Child Care (Amendment) Bill 2009 [Seanad Bill amended by the Dáil]: Report Stage

I welcome the Minister for Children and Youth Affairs back to a familiar setting for her. This is the first opportunity I have had to wish her will in her important Ministry

This is a Seanad Bill which as been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. The Minister will explain the purpose of the amendments made by the Dáil and this will be looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. There are also four Government amendments to the Bill as passed by the Dáil. If the House agrees, I propose to allow the Minister, first, to explain the amendments made by the Dáil to the Bill and when this is completed, we can deal with the Government amendments. Is that agreed? Agreed.

I propose seven groupings based on the subject matter of the 20 amendments made by the Dáil to the Bill. Each Senator may speak once on each group. I remind Members that the only matter that may be discussed is the amendments made by the Dáil. I draw their attention to a typographical error in amendment No. 16 from the Dáil, which should read "in page 74" rather than "in page 75". I call the Minister to speak on the subject matter of the amendments in group 1.

Question proposed: "That the Bill be received for final consideration."

I thank the Acting Chairman for his kind words. This is important legislation, the objective of which is to provide for the High Court to have statutory jurisdiction to hear applications by the Health Service Executive for special care orders or interim special care orders and related matters in respect of children where their welfare may require their detention in a special care unit. The Bill provides that such units will be inspected under the Health Act 2007. The Bill also includes a provision, which allows for the dissolution Children Acts Advisory Board. In addition, the Bill includes a provision required in the context of the establishment of the Office of the Minister for Children and Youth Affairs.

I would like to report to the Seanad the amendments made by the Dáil. The first group of amendments amendments Nos. 1, 3, 6, 11, 18 and 19 — relate to the establishment of the Minister for Children and Youth Affairs. Amendments Nos. 1, 3 and 18 are technical amendments to the Long Title and section 1 and are consequential on amendment No. 11, which introduces a new section 33 to the Bill. Amendment No. 11 amends Part 7A of the Health Act 2004 in order that I as Minister will have the necessary powers under that Act to require the HSE to furnish and information and documents to me in the public interest. Clearly, this is necessary to fulfil my job as Minister. The purpose of the amendment is to strengthen the legislative base for the provision of information by the HSE for the Minister to allow me to fulfil my role and functions, including political accountability to the Oireachtas, and to create a safe channel of communication for sensitive information from the Health Service Executive to me. The amendment achieves this by placing a duty on the HSE to provide information on its initiative and without delay to the Minister for Children and Youth Affairs. It also gives the Minister the power to require in the public interest detailed information and documents from the HSE, free of legal prohibition, and to use such information in documents as necessary for the performance of ministerial functions. It allows the Minister to furnish such information or documents that are considered relevant to a person appointed by the Minister to examine or to inquire into any matter.

The amendment ensures the HSE keeps the Minister fully informed in all matters he or she needs to be aware of in a timely and appropriate manner. The HSE must inform the Minister without delay of any occurrence or development that in its opinion the Minister is likely to consider significant for the performance of his or her functions.

The HSE is required to monitor and keep under review occurrences and developments concerning matters relating to its objects and functions which includes child care. In addition, it must similarly inform the Minister for Children and Youth Affairs of any occurrences and developments that fall in a class of occurrence or development of public interest or concern that has been specified in writing by the Minister. This power to specify will ensure the Minister can be kept informed of important issues relevant to the public interest or concern.

Following the enactment and commencement of this Part, I will have the necessary powers to fulfil my roles and functions should I require information and documents from the HSE to do so. Senators will appreciate this is necessary in order for me to do the job properly.

Amendments Nos. 6 and 19 are technical amendments to the Long Title and section 2. They are required to reflect the title changes of the Minister for Health and Children to the Minister for Health which came into effect on 4 June 2011 on foot of an order made under section 6(1) of the Ministers and Secretaries (Amendment) Act 1939.

Many of the functions have already been transferred to my Department. This legislation adds significantly to the information I can access and receive from the HSE. More legislation will be required at a later stage to deal with other transfers such as that of the youth justice system.

This Ministry is one of the most important ones and I compliment the Minister, Deputy Fitzgerald, on her work in it to date.

The Child Care (Amendment) Bill provides for the High Court to have statutory jurisdiction to hear applications by the HSE for special care orders or interim special care orders and related matters in respect of children where their welfare may require their detention in a special care unit. The Bill also provides that special care units will be inspected under the Health Act 2007 and for the dissolution of the Children Acts Advisory Board.

These are positive and welcome amendments to the legislation. It was a Fine Gael-Labour Party Government priority to have this legislation passed by the Oireachtas as quickly as possible.

