I welcome the Minister of State at the Department of Health and Children, Deputy Barry Andrews.
Vol. 201 No. 14
I welcome the Minister of State at the Department of Health and Children, Deputy Barry Andrews.
I move amendment No.1:
In page 5, subsection (4), line 25, to delete "2008" and substitute "2009".
This amendment relates to the enactment of the Health (Miscellaneous Provisions) Act 2009 and I will accept it.
I thank the Minister of State.
I move amendment No. 2:
In page 6, before section 3, but in Part 2, to insert the following new section:
"3.—The Minister shall within three months of the commencement of this Act, publish a report on the provision of secure care under this Act which shall include consideration of how such provision compares with best practice internationally.".
This amendment is a request to the Minister of State that within three months of the commencement of the Act, he will publish a report on the provision of secure care under this Act, which should include a consideration of how such provision compares with best practice internationally. This amendment relates to the requirement to have outcome-focused research on the experiences of children in secure units and high support care. The actual experience of children must be examined and the gaps within the system will be identified by conducting such research. This Bill provides an opportunity to review the provision of secure care as it operates at present. Obviously, being in secure care often constitutes an extreme situation for children and it is important to analyse critically their experiences within such units, to try to consider them as objectively as possible and to learn from them and gather the research therefrom. It is clear that the units around the world which operate most effectively and which have the most success employ quality assessments. I have worked with some units of this kind in England and what is needed from the outset is a quality assessment that leads to a proper treatment plan for the individual, which is regularly reviewed, monitored and evaluated as one goes along.
Clearly, as I noted previously, a child will only be in this situation when he or she is at extreme risk and hopefully, when the child no longer needs such a level of care, he or she will be taken away from such a secure centre. Best practice indicates that one needs high quality step-down facilities to ensure that such a child can move on and get the best possible help. All the research I know of on children who are in care states that doing high quality work with the family while the child is in care can be to the child's advantage in many cases. Therefore, family work would form an essential part of any programme of work with a child who is in a secure unit, wherever possible. One thereby acknowledges the significance of the family for the child and how, even if the child is in secure care, the family's dynamics continue to be part of that child's life and to affect his or her development, future and care.
In a point that is pertinent throughout the Bill, a child's presence in a secure unit is no reason to ignore the voice of the child but is quite the opposite. One must listen clearly to the child or young person's comments on the experience he or she is having in the secure unit. It is essential to build into the Bill this concept as strongly as possible in order that the child's rights are respected and that he or she is consulted. Even though a child may be in a secure unit, one can and should have extremely high standards. It should be a positive therapeutic experience and treatment for the child. If all these requirements are to be met, by accepting this amendment the Minister of State has an opportunity to review what has been learned from the secure units thus far, to continue this process of learning about the experience of the child and to evaluate it critically. I am interested to learn whether the Minister of State proposes to accept this amendment and will await his response before making further comment.
I wish to record my strong support for this important amendment tabled by Senator Fitzgerald and it will be interesting to hear the Minister of State's response. This is a relatively new area of policy delivery and a number of reports have been prepared. While not all the information available is universally positive, there definitely have been improvements that it is important to acknowledge. However, one still heard stories about difficulties that arose during the so-called economic boom when it frequently was reported that there were difficulties in recruiting and retaining suitably qualified and experienced staff. This area may not have been perceived across the entire system as being as important as were some of the other services. It was something of a Cinderella service, to coin that awful cliché. This point has been made in respect of some of the secure units and there have been flashpoints involving serious and negative reports on some people's experiences. While I am sure this is an area to which the Minister of State is committed, international best practice exists, as Senator Fitzgerald noted. The purpose of her amendment is to induce the Minister to publish a report on the provision of secure care, having regard to best practice internationally, and consequently I support this amendment.
The provision of special care has been the subject of considerable research in recent years, including last year, when the Children Acts Advisory Board commissioned an independent report, which will provide an overview of the applications for admission to special care made by the HSE's local health officers. It traces and tracks outcomes for the children who were the subject of such applications up to November 2009. The research has been undertaken by Social Information Systems Limited and in addition to the Children Acts Advisory Board, the HSE and my office are represented on the steering group. Obviously, I continue to have regular meetings with the HSE to review this area and an individual has been assigned specific responsibility for special care and alternative care. Moreover, it is worth noting that under section 8 of the main Act, namely, the Child Care Act 1991, there is an obligation to have an annual review of adequacy of service, which applies across the board.
Finally, it is worth pointing out that HIQA produced a report last year into special care and high support. It concluded that serious problems existed in respect of health and safety issues and there were some issues regarding the vetting of staff. In general, however, it highlighted that the provision of services in our special care units was good by international standards and that children who were in such units were aware of their rights and felt comfortable discussing them and what they were entitled to do. The outcomes were good for those children.
I will not accept the amendment as adequate research and reports are available to us, whether through the Health Information and Quality Authority, the Children Acts Advisory Board or the statutory report that must be produced annually. In the past 18 months we have ensured the statutory report is produced more contemporaneously than used to be the case. These reports used to be published two or three years after the years in question but they are more timely now, which is a welcome change.
I understand that the Minister of State is satisfied with the methods already in place to review what is occurring, but will he ensure the annual report compares what is being done in Ireland with best international practice? Perhaps he could incorporate the thinking behind the amendment.
He mentioned that even the HIQA report raised concerns about staffing levels and some other matters. Obviously, we have learned much from our experience with closed institutions. Where there are such institutions, one needs to be sure monitoring mechanisms are in place, that best practice is continuously upheld and that we are doing our best for those who end up in those secure units, namely, the most vulnerable children.
I agree that we want to adhere to and surpass the best international practice. There is no reason we should not since we are an advanced industrialised nation that probably knows more about the damage that can be done to children in institutions than any other country. We want to learn not only from the past but also from our neighbours. We also want to surpass the high standards we have set. I accept Senator Fitzgerald's comments and I will raise the matter with the HSE when it begins its review of the adequacy of services.
I thank the Minister of State.
I will ask it to examine international comparisons. We are learning something from our neighbouring jurisdictions regarding the co-location of high-support and special care services on our various campuses.
I accept the Minister of State's comment to the effect that, in so far as he can, he will ensure a comparison with best international practice will be one of the criteria by which the HSE will examine the situation in its annual report on secure units.
I will represent the idea to the HSE but I cannot speak on the HSE's behalf.
I accept that.
Amendment No. 3 has been ruled out of order because it involves a potential charge on the Exchequer. I will allow Senator Alex White to raise the matter on the section.
This is the first I have heard of the ruling. How is it a potential charge? I am sure this is just a glitch in the system, but I have not even received a letter about the ruling. I accept that one normally gets a letter, but I literally did not know of the ruling until I stood up to address the amendment.
The Bill is an amendment to and extension of the Child Care Act. Its Long Title states: "to make further provision in relation to the care and protection of children". We should take a holistic view of what we mean by care and protection when discussing this question. It is in everyone's interests, including those of the Minister of State, the agencies and the Senators addressing the question, that we not confine ourselves to dealing with crises, namely, where an immediate intervention must be made to take a child into care. Part of what the Minister of State is doing through this Bill is solidifying and codifying the basis on which these orders are sought and obtained.
In all these circumstances, we should be prepared to go much further than simply dealing with what occurs when it unfortunately becomes necessary for a child to be taken into care. We should have regard to the reality faced by many homeless children and young people on the streets of our cities and towns. There is probably a spectrum ranging from homeless to situations in which a child is in such a vulnerable position that he or she must be taken into care to avoid or address a danger to that child or others. Would the Minister of State consider this as a context for what is being done in the Bill? Would it be necessary to introduce measures to ensure that, where children become or face becoming homeless, sufficiently robust measures are taken and early warning signs are heeded? Not for one minute am I claiming there are no services and neither am I claiming there is no basis for agencies to take action, but we should strengthen those services and take steps to ensure the relevant agencies, including the HSE, can move quickly to deal with a homeless child and provide suitable accommodation. That child might not be in immediate danger and, therefore, is not amenable to a care order being entered into or sought in respect of him or her. Unless it is an unfair phrase, however, he or she is on a risky road towards the types of measure that must be taken in the context of this legislation. We cannot close our eyes to the fact that so many young people find themselves homeless. Would the Minister of State consider addressing this fact through this legislation or elsewhere?
