JOINT COMMITTEE ON INVESTIGATIONS, OVERSIGHT AND PETITIONS debate -
Tuesday, 11 Oct 2011

Orders of Reference of Joint Committee: Discussion

Chairman

I am pleased to welcome the Ombudsman for Children, Ms Emily Logan, and Ms Deirdre O'Shea and Mr. Páraic Walsh from her office. I thank them for joining us. The paper provided has been circulated to members. The joint committee is interested in eliciting the views of the Ombudsman for Children on how we can enhance the scrutiny process in all areas of public administration which refer to the responsibilities of her office.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they do not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I now invite the Ombudsman for Children to make her presentation.

Ms Emily Logan

I thank the Chairman and members for their kind invitation. I also appreciate that the joint committee normally sits on a Wednesday and thank it for accommodating us. I propose to briefly outline the role of my office and give members an insight into some of the work we do. This may inform the discussion and members' thinking about how the committee may engage with my office.

As members will be aware, the Office of the Ombudsman for Children was established under primary legislation, the Ombudsman for Children Act 2002. The creation of the office firmly positioned Ireland alongside many states - the figure stands at 40 Council of Europe member states - which have a national human rights institution dedicated to the advancement of children's rights and the safeguarding of their welfare. It also constituted a strong response by Ireland to the recommendation made by the United Nations Committee on the Rights of the Child in 1998 that every state should have an institution that would be able to monitor, promote and protect children's rights in an independent and systematic way. This development was of fundamental importance to fostering these rights, as set out in the UN Convention on the Rights of the Child, CRC.

I was appointed Ireland's first Ombudsman for Children in 2003 following an open competition. Interestingly, the competition involved 15 children between the ages of 11 and 17 years. Following a resolution by both Houses of the Oireachtas, I was appointed by President McAleese and I account directly to the Oireachtas. The statutory independence of the office has been a critical feature of the development of a credible and independent office for children. My interaction with the Oireachtas extends beyond our obligation to lay my annual report before both Houses. I regularly meet committees and submit advice, special reports and other reports to the Oireachtas. By way of assistance to the joint committee, all the submissions made since the establishment of the office in 2004 have been appended to the document circulated to members.

In addition to the traditional and well understood independent complaints handling function of an ombudsman, the Ombudsman for Children has a number of key and unique functions, namely, the promotion of children's rights, including the principles of the UN Convention on the Rights of the Child, advising Ministers of the Government on issues relating to children's rights, in particular, commenting on draft legislation at heads of Bill stage, and a discretionary function of reporting to the Oireachtas on any matter relating to the rights and welfare of children. I also have a statutory obligation to encourage the development of policies, practices and procedures that promote the rights of children among public bodies and agents of the State. The word "encourage" is used expressly in the Act, the spirit of which is to encourage public bodies and agents of the State to consider and promote children's rights when developing policy practice affecting children. I also have a unique, albeit less widely known, mandate to highlight issues relating to the rights and welfare of children that are of concern to children themselves. This function has become an increasingly important part of the work of the office. Members will be aware, for example, of instances cited in the Ryan report of children's voices not being heard. This mandate is a critical element of the new culture of children's rights.

Regrettably, certain groups of children are outside our investigatory remit. I refer, in particular, to children in St. Patrick's Institution and separated children without a legal guardian or parent who are in the care of the State. As a team, we have employed the wider statutory functions of the office to engage with children directly. While we cannot investigate cases, we use what is known as section 7, which refers to consulting children, engaging directly with them and listening to what they have to say about their experience. Notwithstanding this engagement and despite securing positive results and outcomes for the two groups of children to which I referred, I remain dissatisfied that any group of children is outside my investigatory remit. This is especially the case given that while these groups are theoretically not in the care of the State, they are without their parents and the State exercises considerable power over them. It remains a deficit in the legislation that such children cannot approach my office.

I have included the example of child death review to illustrate how the various functions of my office interact and can be brought to bear on a particular issue. We started work on the issue of child death review in April 2007 when I first recommended that consideration be given to establishing a mechanism to systematically review the deaths of children, in particular, where the children in question are in the care of the State. My office carried out extensive policy work in this area in 2008 and in 2009 submitted an options paper to the Government in which we presented a series of possible solutions to the problem. We also presented this advice to the Oireachtas Joint Committee on Health and Children in June 2009. The example of child deaths illustrates the interaction between information provided for my office by a complainant who will be a member of the public, our policy work and commentary on legislation.

On the office's complaints and investigation remit, the Ombudsman for Children Act 2002 provides for the examination and investigation of administrative actions by public bodies affecting children under 18 years. These legislative provisions set out standard maladministration grounds for the review of complaints. Given that the effect of an action on a child must be the subject of an investigation conducted by the Ombudsman for Children and children may bring complaints to the office, the Act sets out a range of specific and express legislative provisions which take particular account of vulnerable children who may need our help. These include my obligation to have regard to the best interests of the child and give due consideration to the child's views on the matter in question. The youngest child my office has encountered who had the capacity to express strong views on a matter was a four year old.

It may be useful for the joint committee to be aware of the investigatory powers conferred on me by the Ombudsman for Children Act 2002. These powers which were essentially taken from the 1980 Act include the power to compel information, documents and witnesses. Anyone so requested to appear before the Ombudsman for Children enjoys the same immunities as a witness before the High Court. Information or documents obtained by my office in the course of an examination or investigation are exempt from freedom of information legislation and I am obliged to carry out my investigations otherwise than in public.

