doing the childminding and her son or husband will have a past conviction. If a person with a conviction is registered, he or she would obviously have to be registered with a body. What happens in that case? When the person is vetted by the Garda, is he or she told he or she cannot be a childminder? Should we be making sure there is inbuilt discretion regarding how people read Garda vetting reports and decide what is relevant? If the relevant body decides someone cannot practise as a childminder, or whatever the right term is, does it inform the parents who have been using that childminder? If the childminder is no longer registered, he or she will not be able to gain access to the State supports. Are the people who used the childminder informed?

An Cathaoirleach

We might start with the representatives from EPIC and then proceed to those from TIGALA, the Irish Foster Care Association and Early Childhood Ireland, respectively.

Ms Marissa Ryan

I will just touch briefly on Senator Ruane’s first point, on how the voice of the child is upheld, if I understood her correctly. I can speak only from the perspective of our service. Essentially, regarding children or young people experiencing an issue with their care and who need support to enable them to advocate for themselves, because we are really about empowering children in care, we can take all legal and lawful action to support them. We essentially work for them. When they refer themselves to us or are referred by another body, they come to meet us.

We have a discussion with them. We identify what the issue is with which they need support, and then depending on the specific issue, we take a range of appropriate actions which will enable them to have their voice heard. For example, if the issue is around their child in care review, an advocate can attend the child in care review with the child or young person to ensure he or she understands the proceedings, and that the child's voice is facilitated either through his or her advocate, which is something the UNCRC allows for - the advocate can speak on behalf of the child - or the advocate can support the child to speak for him or herself. Then we follow up, and we continue with each case until there is either a satisfactory outcome or a decision has been reached, and then we explain that to the child or young person and ensure he or she knows what is happening, feels supported and knows what the next steps are.

Similarly, if a child or young person comes to us because he or she needs information or advice, we can do anything from supporting him or her in applying for the Student Universal Support Ireland, SUSI grant, for example, to linking him or her in with dedicated mental health services, to advocating with the foster parent if there is an issue with the child or young person's placement. It is essentially driven by the child or young person him or herself.

Senator Lynn Ruane

Basically, if we had independent advocacy, it would mean it would be spread across all kids-----

Ms Marissa Ryan

Exactly, it would be an automatic right.

Senator Lynn Ruane

-----whereas now it is only if they seek it out through EPIC.

Ms Marissa Ryan

We are not prescriptive in how independent advocacy should be rolled out. Our view is that every child in care in Ireland and every young care leaver has the right to an advocate. It does not have to be through EPIC. Going back to Deputy Sherlock's point, the Government might take a different view on how advocacy services can be rolled out. As I outlined, in Northern Ireland it is done at local authority level and so on. What we really believe is that every child should automatically have the right to access an independent advocate. It should not be contingent on him or her being able to identify EPIC, coming to us and nine advocates across the whole of Ireland on a small amount of funding delivering advocacy. They deserve better. It is a really vital part of child protection and welfare, and any child should be automatically able to avail that.

At present, independent advocacy services are not regulated, because EPIC is the only organisation providing an independent advocacy service to children and young people, specifically those in care and leaving care. While we, much like TIGALA outlined, have Garda vetting, high standards, codes of practice and I can stand over every employee in the organisation, we should be subject to better regulation. We should actually have proper statutory guidance on how we deliver advocacy. There should be national standards, because again that is what children deserve. They need a really robust service, because those situations can be extremely precarious for them.

That is my view anyway. I would not presume to tell the Government how an advocacy service should be run, but that is an example of how a child's voice can be brought through advocacy to ensure children are not bewildered or overwhelmed, they know who is responsible and they have the information they require. We have spoken before in this committee about how so many children in care come to us and they do not know why they are in care. They do not necessarily have information. Care leaver parents do not often understand the care proceedings their children are going through. These are the kind of things an advocate can help with, and that is why we believe it should be an automatic right.

Ms Nicola McCarthy

I thank the Senator. I would like to explain our role in advocating for and supporting children and giving them a voice for their views and wishes, both in the core procedures and with other professionals and people who may be in their lives. The core of that is a consistent, stable relationship with ourselves. We spend time with the children, helping them to understand decisions which are being made, the process of what is happening in their lives and, sometimes maybe, why they have come into care, what has happened in their world, and to understand their version of what has happened in their lives. Then we help them to express that effectively to ourselves, the court and to other professionals involved with them. That gives them a sense of agency in the whole process and an ability to say their views. What we aim to do is build a safe relationship where they can talk about what are very difficult things for children. The key, probably, is the use of the relationship to help them express their views.

