Ombudsman for Children Bill, 2002: Report and Final Stages.

An Leas-Chathaoirleach

A Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment on Report Stage must be seconded.

Government amendment No. 1:
In page 5, line 13, to delete "days" and substitute "days, not later than 2 years after the passing of this Act".

There is a typographical error in the amendment. There should be a comma after the word "Act".

Mr. Ryan

This is coming from a teacher.

I am more used to the chalk than the typewriter. This amendment addresses the issue raised on Committee Stage and will ensure the Act will be brought into force within two years of enactment. However, it is my intention that the Act will commence well in advance of the timeframe laid down.

Amendment agreed to.

An Leas-Chathaoirleach

Amendment No. 3 is related to amendment No. 2. Amendments Nos. 2 and 3 may be discussed together. Is that agreed? Agreed.

Mr. Ryan


In page 7, line 17, after "established", to insert "Oifig Ombudsman do Leanaí or in the English language".

Molaim na leasaithe. Ní fios cén fáth nach bhfuil siad sa Bhille. Cheapas nach mbeadh aon argóint ina gcoinne agus molaim iad.

I second the amendment.

Mar a dúras an uair dheireannach, níl aon ghá é a scríobh i nGaeilge sa Bhille mar atá sé i mBéarla. Nuair a foilseofar an Bille i nGaeilge beidh sé scríofa i nGaeilge. Beidh na focail scríofa i nGaeilge sa leagan Gaeilge den Bhille agus i mBéarla sa leagan Béarla. Beidh sé ar fáil sa dá theanga do gach duine. Tá muid ag féachaint freisin go mbeidh seirbhís ar fáil do dhaoine a labhrann an Ghaeilge mar phríomhtheanga. The service will be available. The title will be in Irish in the Irish version and in English in the English version.

Mr. Ryan

Ní mar sin a bhíonn sé de gnáth. De gnáth bíonn an dá leagan sa Bhille agus is iomaí uair roimhe seo gur chuir an páirtí seo leasú mar seo agus gur ghlac an Rialtas leis go mbeadh na leaganacha as Béarla agus as Gaelainn sa Bhille chéanna mar siombalaíocht. Tá a fhios ag duine cé chomh fada agus a thógann sé chun Billí a aistriú go Gaelainn – a lán ama. Is rud beag é seo. Is leasú a chuir an páirtí seo os comhair an Tí go minic faoi rudaí eile agus glacadh leis gur botún a bhí ann gan leagan Gaelainn a bheith ar Bhille. Muna nglacfaimid leis seo, beidh vóta againn.

Amendment put.

Burke, Paddy.Coghlan, Paul.Cosgrave, Liam T.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Jackman, Mary.Keogh, Helen.

Manning, Maurice.Norris, David.O'Meara, Kathleen.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Dardis, John.Fitzgerald, Liam.Gibbons, Jim.Glynn, Camillus.Hayes, Maurice.

Kett, Tony.Kiely, Daniel.Lanigan, Mick.Leonard, Ann.Moylan, Pat.Nolan, M. J.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.

Tellers: Tá, Senators O'Meara and Ryan; Níl, Senators Gibbons and Lanigan.
Amendment declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 11, between lines 9 and 10, to insert the following:

"(i) taken in circumstances which gives rise to a failure to meet the fundamental rights of the child, in particular where such failure gives rise to an urgent need,".

This was discussed on Committee Stage last week and we went through it in detail then. I was disappointed that the Minister did not accept the views that were expressed on this side of the House at the time. In the intervening time, I have not changed my mind on the amendment. It not only enhances the Bill, but the case can be made that it is required in the context of the need to protect the rights of the child. The insertion of this amendment in section 8, which is the section relating to complaints against public bodies, schools and voluntary hospitals, would considerably broaden the scope of the powers and functions of the ombudsman. The Minister of State will say that is the reason she is not in favour of it.