I also welcome the Minister's announcement that failure to abide by laws which would force the disclosure of information on child neglect or abuse will result in tough sanctions such as fines or jail terms. It is vital all organisations and individuals working with children share information with authorities relating to child welfare concerns. The Minister for Justice and Equality is preparing legislation which will make it a criminal offence to withhold information relating to sexual abuse or other serious offences against a child or vulnerable adult.

Did any of these amendments arise from the findings of the Cloyne report?

I thank the Senators for their comments on the important issues the Government has been dealing with recently. We are determined to give them an urgent response including the provision of a range of protective measures in legislation. We are not dealing with these in this Bill as it is mainly about transferring authority and powers to my office. This Bill also ensures the HSE keeps me informed of matters relating to my portfolio and I can direct it to carry out investigations and compile reports on my behalf. It duplicates the powers already held by the Minister for Health.

I am pleased this Bill strengthens the powers of the newly-established Department of Children and Youth Affairs. Last week, the Minister referred to the unsatisfactory situation in 2010 when an independent review group on child deaths, established by the then Minister of State with responsibility for children and youth affairs, Barry Andrews, was furnished with preliminary information by the HSE but refused access to individual case files. This was due to legal concerns identified by the HSE on the provision of information for the group. It is vital to the success of the new Department and both natural and obvious that the Minister for Children and Youth Affairs is given direct access to files as she needs them in a safe and proper way, bearing in mind the sensitive nature of some of the information required. This will help her ensure full accountability in the arena of child protection.

Strengthening the powers of the new Department is also important in ensuring consistency in the collection of child protection data from around the country. This is the best way to ensure that a consistent threshold is maintained with regards to children being taken into care.

As the Minister outlined in the past week, there is a big job ahead in strengthening child protection systems. The new Department will have an agency dedicated to family and children services. This will remove the child protection component out of the ambit of the HSE which will re-balance that dynamic and power more favourably towards the new Department.

This Bill is an important step towards strengthening child protection systems. I note the Minister will introduce legislation later this year to create the new child welfare and support services agency. I offer her our support on this as it is in all our interests to bring it forward as quickly as possible. I hope the legislation is comprehensive to allow for the proper lines of accountability at administrative, executive and political levels to ensure the failings that occurred in the setting up of the HSE in that regard are not repeated.

The subject matter of the second group, amendments Nos. 2, 4, 5, 17 and 20, is the Adoption Act 2010.

The second group, amendments Nos. 2, 4, 5, 17 and 20, consists of technical amendments which were required in the context of amendment No. 17. This amendment provided for the inclusion in the Bill of a new section 46 which amended the definition of the term "bilateral agreement", as contained in the Adoption Act 2010, to ensure the definition was consistent with the provision on bilateral agreements in section 73 of the Adoption Act. The amendment is technical in nature. Amendments Nos. 2, 4 and 5 amend section 1 which deals with collective citations. The amendments reflect those changes to the Bill which affect collective citations in respect of the Child Care Acts and Adoption Acts. Amendment No. 20 is an amendment to include the Adoption Act 2010 in the Long Title.

As Senators are not offering on the group, we will proceed to amendment No. 7, the subject matter of which is the deletion of an obsolete section from the Child Care Act 1991.

Amendment No. 7 relates to section 3(4) of the Child Care Act 1991, which deals with the functions of the Health Service Executive and connects the Child Care Acts with the Health Acts. The reason for the amendment is that section 3(4) becomes a meaningless and moot section in the context of the establishment of the Department of Children and Youth Affairs and transfer of the Child Care Acts to my Department. The Minister for Children and Youth Affairs is not provided for in the Health Acts. In that regard, the necessary amendment is the deletion of section 3(4). It is my intention, at the earliest possible date, to introduce legislation providing the Minister for Children and Youth Affairs with the requisite powers and functionsvis-à-vis the Health Service Executive to ensure the executive is properly accountable to me with respect to services it provides under the auspices of the Department of Children and Youth Affairs.

As Senators are not offering, we will proceed to the fourth group, amendments Nos. 8 and 9, the subject matter of which is the classification of fines.

The next group, amendments Nos. 8 and 9, consists of two technical amendments to section 23NP, which provides for offences under the Bill. The amendments are in accordance with section 5 of the Fines Act 2010, which provides that fines between €2,500 and €4,000 are class B fines.

As Senators are not offering, we will proceed to the next group, amendments Nos. 10, 12 and 16, the subject matter of which is facilities for children.

