Child Care (Amendment) Bill 2009: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Special care involves the civil detention of a child in the interest of his or her welfare and protection in a special care unit where educational and therapeutic supports are provided to the child in a secure environment. Special care is provided where it is in the best interests of the child and as a last resort when other forms of residential or community care are considered to be unsuitable. The objective of special care is to provide a stabilising period of planned care, which will enable a child to return to less secure care or to return home as soon as possible.

During the period of special care the child and his or her family are supported by a range of staff including social care workers, psychologists, social workers and teachers who work to achieve the objectives set out in the care plan specifically developed for the child. The special care may include medical and psychiatric assessment, examination and treatment, as appropriate.

The Children Act 2001 amended the Child Care Act 1991 to allow for applications for special care orders to be heard at District Court level. The High Court, under its constitutional power of inherent jurisdiction, is currently hearing applications for children to be detained for special care to be provided to them by the Health Service Executive. The objectives of the Child Care (Amendment) Bill 2009 are to amend Part IV (A) of the Child Care Act 1991 to allow the HSE to apply to the High Court for special care orders to detain children who are in need of special care services. The Bill sets out the processes to be followed from consideration of the child for special care, the application for the order, the hearing of the case, the granting of the order, the care of the child under the order, right through to the discharge of the order. The Bill also provides for the dissolution of the Children Acts Advisory Board in accordance with Government policy on efficiency savings and the need for the rationalisation of State agencies.

I will turn to the provisions of the Bill. Part 1 comprises sections dealing with Short Title, collective citations, commencement and definitions.

Part 2 provides for amendment of the Child Care Act 1991. In this respect, the Bill provides that in determining whether a child requires special care, the Health Service Executive must be satisfied that the behaviour of the child poses a real and substantial risk to his or her life, health, safety, development or welfare. The HSE must assess the child's care requirements and be satisfied that care other than special care cannot address the child's needs. The Bill provides for the HSE to consult the child's parents or a person actingin loco parentis and also to convene a family welfare conference. The HSE may decide not to consult the child’s parents or a person acting in loco parentis or not to convene a family welfare conference where it is satisfied that it is not in the best interests of the child to do so. Where the HSE applies for a special care order without having carried out the consultation or not having convened a family welfare conference, it shall inform the High Court of this and the grounds for not doing so. The Bill also provides that the HSE will be required to publish procedural guidelines for carrying out consultations and convening family welfare conferences.

The Bill allows the HSE to apply to the High Court for a special care order for a child between the ages of 11 and 17. If the High Court grants the order, the HSE will provide special care to the child who will be detained in a special care unit.

The Bill also provides for various circumstances where the child is, or has been, the subject of criminal proceedings, including provisions whereby the HSE may apply for a special care order or may continue to provide special care where a child has been charged. The HSE may also apply for a special care order for a child who has been found guilty or convicted of a criminal offence and where, following that conviction, a custodial sentence has been imposed and that sentence has been served. Similarly, the Health Service Executive may apply for a special care order or may continue to provide special care where a suspended custodial sentence has been imposed on a child, the making of a children detention order has been deferred or has been suspended or a Children Act order has been made in respect of a child. However, the HSE shall not apply for a special care order where a child is remanded in custody or where a custodial sentence is imposed on a child. If these arise while the child is the subject of a special care order, the HSE shall apply to the High Court to discharge it. The HSE is also obliged to make arrangements to allow the child to meet any person for the purpose of his or her representation and for the child's attendance in court in respect of any criminal charge.

As mentioned earlier, special care is providing a child with care which addresses his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare. Special care also addresses the child's care requirements. It includes medical and psychiatric assessment, examination and treatment, and educational supervision. While such care is provided in a special care unit, it may include the release of the child from the unit during the period of the order. The Bill provides that where the Health Service Executive considers such a release necessary, it is required to apply to the High Court to vary the special care order to authorise the release of the child from the unit.

The Bill provides that such releases may be for placing the child in a children's residential centre or for permitting the child to reside with a parent or a relative for a specified period or to provide medical or psychiatric examination, treatment or assessment and for educational and recreational outings from the special care unit. Releases may also be to allow the child reside with a parent or a relative who resides outside the State or to provide medical or psychiatric examination, treatment or assessment to the child outside the State.

The Bill provides that where a special care order has effect, the HSE shall have the like control over the child as if the HSE were a parent of that child and may do what is reasonable to promote and protect the child's health, development or welfare, and has the authority to decide on the special care to be provided to the child. The Health Service Executive is also given the authority to give consent to any medical or psychiatric examination, treatment or assessment in respect of the child. The HSE is also given the authority to give consent to the application for and issuing of a passport for the child. The Bill provides that a special care order shall cease to have effect when a child attains 18 years of age.

The High Court, in any proceedings under this Bill, is required to have regard to the rights and duties of parents, whether under the Constitution or otherwise, to regard the welfare of the child as the first and paramount consideration and, as far as is practicable, to give consideration, having regard to the child's age and understanding, to the wishes of the child. The High Court may order that the child be joined as a party to the proceedings and may make an order appointing legal representation for the child. Costs and expenses incurred in the proceedings on behalf of the child shall be paid by the Health Service Executive.

The Bill provides that where the child is not a party to the proceedings, the High Court may, where it is satisfied that it is necessary in the child's interests, appoint a guardianad litem for the child. A guardian ad litem shall promote the best interests of the child and, in so far as it is practicable, having regard to the age and understanding of the child, shall convey the views of the child to the court. Costs and expenses reasonably incurred on behalf of the guardian ad litem shall be paid by the HSE. The High Court has discretion to appoint legal representation for the guardian ad litem.

The Bill provides that a special care order may be up to three months' duration. The High Court, on the application of the HSE, may extend the period of the order by up to three months, and only two such applications to extend the period of the order may be made. The High Court, in granting an extension, must be satisfied that the child is benefiting from the special care being provided, that the risk of harm to the child posed by his or her behaviour continues to exist, and that the child requires the continuation of special care.

The Bill provides that the High Court will undertake a review, in each four week period for which the special care order has effect, to consider whether the child continues to require special care. The court will take account of the assessment of the child's care requirements and the child's need for special care which the HSE is required to undertake while the child is in its custody. On foot of a review, the High Court may vary the special care order and may make other provisions or directions.

The Bill provides that the HSE may apply to the High Court for an interim special care order. An interim special care order may be for a period of up to 14 days, including any period which has been granted on foot of anex parte application for an interim special care order. The HSE can apply to extend the period of the interim special care order by up to a further 21 days, and only one such extension may be granted.

The Bill provides that anex parte application for an interim special care order may be made to the High Court by the HSE. Such an order may be for a period of up to eight days and cannot be extended. When granting an interim special care order on foot of an ex parte application, the High Court sets a day, no more than eight days later, for which the hearing of an application for an interim special care order is returnable to the High Court. This hearing is on notice to a parent having custody of the child, a guardian or a person acting in loco parentis and the child’s guardian ad litem.

The High Court may make an order for the purpose of executing a special care order directing a person, having custody of the child, to deliver the child to the custody of the HSE or directing the Garda Síochána to search, find and deliver the child to the custody of the HSE. The Bill provides that the High Court may issue a warrant authorising the Garda Síochána to enter, if need be by force, any house or other premises where the child is thought to be for the purpose of executing a special care order.

Where the High Court makes a special care order, it may, in the interests of justice or the protection of the child, give directions in respect of a named person or persons, which may include a parent, a guardian or a person actingin loco parentis, on the withholding of the special care unit’s address and the access of that person or persons to the child while the child is in the special care unit.

The Bill provides that the HSE may enter into an arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit, that is, with a service provider from the private or voluntary sector. Where such an arrangement is made the special care unit will be subject to any standards and any regulations under the Health Act 2007. Also, the Health Service Executive is required to supervise and monitor the special care unit under such an arrangement. Where a child is placed in such a special care unit, he or she remains in the custody of the HSE. The person with whom the arrangement is made cannot apply for a special care order or related orders and the HSE remains responsible for dealing with any subsequent court proceedings in respect of the child.

The HSE may release a child where he or she requires immediate medical treatment, assessment or examination or where the release is required immediately on compassionate grounds. Where this occurs, the HSE is required to inform the High Court as soon as possible.

In respect of court proceedings provided for under the Bill, notice shall be provided to the parent having custody of the child, a guardian or a person actingin loco parentis and to a guardian ad litem and where the Bill provides for the proceedings to be instituted by any of the foregoing, the Bill allows for notice to be provided to the HSE. However, where it is considered to be in the interests of justice and the best interests of the child, the High Court may direct that notice not be given or make other provisions in this regard as it sees fit.