When one looks at the context in which we are working it is clear to any of us operating in the public domain and those who read the newspapers that there is a need to take more action to protect the fundamental rights of children. While it is clearly a stated obligation of the health boards to act on behalf of children – I am sure the Minister of State will remind me of this – it is obvious from our experience as public representatives and legislators that there have been too many cases where the fundamental rights of children have not been totally protected. There is no need to rehearse instances because the Minister of State knows those to which I am referring.

The objective of the amendment is to broaden and strengthen the role of the ombudsman in relation to the fundamental rights of children, particularly where the failure to meet the fundamental rights of children gives rise to an urgent need. I appeal to the Minister of State to accept our views and recognise the reason we have tabled the amendment. We are not trying to be obstructive or negative, but to strengthen the Bill which is fine legislation that we all support.

I second the amendment. We spent time on Committee Stage debating the need to promote and protect the rights of children. I stated we felt strongly about protecting the rights of children. The Minister of State talked about putting too much responsibility on the ombudsman. However, we must be assured that children will be protected, particularly in health boards, and that there will not be any flaws in the system.

The amendment would not subvert the functions of the health boards, the courts or any other statutory body. It highlights the reason the Bill was introduced. We want the Bill to protect the rights of the most vulnerable children in our society who are detained in prison cells because there is not any place to put them. It will only be half a Bill if we accept the need to promote the rights of children, but do not protect their rights. It would not be an undue burden on the ombudsman because it is part of his job. Mr. Justice Kelly seems to be protecting the rights of children at present. I know the Minister of State is concerned about the lives of children. I am surprised at the level of resistance to protecting the rights of children when the system does not do so. I urge the Minister of State to accept the amendment.

There are people throughout the country who protect the rights of children on a daily basis, whether it is their statutory responsibility, including voluntary groups and bodies. The amendment seeks to encourage the Ombudsman for Children to investigate a complaint if it gives rise to an urgent need and affects the child's fundamental rights. The Ombudsman for Children can investigate complaints, such as those which fall under that category. He can examine such instances on his own authority. He does not have to wait for a complaint to be referred to his office. As has already been said, he can also address such issues through his promotional role of the welfare of children. He has a promotional and an investigative role. If there is an urgent need for an issue to be addressed, the Ombudsman for Children can undertake an examination and issue recommendations. Some of the issues referred to today and discussed last week, such as children who are inappropriately held, would be investigated by the ombudsman. I cannot accept the amendment because the ombudsman can already do what is suggested in it. The last day we discussed the Bill we said definitions of urgent need, etc. would cause many problems.

Amendment put and declared lost.

I move amendment No. 5:

In page 14, between lines 21 and 22, to insert the following:

"Notwithstanding the terms of section 11(1)(a), the Ombudsman may apply to intervene in any court proceedings involving the welfare of a child as an amicus curiae, and may furthermore initiate such proceedings as it considers necessary for the exercise of his or her functions.”.

The amendment attempts to insert in the legislation the right of the ombudsman to intervene in or initiate proceedings, particularly court proceedings involving the welfare of a child as an amicus curiae, and to initiate such proceedings as it considers necessary for the exercise of his or her functions. The amendment is similar to the one we have just discussed, but more specific in terms of court proceedings and the right of the ombudsman to intervene in or initiate such proceedings. However, it is based on the same fundamental principle I have already outlined.

I refer to a submission made by the Children's Rights Alliance following our debate on Committee Stage last week. It pointed out that the power of the court to intervene to protect the rights and welfare of children has been limited in recent court decisions. It stated:

The recent Supreme Court decision of T.D. (a minor suing by his mother and next friend M.D.) v. The Minister for Education, Ireland and The Attorney General, The Eastern Health Board and by order The Minister for Health and Children [unreported, Supreme Court, 17 December, 2001] has placed clear limitations on the Courts power to intervene to protect the rights and welfare of children. Murray J., expressing the majority view of the Supreme Court, alluded to the exceptional circumstances that must be present before the Court can order the executive to fulfil a legal obligation.

