Child Care (Amendment) Bill 2015: Report and Final Stages

I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. I welcome the Minister for Children and Youth Affairs, Deputy Reilly, to the House. I also remind Members that each amendment on Report Stage must be seconded.

I move amendment No. 1:

In page 5, between lines 26 and 27, to insert the following:

“Amendment of section 29 of Principal Act

5. Section 29 of the Principal Act is amended by the insertion of the following new subsection after subsection (4):

“(4A) In subsection (5), ‘relevant court documents’, in relation to any proceedings referred to in that subsection—

(a) subject to paragraph (b), means—

(i) any notice of application or other originating document in the proceedings,

(ii) any pleading, report and other document (including the terms of settlement, if any) produced to or lodged with the court, or included in any book of pleadings or reports, in the course of the proceedings, and

(iii) any order made or judgment delivered by the court in the proceedings,

(b) does not include any document the contents of which are expressed to be without prejudice or in terms having a like effect.”.”.

For the record, Senator Wilson will be seconding the amendment. I welcome the Minister to the House once again.

On the amendment, not only must justice be done but it must be seen to be done. The principle of ensuring that justice is administered in public, including law proceedings subject to protecting the anonymity of the parties, has been accepted by successive Governments, for example, in the Civil Liability and Courts Act 2004, as amended, the Child Care (Amendment) Act 2007 and the Courts and Civil Law (Miscellaneous Provisions) Act 2013. The first two of these Acts permitted academic institutions and other bodies named in regulations, including persons engaged in child care law research, to report on family law proceedings while the latter opened up family courts to the media for the first time. Similar measures have been undertaken in England and Wales, which, like Ireland, previously had a highly restrictive regime.

The Civil Liability and Courts Act 2004 was amended to clarify that relevant documents, which is the crux of the issue we are discussing, included all documents generated in the course of proceedings in order to ensure that reporting could be comprehensive and accurate. No such amendment exists clarifying the meaning of relevant court documents relating to the child care proceedings in the 2007 Act and no statutory definition of this term exists.

In child care proceedings, reports are routinely produced for court by social workers, guardians ad litem and other professionals detailing and analysing any risk to a child thought to exist. These are sworn into evidence and are normally then outlined orally to the court and the author of the report is subject to cross-examination in contested proceedings. However, where the proceedings are not contested, the judge may state that he or she has read the report and does not need to hear evidence, and then makes the order sought. Without sight of the report, the child care law reporting project has no way of knowing the basis for the order - how the threshold outlined in the Act has been applied - and therefore cannot report on this or fulfil its statutory remit "to provide information which will assist in the better operation of this Act". It is interesting that the Civil Liability and Courts Act 2004, which first modified the in camera rule in family law, did not have any such purpose of assisting in the better operation of any Act.

It is difficult to accept that the Oireachtas, when opening up the child care courts to reporting, through the Child Care (Amendment) Act 2007, did not intend that a person carrying out that task, including providing information that would assist in the better operation of this Act, would have access to the same information as the court and all other participants. Indeed, counsel for the child care law reporting project argued, in its Circuit Court appeal submission against the decision of the District Court president, Her Honour Judge Rosemary Horgan, not to provide the child care law reporting project with a copy of a social work report which was submitted in evidence as part of a child care case, that the reason the definition was not included in the 2007 Act was that it was unnecessary as an earlier High Court judgment had ruled it was permissible for child care proceedings to be reported provided that there was judicial permission while it had not been possible to report private law proceedings.

It is also a feature of European law that more, not less, transparency is required of proceedings where the State is involved in curtailing the rights of citizens, in this case, family rights. The European Court of Human Rights examined the in camera rule in two cases: B and P v. United Kingdom, involving private family law in which two parents were in dispute; and Moser v. Austria, involving public family law and taking a child into state care. Distinguishing the latter case from the former, the court stated it "considers that in this sphere, the reasons for excluding a case from public scrutiny must be subject to careful examination". The court ruled against Austria's blanket ban on reporting child care proceedings.