Where the High Court makes an order under this Bill directing a person who has custody of a child to deliver the child to the custody of the HSE and the person fails or refuses to comply with the order or removes a child from the custody of the HSE without lawful authority, that person shall be guilty of an offence and be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding six months or both. Proceedings in respect of these offences will be heard in the District Court. The Bill provides that where a special care order or an extension of such an order is appealed, the High Court may direct the order to be stayed pending the hearing of the appeal. The High Court may discharge or vary a special care order and may give directions or make an order on any question affecting the welfare of the child as it believes proper on the application of the HSE, a parent of the child, a guardian of the child, a person actingin loco parentis or on its own motion.

The Bill provides that proceedings in respect of special care orders shall be heard otherwise than in public. Subject to a direction of the High Court, the HSE shall during the period of special care take all reasonable steps to locate and provide a parent and a guardian or a relative with relevant information relating to the special care and the child's care requirements.

The Bill provides that a parent of a child who is the subject of a special care order, a guardian or a person actingin loco parentis or who has a bona fide interest in the child may request the HSE, in writing, to carry out an appraisal of the child in respect of the special care provided for him or her, the child’s care requirements, the behaviour of the child before the provision of the special care and the risk such behaviour poses to his or her life, health, safety, development or welfare. Where the HSE decides not to carry out an appraisal, it shall notify, in writing, the person who made the request of the reasons for its decision. That person may appeal the decision within 14 days of being notified. The appeal will be heard by an independent person appointed by the HSE with the consent of the Minister for Health and Children. The HSE will issue guidelines on the procedure to be followed in respect of an appeal. Either the person who made the request or the HSE may appeal on a point of law to the High Court against the decision. A decision of the High Court on an appeal shall be final except that, by leave of the High Court, an appeal against the decision of the High Court shall lie to the Supreme Court on a specified question of law.

The Bill provides for an amendment to section 12 of the Child Care Act 1991. Currently, a garda can enter a building without a warrant if there is not sufficient time to make an application for an emergency care order and there is an immediate and a serious risk to the health or welfare of the child. The effect of the amendment to section 12 is that a garda who believes there is an immediate and a serious risk to the health or welfare of a child can also enter a building without a warrant if there is not sufficient time in the circumstances to obtain a warrant under section 35 of the Child Care Act 1991 to execute an order made by a judge directing that a child be placed or maintained in the care of the HSE.

Part 3 provides for the amendment of the Children Act 2001. The Bill provides that a family welfare conference convened by the HSE shall consider whether the child requires special care and other care forms that may meet his or her needs. The Bill also provides that family welfare conferences should be conducted in a manner consistent with fairness and natural justice and should include a procedure for consulting the child and to ascertain the wishes of the child in respect of whom the conference is convened.

Part 4 provides for the amendment of the Health Act 2007 which applies the inspection provisions of that Act to special care units. Part 5 provides for the dissolution of the Children Acts Advisory Board. The board was established under Part 11, sections 225 to 244, of the Children Act 2001 and has functions as set out in the Child Care (Amendment) Act 2007. The functions include providing advice on policy relating to the co-ordinated delivery of services under the Child Care Act 1991 and the Children Act 2001; promoting inter-agency co-operation; publishing criteria for the admission to and discharge from special care units; publishing guidance on qualifications and training of guardiansad litem; organising seminars and conferences; conducting research; and providing its views on any proposal of the HSE pursuant to section 23A(2)(b), Part IV A of the Act of 1991 in respect of special care applications made by the HSE to the District Court for an order to detain a child to provide special care services for him or her.

As previously stated, part IV A of the Child Care Act 1991 was not brought into operation and applications for such orders have not been heard in the District Court. However, since 1996 the High Court has used its power of inherent jurisdiction to hear applications for detention orders for children in need of special care or protection. In such cases the Children Acts Advisory Board has given its views on such applications made by the HSE to the High Court. It has now been decided, in the context of the need to rationalise State agencies, to subsume many of the functions of the Children Acts Advisory Board into the Office of the Minister for Children and Youth Affairs. The staff of the Children Acts Advisory Board will transfer to my office and the Department of Health and Children. There will be virtually no loss of functions resulting from the disestablishment of the Children Acts Advisory Board because much of its work will transfer. My office promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children, functions carried out also by the Children Acts Advisory Board.

Two of the Children Acts Advisory Board's functions relating to special care for children are not being subsumed by my office: the publication of criteria, in consultation with the HSE, for the admission to and discharge from special care units pursuant to section 227(1)(c) of the Children Act 2001 and the provision of views on any proposal of the HSE to apply to detain children for the purposes of providing special care pursuant to section 23A(2)(b) of the Child Care Act 1991. These functions were provided in the context of applications for special care orders heard in the District Court. It may be argued that the non-continuance of these functions may impact on children who are the subject of applications for special care orders and their parents. However, the Child Care (Amendment) Bill 2009 will provide that the High Court will have statutory jurisdiction to decide on applications by the HSE for special care orders for children. This is a high but appropriate level for such cases, given that the effect of a special care order is the civil detention of a child. It is considered that, given the high level and nature of this jurisdiction, there is no need to specifically provide for the aforementioned Children Acts Advisory Board functions. Also, the HSE has in place an admissions and discharge committee which examines all proposed applications being considered by the HSE for the detention of children for the purposes of providing special care services. In addition, the Child Care (Amendment) Bill 2009 will provide for the HSE to publish guidelines in respect of the procedures for the discharge and release of children from special care units and the provision of care and aftercare for such children.

Part 6 sets out transitional measures on the commencement of the Bill which I commend to the House. I look forward to hearing the views of Senators.

I welcome the Minister of State. Last week many of us took time to speak to the young people who generated quite a musical racket outside the gates of Leinster House. They were accompanied by community workers from various parts of Dublin and made the case that the recent budget cuts would impact directly on youth services in this city. The overall message was that, as far as the Government was concerned, our young people were not a priority. One such community worker informed me they had carried out an in depth analysis of the funding available and concluded that the youth service they provided in their locality was costing the State €12 per teenager per week. Their analysis also concluded that because of the cut in funding to this community group, the youth service could not be continued. The protestors chose to portray graphically the loss to our young people by having some of them sit in a makeshift rubbish skip, a powerful image of the neglect shown by the Government in the area of youth services and especially early intervention.

There is no doubt about the value of a comprehensive community youth service. Such services have the potential to encourage every young person to grow into a fully rounded adult, prepared to play an active and positive role within his or her community and country. Last August I read an article inThe Irish Times, a quote from which I cut out and retained. It was from a 16 year old volunteer operating from Summerhill in the north inner city. He stated:

I wanted to give something back. There's a stereotype that people my age aren't into volunteering, but my friends say to me ‘fair play' ...Young people can get into trouble around here, with stuff like drugs, vandalism, joyriding. But it's not just getting young people off the street, it's teaching them new skills ... I get a lot of praise in school now. It's changed my attitude, I'm much more reasonable ... I think I'd like to go to college and become a full-time youth worker.

This is the real, long-term value to be achieved in continuing to invest in young people. We are discussing how the State deals with the fall-out from inadequate services and how best to care for those young people who find themselves on the fringes of society and must be taken into State care, not at a cost of €12 per week but closer to €4,500 per week.

The regulatory impact analysis report compiled by the Department of Health and Children in 2009 on this Bill highlights the significant costs associated with special care places. We spend more than €90 million a year to keep approximately 400 children in residential care. The Irish Association of Social Workers acknowledges that children must be accommodated based on their needs, but that the number of children in care could be reduced if adequate early intervention services were available. The president of the association has also stated the emphasis must be on early intervention to prevent young people being placed in care in the first place, but that the reality is most social care teams are running a crisis intervention service rather than a social work service. This message seems to have been lost on the Government. Rather than employ a long-term vision or put in place a long-term, well researched strategy, it seems to limp along from one crisis to the next, needlessly spending millions of euro to tidy up a mess which, with a little planning, could have been significantly reduced in recent years.

Internationally, there is a wealth of research in the area of early intervention and this is where most of our energy and finances should be focused. That research shows positive supports provided in the first few years of life can significantly impact on life chances by promoting emotional and physical development, especially among children from disadvantaged backgrounds. In particular, pre-school programmes to help children in poverty have resulted in less delinquency, a lower rate of school absenteeism, less need for remedial services and less likelihood of aggressive and delinquent behaviour.