The decision in F.N. v. Minister for Education [1995] . . must now be appraised in the light of the T.D. decision in so far as it impacts on the ability of the Courts to make orders against the administrative branch of Government where there is a default of its constitutional obligation. [In F.N. v. Minister for Education . . the High Court declared that the State was under a constitutional obligation to establish suitable arrangements for children in need of high support care].

In the light of the submission we have received, the question now arises as to whom should the function for the protection of the rights of children fall if not to the Ombudsman for Children. I discussed the legislation with a group of school children from the convent in Nenagh who were in the House last week. I was in the school on Monday and we discussed the amendments, particularly the need to have a champion for children. We should go as far as possible to meet the needs and expectations of the wider community, particularly of children, in terms of protecting their fundamental rights. The right to intervene in or initiate proceedings, particularly in the light of the submission we have received from the Children's Rights Alliance, should be taken on board.

I second the amendment. I agree with Senator O'Meara that the ombudsman should not only intervene, but have the right to refer cases to the courts and act as an amicus curiae. Cases are regularly referred not only to domestic courts but also to their international counterparts.

The Minister of State appears to be resisting the extension of powers to the ombudsman. I see she is nodding her head. I do not believe the ombudsman would be fearful about intervening because the basic rights of children will be at issue. Many of these cases end up either in a domestic or an international court. In that context, it would be even more appropriate that the ombudsman be given power to act as amicus curiae. I do not know why the Minister of State's interpretation of what should be the ombudsman's duties is so limited, particularly as we are concerned with extremely vulnerable children who must have access to the ombudsman.

It is important to outline what the ombudsman will and will not do. The ombudsman cannot replace the various groups that work for and on behalf of children. The person appointed cannot subsume all of the responsibilities of these different groups. The ombudsman's office will, compared to other similar offices throughout the world, have a very broad remit in so far as it will be designated with two particular roles, the first of which involves the promotion and welfare of children while the second will centre on the investigation of complaints. To broaden the remit any further would lead to a cross-over into many other areas of work.

Senator O'Meara quoted the T.D. case which, in fact, dealt with the separation of powers and is not really relevant in this instance. There is no doubt that everyone believes children need to be protected in the courts. That is why the system of guardian ad litem exists. As stated on Committee Stage, this system needs to be reviewed. The children's office, as a co-ordinating body working between the different Departments, is working on this matter at present. I accept that the system needs to be reviewed, properly funded, etc. However, I do not believe we should leave the system to one side and try to confer all the responsibility on to the Ombudsman for Children.

If the ombudsman is to be successful in his work, in either a promotional or investigative way, it will be important that he will be able to obtain the co-operation of the different bodies with which he will be obliged to deal. Such co-operation might not be forthcoming if the ombudsman had the added role of being able to refer matters to the courts. I am not sure that conferring an additional role on the Ombudsman for Children would in any way benefit the office. In my opinion, it would change completely the focus of the office. Those who are responsible for children and for looking after their needs, in society and in the courts, need to play their role and uphold their own responsibilities and not seek to pass them on to someone else.

I am not willing to accept the amendment. However, I will give consideration to the guardian ad litem service to see how it can be improved.

While I welcome the Minister of State's comments in respect of the review of the guardian ad litem system, I do not believe what she said was sufficient. This Administration is approaching the end of its term of office and a review will, in effect, merely place the matter on the long finger. While I would not question the Minister of State's commitment to bringing forward proposals on this matter, the fact is that they have not been presented, we do not know when they will be produced or what they will contain.

We are concerned here with considering the issue of the protection of the rights of children. I do not accept the Minister of State's argument about what other countries do. Frankly, I do not care what other countries do. They are obliged to legislate for their societies, while we are concerned with legislating for circumstances in Ireland. We are concerned, through the medium of this Bill, with legislating for the Irish situation and, in particular, for Irish children, a number of whom are in need of greater protection than they are already receiving and others who are in need of someone to state on their behalf that the health boards and other agencies which have statutory responsibility for them are not, for many reasons, protecting their rights.