Amendments Nos. 10, 12 and 16 are concerned with inspections by the Health Information and Quality Authority, HIQA. The authority allowing HIQA to conduct inspections of children's residential facilities and services, including the special care units, an issue the House will discuss tonight, is provided under the provisions of section 69 of the Child Care Act 1991. Amendment No. 10 introduces a new section 25 which makes the powers provided under section 69 of the 1991 Act more robust and includes any services and children's residential facilities provided under the Child Care Act by persons taking care of a child on behalf of the HSE.

Amendment No. 12 introduces a new section 33 and relates to the amending of the Health Act 2007. Section 33 amends the Act in order that it will be possible for special care units to come within the definition of "designated centre", as provided for in the Health Act 2007. This will mean that special care units, as provided for in the Bill, will be subject to the inspection provisions of the Health Act 2007. The effect of amendment No. 12 is to allow for special care units to be subject to the relevant provisions of the Health Act 2007, that is, that these special care units will come under the HIQA inspection regime under that Act when the relevant provisions are commenced. This is achieved by deleting a reference in section 75(2)(a) of the Health Act 2007 to the term “special care unit” and in section 75(2)(b)(iii) to the words “or (d)”.

Amendment No. 16 is a technical amendment to the transitional provisions of the Bill. Its effect is that the relevant date referred to in section 48(9) will be taken as the date on which section 33 of the Bill comes into operation. It, therefore, brings certainty to the definition. As previously stated, section 33 amends the Health Act 2007 to allow special care units to be inspected under the provisions of that Act.

This is the appropriate time to comment on special care orders. This element of the Bill, which relates to special care orders, is highly positive and pertinent. It also relates to one of most serious of all State powers, namely, the power to detain a child in a centre such as Ballydowd. This power must always be used with the utmost care and in absolute deference to the rights of each individual child.

A previous issue of concern was that the relevant provisions of the Child Care Act 1991 were not operational. As a result, it fell to the High Court to hear applications for special care orders. I welcome the provision to afford to the Health Service Executive the power to apply to the High Court for a special care order for a child. I am pleased the previous ambiguity has been removed and the Bill sets out in unequivocal terms the processes to be followed by the HSE. These include the steps to be taken from the initial consideration of the child for special care, the application for the order, the hearing of the case, the granting of the order and the care of the child under the order through to the discharge of the order. I also welcome the role the Health Information and Quality Authority will have in this respect as a result of the amendments proposed by the Minister.

Although I support the Bill, I am concerned about the failure to address the issue of after care. I am aware this issue has been debated extensively but this legislation remains a missed opportunity. I am concerned that an amendment has not been included to make the provision of after care an automatic legal entitlement where a child has an identified need. The obligation to provide after care should be clearly stated in law. When the State assumes parental responsibility for a child in care there should be a corresponding obligation on the State, within legislation, making it crystal clear what are the State's obligations, including the obligation to ensure the child is cared for and not abandoned when he or she turns 18 years of age.

I listened intently to the Minister's comments on after care in the Dáil last week. Research reports have continually shown that children leaving care need support, as confirmed again by a recent report by Empowering People in Care, EPIC, formerly the Irish Association of Young People in Care, IAYPIC. An amendment to legislation on the issue of after care has been sought by many organisations, including Barnardos. It is also one of the primary demands of the action for after care coalition. While I am aware the Minister intends to return to the issue of after care and much work is being done on it, an opportunity has been missed to address the issue in this legislation.

On the role of the Health Information and Quality Authority, the authority does not have a great reputation in County Roscommon where it allegedly produced a report on the county hospital without inspecting the facility.

We are discussing facilities for children.

The Health Information and Quality Authority will have the final say on the inspection of children's residential facilities. The Minister must have an overview of HIQA and ultimate responsibility as opposed to being controlled by the authority. It is not appropriate in a democracy to vest in HIQA such extensive powers and responsibilities. Ultimately, the Minister must have the final say on HIQA.

I recall that after care was a major political issue when the Bill previously came before the House. When my party was in government it took tremendous flak for not agreeing to the proposal by various interest groups to include a provision on after care in legislation. I accept that such proposals were made in good faith. At the time, the Minister indicated that the issue was already covered in law. I understand this is the reason the current Minister would cite for not providing for aftercare in the Bill. It is strange, therefore, that the major campaign undertaken on this issue when the Fianna Fáil Party was in power has not been repeated in respect of this Bill. Instead, the Minister's assurances on the issue appear to be accepted, despite being exactly the same as those given by my party on the legal provision for aftercare. The Government has adopted the same position as the previous Government.

I welcome the Minister to the House and support the legislation. Having been before the Houses since 2009, I am pleased the Bill is being brought to a conclusion. In common with other speakers, I acknowledge the issue of aftercare. Arising from my professional background as a solicitor and role as chair of the Threshold housing organisation, the issues of children in care and children leaving care have been of significant concern to me and the organisation I represent.