In December 2007, the Office of the Minister for Children and Youth Affairs seemed to place some value on the effectiveness of early intervention by establishing an inclusion programme and allocating grants to seven selected organisations which represent or support young people who might be considered marginalised or hard to reach. The grants were offered to the organisations in order that they could support marginalised young people to become involved in youth participation structures and processes.

An independent evaluator was appointed to assess the impact and effectiveness of the inclusion programme and the conclusions reached by that evaluator are most interesting. The concluding paragraph of her report states:

The Inclusion Programme has been a resounding success in having a positive impact on the inclusion of marginalised young people in the youth participation process. In addition to the significant numbers involved in the projects in the programme, the recounted personal stories of the young people are testament to a programme that was well organised, well supported and meaningful. It is perhaps not that surprising that the Inclusion Programme has been such a success. There has never been a programme where organisations representing marginalised young people were allocated a specific stream of funding to ensure that the young people they represent are involved in youth participation structures. What is perhaps more surprising is that in a relatively short space of time, many organisations have come from a place of not being engaged with youth participation structures to one where they not only have awareness and knowledge of those structures but are functioning ably, some with significant numbers, within them. While this represents a great deal of progress in a very short space of time, it is important not to stop there. Participation in and development of the process currently involves and will continue to demand significant commitment and ‘buy-in’ from the participating organisations. It is important to acknowledge that without a specific drive to include marginalised young people in youth participation structures and processes, it is quite simply very unlikely to happen. It is that stark.

The message is that stark. Unless we put in place a comprehensive investment programme in our young people, we will continue to reap the results of that neglect for many years to come and the sort of emergency intervention provided for in this Bill could become more the norm rather than the very last resort.

Having highlighted the policy decisions that are needed to prevent our young people ending up in the care of the State, we must also look at the area of after care services for young people who, despite our best intentions, end up in our care. At present, there is no obligation on the State to provide after care services to young people once they reach their 18th birthday. This means that children who may have been in the care of the State for years are quite abruptly deprived of a right to essential support.

The difficulties with such a system are plain. Young people who may have experienced serious disruption during the course of their lives and have faced challenges that most of us do not face in a lifetime, can find themselves adrift. Contrast this with the situation of children who have had the benefit of a stable, supportive family environment throughout their childhood and adolescence. How many of us, as parents, would suggest that our obligations towards our children end at their 18th birthday?

Providing age thresholds in law can be necessary to establish clarity about the roles and responsibilities of the State, of parents and of young people themselves. However, we must never forget that such thresholds are always approximations and blunt instruments. It cannot be argued that a majority of young people who have been in care do not need support and assistance past the age of 18 and yet this is what the current system implies.

This Bill could provide a valuable opportunity to place the provision of after care services on a statutory footing and I would strongly urge the Minister of State to use the opportunity to make this vital amendment.

In 2009 the Ryan report highlighted the impact on vulnerable children of leaving the care of the State without proper supports. Considering the risks that such children are subjected to, including homelessness, addiction and crime, we must conclude that the State has an obligation not to abandon those children once they reach the age of 18 and to provide services to support them into adulthood. Indeed, refusing to provide such services will most likely have the effect of undoing any good derived from being in the care of the State in the first instance.

While Fine Gael welcomes the general intent of this Bill, it has many shortcomings and we intend to highlight these on the subsequent Stages. I hope that the Minister of State will work with us and all of the agencies charged with caring for our young people to ensure the final legislation is a comprehensive and caring document that has the best interests of our young people at its very core.

I compliment the Minister of State on bringing forward this very important and required Bill. He cannot be accused of not being forward-looking in terms of youth matters given what he has done in a short period of time. Our commitment to child care is what is most important. We must ensure our young people are well educated and well looked after because that will serve them well going forward.

It is important to bear in mind that we have done much. I will not criticise anything Senator Cannon said and take it in good faith that he meant exactly what he said. This Government has invested hugely in child focused activities, including sports activities, pre-education activities and playgrounds. The amount of investment in child care and in our young people over the past ten or 12 years is evident throughout the country. That will serve us well going forward. I am not saying more money cannot be spent, of course it can be. However, how one spends the money and how one legislates for young people going forward are what the Minister of State must keep at the top of his agenda.

I have spent much time with young people in the Dún Laoghaire-Rathdown constituency at a number of levels, including health care and education levels. We should focus very much on community efforts.

The free pre-school year will make a significant difference to many children before they go to school. However, there is not enough flexibility in that scheme. I have made representations to the Minister of State in regard to a child who exceeds the age limit for the scheme by four days and who has been turned down. The Department said there was flexibility in the scheme but where is the flexibility? We get complaints about these issues.

The scheme is a fantastic one which will do much for young people but this young person will be left out of the scheme as a result of exceeding the age limit by four days. I know there must be a cut off date but it is important to bear in mind that flexibility is required. This young person will start school in September and would not avail of the full year. I ask the Minister of State to examine that situation.

He has outlined the importance of the Bill in ensuring strong legislation which will deal with any possible cases of child abuse or parents who are not living up to their commitment to what they should do in terms of ensuring that the child comes first. We in the Seanad must ensure this type of legislation is fairly sound. The Minister of State will find we support the Bill in general. While small aspects of any Bill can be criticised this Bill is good. In his preamble to the debate the Minister of State clarified and outlined how the Bill will work efficiently. Special care for a child who has a problem is the most important part of the Bill, which will deal with such a situation. That is very important. The protection of the child is paramount, which the Bill addresses. The Minster of State covered everything I would ask or look for in terms of the protection of children. I commend the Bill to the House.

I welcome the Minister of State. I also welcome Senator Butler's contribution because he showed a flexible approach and said although the Bill was very welcome in general, there were certain details which might need to be tweaked. The Minister of State is amenable and I hope he will allow this House to exercise its proper function in assisting him by tweaking the Bill and making some of the alterations to it which many of us feel should be made. The general context is interesting.

Yesterday I took part in a filmed interview with a remarkable Irish artist, Mr. Tom Dunne, about the impact of the Constitution on children and the question of the final ratification of the United Nations Convention on the Rights of the Child which, I understand, we have not yet done. It is very important that we do so, if we have not already. Among the issues which arose was the question of the 1916 Proclamation which refers to cherishing all the children of the nation equally. Many people think that statement is in the Constitution, but it is not and we have very little which actually protects the rights of the child.

There were an extraordinary series of reports inThe Irish Times today about the abuse of people with intellectual disabilities and the children in that situation, and the extraordinary parallels to which attention was drawn, perhaps inadvertently, by Senator Mullen when he asked “Where have we heard this before?” in reference to moving people around and covering them up. The case study in The Irish Times gives a very fine report on Brendan, who said:

He did dirty things to me. He stuck his private parts up my bum. It was very sore. He did it to the others as well, in the spudhouse. If I wouldn't do it with him, he said he'd throw me in with the pigs.

This was going on quite recently. It has an extraordinary parallel with the moving, passionate testimony of a former mayor of Clonmel, Michael O'Brien. That is the context. We do not have the greatest record, in terms of the care of our children, in this House and this Bill will go some way towards rectifying that.

I received an extensive and useful brief from Barnardos. It was very helpful in alerting the Oireachtas in 1991 to the need to introduce the guardianad litem principle in the aftermath of the Maria Colwell case. Like all Senators here, it gave a general welcome to the Bill but it feels, as I do, that it lacks an overarching vision. It is amending legislation, so perhaps one should not be too strict in looking for it. Barnardos welcomes sections 6, 7 and 8 because of the strengthening of efficiency in the protection of children but it says, as I felt, that rather than moving things on in a dramatic way, the Bill cements existing practice and does not build on existing structures to look forward.

I put this in the context of a report inThe Irish Times some time ago which examined the impact of the Lisbon treaty and its provisions for fundamental rights and so on. It includes certain provisions concerning children, including their right to secure placement and to have their voices represented and heard. In this area, this Bill needs considerable strengthening. Dr. Ursula Kilkelly of UCC discussed the Charter of Fundamental Rights and said it guarantees children the right to protection and care, the right to express their views freely, the right to have them taken into account in proceedings concerning them and the right to have direct contact with their parents, unless it was contrary to their interests.

With regard to the rights to representation and the voice of the child, one of the most glaring gaps in the Bill is the failure to address the point made by Dr. Kilkelly, namely, the right of a child to be heard in regard to the making of a special care order. The Bill is not clear regarding the child's right to representation and fails to give the child an automatic right to representation, either through the child having party status in the proceedings or the appointment of a guardianad litem. If it was a criminal case the child would have direct and clear rights to representation. Dr. Kilkelly, in a paper “Children’s Rights in Ireland: Law, Policy and Practice”, says the legislative provision is so riddled with caveats and discretion that it falls significantly short of an effective duty to ensure the child’s views are heard, as required by Article 12 of the Convention on the Rights of the Child, and also fails to guide the courts in the exercise of their extensive direction to hear children in such cases and, if so, by what method. I hope the Minister of State will accept an amendment to clarify that important matter.