It may be of interest to the joint committee to learn that in the seven years since my office's establishment, I have never had occasion to bring a report to an Oireachtas committee on the basis of non-compliance of a public body with my recommendations following the conclusion of an investigation. This does not mean we have not had robust exchanges, differences or disagreements with public bodies. In some cases, we engage heavily at the conclusion of an investigation to enable a public body to understand the rationale for our recommendations.

The annual number of complaints to my office has risen from 95 in our first year of operation to more than 1,200 in 2010. We anticipate receiving approximately 1,400 complaints this year. The nature and complexity of complaints have changed considerably in the period in question. It is perhaps not surprising, given that parents are the best advocates for their children, that the majority of complaints are made by parents and extended family members. This fact serves as a caution with regard to children who do not have parents with the capacity or confidence to challenge or approach public authorities to question some of the care they receive.

Although the individual complaint is very important to the child and the family and although we work on individual complaints, we have very deliberately adopted a new strategy in the past three years. We have monthly meetings at which we analyse patterns and trends of complaints with a view to selecting a pivotal case that will not only alleviate the position or provide a solution for the individual child and family but which might also deliver systemic change. The joint committee may be aware, for example, that my office undertook the only systemic investigation into State compliance with child protection measures and the implementation of the Children First strategy. Both the HSE and the Office of the Minister for Children and Youth Affairs were the subject of this investigation.

I have included the skills set of the staff of the office because it might be pertinent in terms of some of the conversations the joint committee has had. The Ombudsman for Children Act sets out three distinct functions in legislation regarding how the office should engage directly with children. I have mentioned that children can make a direct approach to the office. We are obliged to consider the best interests of children and hear their views. Therefore, when providing a complaints handling service for children, it is crucial that we have a thorough understanding of how we can identify and prioritise complex issues in order that we understand the needs, rights and welfare of the children who come to the attention of the office. It is also important that we are entirely comfortable working with children and families, in particular, those who are vulnerable.

I have taken great care in appointing the staff of my office, in the main by opening advertisements, when possible, to ensure the staff with whom we engage come from variety of backgrounds. Ms Deirdre O'Shea has many years of experience as a social worker; has worked in St. Clare's, the national child sexual abuse unit, and has years of expertise both here and in the United Kingdom. Mr. Páraic Walsh was a teacher and, more recently, a practising solicitor in child and family law. I have 30 years' experience of working in child health services. We have a breadth of experience and see ourselves as a very active group of individuals. We are not sitting behind desks but see ourselves as being proactive in going to meet children and families in different environments.

As the person with statutory responsibility for promoting and monitoring children's rights and welfare in Ireland, it would be remiss of me not to take the opportunity when speaking to Members of the Legislature to refer once again to my views on the necessity of constitutional rights for children. I will not go into too much detail as my opinions and recommendations are on the record. I understand the number of reports in the Oireachtas amounts to six. However, in my seven years as Ombudsman for Children I can report that a dominant feature of our investigations has been that, with few exceptions, they highlight a lack of awareness of the impact of public administrative decision making on the lives and rights of children and their families.

Sometimes this can have profound effects. Decision making that affected children directly and sometimes indirectly was not informed by its impact on the children concerned; nor was it informed by children's rights principles. In particular, the parameters of children's rights and the right of children to be heard were not used to guide administrative actions or decision making to any great extent and, on some occasions, not at all. The procedures were not sensitive to and, in some cases, those applying them were not aware of the need to adhere to the principles of children's rights when dealing with children or their families. Other considerations appeared to dominate over ensuring the rights and interests of individual children were met. In this respect, sometimes the individual children appeared to be largely invisible in the decision-making process. There are examples of very excessive, long and torturous paths being followed, particularly by the parents of children with a chronic illness or a disability who had to get through excessive and bureaucratic approaches to public decision making. There was often quite a gap between the administrator who made the decision and the child and family concerned. It is important to emphasise that although people will sometimes use the excuse of not having resources, very often - in fact, more often than not - we come across issues of culture and attitude rather than resources as an impeding or barrier factor in attitudes to the treatment of children and families.

It has been suggested my office should formally present its annual report to the joint committee, perhaps with a view to discussing and exploring some future trends which we have briefly identified in our material. I also wish to suggest the committee should consider the broader remit, rather than merely the complaints and investigations remit, namely, the interaction of other statutory functions as a means of highlighting or providing an early warning system concerning some of the issues that will be coming down the line. We tried to do this in 2007 in regard to child death review.

I remain, as always, at the disposal of the joint committee and thank members for their time. We are very open and appreciative that the committee is engaging with us at such an early stage. We are aware, obviously, that this is contingent on the outcome of a referendum, but I am very glad to be present at this early stage and thank the Chairman for the invitation.

Chairman

Mo bhuíochas mar gheall ar an chur-i-láthair sin. Bhí sé an-suimiúil. I have a number of questions. First, is the existence of the Office of the Ombudsman for Children well known among children? Second, Ms Logue mentioned child deaths while in State care. Perhaps she might talk us through the role she has played in that work and the steps taken by the Oireachtas afterwards in response. Third, let us suppose a child was having difficulty in accessing health care, was being on a waiting list or perhaps even placed on a hospital trolley for a long period. Is that the type of investigation in which the office might get involved?