We can also make recommendations built from our understanding of what the child is saying, the child's views of his or her world and the relationships he or she has with the people in that world, and to look for assessments or interventions which may be helpful for a child. Regarding what the Senator spoke about in some of her questions around where intervention comes into this, assessments are important in understanding the child and leading to a pathway for intervention which may help the child to recover from what have often been very challenging experiences in his or her life.

Ms Bernadette Neville

While the Bill talks about those structures around advocacy, it is also important to look at the fact that day-to-day advocacy happens through the foster carers. They are the ones who are 24-7 looking after the children and have such an in-depth knowledge of their needs. They are communicating with the social workers, schools and medical people, if there are medical needs. I would not like us to lose sight of the fact that they are core in the advocacy and in supporting children to express and articulate their views. Often, we hear from foster carers talking to us about those difficult conversations children want to have but are unsure about having, or feel unsafe about having. Their anchor becomes the foster carer, and the foster carer then helps to navigate the system with the child.

While we are talking about the bigger structures, let us also think about what we need to do to support that day-to-day advocacy work and to value the role foster carers play in supporting children to express many things and tell the stories that are quite difficult to tell. It is not to lose sight of that. When potential families come forward thinking about fostering, within the standards there is that expectation that you will be advocating on behalf of the children you are looking after. Foster carers take that very seriously and become quite frustrated when they are looking for speech and language and educational assessments. They are constantly communicating the child's need and maybe not getting the responses they are looking for.

The question is how we support foster carers to continue in that role and give them the support they need to support the children in articulating that. As I said in my statement, we have staff shortages across the board. Some children do not have an allocated social worker, so then it is the foster carer who will be picking up the phone, having those conversations and looking for services to come online for the child. Let us continue to value the role they play around advocacy.

Ms Frances Byrne

I would like to answer Senator Ruane, and it will be a short answer. Absolutely, all the questions the Senator raised are really important, and a lot of the time, people will know each other well. The childminder is the mammy from the school, or your sister's best friend, and I am not being facetious when I say that. The history of everyone in the house might well be known, but nevertheless that does not invalidate the Senator's point.

Obviously, Early Childhood Ireland completely supports Garda vetting for childminders and we think it is appropriate. We are reassured by what the Department has put in writing and is saying about all of that. It is really important. However, at some point, there will be a need for somebody to be appointed to do that vetting and, presumably, for legislation. I assume the Garda National Vetting Bureau is going to need a directive of some kind to do that. At that point, all of the questions the Senator raises, including the soft information piece, the relevance of - in inverted commas - a criminal history, and then the sharing of information, are absolutely valid. However, I do not think that is covered in this Bill or needs to be.

All of us in Early Childhood Ireland and beyond want this to work. With regard to childminders, it is really important they are brought into the fold. They are professionals, just like the 30,000 educators who go into settings every day. It is important they are recognised. We know that people immediately focus on the fact that parents will have access to subsidies, but there will be training, first aid, Garda vetting and everything which needs to happen.

For the first time in Ireland we might actually find out how many children are being taken care of in that important part of our early-years and school-age sector. For that point alone, it is really important. I fully agree that all of those issues are important in teasing this through.

Ms Teresa Heeney

To add to Ms Byrne’s commentary, the Bill designates childminders and operators of early-years settings as relevant bodies. There is going to be a requirement for support for all of the people in those roles. As I am sure the committee is aware, the registration of childminders is common practice in other close-to-home jurisdictions such as Northern Ireland and Scotland where these services are registered and inspected. It is welcome that we are moving in the same direction here.

The other outcome of head 10 about being a relevant body is that it should emerge that, not unlike our colleagues to our right here, heads of early-years services operators, be it a childminder or the manager or operator of a setting, will begin to be more regularly consulted about the lives of children who are in challenging circumstances or where Tusla and other arms of Tusla have concerns about a child. These relevant bodies, the operators of settings, have a huge amount of information, as we know, to contribute to that discussion. That has significant resource implications for an early-years service. We would like the committee to be alert to that too. The early-years sector and childminding settings are very happy to be part of that wider system but it brings its own resource implications. We hear from our members who already participate in meitheal arrangements or case conferences that they find themselves at those day-long events and are probably the only person in the room not being paid to be there. It has resource implications and we wish the committee to be alert to that.