I concur with what my friend and colleague, Senator Alex White, stated on this issue. Before continuing and given that the Senator did not receive notification that his amendment was deemed to be out of order, will we find that other amendments have been ruled out of order? Perhaps we could be advised. These are idiotic rulings and they place the Seanad in a position of contempt because it is insupportable to claim that the Seanad should be precluded from discussing particularly relevant sections simply because of some archaic notion that we should not be trusted with the public purse strings. The crowd that has been in charge of the Exchequer for the past while is in no position to cast stones against the Seanad, which has a responsible view in these matters.
For the Senator's information, I understand that amendment No. 23 has also been deemed to be out of order.
That is most helpful and I thank the Acting Chairman. It was worth hanging around, since he did not mention my amendment No. 27 and I presume it is all right. One could sustain an argument that anything would create a charge on the Exchequer. We have just dealt with Senator Fitzgerald's amendment, which referred to publishing a report. While that might not have cost much, it would certainly have incurred a charge on the Exchequer. How absurd is this type of situation? I thank the Acting Chairman for informing the House that one other amendment has been ruled out of order, which is something we were not told. The rules of the House need to be examined substantially. It would be absurd to be able to cause a report to be made on a particular subject without being able to table an amendment on it, yet we can ask for a report on these situations.
The nub of the matter is the question of services provided to homeless children. They must be appropriate. Senior members of the Judiciary have castigated the Oireachtas for allowing a situation in which children were placed in inappropriate accommodation. This is not a reflection on the Minister of State or his advisers, as the situation has been the tradition for many years. Was it Judge Hubert Wine who——
It was before my time.
It was probably before the junior Senator's time, but I remember the event. The amendment deals with the kind of accommodation. It is an excellent amendment which goes directly to the heart of what the provision should be. I hope the Minister of State will give careful consideration to these necessary functions. The amendment calls for a room for each child; adequate and suitable furniture; a sufficient number of lavatories, wash basins, baths and showers; adequate facilities for laundry; adequate light, heat and ventilation; sufficiently clean premises, appropriately decorated and maintained in good structural order; adequate recreational facilities; and an appropriate and adequate level of security. It also states the accommodation provided by the executive should be appropriate to the age and support needs of the child who is homeless and that the executive should further seek to provide a child who is homeless with appropriate long-term accommodation and care. You see, a Leas-Chathaoirligh, I have managed to slip the wording of the amendment into the record. This is a worthy amendment. It neuters this House if it can call for a report but cannot deal with the nuts and bolts of it.
While we have not been able to have a detailed discussion of amendment No. 3, we have been permitted in debating section 5 to deal with some of the issues it raises. By that fashion, we have laid the issues before the Minister of State. With goodwill and despite the fact that the amendment was, technically, ruled out of order, I am sure he will give it some consideration.
I bear in mind the serious situation in which the country finds itself. We had a major debate this morning on the critical financial situation facing us. Everyone is being whacked. We all received letters yesterday about how much was being taken out of our salaries, which is appropriate. People like ourselves should be addressed first before cuts are imposed on young and vulnerable people in society.
I cannot second-guess the decision to disallow the proposed amendment and I am slightly restricted in what I can say. The existing section 5 of the 1991 Child Care Act talks about suitable accommodation. It does not go into the detail of laundry facilities, toilets, wash basins or recreational facilities, which are all very admirable and things we would expect. In order to reflect what we consider to be appropriate and civilised standards of accommodation for anyone, HIQA will be facilitated in the course of this year, pursuant to the Ryan implementation plan, to inspect all facilities provided for young people, homeless or otherwise. It has its own standards which are reflected in the youth homeless strategy which sets out some of what is expected of State provision for children in need of accommodation.
Regardless of whether the proposed requirements would impose a charge on the State, I am perplexed that the amendment refers only to the standard of accommodation and not to other issues such as the location of the accommodation and its proximity to the young person's family, education, employment, training and other standards. These are normally dealt with in strategies, guidelines and statutory instruments rather than in the substantive body of legislation.
I hope it will provide some reassurance for Members to know that the original section 5 which the amendment would have replaced talks about available suitable accommodation. The standards are outlined in the strategy which is enforced by HIQA which, I think everyone would agree, is having an effect on all health services and particularly on child protection and welfare.
I acknowledge that since I last rose to speak I have found on my desk a letter addressed to Senator Phil Prendergast which makes the point about the amendment being ruled out of order. I wish to correct matters. A letter was sent.
I agree with much of what Senator Norris said about the basis on which amendments were ruled out of order. I propose to raise this matter at the next meeting of the Committee on Procedure and Privileges. It also arose last week in the context of a response I had received from the Chair during the debate on the Finance Bill.
The Bills Office makes recommendations to the Cathaoirleach regarding amendments. The Senator should raise the matter with that office. He may also raise it at the Committee on Procedure and Privileges.
As leader of the Labour Party group in the Seanad, at the next meeting of the Committee on Procedure and Privileges I propose to raise the complete lack of consistency in ruling amendments in or out of order. I will say no more about the matter today, in fairness to the Chair.
I thank the Minister of State for what he said. I understood him to say he thought the issues raised by me and Senator Norris were incomplete and that we could have gone further. That is a criticism I am happy to take. If more can be done than was contemplated by us, we will be happy to have our proposal improved upon.
If that is the basis on which the Minister of State does not accept what is being said and thinks we should go further, I will be happy to discuss the matter with him or support an amendment he might bring forward which, of course, would not be ruled out of order.
I simply commented, by way of an aside, that it was unusual the amendment restricted itself to accommodation standards. If one is to include such details in legislation, why would one restrict oneself to accommodation standards? That is why it would be more appropriate not to include such detail in primary legislation.
I move amendment No. 4:
In page 8, line 31, to delete "detention" and substitute "rehabilitation".
This has more to do with the language of the Bill than with anything else. When we discussed this matter on Second Stage, I had the impression the Minister of State was somewhat sympathetic to the point being made about the use of a word such as "detention" in a child care measure. The word belongs to the language of the criminal justice system and one would not wish to see it in child care legislation. It was for that reason that my Labour Party colleagues and I tabled this amendment to remove the word "detention". We suggest its replacement with the word "rehabilitation".
I am not wedded to a particular word. If the Minister of State has a better or more appropriate one, I will be happy to debate it with him. I would have thought we could all agree that the use of the word "detention" was not appropriate. It is associated with criminal proceedings and criminal decision making regarding children is what we are trying to avoid. We need words which clearly mean something. We know we are talking about taking children into care for their protection and the protection of others which does involve an element of their being taken into a secure environment. To that extent, we understand where the use of the word "detention" comes from. However, in the context of this legislation, it should be replaced by one which more suitably describes what is being done.
I am very glad Senator White tabled this amendment. I had thought of putting my name to it but I am very happy to support and second it.
I have met various groups, some in Leinster House and others in my house, to discuss this matter. Language is one of the questions they dealt with. There is a history in this country of children being placed in institutions. Some were detained in reformatories by order of a court, although they had committed no criminal act. This was a shocking business and I know the Minister of State is particularly sensitive to these issues. We are lucky to have such a humane person in charge.
I am advised that the young people concerned use and prefer the word "placement". It is a neutral word between "detention" and "rehabilitation". With the best intentions, the word "rehabilitation" may also sound a little patronising. The word "placement" has the support of common usage by the group which avails of these services. This is an important amendment. Language helps to create attitudes. I hope the Government is disposed to accepting it.
This point arose on Second Stage. I would be interested to hear if the Minister of State accepts there is a principle and important point regarding the use of language. This word arises in a number of sections. The Minister of State does not appear to have tabled any amendments in respect of it.
I am sure the Minister of State is aware that Barnados, the Irish Association of Young People in Care and the Irish Foster Care Association have all expressed concern about the use of the word "detained" in the legislation and would urge the Minister of State to change the language used in the Bill as a matter of priority for the reasons outlined by Senators Norris and Alex White in terms of the messages it sends out and the attitudes it can contribute to forming. The use of language is important in the Bill. The words "rehabilitation", "placement" or "housed" could be used instead of "detention". Even though we are talking about a secure facility, clearly, the focus on children in secure units is a hope that the placement and housing of them there will lead to rehabilitation and a better future for them.