I cannot accept the Minister of State's arguments, even though I accept her bona fides in relation to the review of the ad litem system. As she stated, however, that system is not satisfactory at present. In that context, this amendment is necessary and it is being actively sought by the Children's Rights Alliance which, as the Minister of State knows, is an umbrella body that represents a range of organisations and individuals who have considerable knowledge, expertise and experience in this area. In that regard alone, I ask her to reconsider the position.

Amendment put and declared lost.

I move amendment No. 6:

In page 15, to delete lines 12 and 13.

I had hoped that the Government would have introduced an amendment in respect of this matter because I was of the opinion that I had made some progress on Committee Stage in terms of encouraging the Department to deal with the exclusion of the children of refugees, asylum seekers, immigrants and children in prison from having access to the ombudsman. I am disappointed about that. The section states that "if the action is one taken in the administration of the law relating to asylum, immigration, naturalisation or citizenship", a definition which is so broad that, in my opinion, it excludes everything. The children of immigrants or asylum seekers should have equal access to the Ombudsman for Children.

The Minister of State appeared to indicate in her reply on Committee Stage that I might have been interpreting section 11(1)(e)(i) as referring to the processing of an application. I am not suggesting that and I am not saying that the ombudsman will act as a court of appeal with regard to the issue of an applicant's asylum or refugee status. Is the Minister of State in a position to convince me that there is not an exclusion of complaints about decisions regarding refugees, regardless of whether this would relate to any area of direct provision involving the treatment of asylum seeking children? In my opinion, the children of asylum seekers will be totally excluded from seeking the assistance of the ombudsman.

On Committee Stage, there appeared to be resistance on the part of the Department of Justice, Equality and Law Reform to allowing the Ombudsman for Children to stray into its area of responsibility. I would like the Minister of State to address this matter.

I second the amendment. There is nothing to add to what Senator Jackman stated, with the exception of saying that this is an extremely important amendment. This matter was discussed at length on Committee Stage and it is quite fundamental not only in terms this legislation but also in respect of the increasingly thorny question of how we should deal with asylum seekers and their children. Senator Jackman is not suggesting that the ombudsman act as a court of appeal in respect of the question of an application for asylum or refugee status. I would think it is quite clear that this is not the case and that the ombudsman would be constrained from investigating complaints regarding the treatment of asylum seeking children in direct provision under this particular exclusion.

The principle at the heart of the amendment is extremely important. I support the amendment and I urge the Minister of State to take on board the points that have been raised.

I also support Senator Jackman's amendment, not because I believe the ombudsman should investigate asylum seeking, refugee or citizenship issues but because the Bill appears to exclude the children of asylum seekers, refugees and immigrants from being able to make complaints about how they are treated by various Departments, voluntary hospitals, etc.

As promised on Committee Stage, further extensive discussions took place with the Department of Justice, Equality and Law Reform in relation to obtaining clarification with regard to what the Ombudsman for Children could investigate in this area. The current position with regard to immigration and citizenship issues, on foot of the exemption in the Ombudsman's Act, is that the Department of Justice, Equality and Law Reform responds to queries from the Ombudsman's office concerning customer service issues – which would include those matters raised by the Senator – but not in relation to the decision-making processes used in individual cases.

With regard to persons in the asylum process, there are comprehensive legislative provisions in place to deal with the processing of asylum applications by the Refugee Applications Commission, which deals with applications of first instance, and the Refugee Appeals Tribunal, which considers appeals as a quasi-judicial body. Both bodies are independent, by statute, in the exercise of their functions, thus the exact role of the ombudsman's office in relation to them is a matter for clarification between the offices concerned.

I know that Senators are not concerned about the decision making processes per se. However, I am informed that the offices would respond in a proactive manner to any inquiry from the ombudsman's office and the Ombudsman for Children, having due regard to their independence and the importance of protecting the identities of asylum applicants who have very clear remedies in relation to any concerns about the decision making process and any perceived incorrect application of procedures. They have the right to raise the matter with solicitors, legal representatives, the Refugee Appeals Tribunal, in judicial review proceedings, etc. The Department of Justice, Equality and Law Reform is satisfied that, whereas the decision making process is excluded, all other matters – what it refers to as the customer service issue – would be responded to by the Ombudsman for Children.