Ms Emily Logan

I shall answer the first question on whether children know about the existence of the office. We often engage with children and do much outreach and inreach work. Children come to our office which is a very nice space. Members would be welcome if they ever wished to visit. It is not what children would call a boring space, but it is dynamic. We engage with schools across the country and receive visits from all corners. Teachers, largely through school projects, come to our office and we offer a human rights education programme. We also conduct a type of low level omnibus poll annually to get a sense of whether people know about us. From the figures I have we believe one in four people has heard of us. I do not want to overstate this, however, and say I am constantly out in communities talking about our role. When I consider some of the children about whom we would all share concerns, I do not believe every child or family in the country knows about us. However, we are very proactive and I get out of the office, physically, to visit schools or wherever else. We have engaged closely with St. Patrick's Institution and have been to secure care and residential care centres. We did a project with ten hostels in which separated children are kept and visited each one. The children then came to us. We have very active engagement with children, but I do not think I will ever be satisfied. We will never reach the stage where we will be satisfied and convinced that every child and family knows about us. That is a job we must keep doing. People have been very helpful to us and we work through organisations, voluntary and otherwise, which also engage with families. These include Barnardos, the ISPCC and schools, which have been very good to us. Between 10% and 15% of our contacts are made directly through professionals working with children. In the main, teachers are excellent. Social workers are the ones who tend to bring families to us.

The Chairman asked about child death review. This process began in 2007 when I first went to the then Minister for Health to suggest we consider the introduction of a systemic independent review. We convened a public seminar. I received great support from bodies such as the Coroners Society of Ireland. Mr. Brian Farrell attended. Thirty-two public institutions with a role in regard to child death, whether it be the office of the coroner, the General Registry Office or the Central Statistics Office, began to try to pull related pieces of information together. Although everybody was doing a very good job, there was and remains a siloed approach to the death of children. We conducted the seminar, did a great deal of international research and spoke to some of our international colleagues. We presented a paper to the Government in 2008 and the Oireachtas committee in 2009. Subsequently, unfortunately, in 2009 there was a great deal of media attention. I mean "unfortunately" in the sense that the way in which material found its way into the public domain detailing the raw nature of cases and sensitive information on families saddened me. I did not and do not think that is the way we should treat information on the death of children in care.

We have advised on the Health (Amendment) Act and I continue to advise the Minister for Children and Youth Affairs. I have been absolutely open with her; I have told her we are happy to play any role we can.

For the joint committee, what is important on a macro level is the institutional independence families should have. If it is going to be consistent with Article 2 of the European Convention on Human Rights with regard to granting someone an independent inquiry into a matter as serious as that, I would - if it were happening again - come before the committee to seek its assistance in order to advance some of these changes.

The final question was on children accessing health care. When one is dealing with children under the age of 18 years, it is no surprise that health and education are the two major areas. Education has taken over somewhat this year, which is not surprising in the light of the budget cuts. The Deputy inquired about waiting lists and access to health care. Mr. Walsh deals primarily with complaints relating to admissibility. However, it is not unusual for us to receive complaints about access. It might be useful for the joint committee to consider certain things. While it is not a parliamentary institution, the European Court of Human Rights had great difficulty with the backlog in the context of petitioning throughout Europe. It developed filtering mechanisms to deal with the backlog. Mr. Walsh and his team have developed such mechanisms in order that we will not find ourselves going over the same issues in respect of different children. As a result, we sometimes deal with a number of complaints on a collective basis. Access to health care has, of course, been an issue with regard to complaints received by the office. I will ask Mr. Walsh to comment on the matter.

Mr. Páraic Walsh

To add to what the Ombudsman for Children said about the number of complaints we receive, it is, as members can appreciate, fair to state it is on the increase. In trying to deal with such complaints, ours is a public office that is open and accountable in the context of its work. While we have discretion to act, we must do so in accordance with our governing legislation. We do not, therefore, have the power to turn away complainants. In such circumstances, we are obliged to work effectively and with the best interests of the child in mind. As the Ombudsman for Children stated, we have developed and refined our own process for dealing with complaints. That process is unique because the complaints to which I refer are brought on behalf of children. A child can be affected by something in a far more adverse way than an adult, particularly as childhood is an extremely finite period. The process to which I refer also relates to access to advocates for children.

The office places a great deal of emphasis on discovering whether complaints can be dealt with at a local level. The challenge up against which one will come when dealing with matters of this nature is that something may be more easily dealt with at local level with the public body involved and with those in the know who have direct access to the information that can assist in resolving an issue. If a systemic issue arises which contemplates the cases of a number of children from throughout the country, it is a question of managing the space between them.

I will not comment on the nuts and bolts of the issue of admissibility. However, we can receive complaints by e-mail or fax or someone - an adult or child - can walk in off the street to make one. Not all complaints are fully formed and not all complainants have the capacity to make a full complaint. As an office, we exist as an alternative to going to court and litigation. It would be foolish to form the view that all complaints are of a certain standard which allows one to understand the nature of the issues involved. A great deal of the office's work involves trying to discover the basis of complaints. The challenge we face is dealing with people who are in vulnerable positions or those who have a difficulty in terms of their capacity to understand complaints processes. The staff of the office are always obliged to remember that those who come to us may have exhausted the procedures available to them at local level. It could, for example, be a year or two before a complainant finally seeks our help.

If a local or public body still has a role in resolving a matter, we must bring it to its attention quickly. Before leaving the office today, I checked to see if there were any child protection issues to be dealt with. Such issues must be dealt with immediately. If a matter can be dealt with on such a basis by a school, public body or hospital, it is incumbent on us to refer it back to them straightaway. In such cases we usually state a complaint has been made and make the relevant person or persons involved - who might not know about the issue raised - aware of what is happening. It is often the fact of our existence, as a watchdog, which ensures matters are resolved. We are happy enough when this happens because that is our role.