There is also the question of the guardianad litem. Section 26 of the Child Care Act 1991 authorises the court to appoint a guardian ad litem, something of which I am aware because an amendment to the Act was proposed by me and seconded by Senator Brendan Ryan in 1991. I was well briefed by Barnardos at the time. A learned judge, Mr. Justice Conal M. Gibbons, in an article “Childcare in the District Court” quotes a Department of Health and Children manual. It states the crucial importance of the guardian’s role is that it stands at the interface between the conflicting rights and powers of courts, local authorities and the natural and substitute parents of the child; that the guardian has to safeguard the child’s interests to ensure the most positive outcome possible for the child; and that the guardian has to make a judgment between the potentially conflicting demands of the child’s rights, children’s rescue, the autonomy of the family and the duty of the State.

Mr. Justice Conal M. Gibbons, in his gloss on this, said in the United Kingdom the concept of guardianad litem arose after the Fisher report in the wake of the Maria Colwell case. He said he read some of the debates in the Oireachtas which revealed that there was no provision in the original Bill which became the Child Care Act, even though it had an incredibly long gestation, and that an amendment was proposed by Senators Ryan and Norris — he got the order wrong; my amendment was seconded by Senator Ryan — on Committee Stage in the Seanad, which was accepted by the Government. He said to his mind it was a most important contribution to the legislation and without it the work of the District Court in child care would be much more difficult and children’s interests would not have been as well served as they should.

I am glad the work of the Seanad, my work and that of my colleagues was recognised by the learned judge. However, he also expresses concern about the continuing inadequacy in this matter. For example, although the guardian ad litem is recognised under section 2(c) various matters are left in the hands of the courts, such as the appointment of a solicitor. In addition, the court may direct a solicitor as to the performance of his or her duties, including directions for the appointment of counsel. If a guardian ad litem is appointed — I speak as the person who introduced this amendment — it should be clear that this guardian should be entitled to instruct and direct a solicitor free from any interference, as would any other parties to the proceedings. Restrictions to this would hamper seriously the solicitor’s capacity to represent the best interests of the child.

The next item to be considered is costs, as "reasonably incurred". Why does the Minister use the word "reasonably"? The Children Acts Advisory Board, which is about to be absorbed into the Minister of State's Department, has said that legislation proposed by that office would reinforce many current flaws in the system. It stated that the new legislation could saddle guardiansad litem with massive legal bills.

I noted that when the Minister of State spoke about the operations of the court in the same area he did not use the term "reasonable". He said the expense will be discharged. I ask him to look again at the unnecessary inclusion of the word "reasonably". It is unnecessary because the 1991 Act already provides for this to be taxed and that, presumably, would eliminate any unreasonable factor. However, it raises doubts and may deter people from applying to be made guardiansad litem.

Section 27 of the 1991 Act is to be amended in respect of the power of the court to give directions to procure a report. The amendment states that any reference in section 27 to the "party" or "parties" will include the guardianad litem. That reference suggests confinement to the section. The point I make strongly to the Minister of State is that the function of the guardian ad litem should be recognised properly as existing throughout the Bill and this person should be regarded as party to the procedure for the purpose of the Act in general.

Another issue to consider is the HSE and the powers given to that body. For example, there is no requirement that the HSE should apply to the court to dispense with parental consent. These powers appear to exclude a child's family or guardianad litem in a way that might disadvantage the child in a serious way. Here again, we come up against what Professor Kilkelly suggested regarding our obligations under the Lisbon treaty. We are required to respect the family unless it is a disadvantage to the child to do so. This Bill, as amended by Government, does not appear to do that, which presents a considerable difficulty.

There is also the matter of language. I had a visit from people involved in the care of young people who are concerned about the word "detention". They suggested it might appear to criminalise all the children in question. Children themselves speak of securing their "placement".

Aftercare is an issue. It is clear that the sudden breach and separation of a child from those with whom he or she may have formed a strong psychological and social link can be damaging and it is necessary for them to have aftercare. Section 45 of the Child Care Act 1991 provides that where a child leaves the care of the HSE, that agency "may" provide aftercare. The word should be "shall". Very many times we have debated in this House the usage of "may" and "shall". This is a matter of expense but I call on the Minister of State to think of damage to the child and the positive benefits and outcomes that will come from providing aftercare, as repeated studies have shown. There is a necessity to change the terminology from "may" to "shall".

I urge the Government to accept amendments, or even to introduce its own, in the following areas. First, it should include a statutory right to representation for children to the appointment of a guardianad litem or a solicitor where the child has competency for such. Second, it should reform the language used in regard to special care orders in order to focus on service provision rather than detention. Third, it should provide for the development of outcomes that focus on best practice models of service provision. Fourth, it should put the provision of aftercare on a statutory footing for all children in the care system.

With these proposed amendments, which I hope the Minister of State will be gracious enough to accept or introduce we will have not merely an amending statute without any overarching vision but will achieve that vision which will enable us to secure the future of the children of our nation in a way that is compatible with our ideals.

I welcome the Minister of State. This is the first time I have had the pleasure of debating child care. It is fantastic that there is a Minister of State with responsibility for children. It is very progressive and the present Minister of State is doing a very good job.

Overall, I agree with the Bill. It is good legislation that will help children and in particular cases it will provide a better framework for those children who fall on difficult times or for whom special provisions need to be made. Special care orders are a very important part of the legislation. There is a section in the programme for Government that deals with achieving a more caring and just society:

The mentally ill, the disabled and the marginalised should not fear isolation. Our society should and must respect the right of our citizens equally while continuing to recognise their individual differences.

From the introduction of the Constitution to the present day, this country has a proud record for its prioritisation of child care. I am a father and can see the difficulties faced by children across the board, in schools, in homes where relationships break down and in situations where people have special needs or where there are illnesses, particularly mental illnesses. Various events can happen. Our society is not perfect, unfortunately, and we must cater equally for all our people. I am very much a believer in a rights-based society.

I look at the criticism of this Bill. My understanding is that it will not cost a large amount to implement the measures outlined in it. However, the main criticism coming from the Opposition appears to relate to aftercare, especially for people aged over 18 years of age. I will not be prescriptive but I believe that in general the aftercare of children is very important. I have seen too many instances happen across the board in issues of aftercare — not only of children but of adults — where a certain point is reached in that care and suddenly the situation is returned to families or others and may not be dealt with completely. Aftercare is extremely important in all such cases. We must ensure that when people are looked after for a certain period that the job is completed and therefore the provision in the Bill for aftercare is important. I urge the Minister of State to look at this.

The Opposition proposes an amendment to replace "may" with "shall". I am not clear on the cost implications of it but from a rights-based point of view there is merit in considering that provision. That is my main point——

It was not the Opposition but the loyal Independents.

The loyal Independents are not always in Opposition. I commend those Independents who in many ways keep this House sane and working. They constantly add to the debate in the Chamber and therefore I commend them.

I would not go that far. Consideration should be given to the proposed amendment. It will be the responsibility of the Minister and the Government to take the final decision.

This is a good Bill and I commend it to the House.

In addition to Barnardos, a number of other bodies took the trouble to brief Members. The information they provided has proven extremely useful to Members as they consider the Bill. It is always of assistance when interested bodies take the time to prepare briefings, meet Members and share with them their experiences and also the difficulties they perceive in respect of the practical, day-to-day operation of agencies, services of the State, etc. relating to children and also the problems they believe may arise in the context of legislation being brought forward. I agree with Senator Norris that the Barnardos briefing document is extremely helpful.

Focus Ireland also took the trouble to provide briefing information. To some extent, that organisation's document provides an answer to the question posed by Senator Ó Brolcháin in respect of the possible or potential cost to the State if aftercare services were to be placed on a statutory footing. It is not possible to make a direct analogy with Northern Ireland in this regard. However, the example of Northern Ireland was the best Focus Ireland could provide in estimating the ultimate cost. Focus Ireland indicates that the equivalent cost of providing the range of aftercare services available in Northern Ireland in the Republic of Ireland would be just under €11 million per annum. That figure is based on a total of 411 care leavers per annum. If it is possible for Focus Ireland to quantify the cost, it should also be possible for the Minister of State to do so. I agree with those who stated that it would be important to place aftercare services on a statutory footing in order that there might be some expectation among people of their being available. It is also important that proper controls, guidelines and supervision be put in place in respect of such services.