That does not take from what the Bill states: ". . if the action is one taken in the administration of the law". In that context, who is to know what customer services or difficulties the children of asylum seekers or refugees may have would be addressed? It is a very dramatic and specific statement which, on my reading, specifies "the administration of the law". While I appreciate what the Minister of State said and accept that the application process would not be interfered with – as the ombudsman would have no right to do – the provision certainly excludes the children of asylum seekers and refugees.

The intention of my amendment, on Committee Stage, was to make it clear there was an inclusiveness in relation to whatever the many requirements of such children might be. On my reading of the Bill, they are excluded. I would have hoped for a rephrasing to show that there is a certain access available, which is not inherent in the present wording. I am extremely concerned in that regard. While we are dealing with the interpretation today, somebody else, further down the line, may read this and say it has nothing to do with them, the ombudsman cannot intervene and is prohibited from doing so because, if the action is one taken in the administration of the law, it is excluded. That is my simple reading of it and I believe that is how any other person or organisation, including the ombudsman, is likely to interpret it. Really and truly, therefore, those children would be second-class citizens.

The following statement by Children's Rights Alliance may be helpful to the Minister of State:

The exclusion fails to incorporate the principles that underpin the statement of good practice produced by the Separated Children in Europe Programme. This states that separated children are entitled to the same treatment and rights as national or resident children. They must be treated as children, first and foremost. All consideration of their immigration status must be secondary.

That statement is very clear, but, unfortunately, it may not be referred to by somebody seeking to define the rights of children in terms of access to the ombudsman.

I am very concerned and hope the Minister of State will give an assurance that, when the Bill goes to the Dáil, there may be a rephrasing of the wording in question. This issue also relates to amendment No. 3. Will the Minister of State give an assurance that it will be redrafted to avoid excluding any complaint? It is implicit in the present wording that there are exclusions.

The Senator has put her finger on the issue in referring to "the administration of the law". It is the administration of the law with which we are concerned in this instance, not the provision of services. In the particular case of separated children, unaccompanied minors, for example, are under the care of the health boards, which are specifically included. As the Bill refers to the administration of the law, that is what defines that it is the decision making process which is involved, as opposed to the provision of services for the people concerned.

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

I move amendment No. 7:

In page 15, to delete lines 18 to 22.

Perhaps there is not much hope of this amendment being accepted as it follows in the same vein as the previous one. That is unfortunate because we spent some time on this. I urge the Minister of State to have the existing phrase redrafted. It states: ". . if the action is one taken in the administration of the prisons or other places for the custody or detention of children committed to custody or detention by the courts." The reference clearly is to institutions other than reformatories or industrial schools – we are specifically speaking of children in prison who are among the vulnerable groups mentioned by Mr. Justice Kelly. They are the young people who have to resort to prison cells and are legitimately in places such as St. Patrick's Institution. They are excluded by virtue of being offenders. I am not referring to those who are in prison because they have no other place to go to – the Minister of State made it clear they would be in a separate category. Such minors are the very children at risk who should have access to the ombudsman. I find this extraordinary.

The United Nations Convention on the Rights of the Child provides for the protection of the rights of young people in the criminal justice sys tem. How does the Irish system compare to the UN convention, Article 37 of which refers to the dignity of the child charged with an offence and guarantees detention as a measure of last resort for the shortest appropriate period of time? That is very protective, supportive and sympathetic towards children in prison, yet in Ireland the ombudsman will not be available to deal with issues which affect those children more seriously than an adult population. I hope the Minister of State will look again at the wording of this provision.

I also submit the following quotation: "The Ombudsman for Children should be allowed to conduct investigations into actions by the public bodies most relevant to the lives of these children, including prisons or other places for the custody and detention of children." The reference is to a situation in New Zealand, where there is a children's commission authority and children in prisons appear to be included for access. Why is our system different? It is clear that such children would be in dire need of somebody outside of the prison system and that the ombudsman should be available to deal with their issues, however minor they may appear to be.