The word "detention", as Senator White said, is associated with criminal proceedings. The general perception from the groups working directly with children is that the word "detention" is not the best use of language in terms of this Bill and that it would be better if it reflected what is needed to protect and support children at risk because of welfare issues rather than criminal issues. There is a real point in this respect and it is not simply a matter of arguing about words. A message is given in the language used.
As Senator Norris pointed out, we know of the experience of the children who were sent to reformatory schools. These are different times and when we reflect on the language and procedures that were used at that time we note they were appalling. Words defined that they be detained. They needed care but the approach taken towards them — I believe it was by the ISPCC and others — meant they were dealt with as though they were criminals when what they needed was care, attention and welfare. I would be interested to hear if the Minister has considered this issue in terms of the language of the Bill.
Senator Norris's suggestion of the use of the word "placement" is good in terms of changing the nature of the language used. I am interested in the principle that a person is branded, tarnished or tarred for life if he or she is tagged as having been in a detention centre or having been detained. I hope the Minister of State will be sympathetic to the proposed change in the language used. However, I understand that there might be a difficulty in changing the wording because of the nature of the Bill and if one has gone through a court procedure, the existing wording may be related to, for want of a better term, other legal jargon. Therefore, this proposal may present a difficulty. The proposed word "placement" offers a neutral space for people with complications in their lives and it is not a term like "detention" with which they will be tarred or branded forever. I look forward to hearing the Minister of State's justification for accepting or not accepting the amendment or whether he will consider changing the nature of the language used in the Bill.
I wish to intervene briefly. I found the reference I made in my contribution on Second Stage where I flagged this issue. I said:
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".
If the Minister of State was amenable, I am sure Senator Alex White and myself would be prepared to table an amendment to substitute the word "placement" for "detention" on Report Stage.
I have truly horrible memories of my detention in a noxious, snotty Protestant boarding school. I joke about being detained there but I felt I was imprisoned. Detention was a punishment and it brought shame. Detention was also involved in the excellent day school I attended subsequently. We felt really humiliated it we were detained. It meant we had done something really wrong and we were being punished for it. Sometimes I had to write lines or sit at my desk for two hours and I was probably the only person in the room and some unfortunate master had to supervise me. Therefore, the word "detention" is a little negative and I am grateful, as I am sure is Senator Alex White, for the support of Senator O'Malley on the Government benches and, of course, Senator Fitzgerald.
I am sympathetic to the points that have been made. As Senators Norris and Fitzgerald said, language has a capacity to effect change. I also believe that. However, the proposed amendment underlines the difficulty of the situation in that it is proposed to substitute the word "rehabilitation", which implies some previous wrongdoing. The capacity of the criminal justice system to rehabilitate an individual is a term that is very often used in the context of detention and sentencing in the criminal justice system in general. The alternative use of the word "placement" has been suggested and it was proposed to table an amendment to that effect on Report Stage. I would consider such an amendment at that time.
It would be confusing to insert that term in the Children Act 2001 because it deals with children detention schools. I do not believe anyone would argue that when one is dealing with a children detention school, one is dealing with a child that has committed an offence under that Act. If one makes an order under that Act, it is appropriately referred to as a children detention order and not a children rehabilitation order. We need to distinguish care from detention in regard to offending — in other words, the Child Care Act as against the Children Act 2001.
In the context of this Bill, our legal advice on the use of the word "detention" is that it is appropriate to the circumstances of this Bill. The Act must be very clear that special care involves the detention of a child. To use any other word would be likely to mislead and make the position uncertain for the courts, the HSE, the children, parents, guardians and the general public. As to the fact that special care involves the detention of the child, currently, the High Court orders made, which provide for special care for children, are called detention orders. Successive court judgments have used the term "detention". Judgments have been clear in their distinction between detention in a special care facility and detention under criminal statutes. In terms of special care, in judicial review proceedings, its use does not connote any criminality on the part of children. It is for that reason that I would not accept the amendment at this time. However, at a later Stage in the Seanad or Dáil we could have further discussions on the issue. The proposed amendment underlines the difficulty but I am not unsympathetic to the intentions of the proposal.
The fact the word "detention" is used in various judgments cannot be the end of this matter. Once a word enters into the language and the nomenclature, if that is the right word, that is the language everybody uses. We are the Oireachtas and are in an important position of being able to change legislation and by doing so we can change the way matters are referred to. If we make such a change in legislation that becomes a new way of describing a situation.
I am interested in what the Minister of State said and I understand his point regarding the intent of the use of the word "detention". I accept his comments on the use of the word "rehabilitation" and would have no difficulty in agreeing to Senator Norris's suggestion of the use of the term "placement" or perhaps "secure placement", which would denote the notion of detention. Detention means that a person is not free to leave. We should be clear about what it means. I understand where the Minister of State is coming from in this respect. Language must mean certain things. I cannot go so far as to use woolly language to make a term sound like something else when we are talking about somebody not being free to leave a centre. There are plenty of words in the English language and we do not have to use words such as "detention" that are so closely allied to the criminal justice system. The term "placement" or "secure placement" would bring us pretty much along the road to what we need to describe in the Act and in the legislation generally. I maintain my objection to the use of the word "detention", as I thought the Minister had although perhaps he had an opportunity to examine it more closely. I will be happy to explore with Senators Norris and Fitzgerald the use of a word such as "placement" or a similar word on Report Stage to get around this.
I support what my colleague, Senator Alex White, said. We certainly will consider this on Report Stage. Has the Minister of State any information on when Report Stage will be taken because we are only dealing with Committee Stage now?
I do not know.
Perhaps we can find out from the staff.
That is a matter for the Leader's office.
I thank the Leas-Chathaoirleach.
Senator Alex White made a really good point that we have the opportunity to change the language used. I urge the Minister of State to consider this. We all know how much courts have to learn about how they treat different groups of people, whether children, women, sexual assault victims or otherwise. The courts must learn and change. This is an opportunity to change the language we use when speaking about these children who are in need of care. We suggest the words "secure housing" but "secure placement" is another suggestion. If we can get away from the word "detention" and create a new description, it will have meaning. It is an opportunity for the Minister of State and I am glad he has said he will consider it on Report Stage as it will be really important. Those other words build up a different image from the word "detention". For those children looking back, the Minister of State would be doing them a great favour. Even though it involves a court procedure, a secure placement and is serious, this suggestion is worth looking at. I hope that by the time the Bill is finalised, the Minister of State will have changed the language in it. I know he is going up against precedent in courts and tradition, but the courts have much to learn in terms of being more child sensitive and more sensitive to different categories of people who appear before them, although they have learned much. This is an opportunity to refine the language and it should be taken.
I add some additional support to my three colleagues who have spoken positively about this. We seem to be moving in the direction of the word "placement" or some form of words involving the word "placement". As I said, the word "placement" is in common currency among young people. This change would validate the use of that word and would strengthen that reinforcing language.
In regard to the very proper query raised by Senator Alex White to ensure language is not just fuzzy and sentimental and that we realise there is an element of restraint, that there is no opt out and that one cannot walk out of a secure placement, the Minister, in a sense, addresses that in a Government amendment. That amendment deals not only with the supervision and monitoring of the children but also with situations in which they are kidnapped or they abscond. It makes it very clear that they are required to stay in the secure placement. It is perfectly obvious that amendment will pass because it is a Government one. Within the next hour, the situation to which Senator Alex White properly drew our attention will be materially implanted in the Bill in a way that there can be no possibility of misunderstanding.
The debate is a very useful one because it underlines the difficulties in this area. As Senator Alex White said, one does not want to include particular language in the Bill for the sake of it and to make it sound less than it really is. There needs to be precision and clarity about what is meant and what we are trying to achieve in this legislation. Special care is a unique form of care for any child and it is distinguished from all other forms of care in that it is in a secure setting. One cannot leave it and a child would not be placed in that type of care unless there was a pattern of doing harm to himself or herself or to others or of absconding. It is very distinctive and it can only be for a very short period. It is designed specifically to try to stabilise a difficult situation for a child. It is important, therefore, that the language is not casual or does not try to effect an atmosphere in the legislation. It needs to be precise and distinguished.