An Cathaoirleach

I thank Senator Ruane. We will probably have time for a second round. I call Deputy Creed and ask him to confirm he is on the grounds of the Leinster House complex.

Deputy Michael Creed

I am on the complex of Leinster House. I am trying to keep an eye on the proceedings of another committee as well.

I thank our witnesses for the incredible work they do which, while often hidden and away from the public eye, is nonetheless hugely important for the children in question. Ms Ryan articulated that EPIC's role is to ensure the voice of the child is upheld and to empower children in care. I am interested in the concept of the voice of the child in various forums where the child’s interests are discussed relative to the professional qualification of the representative of the child in those proceedings because as parents we often know that children’s articulation of what they perceive to be in their best interests very often differs from what the parents’ view might be. In similar circumstances, I imagine that the voice of the child being upheld at various forums must be a qualified voice in the sense that the professional representative of the child may feel that what the child may want in terms of various issues could be contrary to his or her best interests. How is that perceived conflict resolved in the context of the child feeling that his or her voice has been heard? I am curious about that. It might be rather an academic observation. I presume the conflict between what we perceive to be in the child’s best interests and what the child might feel is in his or her interests is the same in the context of court proceedings for guardian ad litem or anybody advocating on behalf of children. I presume it boils down to the professional qualifications and judgment of the representative. Across the board, in terms of guardians ad litem, independent advocates or foster parents representing foster children, how does that perceived conflict resolve itself?

Ms Claire Quinn

I am coming at this from the perspective of the guardian ad litem and the child. In regard to the voice of the child in court proceedings, guardians ad litem have qualifications. They are typically social work qualified, and that will be coming in through the guardian ad litem legislation introduced last July. From the perspective of TIGALA, they are all qualified social workers and usually have a dual qualification as well as more than ten years’ experience of working with children in care and families.

There is conflict, and it arises in practice quite often. Guardians meet and build a relationship with their child and express his or her views to the court. The child’s view could be a wish to go home. The child may be desperate to go home. However, as a practitioner, the guardian makes his or her own assessment as a professional. The guardian may give the professional opinion to the court that in fact it is not in the best interests of this child to return home because perhaps the parents are not in a position to care for the child at this time. That conflict happens all the time. That is usually resolved through building the relationship with the child, usually by giving the child the mechanism to ensure his or her voice is heard in court, where he or she feels it is almost as if he or she is standing, speaking to the judge. We have a variety of mechanisms we use to make sure children feel they are actually speaking to the judge in court.

The guardian also explains, if it is age appropriate, what his or her recommendations are. Because of that relationship and the time spent in building the relationship with that young person, that usually does not cause any fall-out in the relationship. Guardians present both; they present their opinion to the court through a court report and then they give evidence. The court report contains a whole section on the wishes and feelings of the child. That will be expressly written out with the detail of the guardian's visits. The second part of the court report is the analysis and the guardian's professional opinion as to what he or she feels is in the best interests of the child. The guardian will be transparent with the child in that it might be different from the child's views. However, usually, through the relationship the guardian has with the child, it does not cause a conflict. The child usually understands if it is explained quite well, through the good relationship that has been built.

Deputy Michael Creed

Is it occasionally at variance with the view of other State agencies with similar professional qualifications as guardians ad litem?

Ms Claire Quinn

Will the Deputy please repeat the question?

Deputy Michael Creed

Is the view of the guardian ad litem, which is informed by his or her professional qualifications and social work, occasionally at variance with the views of persons in various State organisations who have similar qualifications? Where I am coming from - I do not mean to be deliberately coy - is that our experience is informed by constituents' representations and these are difficult cases. I find it particularly traumatic to try to navigate the various State agencies involved. Sometimes it arises that people with similar professional qualifications have polar opposite views. The role of the court is to determine where the balance of the child's best interests rests. In Ms Quinn's experience are there often conflicts about what is in the child's best interest between people who have similar professional qualifications?

Ms Claire Quinn

I understand the question. It can arise that there are differences of professional opinion.