Ms Emily Logan

It is important for the joint committee to understand that at the outset the process relating to public bodies was quite difficult. As our credibility has developed, however, the position has changed. Sometimes the first intervention by the office is enough to stimulate a response. We are being obliged to investigate less because people are responding quicker. While a parent might come to us with a problem or in respect of an action taken by a public body, when we approach the said body, we find that it may try to mitigate the action in order to avoid our investigating the matter. This can sometimes be good if it is an individual case. If it is systemic, we obviously make a decision on whether we should pursue the matter further. Like this committee, we are constantly learning and trying to refine what we are doing.

Deputy Michael Healy-Rae

I welcome the Ombudsman for Children and her team. They bring with them a wealth of knowledge and experience and we appreciate the work they have been doing.

In the context of the concerns relating to the children in St. Patrick's Institution and separated children in the care of the State, what are the ages of the children involved and how many are there?

I know I speak for other members when I refer to being approached by parents whose children are on waiting lists for orthodontic treatment. Has the Ombudsman for Children received formal complaints about that matter? As she is aware, children whose teeth are neglected can experience difficulties in later life. I am sure complaints about this matter have been received by the office, but perhaps Ms Logan might confirm whether that is the case.

Ms Emily Logan

St. Patrick's Institution is a medium secure prison for 16 and 17 year olds. It caters for young people up to the age of 21 years, but the children within our remit are those who are under 18 years of age. The prison houses between 50 and 60 young men, but there is a cohort of individuals who are continually in and out of the place. It is, therefore, the same people who are going into and coming out of St. Patrick's Institution all the time. The concern that arises relates to how they gain access to making complaints. The Ryan report lists the various situations where children attempted to indicate they were unhappy with something. We have been pushing for change in this regard because international best practice is that such children should be in a care environment. If we are going to expect them to behave differently when they re-enter society in their late teens or early 20s, a care setting is a better environment in which to deal with them rather than placing them in custody in cells. This group remains a source of worry for me.

With regard to the Deputy's question on orthodontics, the general issue of waiting lists always arises. People try to resolve matters of this nature on a more local basis and I am aware that Deputies have provided constituents with assistance in that regard. Complaints about waiting lists for orthodontic treatment are not as high on the list as one might expect, particularly at a time when waiting lists are growing longer. The type of issues brought to our attention relate to speech and language therapy, occupational therapy, mental health and the use of waiting lists in that regard.

Senator Susan O’Keeffe

I thank the Ombudsman for Children for her presentation. If I understood her correctly, she stated that not only was it the case that the number of complaints was increasing but also that the level of complexity of complaints was changing. Will she indicate why that is the case? Obviously, it would be possible to make a guess in that regard but the ombudsman is better place to make a judgment.

My second query relates to the ombudsman's statutory obligation to encourage the development of policies, practices and procedures. She has stated she seeks to highlight a lack of awareness of the impact of public administrative decision making on the lives and rights of children and their families. Do I understand this to mean that said lack of awareness makes it difficult for the ombudsman to fulfil her statutory obligation to encourage the development of policies, practices and procedures? Has this lack of awareness contributed to the increase in the number of complaints? If it is difficult to encourage the development of policies, practices and procedures, does the work in which the ombudsman is involved amount to picking up the pieces after the errors have been made? Is the committee in any position to assist that aspect of the work or would we only have an input on the complaints side of the business?

Ms Emily Logan

I will answer the Senator's first question about why the complaints come about and their nature. That is about awareness and people's comprehension. It is our responsibility to communicate what we do but looking back on the trends in our statistics, there have been certain triggers in the public consciousness. The publication of child protection reports remains high on the public consciousness, dating to the publication of the Ferns report. Big cases like the one in Roscommon bring families to us and in between 30 and 40 occasions per year individuals will come to us and disclose child abuse. Although we are not the statutory authority, there would still be a number of those kinds of complaints.

There is a greater public awareness about the realities and the more complex issues for children and young people, which is why those more complex issues are coming to us. In some ways, it is better that there are publications like the Ryan report because people are much more aware of child protection issues and some of the more difficult or unpalatable incidents involving children. They are more alert and alive to such issues, which is why the complexity has changed. The cases we deal with range from school transport to the death of children in care, so there is quite a breadth. Some of the families at the extreme end of the margin are most in need of help, and excellent advocates in the community have supported families.

With regard to policy and practice, it is interesting that there are some public administrative services where people are not used to meeting families and children. I remember particularly a good and positive engagement with the local authority for a child with a progressive illness. The child had a disease where he was progressively becoming paralysed and by the time he came to us he was 12. His case for a house had been inactive for four years, with a generic letter sent on 11 occasions over the period. That is not about resources but attitude and the willingness to take on a case. When we asked the local authority personnel to meet the child to hear about his experiences, they were very apprehensive. They expected the child to look for a five-bedroom house with a big garden but the child never mentioned the house. Instead, he referred to a lack of respect shown to his mother and primary carer, and a lack of independence and privacy for himself. There was no reference to the building but rather the impact it had on the family.

We are trying to bridge the gap between families and people making the decisions. If the members of the local authority met the family four years before, the file would not have been inactive for that time. That is a case for encouragement. I am cautious about saying that people take on our recommendations. We invest much time in meeting directly with public bodies to bring about change and have dialogue. Issuing edicts and recommendations will change nothing and we are in the business of change for the long term. We all firmly believe in that direct engagement with public bodies, although they have been a bit nervous about it because we have asked the people there to think about actions they have not taken before. People have mainly been receptive.