The Bill is welcome. However, it provides a curious case study in respect of failures in public policy. I do not lay all the blame for such failures at the door of the Minister of State. These failures date back many years, perhaps even a number of decades. The Minister of State may wish to reflect on this and refer to it in his reply.

It is obvious that a regime by means of which special care orders may be obtained is required. As I understand it, the first attempt to place such orders on a statutory footing occurred in the 1991 Act. However, nothing ever seems to have actually happened. I accept that such orders are made, particularly as applications relating to them are made to the High Court. The attempt to rectify the position, which was made in 2001, does not appear to have worked. We appear, as with other areas of public policy, to have fallen back on the mechanism that exists in respect of State institutions or others applying to the High Court to invite it to exercise its inherent jurisdiction to intervene in crisis situations.

There was a period when crisis intervention in respect of children appeared to be almost managed by the High Court. Many of these cases came before a meticulous and extremely public-spirited member of the High Court at the time and that individual essentially managed the operation of this vital area of public policy. It was neither acceptable nor correct that this should have been the case and the court often made the point. I am sure the Minister of State would agree with that assertion.

The Bill appears to be an attempt to finally place on a statutory footing the basis on which special care orders should be granted by the High Court. It appears we have been obliged, for a number reasons, to move away from having the District Court deal with matters of this nature. The issuing of special care orders will now be dealt with by the High Court, but not by means of its inherent jurisdiction or discretion. A statutory regime is going to be put in place. To that extent, I must welcome what is proposed in the Bill.

The various protections and rules, details relating to how special care orders will come into effect, the basis upon which an application for such orders may be made, who may apply for these orders and how they may subsequently be set aside will now be set out in legislation. That is the way it should be in order that professionals such as social workers, psychologists, teachers and others involved in the field will be in a position to know what is required under the statutory regime and to orient their activities towards this.

I am sure colleagues will agree that in the area of child care and crisis intervention, where children are taken into care and where they are a major risk to themselves and others, we are extremely well served by a cohort of marvellous professionals. These individuals are not anywhere near the highest paid of public servants. Nevertheless, they are extremely dedicated and do an enormously difficult and trying job. It is important to make that point in the context of the Bill before the House.

I agree with much of what has been said in respect of aftercare services. As Senator Norris pointed out and as Barnardos and others also highlighted, a strong argument exists in the context of reviewing some of the language used in the Bill. In legislation, there must be clarity with regard to the words used. Everyone must be in a position to understand what various phrases and words mean. There is sometimes a temptation to soften language in order that it appears more palatable. Ultimately, however, this is of no assistance because clarity is required in order that the provisions of legislation might be implemented in their entirety.

It is worth asking whether a term such as "detention" should be used in the Bill. I refer to references to the civil detention or special detention of children. I understand the objective behind using the word "detention" and I know why it is included in the legislation. However, perhaps the Minister of State will consider, prior to Committee Stage, whether some of the language in this regard might be reconsidered. We are discussing the provision of a service, the welfare of children and the need to make interventions or remove children from certain situations and place them in care. The latter denotes an element of detention because children placed in care no longer retain their liberty in the strictest sense.

I am not seeking that the legislation should be politically correct. However, I am of the view that we should perhaps try to make the language used in the Bill and the nature of the overall regime speak more to the welfare and service provision approach rather than to something harsher.

Another matter worthy of further consideration, although not necessarily in the context of the legislation before us, is that relating to the best practice which applies in other jurisdictions, especially in the context of the types of units to be put in place, etc. Does the Minister of State have a view on how we should consider which units might be appropriate and the nature of the management relating thereto? Would he be willing to draw on international experience in that regard? I am of the view that it would be important to draw on such experience.

I have no difficulty with the overall thrust of the Bill. However, I wish to put to the Minister of State questions relating to a number of issues. The issue of the Children Acts Advisory Board was addressed with some degree of dispatch in the Minister of State's speech as it also is in the Bill. While I accept we are in an era of abolition of State agencies and very few are safe from either abolition or absorption into Departments or wherever, the question one must always ask when a State agency is being absorbed or abolished is why it existed in the first place. There must have been a good and compelling reason to set up Children Acts Advisory Board in the first place. It was open to the then Minister of State not to set up a separate board at the time but to have those matters dealt with in his office. Somebody must have made a decision on compelling policy grounds to have established this body independent of the Department.

The Minister of State said "There will be virtually no loss of functions resulting from the disestablishment of the Children Acts Advisory Board". However, there seems to be some loss of functions arising from the abolition of the board. He seems to suggest that the impact of that loss is lessened by the fact that these orders will be sought in the High Court and there would not be the same necessity to have criteria in place for the admission to and discharge from special care units or that a body would not be needed to give views on any proposal of the Health Service Executive to apply to detain children for the purposes of providing special care. I do not understand why those advices and criteria would no longer be necessary. I did not find it particularly convincing that we could manage without that kind of specialist assistance to the system. I ask the Minister of State to comment on that. I hope the board is not being abolished purely for financial reasons and being hit on in the same way that so many other bodies are being hit on with the explanation coming afterwards. It may be that it was always possible to deal with these issues without having a separate board. If so, that is what should be said.

We look forward to reviewing the legislation closer between now and Committee Stage, which I hope will not be as soon as next week as often happens with important legislation such as this. While I know it was published in September, with the best will in the world the Minister of State will appreciate that most of us only tend to get going on a Bill when we see it on the Order Paper for the following week. While it is an amending Bill and there is a principal Act, around which we can quickly get our heads, I ask for the forbearance of the Leader and the Minister of State that we might be given more than a week to consider amendments for Committee Stage.

I welcome the Minister of State and I welcome the Bill. As other colleagues said, the children for whom this legislation provides are ones who experience very challenging needs and can find themselves in very challenging situations. For our children for whom everything else has at that moment failed this legislation only applies as an absolute last resort where other less secure forms of care have either been tried or where a determination has been made that for the individual child's particular circumstances at that time they would not be appropriate.

In the past we have had recourse on other countries to meet the needs of children with very challenging needs. While this was something on which we only depended as a last resort, we did not have as many facilities or opportunities to meet the needs of those children here at home. It is quite distressing for everyone concerned for a child to have to go abroad to have his or her needs met. I certainly welcome the additional opportunities we now have to meet those needs. Perhaps the Minister of State might at some stage clarify whether we have sufficient special care unit opportunities to meet those needs.

The Bill is very practical in nature and outlines clearly the processes to be followed from consideration of the child for special care, the application for the order, the hearing of the case, the granting of the order, the care of the child under the order, right through to the discharge of the order. As such it provides essential protection for children. The number of safeguards in the Bill will add to the protection of the child and are to be welcomed. The legislation also provides for consent to assessment and treatment interventions to be provided by the HSE where the child is under the care of a special care order. I welcome this because where everything else has failed and it has been necessary for a special care order, from that moment on we must take every opportunity to support the child and open a better future to the child than might have been presenting itself prior to the granting of the special care order. That means being in a position to carry out whatever assessments are required and implement whatever treatment or intervention plans are necessary.

I stress to the Minister of State that we hope this is only a short-term measure and for that reason it is imperative that we provide support to the family outside the special care unit or whatever is the home situation to which we hope the child will return. Wearing my other hat as a psychologist, I am very conscious that we can put considerable time or treatment into an individual child, but if we do not give the support to the external environment to which he or she will return, much of the effectiveness of what we are doing can be undone and lost. I was struck by the optimism contained in the legislation, which only refers to very short periods of time. Even where we might seek to extend the special care orders, they are being extended for very short periods of time to a maximum of nine months. For that reason in order to be as effective as we can with the child, wherever the child moves on to after the special care unit it is vital that placement, whether it is the family home or another care facility, would receive adequate and appropriate support to ensure the progress made with the child while in a special care unit is maintained afterwards. These are children just starting out in their lives.

I note that other speakers made reference to language that was used in the Bill and said that perhaps it is necessary to call things as they are. However, the underlying concern for all colleagues who raised the issue is that everyone wants to ensure that factors have the minimal detrimental effect on the rest of the child's life. I empathise with colleagues who speak of the word "detention", wondering whether having almost labelled a child so young starting out, that will carry over later on in life. As this is a last resort option, clearly our preference is to prevent the necessity for such a unit in the first instance. Other Senators have spoken about this issue too. There are many other services, including less secure areas such as high support units, also available to children with challenging needs. To prevent the need for special care units, I go back to the point I made about the necessity to look at the home environment and the child's family. It is a question of realising that whatever work is being undertaken at the point of intervention needs to be followed through, thus enabling the main care givers to be in a position to follow through also. It is only through a joint holistic approach that the progress we want to see can be made. This is about trying to ensure a child will enter adulthood with every opportunity before him or her.