Why are they excluded? I suggest it is because the Department of Justice, Equality and Law Reform selfishly – I would use a stronger word if I could find one – does not wish any other Department to have any intervention or interface between the responsibility of the Minister of State and that of the Department. I am putting it quite strongly as I am sure the Department of Justice, Equality and Law Reform had an input in this matter. This should have afforded the Minister of State the latitude to take this issue on board. Can she give a commitment to reconsider the language used in this regard? This is extremely important.

I second Senator Jackman's amendment and endorse what she said in relation to it and the wording of the Bill. There are, surely, no more vulnerable children requiring the ombudsman's intervention than those in prison. In many cases, they are without the support of their parents or adults who could ensure their rights are protected. The Bill is considerably lacking in this regard, with particular reference to the broad terms of the language used, as Senator Jackman has stated. I had hoped the Minister of State would come back with some revised wording, having reviewed the situation following the debate in the House on the issue last week.

I spoke on this issue on Second Stage and I am quite sure the Minister of State did try to get the Department of Justice, Equality and Law Reform to agree to the amendment. Senator Jackman's description of how the Department works is a charitable one. It is unfortunate it should look as if it is running a type of gulag archipelago in which there can be no rights for the children within it. It does it no credit that it appears to have a desire to run such a closed set of institutions. It is a great pity that the Minister of State has not been able to get it to agree to the amendment.

This and the previous amendment are very different in approach. I did not accept the previous amendment on the basis that we are satisfied that the Bill is as inclusive as the Senators want to make it, while I accept that this one would represent a very definite exclusion. Following very extensive discussions with the Department of Justice, Equality and Law Reform, it pointed out that prisoners already have recourse to the remedy of complaints. It includes independent visiting committees which publish reports. Complaints can be made to them by prisoners who can request that their complaints be made in private. The committees have a duty to report any abuses observed or found by them in prisons. An inspector of prisons has been nominated and will take up his appointment in April this year. Mr. Justice Kinlen will take up the appointment on his retirement from the High Court. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment can inspect and report to the Government on the treatment of prisoners. A prisoner also has recourse to the courts and the European Court of Human Rights. The available options in terms of complaints far exceed what is envisaged by giving a role to the Ombudsman for Children who will investigate complaints of maladministration.

One of the other issues raised was the fact that in some of the institutions concerned, such as St. Patrick's Institution, there are people under the age of 18 years who would have recourse to an additional outside body while those over 18 would not, causing a difference for the same group within the unit. The penal system is undergoing a process of modernisation. The procedures and systems in place to protect prisoners are under review with one possible outcome being the establishment of an ombudsman for prisoners who would deal with the complaints of such young people, which would be a welcome development. Because the other elements are available for all those in such institutions the general consensus in the Department is that there is recourse to the remedy of complaint.

I look forward to the appointment of an ombudsman for prisoners and accept the positive elements of what the Minister of State said in regard to what is in place for dealing with the complaints of prisoners. In this instance she is dealing with the Ombudsman for Children Bill. The future of the young people concerned depends on whether they will be able to be rehabilitated into society afterwards. Any child in prison – I call them children in the sense of being under age – is invariably very vulnerable. The ombudsman who will be appointed by the President will need to be someone who will have tremendous rapport with children. It will be a positive step for children in prison to have the facility to deal directly with such a person.

Perhaps an ombudsman for prisoners would be adequate in dealing with the children concerned, but it would not be the same as what I am asking for in this instance. It behoves us to put pressure on the Minister of State in the face of a negative response from the Department on the issue. This element of the proposed legislation should be struck down and the Minister of State should accept the amendment or come forward in the Dáil with her own. This issue will not go away when the Bill passes through the Dáil. We are all supportive of the Bill passing before the Government falls and conscious that if these amendments are not taken now, there may not be sufficient time in the other House. This is the most important amendment on the list today and I urge the Minister of State to accept it.