Senator Susan O’Keeffe

Ms Logan still speaks about a lack of awareness.

Ms Emily Logan

There is a lack of awareness.

Senator Susan O’Keeffe

Is she saying that the process is still at the baby stage?

Ms Emily Logan

Yes, in international practice there is normally some training taking in the understanding of children's rights. The public institution which has been very strong in that regard is the Garda Síochána. I was in the juvenile liaison office in Templemore and met 115 juvenile liaison officers last week who are very thoughtful and put children at the core of their work. It is interesting to see a group which has gone through the training and how it is a natural response for such people to consider the interests and welfare of children. People like teachers and social workers have asked for training but we do not have the capacity to do it. It is something to think about across public administration. My dream would be for this to happen locally without us intervening, as that would be the better outcome in 20 years for all of this.

Senator Susan O’Keeffe

Of course. The question is then whether there is a role for this committee in that area of work or whether we will deal with complaints.

Ms Emily Logan

As legislators it is critical to understand there is a practice of legislative deficit. Although legislation is not the only answer, it could make a contribution to enhancing children's interests and obliging people to think of that when making public administration decisions.

Deputy Charlie McConalogue

I join previous speakers in welcoming the delegation and thanking them for taking the time to come before the committee. It was mentioned that the office received several complaints relating to the length of waiting lists for services relating to mental health. What tends to be the outcome in such cases, as there are long waiting lists for many services?

It was also mentioned that the office has developed and the awareness of the role of the Ombudsman has increased. When the office intervenes, there is often no need for investigation and a simple inquiry into a matter can progress it and lead to the issue being addressed. What percentage of the complaints to the office would fall into that category?

My next question relates to international practice with regard to how ombudsmen for children liaise with parliamentary committees of this nature. What has the interaction been like and how does Ms Logan see this committee benefiting or assisting the role that she fulfils?

Ms Emily Logan

The international experience of my colleagues is that most go before committees dedicated to health, children, education or justice. I have asked some colleagues but I am not aware of their interaction with a committee of this nature. It may be of interest to the committee that I was in Geneva last week, having been asked to meet the chair of the UN Committee on the Rights of the Child. I was asked to join a technical group to assist the committee, which is setting up an individual system handling international complaints. A colleague and I have been asked to advise and assist the committee in that regard. With regard to international experience, the interaction is mainly with individual and specialist committees on health, education and justice. I would be happy to do a little more research on that to see if anybody has more information.

With regard to investigations and local resolution, we have always been very respectful in our actions. I remember somebody giving me advice very early on, indicating that human rights not only of the complainant but also of the public body are important. We are very aware that people have very good local relationships. For example, people have very strong relationships with schools in their community and it is not for us to alter the integrity of that relationship. We tread very carefully and encourage people to try to seek a local resolution if possible, either through mediation, alternative dispute resolution or encouraging people to bring in a third party. Sometimes it is a matter of getting the parties involved in a dispute to sit down and discuss the matter.

Our experience compares favourably domestically and internationally with regard to investigation. Between 5% and 10% of our cases would need to go to a full level of inquiry or investigation, which is consistent with the Ombudsman's office and international experience.

The Deputy's first question related to mental health waiting lists and I will ask Ms O'Shea to answer it.

Ms Deirdre O’Shea

We had a number of complaints relating to mental health services for children, including access to psychology and psychiatry. We found that some would be resolved once we started to intervene and we did not need to take it through to full investigation. In other instances, we have investigated and have drawn conclusions in regard to the administrative actions of the public body and how it has adversely affected the child. Where we have made recommendations, we have made them in regard to the individual case and in regard to a resolution for the individual child or children. We also look it in terms of the fact the waiting list is likely to impact on other children in that area. We have had a positive response from public bodies in regard to those recommendations in terms of how they can address the waiting list issue for groups of children and not just the individual children who have been at the centre of the complaint we have investigated.

Deputy Charlie McConalogue

I thank Ms Carroll for the replies. Children in many areas are on waiting lists, something we cannot stand over because it is such a critical stage in a child's development. Mental health was referred to earlier. Those waiting lists are still there. A case may be brought to the ombudsman because the waiting time is having an adverse impact on the child but, as was said, it will also be affecting many other children. What has been the nature of the responses from the public bodies so far? The fact there are waiting lists is a resource issue. Have the cases led to a speeding up of the treatment for a particular child if the waiting list is found to be adversely affecting him or her? Is the response along the lines that it is affecting everyone, so one must wait one's turn?

Ms Deirdre O’Shea

Public bodies raise with us the difficulties they have in terms of resourcing. They particularly raise the issue of staffing and the implications it has in terms of waiting lists. When we look at that, we look at it in terms of administrative practices and how they can best look at the resources they have to meet the needs of the particular children. We have seen resolution in terms of a speedy response and the provision of services to individual children. We have also had public bodies look at different strategies for managing their waiting lists and at a systems approach to see how they can address some of the particular difficulties that have arisen in certain areas.

One of the things we highlighted in our annual report last year was that there is considerable geographical variation in regard to waiting lists not only for mental health services but also for speech and language therapy and occupational therapy. That was a concern we highlighted in last year's annual report. In certain parts of the country, one could be waiting for a relatively short period, while in other parts it could be a very substantial waiting time for some children.

Deputy Charlie McConalogue

Did the office look at whether that was a resource issue or an administrative issue?

Ms Deirdre O’Shea

We looked at it in regard to the individual cases. When we highlighted it in the annual report, we were just drawing it to the attention of the Oireachtas because a concern for us was the inequity of service provision. The public bodies have raised it in terms of individual resourcing. It is also about how it is looked at as a national strategy in terms of how we address the needs of children consistently on a national basis.