One aspect of the legislation I particularly welcome concerns the provision to ensure a child will not fall between the HSE and the Department of Justice, Equality and Law Reform. Such instances can arise where, for example, a child has come to the attention of the HSE but has perhaps engaged in criminal behaviour and charges are being pressed. Prior to the introduction of this legislation, the HSE would have been inclined to step back and leave the matter to the Department of Justice, Equality and Law Reform. While the resolution of such a matter is being awaited, a child can often fall between the two agencies and end up in limbo. The legislation ensures this will not happen.

The Minister of State in referring to a special care unit indicated that special care would only be provided for where there was a real or substantial risk to the life, health, safety, development and welfare of a child. When a child reaches that stage, he or she is extraordinarily vulnerable. For a child to be at that stage and fall between two agencies of the State is simply horrendous and the fact that the legislation addresses this clear deficit in care is definitely welcome. Such circumstances leave children already at risk increasingly and unnecessarily vulnerable. I note that the legislation only applies to children aged between 11 and 17 years. Does the Minister of State envisage any situation where it would be necessary to seek such a care order for children under the age of 11 years?

I want to raise with the Minister of State the issue of children with disabilities who occasionally present with very challenging needs which require care in a very secure unit. Is it planned to make provision for such units which we do not currently have?

Because we are constantly evolving and need to add to our knowledge, will the Minister of State ensure a mechanism is put in place for monitoring, evaluation and research as regards any child who will pass through the special care unit? Perhaps we might look at providing for such monitoring and evaluation in the years after children leave the special care unit. When they become adults, they might be willing to share with us their reflections and experiences to inform our practice and future developments. I commend the Bill to the House.

I welcome the Minister of State back to the Seanad. I am grateful for the opportunity to speak on the Bill which, as Senator Norris said, is aimed at amending the Children Act 2001. The reality is that there are 5,500 children in care, a substantial number. A recent report states almost half of these are aged between 14 and 15 years. This is a very vulnerable time for them, with the onset of puberty and the difficult teenage years. However, the Bill does not address how the need for care may be reduced, something about which Senator Cannon spoke.

We need to look carefully at how we can identify much earlier children at risk, oftentimes in their families. There are ways to identify such children. Schools regularly notice them. When I was a practising primary school teacher, the then president of the INTO, Ms Sally Shiels, spoke about the need to have an at-risk register for children. Such early intervention is needed. There is a need for early identification of children at risk, followed by early intervention before matters become so serious that a child has to be placed in care. While we are discussing the need for special care orders and how they should be planned, monitored and ordered, etc., we must also seek to reduce the number of children who end up in care.

The care period is followed by an after-care period, which is critical, as mentioned by every other speaker. We must not forget how serious are the effects. Many who have been in care have ended up in poverty, affected by homelessness, addiction and often criminality. Senators Alex White and Ó Brolcháin talked about the cost of after-care, with Senator White indicating the figure might be about €11 million per annum. Perhaps that is a small price to pay, if we look at the real cost in terms of poverty, homelessness, addiction and criminality, as well as the cost to the justice and prison systems.

As part of an early school-leaving study in which I am involved, with the Oireachtas and an expert group of 27 practitioners and researchers, we have gone into the prisons. I believe the cost of providing a prison place is conservatively estimated at about €100,000 a year. This is not necessarily good for the inmates concerned.

These are just some of the overarching general points I wanted to make. The Minister of State spoke about the objective in providing special care, namely, to provide for a stabilising period of planned care to enable a child to return to less secure care or home as soon as possible. That is a good vision, although it has been said none is outlined in the Bill. As stated by Barnardos, the Irish foster care group and the Irish Association of Young People in Care, we need to look on the Bill as an opportunity to strengthen and build on current legislation. It is a significant opportunity for the Government to strengthen the protection services provided for children subject to special care orders and placed in secure care or high support units.

Our purpose should be to improve and develop the system rather than cementing current difficulties and gaps in special care provision. I concur with much of what Senator Norris said about areas in which I will be seeking to have amendments accepted by the Government. The first will seek to have included a statutory right to representation for children through the appointment of a guardianad litem or a solicitor. A second will seek to reform the language used in special care orders in order that the focus would be on the welfare of the child and service provision, rather than his or her detention, which suggests criminality. The third will seek to provide for the achievement of outcomes based on best practice models internationally and to place the provision of after-care on a statutory basis for all children in the care system.

I will briefly discuss each of these points. It is great the Minister of State is present for this debate and that he is listening to the points being made with a view to accepting the amendments we are proposing to ensure the care experience is better for the child who ends up in care. The period in which a child is in care is a very difficult one in his or her life, something we must not forget. The child is coming out of difficult circumstances and we do not know how that care transfer might have taken place. It might have been very difficult. The separation is huge. I am aware from talking to social workers involved in this area of how hard it is, even though the special care order might be in place for the child's own protection. Last year I spoke in the House about a mother who had approached me for help with her troubled teenaged son who was threatening her and her younger children in the home. She had gone to the social work team in Galway but it was completely over-stretched at the time. It had not returned her call for more than two weeks. She was in a really bad situation but by the time the youngster was met and dealt with, it was also a difficult one for him. It is a bad experience in the first place and we must examine some of the ways by which we can make it better.

The children concerned are aged between 11 and 17 years and quite capable in terms of competency. We must listen to the voice of the child. The Bill does not address clearly the issue of the child's statutory right to automatic representation in the making of a special care order. Barnardos, for example, states the Bill is unclear regarding the child's right to representation and fails to give him or her an automatic statutory right to representation either through having party status in proceedings or through the appointment of a guardianad litem. The care agencies and I seek clarity on this point. Statutory automatic representation for the child is very important, as is legal representation, if he or she is old enough to request it, and the provision of an independent person to act in his or her best interests.

There are concerns about the limited nature of the capacity of the guardianad litem under the legislation. Under section 21 of the Child Care Act 1991, the guardian ad litem is a person assigned by a court to represent the wishes, feelings and interests of a child who is the subject of special care proceedings. The appointment of a guardian ad litem is at the discretion of the court. However, this is contrary to practice in Northern Ireland, England and Wales, where a guardian ad litem is automatically appointed in care cases. The appointment of a guardian ad litem only happens if the court is satisfied that it is necessary in the interests of the child and justice to do so. The proposed amendment made in the Bill, in section 2(b), allows the guardian ad litem to instruct a solicitor if one is appointed by the court. Although this is a welcome amendment, the main problem with it is that the appointment of the solicitor to the guardian ad litem is in the hands of the court which has sole discretion in the direction of the appointed solicitors.

A number of care agencies, including Barnardos, believe that if the guardianad litem is appointed by the court, they should be able to direct their solicitor free from interference from a third party, just as any other participants in the proceedings are permitted to do. It is their opinion that unreasonable restrictions on the guardian ad litem that do not apply under the legislation to the other parties will weaken the protection for children and must be revised before the Bill is passed into law. I hope the Minister of State will examine this point very carefully. The agencies are concerned that restrictions placed on the guardian ad litem will affect their ability to represent properly and fully the best interests of the child during legal proceedings and undermine the level of importance of this function for the child.

All of us are working to give the child in special care a better experience and ensure their voice is heard. The vision for which we should strive is one where we hear the authentic voice of the child in difficult circumstances. I concur with what other Senators said, that we should examine removing the word "detention" and see it as a welfare provision. There is also the important issue of after-care, for which we have seen the need in other cases such as the Monageer case and in the Ryan report, in which regard people in institutional care had terrible after effects when there was little, if any, after-care. I urge the Minister of State to place the provision of after-care on a statutory footing. That should be the goal of a good Bill in this area.

I welcome the Minister of State, Deputy Barry Andrews, and thank him for doing an excellent job. As Senator Healy Eames pointed out, he is here for the duration of the Second Stage debate on the Bill. That does not surprise me because he takes ownership of and a great interest in his brief, on which I commend him.

I was listening to the debate in my office before I came to the Chamber. It is striking that we all have the same hymn sheet today. Everybody is saying the same thing and wants the same result, the best outcomes for children at risk. It is very sad that the world in which we live requires the introduction of legislation to provide for special care orders for children at risk. However, it is good that we recognise society as it is today and are making such provision.