Question put: "That the words and figures proposed to be deleted stand."
Bohan, Eddie.
Bonner, Enda.
Callanan, Peter.
Cassidy, Donie.
Dardis, John.
Fitzgerald, Liam.
Gibbons, Jim.
Glynn, Camillus.
Hayes, Maurice.
Kett, Tony.
Kiely, Daniel.
Lanigan, Mick.
Leonard, Ann.
Moylan, Pat.
Nolan, M. J.
O'Brien, Francis.
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Ormonde, Ann.
Ross, Shane.
Walsh, Jim.
Burke, Paddy.
Coghlan, Paul.
Costello, Joe.
Cregan, Denis (Dino).
Henry, Mary.
Jackman, Mary.
Keogh, Helen.
Norris, David.
O'Meara, Kathleen.
Quinn, Feargal.
Ridge, Thérèse.
Ryan, Brendan.
Taylor-Quinn, Madeleine.
Tellers: Tá, Senators Gibbons and Lanigan; Níl, Senators Burke and Ridge.
Question declared carried.
Amendment declared lost.

An Leas-Chathaoirleach

Amendments Nos. 8 to 11, inclusive, may be taken together by agreement.

I move amendment No. 8:

In page 15, line 28, to delete "12 months" and substitute "two years".

I second the amendment.

I see from the look of the Government's amendments that the Minister is favourably disposed towards my amendment. The reason I propose to insert "two" years, rather than use the numeral "2" is that I was taught at school that any number under ten should be written, but that is probably frightfully old fashioned nowadays. I put it in to avoid confusion because otherwise there is no difference between our amendments. It would be very nice for me if the Minister would accept my amendment, because I would then be able to say that I have two amendments in the Ombudsman for Children Bill, 2002.

That will go down well with the electorate.

It goes down very well with the electorate, many of whom live in Kingstown. I see the sense of the Minister's amendment, but would be extremely grateful if she would accept mine.

An Leas-Chathaoirleach

I hope Senator Henry's political future is not in the Minister of State's hands.

I sincerely hope that my political future is not in Senator Henry's hands.

As Senator Henry has been so supportive of this Bill and indeed of any legislation that comes before this House, I would be happy to accept her amendment.

I thank the Minister very much and may her shadow never grow less in Kingstown.

Amendment agreed to.
Amendment No. 9 not moved.

I move amendment No. 10:

In page 15, line 34, to delete "12 months" and substitute "two years".

I second the amendment.

Amendment agreed to.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 16, line 19, after "State)", to insert "unless the Ombudsman for Children determines that to investigate or to continue to investigate an action would be in the best interest of the child."

We discussed this in great detail on Committee Stage. I reiterate that I hope the office of Ombudsman for Children will be an independent one. I feel that this Bill gives Ministers unlimited authority to stop investigations. If the best interests of the child are to be the most important aspect of the Bill, the ombudsman must be independent of the Government and report directly to the Oireachtas. Section 11 gives many Ministers an effective veto over actions taken by public bodies. The Ombudsman for Children should have the power to ensure that any investigations undertaken be allowed to continue when this represents the best interests of the child.

I second the amendment.

We have considered this matter and the office of the Ombudsman was quite certain that this legislation offered a safeguard to it as well as to the Minister in terms of his accountability to the Dáil. I understand that any future legislation dealing with the Ombudsman will retain this exact provision. In the prelude of the Ombudsman Act, 1980 (No. 26), the report of the All-Party Informal Committee on Administrative Justice considered this very issue. The committee stated that certain decisions by Ministers where they were required or allowed to make value judgments should be excluded from the Ombudsman's remit. Nothing unforeseen has arisen since then.

This part of the Bill is intended to afford protection to the Minister and to the Ombudsman for Children and I have to admit that it had to be explained to me. The Ombudsman's office was of the opinion that it offered good protection for both sides and feels that it is vital that the provision remain without any additional amendment. Obviously, there is full disclosure, openness and accountability in relation to it. I remind the House that it only refers to decisions for which the Minister is accountable to the Dáil and not to the other issues.