Placement is what happens with all children, whether in foster care, high support or other residential care. They are all placed as such. Therefore, the word "placement" may not be sufficient to achieve what we are talking about. We are talking about trying to distinguish this from the criminal justice system while retaining the distinction from the rest of the care world. That is the difficulty. The legal advice we have is that "detention" is the appropriate word, that it creates that distinction and that it is used in both the care and the criminal justice systems. However, I remain open to further discussion about this but we have underlined in the discussion we have had that it is not something that is easily done.
I am more attracted by the words "secure placement" because there is an element of neutrality and also an element of clarity. It indicates that there is not the option to move out of the environment. It is also positive. The Minister of State referred to situations not only of anti-social behaviour directed towards other people or other patterns of behaviour but also of self-harm. The word "secure" is good because it means——
All placements should be secure.
How does it distinguish that? That is the difficulty.
It means they are secured against harming themselves. That is quite a good word. I am very glad the Minister of State is open to further argument on Report Stage.
We could canvass some other options between now and Report Stage. In situations such as this when one brings forward a proposal which may not be perfect and the Minister is not amenable to accepting it but understands the argument behind it, I am always struck that the person who is in the best position to come up with alternatives is the Minister and his advisers. They would know what would pass muster. That is not meant as a criticism. If the legal advice is that we need to denote a sense of restraint, as Senator Norris said, the English language is a reasonably flexible instrument and it must be possible for us to come up with wording that would satisfy both requirements.
It should include the word "placement".
I think so. The words "secure placement" are as close as one can get. Rather than just being prepared for us to canvass alternatives, I hope the Minister of State will consider the matter with his advisers and come up with wording that might suit.
Amendments Nos. 5, 7 and 11 are related drafting amendments and may be discussed together. Is that agreed? Agreed.
Amendment No. 5 to section 23B(3), as inserted by section 9 of the Bill, corrects an error in the first print of the Bill and in this respect inserts the word "out". Amendment No. 7 to section 23D(5)(c), as inserted by section 9 of the Bill, corrects an error in the first print of the Bill and in this respect deletes a misplaced comma. Amendment No. 11 to section 23ND(1)(e)(iii), as inserted by section 9 of the Bill, corrects an error to the first print of the Bill and in this respect replaces the word “assent” with the word “assessment”.
The effect of this amendment to section 23B(5) and (6) is to ensure the HSE retains more responsibility than was previously provided for in the published Bill in respect of children who are the subject of a special care order and where such special care is being provided in a unit which is subject to an arrangement under section 38 of the Health Act 2004. This amendment is in accordance with our legal advice. Section 38 of the Health Act 2004 provides, inter alia, that the Health Service Executive may enter into an arrangement with a person to provide a special care unit. The amendment ensures that, where a child is the subject of a special care order and provided with special care under section 38, the HSE will supervise and monitor the special care unit in question, establish procedures for the notification to the HSE of the release of the child pursuant to section 23NF(9), that is, where the child requires medical treatment, assessment or examination immediately or his or her release is required immediately on compassionate grounds, and be informed by the person with whom the section 38 arrangement has been made if a child is unlawfully moved, absconds, fails to return, is prevented from returning or missing from the special care unit.
In subsection (6) of the amendment the various sections that will apply to the person with whom an arrangement is made under section 38 of the Health Act 2004, as amended, are stated. The effect of the changed references is that the HSE retains authority to decide on the special care to be provided for the child, give consent to a medical or psychiatric assessment, an examination or treatment in respect of the child and the application for a passport for the child to allow him or her to undergo a medical or psychiatric assessment, an examination and treatment outside the State or to permit him or her to reside outside the State with a parent or relative.
What agencies are supplying a service under section 38 of the 1994 Act and how many children are being cared for by agencies other than the Health Service Executive? The Minister of State is correct that a clear line of accountability and responsibility from an outside care provider to the HSE is required in the circumstances set out.
My information is that special care is not provided other than by the HSE. Section 38 of the 1994 Health Act allows such care to be provided other than by the HSE from time to time. The section is facilitative and anticipates that in certain circumstances a child with highly specific needs may, from time to time, avail of services outside the State, for example, in the United Kingdom. The issue of scale arises owing to the small size of the country. In such circumstances, the HSE wishes to retain control over the management of the care of the child.
The Minister of State has indicated that a child may need to travel abroad for two forms of treatment, one of which is psychiatric care. Is the nature of the medical advice or treatment for which a child will be allowed to travel specified or is the provision general in nature?
The reason I raised my earlier question is that care services have been privatised in other countries. Care services could also be provided by a voluntary organisation or private company here and the idea of using private companies to provide such services has been discussed. I welcome clarification that children are not being cared for by organisations other than the HSE. If, however, this type of care service was outsourced to another agency, these provisions would clearly apply.
On Senator O'Malley's question, section 38 of the Health Act 1994 provides that the Health Service Executive may enter into an arrangement with a person to provide a special care unit. The amendment proposes that, in circumstances where a private provider is involved in the care of a child, the HSE will retain control over treatments, applications for passports and other matters for which a parent would normally give consent. As I indicated, there are no private providers operating in the area of special care, although private companies operate in areas such as foster care and residential units.
I move amendment No. 8:
In page 24, to delete lines 22 to 32.
Questions arise about the importance of consultation with a child in special care or his or her parents and-or guardians. The amendment relates to the determination by the HSE that a child requires special care. Section 23F(4) allows the HSE to bypass consultation with the child, a parent and-or guardian and a person acting in loco parentis if it is satisfied that there is reasonable cause to believe it is not in the best interests of the child to do so. Placing children in care is a serious matter and, where possible, one should seek at all times to consult parents, guardians and the children concerned.
Even in circumstances in which a child is in secure care, it is extremely important, in the vast majority of cases, that work continues with family members and the child in question. It is also important for the child's long-term future that ongoing consultation takes place. While there may be cases where this is not possible, I question the necessity of including in legislation a provision that the Health Service Executive shall not consult the child, a parent having custody of a child, the child's guardian or a person acting in loco parentis. This provision could be open to abuse.
Children are placed in secure care only in extreme circumstances and they and their parents face great stress as a result. It may prove too easy to decide against consulting the key people cited in the subsection. Therefore, I seek to delete the provision for that reason. It is important to keep open communications with all the parties involved rather than bypassing them.
This is a strong exclusion which I fear will be overused. It provides that consultation will not take place when the HSE has "reasonable cause" to believe it is not in the best interests of the child to consult the persons cited. "Reasonable cause" is a legal term. I ask the Minister of State to outline the thinking behind the provision because there is a danger it will be overused and lead to bad practice.
I share Senator Fitzgerald's doubts about this provision. Section 23F(4) states the HSE may choose not to consult, having regard to the protection of the life, health and safety of the child, in other words, in circumstances where the child may be in serious danger. The provision that it will not consult the child appears strange. Will the Minister of State outline the circumstances in which he or his advisers believe this power will be necessary? I find it difficult to imagine such a circumstance. The only one which comes to mind is where a child is in danger from actions of the parent. While such cases have arisen, if the child was in a secure placement, I am not sure how such a circumstance could arise. If these circumstances could arise, they would be remote. I ask the Minister of State to provide some examples. It may be just about arguable that a guardian or parent who has custody of a child should not be consulted but I cannot envisage circumstances in which it would not be appropriate to consult the child. Do the words "a person acting in loco parentis” in subsection (4)(d) also cover a guardian ad litem? If a court appoints someone to be a guardian ad litem, it would be odd if this function was removed in certain serious circumstances. I, therefore, ask the Minister of State to give examples of circumstances in which it would not be appropriate to consult the child and indicate whether the words in subsection (4)(d) also cover a guardian ad litem.
Can I ask about an aspect of this amendment that has attracted my attention? Perhaps the Minister of State will be able to explain it well. It seems this section of the Bill does not make it necessary to consult any of the four people listed in it. I am not sure I understand it correctly. I accept it might be necessary not to consult a parent or a guardian, but it is hard to understand why at least one of the four people should not be consulted. Perhaps I have not thought of a specific circumstance. I spoke recently about my concern that Ireland is becoming such a nanny state that we protect ourselves from everything. Maybe there is a very solid and valid reason for this provision. I assume everything is covered by the use of the term "having regard to the protection of the life, health, safety, development or welfare of the child", in the context of the HSE being "satisfied that there is reasonable cause to believe it is not in the best interests of the child" to consult one of these people. However, I am concerned that nobody will be consulted. The Minister of State may well have a valid reason for doing this, but it seems to be over the top.