Quite frequently, a collaborative working relationship with the other stakeholders in the child's world is developed through communication and ongoing meetings. On occasion, however, professional opinions differ. In these cases, the differences are brought to the court to be adjudicated on. Ultimately, the decision of the court is final.

Deputy Michael Creed

I want to tease out this issue by asking one further question. Regarding forming an opinion about the voice of the child and their best interests, a picture is painted over time through engagement with the child and the involvement of Tusla and other actors, some of whom might be family members. This is very often where my experience becomes complicated and frustrating. I refer to situations where other family members who believe that they have the best interests of the child at heart but who are, in a way, voices outside of the formal process become involved. It might be an aunt or some other relative. This question is relevant to all the witnesses' organisations. How extensive is the consultation with the broader family, rather than just listening to the voice of the child?

Ms Claire Quinn

One of the most basic social work theories is systems theory. In this framework, a child is never seen in isolation. They are seen within their systems and families. We discover children's best interests by engaging with nannies and aunties. If someone really has genuine care for and interest in a child, we welcome their input into the decision-making process. That has been my experience. If there are family members interested, that is to be welcomed. Children benefit hugely when genuine family members are there to support them. That is the ideal scenario.

In formal terms, section 47 of the Childcare Act 1991 allows family members and interested parties to bring issues to the court and seek directions from it in the context of the welfare of the child. Social workers and guardians would try to engage a family as far as possible in the context of the decision-making process or as part of the care decision-making relating to a child.

Ms Marissa Ryan

I will be very brief because Ms Quinn answered both of those questions very well. Our practice would be very similar to that of the Independent Guardian Ad Litem Agency, but we do not have the mandate to give professional opinions on children's care. We work solely for the child, so we are not in a situation where we are, in one way or another, trying to have a view on the child's care arrangements. We represent the child's voice. We support them to have the information about what is happening to them, to ensure that their views are considered and that they are prepared to have their voices heard at meetings about their care. We identify the professionals working with the child and explain to them what the considerations of the professionals are. We then follow up with them afterwards. We only represent the issues that the child or young person wants us to. We do not have a broader professional role, and we are not a decision-making entity.

Deputy Patrick Costello

I apologise, I was trying to do two committees at once as well so I missed some information in my travels.

I do not know if it was mentioned but one of the parts of independent advocacy that the committee would do well to underline in the context of the general scheme is the need for independent advocacy to support parents. We tried to get some witnesses from that area. Unfortunately, they could not make it here today. There are things happening at that stage. However, my experience of dealing with and supporting care leaver parents whose children are being taken into care is that quite often the only support they get would be from EPIC. That is in their role as a care leaver, not as a parent facing the system. The benefits of independent advocacy can be seen clearly in that context.

On advocacy, EPIC supports children in care. We have been talking about the voluntary care agreements. I will get to those presently. Much of the time, there are private family arrangements in place. I raised this matter with Tusla last week. Quite often, private family arrangements are used as a substitute for formal care agreements. We are often left with a family who should be a foster family not getting the necessary supports or a child who should be in care not getting support. Those situations are not addressed in the general scheme. That is partly because the people to whom I refer are in that grey area outside the law. In the context of their advocacy role, are the witnesses able to get to these people or do they not know where they are?

The witnesses mentioned aftercare. Tusla also sought an expansion in that regard at last week's meeting. There is nothing here in the reforms in the context of aftercare or special care. This is an opportunity to look at those aspects. When I raised them at last week's meeting, the Department said that aftercare had just been reformed and that there was no need to reform it again. That is a short and perhaps ungenerous summary, but that is basically what the officials said. It would be very useful to hear the witnesses' experience of this matter.

My next question is for the representatives from the IFCA. There is nothing in here around the foster care committees. These are part of the regulations and will continue to be able to make regulations. This strikes me as an opportunity to put them on to a slightly more statutory footing because I have experienced a bit of inconsistency around them. Do foster care committees need reform or improvement? Could that be achieved by the insertion of a new head into the general scheme to deal specifically with these committees?

Ms Marissa Ryan

We agree on care leaver parents by virtue of the fact that we work with all care experienced children and young people up to the age of 26. We work with a significant number, and we have been before the committee in the past to discuss care leaver parents. We firmly believe that they are entitled to advocacy, especially in cases where the child has been taken into care. We do work with parents who find themselves in that situation.