I am, however, pleased that after care is not addressed in the context of the legislation. After care needs more than anad hoc response in legislation specifically dealing with special care orders. It must be addressed in a much broader and wider context that goes beyond the issue before us today.

I welcome the commitment to the child and family support agency legislation which I am assured we will deal with early in 2012. What we need is a complete overhaul of the social work system in this country, particularly in the way it interfaces with children. What we require is a much more in-depth, thought-out response to our obligations as a State dealing with children in care. I urge the Minister to make a commitment to the House that aftercare will not be shelved or put on the back-burner but will be very much at the core of discussions on the child and family support agency.

I did not contribute when we were talking about the HSE and its obligations to report to the Minister. However, one of the issues of concern is the quality of the data and information held by the HSE. It is only in a position to give what it has. I have serious concerns about the quality of data held by the HSE.

I am very much concerned about aftercare. I do not want to see it treated in anad hoc fashion as an add-on to this legislation. I want to see it as central and core to the way we treat the entire child care process in the future.

Some broad points have been raised about the child protection system in this country, particularly aftercare but also the overall system. As Gordon Jeyes, director of the child and family services in the HSE, has said, we need a child protection system that is fit for purpose. He also spoke last week about developing an Irish model of child protection. As the previous speaker and others indicated, such a model must have consistency of approach. There is much talk about the need for resources in this area but there is also a need to manage the resources well and consistently and to record data in a similar way across the country in order that we can compare statistics, and that we know what we are talking about when figures come in from different parts of the country. It is clear that we do not have consistency, which is a challenge. It is not just about resources. It is also about management, practice, implementation and monitoring. I am determined that we will have a child protection system that is fit for purpose.

There are very good people working on the front line, good professionals who need support and supervision. We must also ensure that experienced professionals stay working at the front line of child protection and do not always disappear into management in the way that happens in the hospital system. We must ensure that high quality and top quality professional social workers remain working with child protection and bring their expertise into that area instead of leaving it to the most inexperienced social workers who often deal with the most complicated cases and situations. There is a job of work to be done. I reassure Senators that it is being done. That is the goal. A reconfiguration of services is going on which will continue when we create the new child and family agency.

There is extremely strong legal advice that under section 45 of the Child Care Act the HSE has a legal obligation to provide aftercare. That has been questioned but the advice is that where an assessment of need has been carried out on the provision of aftercare, it must be provided. Not every child or young person who leaves care will need aftercare. There is no question of that. Many just get on with their lives, but of course, like many young people when they reach 18 it is not simply a question of getting on with things on their own, many still need support either from their foster families — many of which continue to give that support — but, equally, the young people who leave residential care are most at risk. We have data from the child death review which is being carried out at the moment and which I expect to receive in a few months that this is a group which is particularly at risk.

I accept the points on aftercare. A national aftercare policy is being developed as well as a national implementation plan. A total of 45 aftercare workers are in place and a further ten are being recruited. We must match those 55 staff to where the need is greatest and collate the information on what they are doing and the needs identified. Work is being done on the issue. I give a commitment to the House that if regulation by statute is necessary in order to ensure we develop proper aftercare services, as is the case in the North of Ireland, I will consider making provision for it in law in order that it should be delivered if it is required. I will continue to monitor the situation in the meantime because it is a very important service. They are the main points I would like to make in response to what has been raised by Senators whom I thank for their contributions.

We now move to group 6 amendments relating to the Minister for Public Expenditure and Reform, which is the subject matter of amendments Nos. 13 and 14.

The next group of amendments is group 6, Nos. 13 and 14, which are required to reflect the enactment of the Ministers and Secretaries (Amendment) Act 2011, which established the Department of Public Expenditure and Reform. The Department of Public Expenditure and Reform is now responsible for the modernisation and development of the public service along with certain other functions which were transferred from the Department of Finance. In the context of these amendments that Department becomes responsible for superannuation issues and administration expenses in the context of the dissolution of the Children Acts Advisory Board. It is a technical amendment.

We move to group 7 which relates to the Children Acts Advisory Board, which is the subject matter of amendment No. 15.

Amendment No. 15 deletes references to the Children Acts Advisory Board, CAAB, as contained in the Child Care Act 1991. It is required in the context of the dissolution of the CAAB, which is provided for in Part 6 of the Bill. It has been decided in the context of the need to rationalise State agencies and in accordance with Government policy to dissolve the CAAB and to subsume many of its functions into my Department. The amendment ensures that there will be no meaningless sections remaining in the Child Care Act 1991, as amended, following the dissolution of the CAAB.

Debate adjourned.