I disagree with what the previous speakers have been saying. Traditionally, we always thought the best interests of the child were served in the home and by the family. We have learned time and again that is not the case. This measure recognises that the home can be a dangerous place for a child.
Absolutely. That is more or less what I said, but what about the child?
A child might run away if he or she thinks a care order might be applied for on his or her behalf. I think this provision should be retained because it offers flexibility. It is a recognition of modern life that it might not always be appropriate to consult those who represent the child — the parents etc. We need to modernise our attitude to the family.
That was half of the problem in the past.
It has happened time and again — more frequently in recent times, unfortunately — that people were afraid to send anyone into the family home or even into a foster home. People do not like to interfere with the traditional set-up. We are getting a bit more modern now. We recognise that children are not necessarily safe from their parents or, in certain instances, from themselves. The Government is right to reject this amendment and thereby leave this provision in place. I strongly believe we need to recognise that children's family members are not necessarily always the people who look after them best, unfortunately.
Senator O'Malley pointed out that a child might become a flight risk if he or she becomes aware that consideration is being given to an application for a special care order. We have to understand that the High Court, rather than the HSE, makes special care orders. That is what this legislation is all about. Clearly, there are circumstances in which the parent or guardian of a child might be causing the trauma that requires him or her to be brought into special care.
Is that even a guardian ad litem?
No. This relates to a pre-court consideration by the HSE. The appointment of a guardian ad litem, which is dealt with later in this legislation, happens when an actual court case is in——
Is it not possible that such a guardian might have been appointed by a previous court?
That would be quite possible if continuing care applications were being made on foot of previous or outstanding care issues. I will have to give further consideration to whether such a guardian needs to be included. I do not think it does. A person who acts in loco parentis is likely to be a social worker rather than a guardian ad litem.
Would it be possible to make it explicit on Report Stage that a guardian ad litem is not contemplated by this section?
I will consider that and try to come back to the Senator in due course. As I said, the HSE does not make special care orders. That is done by the High Court. The proposed section 23F(8) states:
Where the Health Service Executive applies for a special care order and, in accordance with subsection (4), it did not carry out the consultation referred to in subsection (3), it shall inform the High Court that the consultation was not carried out and of the grounds for not carrying out that consultation.
That is the safeguard. There is a well-founded understanding that there are circumstances in which there may be reasons not to consult some or all of the individuals listed. For that reason, I do not propose to accept Senator Fitzgerald's amendment.
I understand what Senator O'Malley means. We all accept that the family can be a very dangerous place for a child. There is no doubt about that. Equally, information we have received on foot of recent scandals has highlighted that care situations can be dangerous as well. That is the reality. Sometimes the resources are not there. We have seen injustices. In effect, children in care who may be in quite high-risk situations might not have a social worker assigned to them and may be quite isolated. I remain concerned about the possible absolute exclusion of anybody other than HSE staff when decisions are being made under this section. It seems reasonable to consult "a person acting in loco parentis”, if such a person is available. I am concerned that this section provides that it might not be “in the best interests of the child to consult with all or any of the following persons”. It is a little dangerous and it could be over-used. If a family welfare conference is not held, I accept that one has to go to the High Court to explain why it was not held. I think the Minister of State said one has to do the same thing if one excludes all of these people.
That is right.
There is some protection. I ask the Minister of State to see if it would be possible to build in a consultation with somebody acting in loco parentis, if such a person is available. It would be worth changing the Minister of State’s proposal, whereby the HSE will not have to consult with any person at all, so that it is not so total. I accept that there may well be circumstances in which there is no one to consult. We could allow for that aswell.
This section deals with the determination by the HSE that a child requires special care. Amendment No. 12, in my name, relates to a similar issue of consultation in the context of a different section, which deals with the functions of the HSE when providing special care. I am proposing that consultation should be provided for in such circumstances. I have listened to the comments of Senators and the Minister of State. Having read this section of the Bill, it seems that it contains a mandatory requirement for consultation. The basic provision in this section is a mandatory requirement for consultation to take place. Senator Fitzgerald is seeking to remove a subsection that provides for an exception to the mandatory requirement that there should be consultation. I think I am right in that regard.
I would say there is probably some comfort to be gained, for the purposes of this debate, from the fact that the section we are discussing provides that there must be consultation, before setting out that there are circumstances in which it may be determined that consultation would not be appropriate.
That is the exception to the rule.
It sets out the parameters within which that consultation should not take place. It is very much framed as an exception, rather than a rule. In those circumstances, I have some sympathy with the argument that this subsection should remain in the Bill
The Senator is doing a much better job of explaining this section than I did. I should have pointed out at the beginning that the proposed section 23F(3) sets out the rule and the proposed section 23F(4), which Senator Fitzgerald proposes to delete, sets out the exception to the rule.
Section 23F(8) sets out the saving provision, whereby the High Court will have an opportunity to review any circumstances in which the exception is exercised by the HSE.
I hope the Senators will accept those points.
I am glad the Minister of State has said he will give some consideration to the possibility of making it clear that a guardian ad litem is not contemplated by section 23F(4). I would like to reinforce my support for any examination of whether that is necessary. I would like to point something out in response to Senator O’Malley, whose astute views in these matters I value greatly. I did say I accepted there were circumstances where the family might be a threat to the child or the guardian, but I was concerned about just two of those four categories, namely, consultation with the child and consultation with the guardian ad litem, in case that was covered.
I made a clear statement in another debate about the family and I made the point about the importance of language. I have just taken part in a recording on RTE where there was reference to the so-called pro-life lobby, and we have let them away with that one. The self-styled, self-appointed and self-regulated Iona Institute has been described by The Irish Times as pro-family. The rest of us did not come down from the hot tap in the bath. We are all part of the family and we are all pro-family, but there are circumstances that can be a danger to the family. I gave the example of the very tragic recent cases of incest, where both parents were sexually abusing their children. Only a lunatic would support the behaviour of that family just because it was a family. I completely accept Senator O’Malley’s reservations and the point made by Senator White that these are the exceptions. Nevertheless, it is appropriate that this House should tease them out.
Amendments Nos. 9, 10, 14, 15 and 17 to 22, inclusive, are related and will be discussed together.
This amendment is in accordance with legal advice received on the issue of medical consent. The Bill allows the HSE to consent to medical assessment, examination and treatment. It is important that the HSE, when providing special care to a child, has the capacity to consent to medical treatment when it is necessary to do so. However, the effect of this amendment is that the HSE's right to consent does not affect the validity of any consent which could lawfully be made by any other person, such as a parent, a guardian, a person acting in loco parentis or a child in the context of section 3 of the Non-Fatal Offences against the Person Act 1997. The substantive law on consent to treatment remains the same. The only difference is that the HSE will be in a position to consent lawfully in the context of providing special care to a child.
Amendments Nos 12 and 13 are related and may be discussed together.
I move amendment No. 12:
In page 44, between lines 39 and 40, to insert the following subsections:
"(2) Regard shall be had to the views of the child, having regard to the child's age and understanding, prior to taking steps under this section.
(3) Regard shall be had to the views of any parent of the child prior to taking steps under this section, and save where such steps are urgent, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the parents do not consent.".
We discussed earlier the issue of consultation where the HSE had to make a determination that a child required special care. In this section, we are dealing with instances where the child is already in special care. The extent to which there should be consultation with the child and the parent is the subject matter of these amendments.
There is a list of things the HSE is required to do under the Bill in these instances. The list seems to be reasonable and is the sort of thing we would expect from a set of procedures. The list codifies the regime that should exist. Our amendment requires that the views of the child who is the subject of the special care order should be taken into account when taking any steps under this section. This is entirely consistent with the debate we have had on amending the Constitution to provide for enhanced children's rights. All parties were keen to include a provision in our report that, where practical, the views of the child should be taken into account. If there are any circumstances in which the views of the child should be taken into account, then it is where the child is subject of a special care order. The suggestion that the views of the child should be taken into account almost seems to speak for itself. In case there is concern about the child's age or maturity, we have included a provision that regard shall be had to the child's age and understanding. If this amendment were accepted, the HSE would be entitled to have regard to the child's maturity and understanding in the circumstances.