We do not have access to those in private family arrangements. Our specific mandate is to work with children in the care of Tusla or those who have been in its care. For those in kinship care and private family arrangements, it goes back to the two-tier system where they do not have access to an advocate and where advocacy is not legislated for. They are subject to a double whammy.

I will ask Mr. Stitt to deal with the question on aftercare.

Mr. Conor Stitt

I am sure every witness and every member of the committee can attest to aftercare and the value it has as a positive intervention for young people. It was very welcome that the CEO of Tusla stated that the upper age limit should be considered in the context of the review. The Department noted that amendments were made in 2017 and that it might be too soon to consider changes. I think it was more that there was no time to consider them as part of the review.

There are a number of critical issues with regard to aftercare eligibility. The first is that many of those who are very vulnerable and in need of aftercare do not get it because of the eligibility criteria. One of these criteria is the 12-month rule. A person has to have spent 12 months in care between the ages of 13 and 17 in order to access aftercare. The full-time education requirement means that a person will be able to avail of aftercare up to the age of 23 if they are in full-time education or training. Education does not suit everyone who might a care leaver at that specific time in their lives, so that is one aspect that could be improved.

There are also issues regarding those who come in under section 5 of the Act and who appear as temporarily homeless or those who are unaccompanied minors or separated children who are still having their international protection applications being processed. There are a number of key critical issues.

What might be prudent within the committee's report is to suggest that following one year of enactment of this specific amendment Act, they might consider our view of aftercare eligibility. The further we leave those changes, the further people might fall outside the eligibility criteria. It is timely to consider this.

Deputy Patrick Costello

Before we move on from aftercare I want to ask a technical question. Is the 12 month rule grounded in legislation, regulations or policy? Where is that?

Mr. Conor Stitt

It is in section 45 of the 1991 Act.

Deputy Patrick Costello

My other question was on the special care and foster care committees.

Ms Bernadette Neville

We should remind ourselves that foster care committees approve applications from prospective foster carers. They work within the national assessment framework and the foster care guidelines. The Deputy's first question was on the need for reform. Across the country and all service deliveries for children in foster care and families, we see mixed approaches and lack of standardisation even though we have frameworks in place. Different areas are maybe making decisions on different things, and prioritising different things as well. I am aware that the foster care committees would review their own practices and generate a report from that. The question then is what happens to any learning that might be drawn from that. Does it translate into looking at developing and enhancing practice and standardisation? That is my question. Where does the information go? Can we get access to it? From our end we are not seeing any considerable engagement with the experiences of foster carers attending and participating in those. Some areas are better and may be more open to that. Yes, we possibly need to look at that again and look to see how they are functioning, and who makes up and constitutes the foster care committee. What do we do with the learning from it to improve and strengthen practice?

I also want to come in on aftercare. Last year we made a joint submission with EPIC. We reviewed Tusla's national aftercare policy. It was striking, from the perspective of foster care, that within the current policy provisions the role, contribution and status of foster carers is invisible. It is not really named, articulated or elevated within the current structures. We ran a number of consultations with our foster carers, and we know from speaking with them that they feel that once aftercare is considered they are very much put to one side. Their contribution and role is not really understood. We were also hearing that the aftercare needs to be looked at again in terms of children with disabilities and neurodiverse children. There is also a need to work alongside Tusla and the HSE, and that joint protocol to see where the cracks are. By all accounts, we are hearing from our members that there are significant cracks there for children with disabilities. That really needs to be looked at, and needs a standalone examination of the whole process. It is not good enough that foster carers who have given life long commitments to children, and are nearly hitting retirement themselves, have to be concerned about the supports available for the young people they are looking after. That also applies to financial supports. I definitely think that we need to start moving away from the language of aftercare, and look more at the continuum of care. It is not just that you hit 18 and are in a different space now and have finished care. We know these children have complex needs that will run right through into adulthood and beyond. Again, from consultations with our foster carers, we really need to look again at all of the provisions around aftercare. We need to look at what foster carers bring to that, what they can contribute to that, and where they sit in that framework. We also need to hear the stories they have about their experiences. From that, we will learn how to improve things.

An Cathaoirleach

I think there was one more question.

Deputy Patrick Costello

There was a question on the need to reform special care. That was for EPIC.