I welcome this amendment. It is a short one to give powers to the High Court, yet the Bill is weighty when one sees it in print. The important element in it is that, for the first time, it allows the HSE to go to the High Court to seek a special care order for children who require detention. However, I do not like the word "detention" and prefer to use the word "protection". Usually and sadly it is protection of the child from themselves. The principle of the legislation is to intervene in the troubled lives of children or, as Justice John McMenamin described it, the children who have fallen through the cracks of society. They have become vulnerable through neglect and are easy prey for the criminals who rule our streets.

It is a vicious cycle. If a child is neglected long enough and comes to the attention of the HSE through social workers or psychologists, he or she will go on to cause trouble for himself or herself and others. He or she will cause trouble for himself or herself because he or she will have a troubled life and never view himself or herself as amounting to anything. It is a vicious cycle because in many cases we find that this situation will follow a family. It is good that this is being recognised and something is being done about it. It is also important to recognise the good work done by psychologists, social workers, teachers in our schools, gardaí and members of the HSE who come in contact with troubled children. Not every child will be the subject of a court order for special care, but the few who are must really exercise our minds. However, there are good results associated with children who have come to the attention of social workers, psychologists and the Garda and who have been put on the right path.

It is interesting to hear what the special care units will have to offer. When a court order is made and granted, a child deemed to require care will be in the care of the HSE. The Bill gives the Garda increased powers in this regard. A garda will be able go to the home of a child, be he in school or otherwise, enforce the law and take him into the care of the HSE. How long will it be before the HSE can apply to the courts for a hearing pertaining to an order to have a child taken into a special care unit?

It is only right that there will be a special care programme for children at risk. There will be social workers assigned to them, together with psychologists, teachers, care workers and whoever else is needed for the care plan to be worked out. Taking any young person out of the comfort of his or her home involves a huge wrench, regardless of how dysfunctional the home is. It is the only home the child has known. Children adapt very easily, however, and it is right to break the cycle to which I referred. Breaking the cycle is the only way to proceed.

There is no point in our saying that if the services stipulated did not exist, a child might come right. There is certainly a need for the services, particularly given the type of crime on the streets today. We must also bear in mind the spread of so-called head shops which give children access to hallucinogenic drugs at a young age. We are to debate head shops tomorrow and it will be interesting to hear what Members have to say thereon.

The circumstances of today did not exist ten years ago and certainly not 15 or 20 years ago. The types of children at risk 20 years ago were very different from and more innocent than those of today. I welcome the Bill and look forward to debating it and to its passage.

Senator Corrigan had a very good idea and in this regard asked whether a process could be put in place so children would be monitored when emerging from a special care unit. The process would involve evaluating the system on their emergence. Lessons would be learned and the process would represent a good way of spending money. We can learn from our mistakes but also from what is good and what will happen in the special care units. I look forward to debating the legislation on all Stages.

The Minister may not have seen the features section in today'sThe Irish Times. It contains an article by Carl O’Brien on the lack of inspection and unregulated State-funded care for people with a disability. As the Minister of State can imagine, it makes harrowing reading, especially the reference to a young, troubled boy in Cork who was put into care in an educational institution for people with mild intellectual disabilities. The parents, for all their goodness, believed, on the basis of advice, that this was the right thing to do. Unfortunately, the boy was badly sexually abused in the home. Nobody knew at first because he did not have the words to articulate it. When he used to come home, he became frustrated and angry and when he used to return to the school, he became very troubled, so much so that he was moved to another school.

At first, nobody got to the bottom of why the boy, who had been a carefree and happy-go-lucky child, suddenly became very troubled. One night when he was at home watching television with one of his older sisters, he became very troubled and enraged. He saw on television the man who had abused him when he was in care. That man was subsequently charged and found guilty of the abuse of young boys. It was only after this that the boy could tell his story. While these are very troubled times financially, it would not take a lot of money to have homes inspected and monitored, particularly for the benefit of those who are already vulnerable.

I walked down Molesworth Street at approximately 10.30 a.m. today. Outside Hamilton Osborne King and the European Parliament Office in Ireland I met two very young girls. They appeared to be foreign nationals and were definitely no more than 15. They were begging on the street. What a sad and sorry sight it was. They are minors and should be in a school or in some form of care. Last week, I heard that 500 foreign national children in the care of the HSE, and in respect of whom their parents are seeking asylum, have gone missing. This is wrong. Given that gardaí are on the beat, why is there no system in place such that the children can be brought to the Bridewell or Store Street Garda stations, especially given their age? They would be safer there than on the street, particularly given the crimes perpetrated today.

I welcome the Minister of State, Deputy Barry Andrews, and the fact that he is listening to this debate and paying attention to what is taking place. I feel a little weak in this area and do not have considerable experience, as confirmed to me when I listened to Senator Corrigan, who has a background in psychology, and also to Senators Feeney and Healy Eames.

Last year, I was in a queue of cars after the barrier gates at a level crossing came down. A boy of 12 who was running across the tracks got scared and lay down between them. The train was likely to come very soon. Luckily, one or two of us jumped out of our cars and helped the boy. One of the helpers knew where the boy had come from. He had climbed out the window of a home that was looking after him very well and had managed to get out without his carers knowing it. We took him back to the home and I was so impressed with the interest of all the staff in the boy. He was in the home for respite because he is clearly troubled. I noted the care and attention that was being given to such youngsters and was reminded of the care and attention they need.

When I saw this Bill, I realised it is very important. Its aim is to improve the support and care provided for children in secure care and the high-support units. One need only read of the shocking incident that happened in Doncaster in England last year to realise the importance of legislation in this area. It involved two boys who were brought up in an environment of extreme neglect. They were allowed to watch violent horror films and were given drugs at night to keep them quiet, among other things. The social services in Doncaster were found to have made a series of blunders and did not make the necessary intervention to take the children out of their abusive environment. The result was an incident that nearly left children of the same age dead. We need to do our best to prevent a similar occurrence in Ireland.

Unfortunately, we have much to do to improve child welfare in Ireland. The Children's Rights Alliance, CRA, said last week the Government's performance in the past year was "barely acceptable" because of its failure to act on child education, health, material well-being and child safety. The most recent report on the adequacy of child care warns that low staffing levels continually put children at risk and that serious gaps in services mean child protection is inadequate. There are under-resourced teams, a lack of appropriate care facilities for children and a dearth of after-care services. In addition, the Ferns report's recommendations have not yet been implemented.

The Bill could be improved in several areas to make what I would call a real difference to the lives of vulnerable children. One of the sections that sticks out is section 45 which states the HSE "may" continue to provide after-care after the age of 18 years. This matter has been referred to. The vagueness of the section needs to be examined by the Minister of State. At the very least, could a legal requirement be introduced to ensure vulnerable children are checked up on by a mentor, for example, two to four times a year, between the ages of 18 and 22 years? They are also going to need a wide variety of supports, including financial foundations, accommodation, training and education, advice and information. Recent research highlights the fact that many of those who left care facilities at 18 years ended up homeless within two years. Senator Feeney referred to some of those whom she saw on Molesworth Street, Dublin. The Government must learn the lessons of the Ryan report which highlighted major problems for young adults leaving the care system at that age. It must go that little bit further to protect children in the light of past failings.

I am in agreement with Barnardos when it states the Bill is unclear regarding the child's right to representation. It fails to give him or her an automatic right to representation, either through having party status in proceedings or through the appointment of a guardianad litem or a solicitor where he or she has competency for such. In her book Children’s Rights in Ireland: Law, Policy and Practice, Ursula Kilkelly says:

The legislative provision is so riddled with caveats and discretion that it falls significantly short of an effective duty to ensure the child's views are heard, as required by Article 12 of the Child Care Act 1991. It also fails to guide the courts in the exercise of their extensive discretion as to whether to hear children in such cases and, if so, by what method.

This point needs to be made much clearer. Even a child should be provided with an automatic right to representation. In a case where a child is old enough and has the competency to instruct a solicitor, he or she should be entitled to legal representation. While a solicitor will represent a child's view to the court, it is also necessary that an independent person should be acting in the best interests of him or her. If a guardianad litem is appointed to each child, they will be able to carry out both functions. The Bill is an important opportunity to include a legal provision for the appointment of a guardian ad litem in cases affecting children subject to special care orders.

It does appear that, in terms of the guardianad litem, that person is lacking crucial powers needed to support the child in his or her care. Under section 23ND of the Bill, once a special care order has been made, the HSE has the power to agree to medical or psychiatric examination, treatment or assessment, and the authority to consent to a passport application. There is no requirement that it apply to the court to dispense with parental consent. These powers appear to exclude a child’s family or a guardian ad litem in a way that could disadvantage the child who may have reasonable grounds for the rejection of such undertakings by the HSE, but it seems unclear how he or she can express these views. The powers are perhaps too far-reaching in that they could have such a large impact on a child’s future.