The second pillar is that regard should be had to the views of any parent of the child prior to taking steps under the section. I emphasise the word "regard". There is no suggestion of a veto or that the views expressed by the parent would have to prevail but that they should be taken into account prior to taking any steps. Again, to provide comfort to those who feel it might be necessary to take urgent action, there is an exception by the inclusion in the amendment of the wording "save where such steps are urgent, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the parents do not consent".
Representatives of Barnardos made the point to me that where a child is taken into care, we do not want, unwittingly or unnecessarily, to rupture any connection that may still exist between the child and its parent or parents. There is often a dislocation problem in these situations whereby the child has become removed from its parents and there is a dysfunctional relationship or none at all. In so far as there is a relationship or the possibility of a future relationship, it is important it is maintained and that no steps be taken that would have the effect of rupturing any fledgling relationship. In these circumstances, I commend the amendments to the House.
This section deals with the functions of the HSE when providing special care. Once a special care order has been made, it gives the HSE far-reaching powers to carry out various medical or psychiatric assessments, while it also deals with the issue of the passport.
There is no requirement on the HSE to apply to the court to dispense with parental consent. These powers would appear to exclude the child's family or a guardian ad litem in a way that could disadvantage the child. There does not seem to be any right of the child to be heard. It is important that this should be possible. Does the Minister of State expect the HSE to consult in the normal way if a guardian ad litem was in situ? I take it that the guardian ad litem does not go away just because the child is in care. It seems important therefore not to exclude a requirement to dispense with parental consent in these situations. It is also important not to exclude the child’s family or the guardian ad litem because that could disadvantage the child. It is similar to some of the discussions we had earlier. These are cases where the exclusion we discussed earlier does not necessarily apply. To begin with, there may well have been consultation with the child’s family. It is just that when one is going that step further in terms of treatment, there is no consultation requirement. I would be interested to hear what the Minister of State has to say about that.
It is important to recall that amendment No. 14 states:
In page 44, between lines 46 and 47, to insert the following:
"(3) Nothing in subsection (1)(d) or (2) shall be construed as making ineffective any consent which would have been effective if those provisions had not been enacted.".
The Bill allows the HSE to consent and the amendment to which I have just referred allows that other previous, existing consents would not be invalidated. Therefore, they can co-exist and there is no question of eliminating the consents that would have existed prior to this Bill. For example, if a parent or child has a right of consent, it would continue to be valid, and would not be invalidated as a result of the previous amendment. The question of consultation is quite separate to consent, which is a veto. Consultation is simply having reference to comments that are made by the categories of individuals that are listed.
I should draw Members' attention to later sections which indicate this has been contemplated. On pages 57 and 58, section 23NM deals with the provision of information to certain persons. Subsection (1) states the HSE shall, from time to time during the period for which a special care order has effect, provide a parent having custody of the child with information etc. Equally, section 23NN states the parent of a child may make an application in writing for information on the care of the child. Therefore, consultation is ongoing and continues throughout the period of the order, but there is also the issue of consent so that any pre-existing consent, prior to the application of this Bill, will continue to be valid.
However, there is another issue which Senator Alex White raised in amendment No. 12. I am inclined to accept the first part of that amendment, which states that "Regard shall be had to the views of the child, having regard to the child's age and understanding, prior to taking steps under this section". I think it is worth inserting that in the Bill. I will therefore accept that proposal, but I would like to examine the phraseology, as well as detaching it from the second part of the amendment, which I tried to refer to in my original comments.
I am grateful to the Minister of State for taking on board that proposal. I have no difficulty with him considering the language involved. He did not mention the second part of the amendment which states that "Regard shall be had to the views of any parent of the child prior to taking steps under this section". Was the Minister of State including that in his comments on the information point later in the Bill?
No. The second part of the Senator's proposed amendment states that:
Regard shall be had to the views of any parent of the child prior to taking steps under this section, and save where such steps are urgent, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the parents do not consent.
However, that consent is implicit in the previous amendment.
What is the status of amendment No. 12?
I am pleased with what the Minister of State has said he will do. I am grateful for that and acknowledge it. I will not be pursuing that part of the amendment. As regards the second part of the amendment, I will see what comes out in respect of the Minister of State's work on this. I might reserve my position on the second part of the amendment, but I will certainly not press it now.
I move amendment No. 16:
In page 44, line 47, to delete "detained" and substitute "housed".
I am not going to go over the ground we have already covered about language. It is the same point. I support what my colleagues have said and ask the Minister of State and his officials to examine this matter to see if we can use terminology that is more appropriate than "detained".
I will just refer the Senator to my previous comments.
Unfortunately, amendment No. 23 is out of order because there is a potential charge on the Exchequer. If Senator Fitzgerald wishes to raise a point, however, she can do so under the section.
Part of this section deals with the right to representation and the appointment of a guardian ad litem. We have already raised the point about the voice of the child being heard as regards making a special care order. There is no automatic right to any representation for the child, either through the guardian ad litem or a solicitor. The question is whether the child should be provided with an automatic statutory right to representation. Where the child is old enough then obviously age appropriateness applies. If they have the competence to instruct a solicitor, should they be entitled to legal representation? Where the child is not old enough, should a guardian ad litem be appointed to act in the child’s best interests? In addition, should a solicitor represent the child’s view to the court and be their court advocate? Having worked in that area, I have to say the guardian ad litem is a very useful role. It is in a unique position, which is separate to all the others involved in this decision.
If it were possible to have this automatic right for the child, either through a guardian ad litem or a solicitor, it would strengthen the Bill. Children who are subject to special care orders can feel isolated and may see everyone as the enemy. However, if they feel somebody is representing them who is independent of the HSE or their family, that can be important. I ask the Minister of State therefore to consider whether he believes the opportunity for the child’s voice to be heard should be strengthened by provisions such as these. The Minister of State said earlier he was willing to consider part of Senator Alex White’s amendment No. 12, which suggests that might also be possible under this section.
I wish to reinforce what Senator Fitzgerald has said. I wish to comment, as I did previously, about these kind of rulings. There may be a situation in which an extra charge is imposed on the Exchequer. I have raised a situation where I do not think it is appropriate for the Seanad to be precluded in this area. If we examine the situation confronting us, however, the only way in which a charge could be created on the Exchequer is whereby that in itself reveals that it is not automatic. That is the only way in which a charge could be created, so we know from the ruling out of the amendment that it is not automatic. That is the first thing to be established by the procedures of this House. Second, I have been advised by our distinguished guests from Barnardos in the Gallery that, according to the best figures they can get, not more than 50% of cases have a situation where the guardian ad litem is appointed. Thus, there is a big gap. Again, this may be because the figures are not easily available or analysed, but perhaps it is more than that. Certainly, there is no doubt that it is not obligatory; nor is it in place as the result of a directive from the Minister. It is important that we extend it, if possible, in order that it would become automatic. I mention this because I have just been told — I was pleased to hear it — that in a recent unreported case Judge Gibbons commented on the guardian ad litem system and stated he was very pleased such a service was available in the State. He said that if the Seanad had done nothing else except establish this system, which it did about 20 years ago on the basis of an amendment from me and former Senator Brendan Ryan, it would justify its retention. Those are strong words from a judge and I regret his comments were not reported.
They have been now.
They have and I made damned sure they were. When we hear people who are practising at judicial level say that this is a valuable and important service provided in the interests of the child by the State, we know we should seek to institute it as far as possible. Perhaps the Minister of State knows of a reason it is not always good for this service to be provided automatically. I support the thrust of what Senator Fitzgerald said.
There is no question that guardians provide a great service. In fact, Barnardo's provides almost all of the guardians; therefore, one would expect it to be positive about the provision of the service. The Senator said guardians ad litem were appointed in 50% of cases, but that is not the case in respect of special care, in which a guardian ad litem is always appointed where an application is made. In other cases the figure of 50% is probably correct. The courts have discretion in this regard.
Judge Gibbons is a distinguished and dedicated judge who has done great work in the area of child care and I agree with his view on guardians. Last year the Children Acts Advisory Board launched a guidance document on guardians ad litem and we undertook at the time to see how the guidance would work. In the Ryan report implementation plan I undertook to consult my ministerial colleagues on regulating the area. One of the unusual aspects is that the HSE pays for guardians ad litem but opposes them in court, in a manner of speaking, although we are trying to achieve a non-adversarial context for special care orders.