Ms Marissa Ryan

We did not speak specifically in our submission to where we would work with children and young people in special care. Some of the main presenting issues for us are the absence of an appropriate special care placement because of the staffing and placement crisis and the absence of efficient step-down facilities. Sometimes children are also being kept longer in arrangements because there is no move-on placement for them. However, for the purposes of the review of Child Care (Amendment) Bill, that was not something we spoke to specifically. Mr. Stitt may also wish to add something.

Mr. Conor Stitt

I do not think there were any significant changes in terms of what the Department was proposing.

Deputy Patrick Costello

They are almost resource and practice issues as opposed to structural ones.

Ms Karen Cahill

I would also like to say something about the arrangements mentioned by Deputy Costello. Children coming into care in that way are coming into informal care and not formal care. In practice, on the helpline and working with Kinship Care Ireland our experience, and that of the carers, is the children are possibly coming in through voluntary care and then getting the option of pathways. That can go into private arrangement, such as Kinship Care, or to be assessed for a relative foster carer. From the experience of people ringing us, we support families trying to get assessed and approved for that. That can be difficult, especially for grandparents sometimes. They are told they are too old or they do not have sufficient housing. There is then the option of Kinship Care. IFCA has provided advocacy to go down the assessment route for assessment as a relative foster carer. We have also done referrals to Kinship Care Ireland, which does not have an advocacy service at present. It is something it is looking at.

An Cathaoirleach

Before we go to a second round I have a question for EPIC. It states at the bottom of page 2 of its submission that it is disappointed about some of the exclusions, like a dedicated section to support unaccompanied minors and much needed update to the in camera rule. Can they give the committee some more information on those, particularly the in camera rule? That comes up a lot. It is not just relevant for this committee, but in general with family courts. There are mixed views. Some people think it is a positive thing, while some think it is a bit of a disguise for the perpetrator at times. They can hide behind that.

Mr. Conor Stitt

Currently under the 1991 Act it is an offence to publish or broadcast any material, which may lead to members of the public being able to identify the children subject to child care proceedings under section 31. When the legislation was drafted and interpreted social media was not an issue, and not something we would have considered. In terms of EPIC's advocacy service and what we might see reflected, we might see children in care sitting out of their class photos and feeling isolated and othered because of that. They might be told by a professional in their life that their social media presence, where they might talk about their life, identity or that they are care experienced, is illegal and they need to stop it. The need to protect the identity of children has to be balanced against their right to have a voice, to be heard, and to express themselves and their identity. Those are rights upheld in articles 12 and 13 of the United Nations Convention on the Rights of the Child.

To the point about upholding a child's privacy, this obviously goes hand in hand with a conversation with the child as to safe and positive social media usage. However, it is in the overarching legislation where we see the problems, through it having a chilling effect on children's ability to express themselves online and to get on with school activities, and a different presence where they might feel isolated, but should not, because of their identity or care experience.

The issue of unaccompanied minors and separated children was also discussed at the committee last week mostly because it was proposed as part of a 2020 consultation paper produced by the Department, where it was considering views towards a dedicated section for unaccompanied minors and separated children, but-----

An Cathaoirleach

I am sorry to interrupt. There is a vote in the Seanad. Senator Ruane may need to go.

Senator Lynn Ruane

I do. We will probably discuss some of the areas I wish to touch on, which include the in camera rule - that has been addressed - the interpretation of in loco parentis, and the joint protocol and its potential relationship to the duty to co-operate. If I am not here for that discussion, I apologise.

An Cathaoirleach

Does the Senator want to ask anything else? The Seanad vote has just started.

Senator Lynn Ruane

No, those are the most important areas. They are the issues I should loop back to. Hopefully, I will be back in time. The more important thing is that they will be on the transcript.

An Cathaoirleach

I apologise to Mr. Stitt for the interruption. He addressed the in camera issue, but there is the matter of unaccompanied minors, which is particularly an issue now when we see everything that has been going on recently. The Department's response last week to the reason for exclusion was not great.

Mr. Conor Stitt

Exactly. Similarly, the Department stated it was running against time and had a difficulty in doing so. Again, to reflect Tusla's comments last week that its lead is to the statistics, those statistics indicate a 500% increase this year in the number of referrals to Tusla of separated children and unaccompanied minors seeking international protection. As mentioned in our submission, without explicit guidance under the childcare Act, the type of arrangement and subsequent aftercare of unaccompanied minors and separated children are conducted without legislative clarity. There are often situations where there is a lacuna in legislation whereby it is unclear as to such children's status, as either care leavers who might receive an allocated aftercare worker, an aftercare plan and respective supports, or as children who are international protection applicants and are possibly being referred from their residential care placement to direct provision, where they receive significantly diminished supports compared with availing of aftercare. That lacuna is a big problem. To have that visibility and guidance in the 1991 Act is critical.