Some of the language used in the Bill is perhaps harsh. As has been said, the word "detention" is used and it has negative connotations because people could obviously associate it with criminal matters. The Bill deals with secure care for vulnerable children who desperately need it, which fact should be reflected in the Bill. There is no need for the word "detention".

I am also concerned that there is a lack of research into how effective secure and high support care is for children and young people who have experienced the system. If we are to go ahead with the Bill without doing such groundwork, perhaps we are neglecting internationally renowned successful models of child care. Instead we may be simply propping up an old unworkable model with several changes. The Bill may have little effect, unless we have a much more far-reaching analysis to see if the system has provided children with the support and resources they need. However, I hope the necessary changes will be made to the Bill in order that it will improve the support and care provided for children in secure care and high support units as soon as possible.

I am pleased the Minister of State has brought the Bill before us. I am also pleased that he is paying attention to this debate and giving us an opportunity to have some say in the legislation. He is capable of improving the Bill by using the methods referred to by various speakers. I welcome the Bill and the Minister of State's interest in this area.

I thank all Senators for their valuable contributions to the debate on the Bill. The Seanad has a unique ability to be independent in its analysis of legislation, whether it is undertaken by Government, Opposition or Independent Members. This allows for a full and frank debate on issues, permitting us to improve legislation accordingly. Therefore, I welcome the contributions made and will try to deal with the way we are considering issues raised by NGOs and, separately, by Senators.

As Senator Quinn and others have pointed out, after-care is already on a statutory footing, but it is expressed in a discretionary way. Many children are leaving care for whom no after-care is necessary. Therefore, a discretionary power is being provided in the legislation. We are aware that a child who has had a secure upbringing in a loving home with his or her natural parents and all the protections afforded will continue to enjoy the protection and love of his or her parents when he or she reaches 18 years of age. On the other hand, a child who has suffered multiple traumas leading him or her to be in care — together with a teenager's sense of detachment, isolation and loneliness, compounded by the fact that they are in care — will encounter unbelievable problems when he or she turns 18 years. No one would expose his or her children to that risk. It is the one issue we need to tackle urgently.

Many of the children who emerged from institutions referred to in the Ryan report suffered from addiction and family breakdown and came to the attention of the criminal justice system. Unfortunately, however, that situation is being repeated. Senators Quinn, Corrigan and Feeney spoke about the need for a longitudinal study to examine the outcomes for children in care, specifically those in special care. My office has a research capacity which I am anxious to use to see how effective such interventions are. There is no point in placing a child in care if one simply will discharge him or her with the same problems or, worse, compounded ones.

When the implementation plan for the Ryan report was launched, I said my interpretation of section 45 was that where there was a need for after-care, the HSE would be obliged to provide it. Although it is phrased as a discretionary function of the HSE, the truth is that if the need is clear on an assessment made in preparation for leaving care, the service has to be provided. There are those in foster family care, particularly relative foster care, who do not need after-care or any planning for leaving care in the same way or the same extent. I am continuing to discuss with the HSE the way in which it will discharge its functions under section 45.

I am sympathetic to the points made concerning the use of the word "detention". Civil detention is a unique process. Somebody is being locked up against their will, however, no offence has been committed. It is a unique process and the way we describe it is important. It is in distinction to the children detention schools. We might look at the way they are beside each other in the Bill. They appear to be the same process but they are quite different. The word "placement" might be more appropriate. The special care order is the effective language that will be used in terms of a court order and the words "to detain" or "detention" is simply descriptive of the effect of that. I do not have any objection to using the word "placement" and it is something we might consider on Committee Stage in the Seanad.

Regarding the guardianad litem point made by a number of Senators, I am concerned about rising costs in legal proceedings. It is a serious factor and something that must be borne in mind. I am sympathetic to the view that a child who is the subject of a special care application should have a right to legal representation and to a guardian ad litem but the cost should be reasonable. I do not believe anybody would argue with that. I would have some doubt whether it is always necessary to have counsel but if the Health Service Executive has counsel in court in the context of a special care order, there is probably a right for counsel to be available to represent the guardian ad litem, in other words, there must be like for like in terms of the application made.

We are trying to reform the guardianad litem system. It is an unusual position in that in an application for a special care order, the HSE makes an application on the one hand and, on the other, there is a guardian ad litem who is paid by the HSE but who is trying to discharge the functions set out in the Act, which is to represent the child and inform the court of the child’s best interests. It is a strange position and it requires further reform. I take on board some of the points Senators have made.

Senator Cannon made some political points about lack of intervention, which I strongly dispute. There are fewer children in our children detention schools and in our special care and high support units because of the success of particular early intervention and prevention policies we introduced in the past ten to 15 years, in particular the Garda diversion projects under the Children Act where we have provided children, who accept responsibility for offences they have committed, with an opportunity to restore themselves and not be subjected to criminal sanction. We are treating detention as a last resort and not something that would be applied except where other possible sanctions or interventions have occurred.

Equally, in regard to our youth affairs budget, there were marches outside these Houses, and that is fine, but there are cutbacks in every sector. Almost nobody has been absolved of having to share the pain of cutbacks but our budgets in youth affairs have risen exponentially in the past ten or 15 years. I reject the view that we have not focused on prevention and early intervention. We have done that and we have seen the benefits of it.

Senator Norris referred to the fact that the Bill lacked vision. I want to outline my vision of the Bill to the House, and Senator Corrigan expressed it very well. Many children who have seriously challenging behaviour have been ignored from time to time by the health services because a criminal sanction may be pending or there may be a charge brought and for the first time the HSE, the Garda and the Irish youth justice service have to work together regarding the most challenging children in our country. That is a significant departure, albeit in an amending Bill. One of the functions the Office of the Minister for Children and Youth Affairs was set up to do was to integrate services, whether that be the HSE on the one hand, which provides special care, or the criminal justice system which provides detention. The fact that one is operable does not mean the other is excluded. That integration of services is now being put on a statutory basis, and that is what I consider will be the vision in this Bill.

Special care has been provided in this country for a number of years, and I pay tribute to Mr. Justice Peter Kelly who single handedly wrestled the issue on to the political stage, but I pay tribute also to the individual workers referred to by some speakers earlier who work on the special care side with the most challenging children and provide them with the kind of supports and effort that are vocational. One needs to be dedicated to these children because they are very difficult to work with but it is very rewarding work as well. I have visited Ballydowd and Gleann Álainn special care units in Cork where the staff enjoy their work, although it is very challenging.

The second aspect in terms of the vision is what the HSE is doing in regard to shared campuses and what happens if a child is leaving special care after nine months, a question asked by Senator Corrigan. We hope to have shared campuses to ensure a child would be able to move from special care to high support. They would have the same staff around them but they would no longer be under secure civil detention, as we described it. They would continue to be cared for in a less secure environment. In that way there is a linear path to their care in that it is hoped whatever behaviour they are exhibiting at the beginning of the special care order will be dealt with by the interventions provided. That allows the child to move on in their life.

A number of other specific questions were asked. Senator Alex White asked the reason the Children Acts Advisory Board, CAAB, is being abolished. The answer is we are subsuming virtually all of its functions into the Office of the Minister for Children and Youth Affairs. In so far as we are not it is explained by the fact that we have moved from the District Court model of making special care orders to the High Court model and all the safeguards that come with that. A number of functions will no longer apply. We already have an admissions and discharge committee in the HSE and arguably that work was being duplicated by the Children Acts Advisory Board.

I believe I have addressed most of the issues raised by Senators. It is hoped we will be able to go into specific issues on Committee Stage.

Senator Feeney raised the issue of section 12 procedures where gardaí, under the Child Care Act, would take a child at risk into a place of safety. The procedure is that they would bring the child to the HSE, or a place of safety if it is after hours, and a determination would be made as soon as possible as to whether a care order should be applied in respect of that child, up to and including a special care order. The Senator also raised the issue of monitoring outcomes.

Regarding children begging on the street, it has nothing to do with this Bill but the Senator raised the question. In the past week or so the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, published legislation to try to outlaw the procuring of a child for the purpose of begging in the street. I have asked him to consider the question of an adult begging on the street with a child in their company, which is inappropriate and should give rise to the effect of a section 12 application, but in any case the HSE has a key function in protecting all children under the Child Care Act.

I hope I have addressed most of the questions raised by the Senators. I look forward to the Committee Stage debate. I would be sympathetic to some of the points raised.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next Tuesday, 9 February.

Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 9 February 2010.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.