Questions arise as to how the sector will be regulated, where the work will be done and who will pay the guardians. I am working on these as we speak. I do not want to make any changes in legislation until I have completed that work. I indicated I would do this and intend to complete the work as soon as possible, probably within the next couple of months, in order that we can have some indication of where we will be going. Until such time as I have had an opportunity to assess the impact of the guidelines which were launched in May last year, I will not be accepting amendments in this regard. As I said, my information is that in all special care applications children are represented by guardians ad litem. We are only dealing with special care today.
I thank the Minister of State for his comments. Clearly, he will consider this issue again when he has had a chance to examine the implications of the report about which he has spoken. The issue is automatic representation. I am heartened by the Minister of State's statement that a guardian ad litem is appointed in all special care cases, but the point with regard to the amendment is that while the HSE and parents automatically have expert representation, either through a solicitor or FLAC, there is no automatic right to representation for the child. The amendment would build in such an automatic right for children. If it is happening, would it not be a good idea to place it on a statutory footing?
This is one of issues we are considering in our assessment of the implementation of the guidelines on guardians ad litem, not just in the special care area but throughout the sector. Substantial legislation may be required, or little or none. This work has been carried out only since May last year. However, some regulation is definitely required, as is a change in the way guardians are paid in order that unseemly disputes between the HSE and guardians are eliminated. It is an excellent service and works well.
The question that follows on from this is whether all guardians need to be legally represented. If the HSE is legally represented, one would say there should be an automatic entitlement to proportionate legal representation, whether it be a junior counsel, a senior counsel or a solicitor. Clearly, this would involve a charge on the State and one can see why the amendment has been disallowed by the Bills Office.
We are talking about a serious situation in which a care order is made against a child. If this issue is not dealt with pending the resolution of disputes about expenses or other issues that arise, perhaps it should be clarified in advance of the passing of the Bill in order that the Minister of State can make a decision in the legislation about the role of a guardian ad litem. Perhaps the Department could consider this before the legislation is passed.
It is possible. We will see how long it takes for the Bill to be passed. If the Senator's amendments were to be accepted, there would be automatic legal representation in all care applications, not just special care applications.
The issue does require further teasing out and I will certainly return to it, pursuant to my commitments on the Ryan implementation plan.
I move amendment No. 24:
In page 63, to delete lines 5 to 9.
Which section are we discussing?
Section 13, amendment No. 24.
My apologies. This is tied in with the previous discussion. The Minister of State mentioned the fact that there were some issues with regard to guardians ad litem and their expenses. I tabled this amendment in order that I could ask him to clarify the matter. The Bill introduces a new subsection (3A) in section 26 of the Child Care Act which allows the HSE to apply for an order for costs from any other party to the proceedings. If the guardian ad litem is considered to be a party to the proceedings, as is the case under the new Bill, what is the purpose of the subsection? For example, could a guardian ad litem find himself or herself personally liable?
In the Bill the objective of the amendment to section 27 of the Child Care Act is to provide the High Court with the power to procure reports on any question affecting the welfare of the child in special care hearings. The amendment also provides that a guardian ad litem may apply to the court seeking directions to procure a report on any question affecting the welfare of the child. That right accrues to the guardian ad litem under the Bill. Therefore, I cannot accept the Senator’s amendment.
On a point of order, it is daft that the Acting Chairman is expected to parrot away in the Chair like a cuckoo clock on every section. When we have about 20 sections that must be agreed to, could we not say, "That sections X to Y, inclusive, stand part of the Bill"? It is daft.
It is because someone might want to speak on a section.
That is the reason. Very good. I stand corrected.
Amendments Nos. 25 to 27, inclusive, are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 25:
In page 66, before section 22, to insert the following new section:
"22.—Section 45 (as amended by the Act of 2004) of the Principal Act is amended by substituting the following section for section 45—
"45.—(1)(a) Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2), assist him for so long as the Executive is satisfied as to his need for assistance and, subject to paragraph (b), he has not attained the age of 21 years.
(b) Where the Health Service Executive is assisting a person in accordance with subsection (2)(b), and that person attains the age of 21 years, the Executive shall continue to provide such assistance until the completion of the course of education in which he is engaged.
(2)(a) The Health Service Executive shall assist a person under this section in one or more of the following ways—
(i) by causing him to be visited or assisted;
(ii) by arranging for the completion of his education and by contributing towards his maintenance while he is completing his education;
(iii) by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(iv) by providing a residential aftercare programme for him;
(v) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years;
(vi) by arranging for any existing or emerging health care needs to be addressed by appropriate qualified persons;
(b) For the purposes of this section, the Minister shall prescribe the manner in which aftercare is to be provided by regulation.
(3) Any arrangement made by a health board under section 55(4) or (5) of the Health Act, 1953, in force immediately before the commencement of this section shall continue in force as if made under this section.
(4) In providing assistance under this section, a health board shall comply with any general directions given by the Minister.
(5) For the purposes of this section, the reference in subsection (1)(a) to the care of the Health Service Executive includes special care provided under Part IVA (as amended by the Child Care (Amendment) Act 2010).".".
Now that this amendment has been moved, I feel secure in the knowledge it has not been ruled out of order. At the significant risk of cutting off my nose to spite my face, I must say I find it difficult to understand how other amendments have been ruled out of order on the basis that they are a potential charge on Revenue, even though they do not look like they are a potential charge, but that this amendment, which certainly could be a charge on Revenue if it was accepted, which I hope it will, has not been ruled out of order. There appears to be extraordinary inconsistency applied with regard to the rule about a charge on the Revenue. In case the Chair changes its mind on this, I will move on quickly.
There was some discussion on this matter on Second Stage and I feel we are all, including the Minister of State, agreed on the general principle of the importance of aftercare. This is something that has only emerged in recent years in this debate and it has been put on the agenda very forcefully by organisations such as Barnardos, Focus Ireland and the Irish Association of Young People in Care. I compliment those organisations, especially Focus Ireland, on the tremendous work they do in this area by pulling together the information and experience and focusing on individuals who find themselves in the kinds of situations we are debating here in a somewhat cold way. The organisations do tireless work in this area and have pushed us to make changes. Those of us who have an interest and political responsibility in this area have been pressing the Government to go further than a general commitment to the principle of promoting aftercare and continuing a level of contact and support for people who are no longer in care by virtue of their age.
What we want to do through this amendment is to put that commitment into statutory form through legislation in order that we can then rely on the fact that it will be delivered and that controls will be put in place to ensure standards and parameters are applied with regard to what aftercare means, how it will apply, whether it will have a residential component and whether it will include assisting with employment, education, health care needs and all the other holistic areas and issues that should be taken into account for anybody who has been in care and who now faces the world without being in a secure placement.
What we have in mind with regard to the components of an aftercare service or commitment on the part of the State are set out in some detail in our amendment. The amendment is self-explanatory and I do not have to persuade the Minister of State or anybody else present of the importance of the principle behind it. What we seek is to carve this into legislation to ensure it is made into a real and robust commitment on the part of the State.
I support Senator White. It is absolute madness and legislative lunacy to allow this amendment be put forward, although we are all glad it has been allowed. Subsection (2)(a)(iii) states: “by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose”. God almighty, if that does not clearly spell it out that we are creating a charge on the Exchequer, nothing else could. It is obvious a charge is created and allowing the amendment be proposed highlights the absurdity of what happens here. I hope this reaffirms my colleagues on the need to bring this issue to the attention of the Committee on Procedure and Privileges again.
This issue also gives rise to another matter and causes one to wonder why there was no objection to the amendment. In other words, are only certain amendments objected to on this ground and is the creation of a charge on the Exchequer used for political purposes because the Department does not particularly like someone? Does the Department sometimes agree to let it through, even if it creates a charge on the Exchequer? The situation seems daft. We could not possibly have a better example of the situation than Senator White's amendment which clearly specifies that money shall be paid. If the Minister of State can put forward a situation where this amendment does not create a charge on the Exchequer, I suggest that knowledge and wisdom should be passed on immediately to the board, directors and chief executive of NAMA, because that would solve the whole problem there. We could squiff away all the billions we liked and not create a charge on the Exchequer. It would cost nothing. That is wonderful. It is magic.