Senator Trevor Ó Clochartaigh

The question I was going to ask about regional disparities, which is one of the main issues, was answered. People call us to say they have a friend in Donegal who is able to get occupational therapy and so on for his or her disabled child and ask why they cannot get it in Galway where I am from. The report signals cases where there are regional disparities.

Mr. Walsh spoke about child protection issues and acting immediately. What would be the average turnaround time for a case which would not necessarily involve child protection issues, for example, if someone could not access a service?

We are putting down the framework, or setting the parameters, for what this committee should do. The ombudsman mentioned that this committee should consider a broader remit and look at the early warning signs. It might be useful for us if she elaborated a little on that. That is something we need to take on board when trying to put down our frame of reference.

I am curious about the Irish language. Are there any instances of children looking for a service in their native language because they have not been able to get it? If that is the case, does the ombudsman interact with the ombudsman for the Irish language, An Coimisinéir Teanga, on any of those issues?

Ms Emily Logan

In regard to the length of time it takes, it depends on the complexity of the case. Sometimes a case can be resolved quickly. One can put the case to the public body and it mitigates the action so it does not require an investigation. It might take months and sometimes it might take even longer if the case is very complex. We have had cases which have taken more than one year, but they are cases of children who have died in the care of the State.

Obviously, the office is limited in that we have 15 staff. We operate to a budget, which has been cut by 18%. We had a peak of €2.5 million and we are now at €2 million. With the same staff and fewer resources, we are doing 1,400 cases per year instead of 95. The cases are taking longer than I would like. If one is talking about timeliness and those kinds of principles in regard to children, I would like to have a faster turnaround, but it is impossible. I have staff who are very patient with me and who are completely committed, about which there is no question. It depends on the case but it can take months or longer than that depending on how complex it is.

Senator Trevor Ó Clochartaigh

As elected representatives, we deal with the HSE on many occasions and we find it very frustrating that it rarely acts quickly. Does the ombudsman find the opposite? Does she find that because of the status of her office, it reacts-----

Ms Emily Logan

I am pleasantly surprised by the response we get from all public bodies. It is fair to say that people are responsive. The statutory independence of the office is important. The fact we are accountable to the Oireachtas and are so publicly accountable and try to be so transparent about what we do and the fact we publish investigations has made a difference. The response time of local authorities changed completely when we publicised some of the cases we dealt with.

On occasion we must send cross letters to people to compel them to provide information and, on occasion, there are difficulties with the HSE in the case of children where their care proceedings are held in camera and there are outstanding issues and it believes it is not at liberty to share that information. That would lengthen a case but in the main we believe people take the office seriously and they are responsive to us.

While we look pleasant and friendly, we are well able to be firm and argumentative if so required. Obviously, we start the relationship in a very respectful way and hope people will co-operate with us, and generally they do.

Senator Trevor Ó Clochartaigh

The ombudsman mentioned that this committee should consider broadening the remit.

Ms Emily Logan

I suppose I do not want to limit the committee's thinking to individual cases and the problems. It might want to think more broadly about institutions. Senator O'Keeffe mentioned training for people and asked if there are institutional issues such as child death. I could probably do with some Oireachtas committee's support to ensure we have institutional independence when we investigate the death of children. Had the committee been in existence two years ago, it would have been quite a natural home for us to have had that discussion.

I refer also to human rights infrastructure and supporting better structures. Section 7 is generally about promoting rights but it is also about legislation. It is about us commenting on legislation. We might find a deficit in legislation which we could raise with the committee members, who are legislators, and say it is problematic. That can be done in a number of ways. We can do that through our annual report or, to make it easy and to simplify it, perhaps through an annual meeting and raising with the committee some of the patterns and trends emerging over the year while flagging some of those early warnings. We flagged child death quite early on in 2007 before it became a problem in 2009. It is our responsibility to impart that information.

An Coimisinéir Teanga has been very good, open and helpful to us. We have had a couple of cases in rural areas where children have had very little choice in terms of going from one school to another or where a school closes and the issue is where the child is accommodated. That is how cases have come to the office rather than where someone has not got a service through the Irish language.

Deputy John Paul Phelan

I have a couple of questions and I thank the ombudsman for her contribution. An area of particular concern for me is psychological assessment for children. I am interested in any interventions Ms Logan might have made to ensure children could avail of public psychological assessment. In regard to children who have intellectual disabilities, if a child is unable to communicate a problem in any form, how can his or her complaints be addressed?

Does the ombudsman deal solely with the activities of public institutions or do private agencies providing services for children also come under her remit?

In terms of the purpose of this committee, its name is self-explanatory. The ombudsman has built up a system for conducting investigations over the past seven years. I note she has not yet laid a report before the Houses of the Oireachtas concerning difficulties with State bodies. I ask her to comment on best practices or what has worked best in getting results for children in difficulties.

Ms Emily Logan

In regard to the Deputy's specific question on communicating with children with intellectual disabilities, this presents its own difficulties for the children concerned. We have investigated a number of cases involving children with intellectual disabilities. I am not sure if he is aware of a specific case that we published involving a child who was in foster care and whose foster family were fantastic advocates for the child. We rely heavily on the parents, extended family or someone in whom the child clearly places trust. Our experience has been that while the child may have an intellectual disability, there is always a significant individual to whom he or she can communicate. We always give space to whoever has that relationship, whether a family member or a professional. We are also aware of our own limitations and if someone else can do it better, we respect that. We have dealt with a number of cases involving children with intellectual disabilities and I hope we were able to represent them despite their disabilities.