I still think the Minister is saying that the Minister of any Department would be best equipped to have the final word on any issue, regardless of the problem. I am saying that the ombudsman should be allowed to act on an issue where there is a need to protect a child, regardless of which Department he or she is dealing with. We are back again to the whole point of protection. Surely the Ombudsman for Children would be in the best position to ascertain whether or not a child needs further intervention. This Bill gives a Minister quite a lot of power. I am not saying that this is interfering with their responsibilities as such, but I do feel that this legislation elevates Ministers to the point where they are deemed to know everything about everything. The Ombudsman for Children, specifically appointed to the task of looking after the interests of children, would be better placed to make decisions. He would be best placed to decide on whether further investigation of any case is required because he would know the exact details of the issue at hand. I do not think this would constitute an intrusion on the Minister's powers. If Ministers could solve every problem they were faced with, there would be no need for an ombudsman. That is the whole point of having them – they can go beyond the remit of a Minister and take up issues on which they are extremely knowledgeable.

I am certainly not trying to imply that a Minister should know everything about everything. Equally, I am anxious not to place the burden on the ombudsman to do everything about everything. Having taken advice on the provision, which has never been used, I am satisfied it is a safeguard for both sides in relation to accountability and the operation of their work. It would not benefit from the qualification proposed by Senator Jackman. It is best to leave it as it is, particularly as it will be covered in other legislation as well.

Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I congratulate the Minister of State and her officials on having got this Bill through the House so quickly. The Minister has put huge effort into the area of care. This House is interested in the work she is doing. It is much appreciated on this side of the House as well as on the Minister's side, I am sure. I wish she could take the Bill to the Dáil at once and get it passed. If there was anything any of us could do to get this legislation through the Dáil before the election we would only be too happy to help the Minister.

I commend the Minister of State and her officials for the work done on this very valuable legislation and I commend the Minister for her commitment to children's rights. She has made a big difference since assuming her role. It is with pleasure we support the principle of the legislation and the Minister's generally open approach to the consideration of amendments and so on.

I thank the Minister for her courtesy and her officials for bearing with us. It is our role as the Opposition to press amendments, but our intention was to strengthen the Minister's case when she goes to the Dáil with this Bill. The Minister may get further support from the Department of Justice, Equality and Law Reform in incorporating elements into the Bill that I know in her heart she would like to have. The Bill got a good airing and is getting a quick passage. This is not because we are rushing it but because of the efficiency with which the Minister has dealt with our amendments. We hope it will have a speedy passage through the Dáil and that the minor issues outstanding can be ironed out.

I compliment the Minister and her officials on this excellent legislation. I also compliment members of the Opposition for a very constructive debate on this Bill. We tend to knock people in Opposition for seeking glory, but the debate here was very constructive at all times.

I join Senator Henry in wishing the Minister well with the passage of the Bill through the Dáil. The quicker it becomes law the better. As Senator Henry said, we should use any influence we have over Members of the other House to ensure the early passage of this Bill.

It is unusual for Ministers to say they are excited but I am quite excited by the passage of this Bill through the Seanad. It is a very important step forward for children and towards improving their lives. It should never be seen in isolation. It has to be seen in the context of the national children's strategy, of legislation, of investment, of staffing, of policies and of the co-operation that exists between the various organisations on the ground, statutory and voluntary. This is just another element of that.

I thank Senators for their very careful consideration of this Bill. We have had very constructive comments, indicating a considerable amount of thought and research. If there are ways this Bill can be improved when it goes to the Dáil I will certainly pursue that in the hope of getting it passed, although the time schedule is very tight. The life of the Government is short, although I anticipate we will be back to follow it through. It is an important Bill and I am pleased to have started it here in the very cordial and supportive atmosphere that exists in the Seanad.

I join other Members of the House in thanking the Minister and her staff and hope she has another exciting time in the other House.