Amendment No. 27, in my name, suggests replacing the word "may" with the word "shall" and, like Senator White's amendment, deals with the issue of aftercare. Aftercare is very important because there must be follow through for people. It is inhuman to contemplate a situation where young people, having suffered a period of distress and having been rehabilitated and helped feel better about themselves, are then dumped out into the world without any transition period. People would not be happy to do that to their own children and it is an issue we need to examine. I understand the Minister of State has given an assurance this will take place and stated it is virtually implicit in the Bill. Does a directive to the HSE in this regard exist? Various groups have tried to ascertain from the HSE whether there is a directive but they have been unable to get that information. Will the Minister of State tell the House whether there is such a directive? It would require a directive from him to ensure this provision is consistently applied. Is there such a directive and, if not, will he commit to making such a directive? We would all be satisfied with that.
The key question is whether aftercare for young people who have been in care should be provided for on a statutory basis. Obviously, there are responsibilities in this regard but too often in the past, once a young person had reached 18 years, that was the end of the responsibility. We know there has been significant informal contact between children who, for example, left children's homes or other facilities. Such contact should be more comprehensive than this. The question is how we can achieve that. Clearly, there are financial implications. Senator Norris was correct. It is extraordinary that Senator White's amendment, which is very comprehensive and inclusive, has been allowed despite the significant costs associated with it. If the State is to provide aftercare costs, as it should, there are financial implications.
This is a question of how we can implement the provision of aftercare. I believe that if the State has had a child in care, its obligation does not finish when the child reaches 18. To highlight the point made by Senator Norris, we must consider what the obligations are currently and how the situation is handled on the ground. Is there a directive in place to ensure as many resources as feasible are in place for young people who still need help? Would the Minister of State consider placing this on some form of statutory footing? That is what we are seeking to do in our amendments.
I pay tribute to the organisations involved. Young people in care had no voice for a long period. No one listened to them and they were neither represented nor organised. However, in recent years there has been a complete change in recent years, which is to be welcomed. Those to whom I refer now have a voice and they have been extremely forthright in outlining their needs. What we are trying to do is clarify what are the current obligations and discover whether the Minister of State is considering placing this on a statutory basis, whether in this legislation or elsewhere.
As the Senators indicated, this matter has, as a result, in part, of a campaign run by Focus Ireland and other organisations, given rise to a great deal of debate and analysis. Section 45 of the Child Care Act states the HSE may assist a person for as long as it is satisfied that there is a need for such assistance. The discussion in which we are engaged focuses on whether an obligation to provide aftercare is created in circumstances where the HSE forms the view that there is a need for assistance. As stated on previous occasions, where a view is formed that assistance is required, there is an obligation to provide aftercare. Therefore, it is not merely facilitative, it is mandatory where a need is identified. It is clear that not every child in care will require aftercare but there are those who do.
We are trying to grapple with how the section should be interpreted and whether legislative change will be required. That is why Senator Alex White's proposed amendment was accepted. If it is an obligation that arises on foot of an assessment to the effect that there is a need, it is clear that nothing will be changed by using the word "shall" instead of "may". We show a distinct lack of faith in the staff of the Bills Office by suggesting they might not have noticed this or are simply asleep at the wheel. We have had a discussion with them about whether, depending on the interpretation of the existing section, substituting "shall" for "may" might result in a charge on the Exchequer. In many senses, the word "may" implies an obligation.
As stated previously, under the Housing (Traveller Accommodation) Act 1998, local authorities were obliged to provide adequate accommodation for Travellers, even though the word "may" was used in the relevant section which was challenged in the High Court on a number of occasions. Various items of jurisprudence will show that the relevant section was interpreted by the High Court as meaning that local authorities were obliged to provide accommodation in circumstances where none was available.
The legislation before us is at the cutting edge with regard to how we mind children in care. Those who require some help after they leave care are the most vulnerable and they are not in the majority. Most children who leave foster care do not require aftercare. However, those who leave residential care do. Bearing in mind that there are approximately 5,500 children in care, only a small number will require aftercare. Even if additional resources are required, from a policy point of view, we must tackle this issue.
The lesson we learned from the Ryan and Murphy reports is that children who were in care went on to have difficulties relating to addiction, the criminal justice system, family breakdown and many other issues. There are still children in care who continue to emerge from it without proper provision being made in respect of them. That is not good enough. The HSE has indicated that it wants to expand its aftercare facilities. We carried out an audit of such facilities throughout the country and it emerged that the provision of aftercare was remarkably inconsistent. A post code lottery more or less obtains in respect of whether people will obtain services.
I am determined that we will fashion some change. The Bill is the only mechanism by which such a change might be introduced in the near future. Unfortunately, it deals with special care. It is slightly untidy to introduce amendments relating to all children in care to legislation designed to deal with those in special care. However, this is the only opportunity we will have to alter the position.
I am giving the matter serious consideration. I am not in a position to accept amendments today, particularly in view of the fact that we are involved in ongoing discussions. A change in policy will be required which will require consideration on the part of the Government. It is crucial that we respond to the amendments tabled by Senators Alex White, Fitzgerald and Norris. I do not know what our response will be but we will be returning to the matter.
What the Minister of State said was extremely helpful. I warmly welcome his comments. As demonstrated previously, he has taken an extremely responsible approach to this matter. On the basis of what he said, I do not intend to press the amendment in my name. I hope it will prompt a further evaluation of what might be the future possibilities and options in this important area. I thank the Minister of State for his remarks.
With regard to the cost involved, I made no comment about the Bills Office. I do not want anyone to believe I took a shot or had a cut at that office. Those who work in it are highly professional and I have no difficulty with them. My problem relates to how business is ordered in the House. The relevant Standing Order refers to amendments which impose a charge may not be moved except by way of Government amendment. That is a matter for an order of the House, not one for decision on the basis of advice given by professionals in the Bills Office who do an excellent job.
It would not cause me any bother to take a shot at the Bills Office if I felt like so doing. I do not believe the staff of that office merit my taking a shot at them. However, if they did, I would certainly not be afraid to take my shot. The Minister of State can obfuscate matters as much as he likes but I have no doubt that a clear conflict arises. Anyone considering the matter would be aware of that fact.
Perhaps it was an oversight, but the Minister of State did not answer the two specific questions I put to him. The first relates to whether there is a directive to the HSE which stipulates that aftercare should be provided, while the second is whether the Minister of State will issue such a directive if one has not already been given.
I welcome the Minister of State's extremely positive attitude towards this issue. I hope he will be able to amend the legislation in order to bring it into line with his thinking on the matter.
The Ryan report implementation plan states:
The provision of aftercare by the HSE should form an integral part of care delivery for children who have been in the care of the State. It should not be seen as a discretionary service or as a once-off event that occurs on a young person's 18th birthday.
The implementation plan also makes a number of recommendations in respect of aftercare and states the HSE "will ensure the provision of aftercare services for children leaving care in all instances where the professional judgment of the allocated social worker determines it is required". It makes further recommendations in respect of research and longitudinal studies. A directive is, therefore, in place.
As stated, we carried out an audit of aftercare services and discovered that their provision throughout the country was inconsistent. The one thing over which the Houses have control is legislation. In such circumstances we should not leave matters open to interpretation but rather should spell out exactly what we believe should be the case.
In his Budget Statement in December the Minister for Finance, Deputy Brian Lenihan, announced, as part of the funding related to the Ryan report implementation plan, that an additional €1 million would be set aside for aftercare in 2010. That is a mark of the Government's commitment.
Do Members wish to extend the proceedings by 15 minutes in order that we might conclude our deliberations on the Bill?
We should do whatever it takes.
There is only one further amendment.
Yes, we should agree to extend the proceedings.
Is that agreed? Agreed.
I welcome the Minister of State's comments on this matter. However, the word "should" rather than "shall" was used in the quotation he used from the Ryan report implementation plan. This leaves a slight little grey area. Of course it should, but it might not. I take it the Minister of State is giving an undertaking that it does happen all the time. I will not push it but again it is an optative.
On a point of order, an amendment was missed.
Senator Alex White was opposing section 35.
I will not detain the House on this matter. I presume I will have an opportunity to oppose it on Report Stage.
On a point of order, Committee Stage has been completed and Report State will be taken on another day.
Yes, on a date to be agreed.