We may be putting into the public domain a couple of cases which specifically address some of the difficulties arising for the precise reason that children cannot communicate. If a child with an intellectual disability is in residential care or in the care of the State and something is not right, he or she is much more vulnerable. Our regulatory and inspection systems and our practice and policy must be much tighter for those children. Later this year we intend to publish a case that may illustrate some of the issues to which the Deputy referred.

In regard to the question on private institutions, while we are an ombudsman institution that only investigates public bodies, we can investigate a private institution if it has been subcontracted. For example, the HSE may subcontract a service or NGOs such as Barnardos will provide what are described as gap services on behalf of the Government. We have access to organisations in these circumstances and can investigate their services. In terms of private bodies generally, however, the answer is "No".

I ask the Deputy to repeat his question on best practices.

Deputy John Paul Phelan

What does Ms Logan recommend in terms of best practice in getting information from public bodies? As politicians, we deal with public bodies every day of the week and we sometimes find it very frustrating to get information from them.

Ms Emily Logan

We have found that establishing rigorous liaison relationships with named individuals works well for us. In the case of the HSE, for example, we deal directly with one person at national level and four in the regions who are in charge of ensuring our complaint receives a response. It is important to think about ways of simplifying the process rather than dealing with large numbers of people in complex organisations which employ thousands of people. Sometimes we get a named liaison person for a specific investigation. That has also worked well.

In terms of access for children, we have worked with EPIC, formerly the Irish Association of Young People in Care, to develop materials that help children to understand what we do and how to reach us. We have also simplified some of our administrative relationships with public bodies.

The power to compel is a useful safety net, although we do not have to use it often. We can send out a firm letter warning that we can compel someone to provide the information we require.

Deputy Aengus Ó Snodaigh

This committee has to decide when petitions or complaints cut across the functions of the ombudsman. If, for example, a child makes a complaint about Garda activity, is a protocol in place for deciding who should investigate? Is Ms Logan satisfied with the co-operation she receives from public bodies or does she have to deal with obstruction on occasions? I ask her to clarify the procedures used to determine the admissibility of complaints. The filtering system is clearly a key part of any complaints mechanism. How is a decision reached regarding whether a complaint is not vexatious or mischievous? In the case of such complaints, what is the complainant told? It would be valuable for us to learn about the models used by other bodies to decide what works.

Ms Emily Logan

As Mr. Walsh noted, it has taken us several years to refine our procedures. The procedures we devised in our first year required amendment in the second and third years, but they subsequently settled down considerably. As a public office we are careful to avoid duplicating work done elsewhere. In the first instance we would ask the complainant or petitioner if he or she has approached other bodies and whether another office is investigating the matters arising. We also have a memorandum of understanding with the Office of the Ombudsman to ensure we do not duplicate ongoing investigations. That is an important point in the context of the committee's activities because the possibility will arise that a matter on its agenda is already being investigated by my office. In terms of the details of our procedures, we would be happy to facilitate a more detailed operational discussion. In general we liaise with the Garda Síochána Ombudsman Commission and the Office of the Ombudsman to ensure we are not duplicating work.

The Deputy raised a question about admissibility. He referred to trivial and vexatious complaints and how we filter-----

Deputy Aengus Ó Snodaigh

Yes. In the past there were many complaints that the Garda complaints board it was ineffective, which is why it was changed to the Garda Síochána Ombudsman Commission. The Garda complaints board had ruled many complaints inadmissible at an early stage. One can be over-enthusiastic about filtering out complaints and there are also questions about how the process should operate, for example, by checklist or otherwise. There could be a case which is obviously not admissible but which the person believes needs pursuit.

Ms Emily Logan

In terms of inspiring confidence in any institution, it is important to communicate that. Mr. Walsh might deal with this question as he spends a great deal of time working in that area.

Mr. Páraic Walsh

It is a good question. There is a section regarding trivial and vexatious complaints but, so far as I know, we have never had to utilise that provision. The one point that unifies all complaints or concerns brought to our attention is that they are on behalf of a child, so even though section 6 of the Act would operate in the best interests of a child, whatever we thought about the nature and intent behind the complaint, we are prudent and favour good practice. We are all child care professionals in some shape or form and would stick at it to find the actual issue.

Much of this relates to the capacity of complainants to bring complaints. Not all complaints received are fully formed complaints - golden complaints, so to speak - where we know exactly what is being talked about or the issues involved. Much of the key work is to find what the complaint is about and its position in terms of local procedures. It is not our experience that complaints received are trivial or vexatious. Even if a complaint could not be considered through our complaints and investigation function, it is apparent a professional is raising a concern that could inform the other work the office does. Sometimes the easy part is knowing the complaints we can do something about. It is the pieces we cannot figure out what to do with, such as those that affect policy or suggest we are missing out on something, which is the challenge of the work.

Ms Emily Logan

What might be useful for the committee to consider is the threshold of admissibility. We have a two-tier threshold. The first is that the child has or may have been adversely affected by an action, and the second is that there has or may have been maladministration. In terms of a filtering mechanism for the committee, it would be useful to develop some kind of threshold so the public knows and has an open expectation, so we do not end up in a situation where people feel dissatisfied about the admissibility issue. If one is clear about the criteria for admissibility and clear about the threshold for consideration of an issue, that might be helpful in terms of public confidence.