I will mention one provision relating to voluntary care. A new policy on such care is being proposed by the Department whereby, if there is no prospect of reunification, a child should not come under a voluntary care arrangement. It is often the case that we see unaccompanied minors being brought in under such an arrangement. I understand, if there is no prospect of reunification, that other statutory care orders might be sought. That should be welcomed.

On the joint protocol, EPIC published research into the area of children in care and care leavers with disabilities in March of this year. Our study reinforced many of the other findings that civil society in this sector has found. Inclusion Ireland and the Ombudsman for Children's Office have done a number of pieces in this area. We have all reinforced each other's learnings in this space, including that there should be a joint protocol for collaboration between the HSE and the Child and Family Agency. While there have been improvements in that process, significant impediments remain to effective interagency collaboration for children in care. When we look at a duty to collaborate, we have to benchmark it against those who need interagency collaboration to work against and those for whom it is critically needed.

I will reference the Ombudsman for Children's main report in this space, Mind the Gap, which noted three main points. These are that children with disabilities are overlooked in legislation and policies relating to children; children with disabilities are not effectively included in consultations and research on legislation and policies that affect them; and children with disabilities are broadly invisible in data, resulting in an insufficient evidence base to understand the impact of legislation and policies. There are similar findings relating to central planning and organisational disjuncture for children who are seeking access to child and adolescent mental health services, which has been recently recorded by the Mental Health Commission. In addition, through EPIC's advocacy service, we also noted the same critical issues in respect of therapeutic supports, some of which relate to addiction services or therapeutic supports for eating disorders. Critically, organisational disjuncture has also been noted in the youth homelessness strategy as one of the reasons we see critical points of care-leaver homelessness. All these different outcomes indicate why we need the joint protocol and need it to be addressed.

Last week, the Department relayed that the swathe of this new section was so that other agencies could support the Child and Family Agency with information and support it in conducting its role, whereas EPIC sees the role of this section, and what it needs to address, as ensuring the in loco parentis role of the State towards the child is an all-of-state approach. Whether it is a housing, health or justice need, it has to be fulfilled by the respective State agency. The Child and Family Agency can only achieve so much in relaying that service for a child. That has to distil down to the point where, at the child case conference in any part of the State, a new arrangement for collaboration should leave no ambiguity as to who goes away with responsibility for this critical point of a child's care.

Ms Claire Quinn

I will speak to that exact point in the context of a matter we specifically brought up in our submission that relates to section 47 of the 1991 Act. When we work with children with complex needs who are before the courts, typically, they do not have only one need. It is not just a welfare need. Typically, our complex children may have needs in respect of mental health, the disability sector or education. We have seen that the joint protocol has helped with collaboration and different agencies working together. The proposed Bill speaks to that and seeks to enhance that interagency co-operation.

However, we believe in going a step further to allow the court a mechanism to make a direction against one of those agencies to support the care planning for a child. As EPIC stated, Tusla can only go so far in providing for the welfare of a child. It does not have access to mental health or disability services, or educational supports, for a child. It would support the child's care plan if there were to be a mechanism to support and assist the court to make directions on who has responsibility for a child's needs and be able to act on that.

An Cathaoirleach

Does anybody else wish to add to those points? Does Deputy Costello have any questions? No. Everyone is very co-operative. I liked what Deputy Sherlock said regarding TIGALA's submission and its example of child A and child B. Legislation on GALs was before the Dáil during its previous term. I was a member of the committee but not its chair at the time. Deputy Sherlock and I were among those pushing for an amendment that would allow all children to have access to a GAL, even if they did not want that service. It is, however, very important and TIGALA's example shows exactly why it is needed. That was very well done.

Unless anyone wishes to make any closing remarks anyone wants to make, I thank all our witnesses for answering our questions and for their submissions. We appreciate it because there was a tight timeframe for people. Is it agreed that the opening statements be published on the Oireachtas website? Agreed.

The joint committee adjourned at 4.49 p.m. until 3 p.m. on Tuesday, 23 May 2023.