Deputy Peter Mathews

I thank Ms Logan and her colleagues. In a very basic sense, is the office of the ombudsman the complaints office of last resort? Does it happen that some of the complaints might be presented as the first resort, where people are trying to short-circuit the way to a decision or a conclusion? I was not sure about a paragraph on page 4 of the presentation, which states "The Act does not oblige me to investigate the extent to which such action or inaction meets or has met international children's rights standards". Does this mean that when the ombudsman carries out an investigation, she has to form and express a conclusion as to where the appraisal of the complaint stands?

Some 1,400 complaints are expected this year, there were 1,200 last year and these figures have risen from approximately 100 cases in the first year, 2004, although that is understandable. Does the ombudsman keep an analysis column of groupings of the type of complaints to ascertain where most fall, or of how serious or - I will not say "trivial" - how less serious they are?

In the course of her work, does it arise that complaints, rather than being addressed to institutions or agencies of the State, may ricochet back to the parents or relations of the child who is the subject of the complaint? What happens in this situation? In other words, an investigation or the following through of a complaint could reveal there are serious worries, concerns or situations that were not so apparent in the initial presentation of the complaint.

Does Ms Logan feel the office of ombudsman primarily has been a catalyst to compel agencies to address more seriously or expeditiously things they should have done themselves?

Ms Emily Logan

In answer to the Deputy's first question, yes, the office is a means of last resort. Some people come to us at an early stage, before they have pursued or exhausted local procedures, so we try to encourage them to go back. My sense is that this is not a deliberate short-circuiting of the system but more a case of parents not being familiar with complaints or grievance procedures and not understanding fully where to go. They may have heard of the office so they come straight to us.

Deputy Peter Mathews

They use it like an information office.

Ms Emily Logan

The Deputy asked how we determine issues. We categorise our complaints from one to five. Category one is inquiries where, literally, somebody comes to us too early but does not know how to advance the complaint. To take the example of a school, we would suggest the complainants go to the school principal or the board of management so they have an opportunity to investigate the matter, and the complainants can come back to our office if they remain dissatisfied. We impress upon people that we are a system of last resort. We are not in a hurry to intervene unnecessarily.

Deputy Peter Mathews

Of the 1,200 or 1,400 cases, do you have various analysis columns and-----

Ms Emily Logan

Yes, we do. We group them by theme also.

Deputy Peter Mathews

Is that set out in the annual report?

Ms Emily Logan

It is in the annual report. The Deputy is welcome to ask for any other information. We have developed our database system only this year and we have had to develop a more sophisticated system because some of those themes are now subdivided. We very closely monitor the pattern of complaints coming in and the severity of the cases. The categories go from category one, which is inquiry, to category five. The number of category four and five cases are much more frequent and complex now than would have been the case six or seven years ago.

The Deputy referred to problems with conclusions. What was his exact question?

Deputy Peter Mathews

Does the Ombudsman always reach some sort of conclusion?

Ms Emily Logan

Yes, we always reach conclusions. We must always evidentially support findings, come to conclusions from those findings and then make recommendations to the public body. As with any other ombudsman office, the recommendations are not binding but I am sure the Deputy has heard of the moral authority of ombudsman's offices. The non-adversarial nature of this is quite useful because, while the Deputy referred to compelling people to respond, people do feel compelled to respond to our office. Part of this is that we now have a better profile and we are seen as a credible institution.

The Deputy asked whether we are a catalyst which compels people to do certain things. That is my perception, and my desire for the office is that we be a catalyst to encourage people to think differently about how they provide services.

The Deputy also asked whether it is possible a complaint ricochets back. We have had families in difficult circumstances where, once the case begins to be investigated, we realise it is much more complex than was originally presented. However, that is part and parcel of our role as ombudsman. The complainant brings their side of the story, we put it to the public body and once we get fuller and more detailed information, it is possible there are more complex issues. Nonetheless, this is uncommon.

Deputy Peter Mathews

Children can be psychologically abused by parents who have agendas or are obsessive.

Ms Emily Logan

It is very unusual for us to encounter cases like that. We have dealt with parents who have had problems. Our collective experience shows us whether that is the case. If that is part of the problem, it becomes clear during the course of an investigation. We are not there to investigate the complainant. We do not turn the complaint into an investigation. It remains the issue.

Deputy Peter Mathews

Could there not be cases in which Ms Logan's office has a duty to do so? I refer to cases of abuse, for example.

Ms Emily Logan

If there is any question of that at all, we refer it to the statutory agency responsible, which is the HSE. I may have mentioned earlier that we have received between 30 and 40 cases in which people disclosed abuse. Like anybody else, we have a responsibility to immediately refer such cases to the HSE, as the statutory authority in this regard.

Chairman

Ba mhaith liom buíochas a ghabháil le gach éinne a bhí i láthair ag an gcruinniú seo. I was a little disappointed to hear that the budget of the Office for the Ombudsman for Children has been reduced by 18% over the past year or so. We are about to draw up our remit and our terms of reference. My information is that we can send reports to the Dáil on the basis of the information we receive. We can ask for debates to be held in the Dáil. We can ask for Ministers to come to this forum to respond to particular issues. We can propose amendments to legislation on the back of the information we receive. I hope the committee will stay in close contact with Ms Logan's office in the short to medium term. I hope Ms Logan and her colleagues are aware that we would like to facilitate the achievement of the objectives of the Office for the Ombudsman for Children in the future.

Ms Emily Logan

I am grateful for that. I thank the committee for its time. I wish the members luck in their endeavours.

Chairman

Go raibh míle maith agat.

The joint committee went into private session at 5.25 p.m. and adjourned at 5.30 p.m. sine die.