Granting reporters access to documents along with access to court proceedings has also been considered in the United Kingdom. There was a recent judgment in the High Court of England and Wales family division, on 19 October this year, allowing a journalist access to documents in a child care case, Tickle v. Council of the Borough of North Tyneside and Ors. After ruling in favour of allowing a journalist report on a specific case, including interviewing the mother in the case, and having laid down conditions to prevent the identification of the children or their parents, the judgment states, "any party to the current or previous proceedings relating to the children may disclose to Louise Tickle [the journalist] documents produced for the purposes of those proceedings, for the specific purpose of informing her journalism, and provided that those documents themselves may not be published in full or further distributed by her". I would be completely happy for such non-publication or distribution of documents conditions to be inserted into any amendment in this regard. The judge referred on several occasions in his judgment to finding an appropriate balance between the public interest in the media being able to report child care proceedings and the interest of privacy of those whose lives are intimately involved.

No good reason has been advanced for preventing the child care law reporting project or any other body permitted under the relevant regulations from having access to documents in a broader context where the content of these documents is usually discussed in the court in their presence and, subsequently, reported upon by them. The only purpose in a permitted class of person having sight of these documents, on request and subject to any directions or restrictions the court may impose, is to ensure that their research and reports are comprehensive and accurate, and in the specific case of the child care law reporting project, that they can provide information which will assist in the better operation of this Act. In my view, the current situation contravenes the spirit of the legislation and the intention of the Oireachtas to bring transparency to child care proceedings.

I ask that the Minister give my amendment his positive consideration in the interests of transparency and accountability in child care proceedings in the courts, published reports and the information provided to the public on the operation of the child care system. As I stated on Committee Stage, the child care law reporting project has provided us invaluable reports but without access to these documents when a case is uncontested, we are not able to satisfy the obligation that the Oireachtas laid down that they must provide information which will assist in the better operation of the Act. Thus, I commend my amendment to the House.

I second the amendment.

I take the opportunity to welcome to the Gallery the children from Clare.

Senator van Turnhout knows my views on this amendment and I do not propose to accept it. As we discussed on Committee Stage in this House, the amendment would provide for a definition of "relevant court documents" for the purposes of section 29 of the Child Care Act 1991. The section in question provides for the powers to report on child care proceedings before the courts where it is likely that such reporting may assist in the better operation of the Act.

At present, under regulations made under this section, the child care law reporting project has been examining cases before the courts over the recent past. All such reporting must be anonymised. By way of clarification, the project in question is permitted to report on such proceedings under regulations. It does not have a statutory remit in this regard.

The proposed amendment would provide access to all documents lodged to the courts in child care proceedings. Such an amendment, were it to be inserted in the Act, would not only apply to the aforementioned project but any future body given access to report on court proceedings in a similar fashion. As Senators will appreciate, in many child care cases before the courts information of an extremely personal and sensitive nature is submitted. This may encompass everything from financial reports to psychological reports, reports on addiction issues and alleged cases of physical and-or sexual abuse which relate not only to the child but also to his or her parents and wider family. The balance in providing access to such information must be very carefully weighed. The potential for a positive impact, in terms of what an examination of such reports may yield for policy or operational gain, must be considered against the right to privacy of the individual. This must be examined from a constitutional perspective and also in terms of obligations under international treaties to which Ireland is a signatory. I remain to be convinced that the intrusion would be appropriate or proportional to the intended potential gain.

As I stated previously, I will keep an open mind on the matter and the views of the Child and Family Agency have been sought by my officials. An in-depth legal and policy examination of the issues associated with any such amendment would also be required. Were it deemed to be possible and desirable, a consultation with key stakeholders, given the nature of the documents in question, would be necessary.

Finally, I would also like to establish if other avenues might be explored to provide the information sought for reporting purposes. For those reasons, I will not accept the amendment.

I am disappointed but I will not press the amendment. I draw the Minister's attention again, though, to the judgments I have cited, and I ask his officials to examine them because we are in violation. We are not acting in the spirit of the legislation. I take the bona fides of everything the Minister said but I have not had evidence of intrusion by the child care law reporting project. We have to ensure that whatever we provide, we do not open up unintended consequences. I welcome his commitment to undertake a consultation and I hope this can be done in a timely way.

I will seek another avenue, perhaps in other legislation, to progress this issue to allow for more time for it to be considered. It is extremely serious because the more we understand of the cases brought before the courts in respect of children being taken into care, the more we can explain to the public the reality of the cases. During the referendum on children's rights, as I travelled around the country, I became aware of a misunderstanding and misinformation caused by the vacuum that is there. The child care law reporting project has provided invaluable information in helping our understanding but we do not have information from the cases that are uncontested. We do not know at what threshold children are being brought into the care of the State. There needs to be scrutiny and the Oireachtas has a role in ensuring that happens. I appreciate the Minister's response, but will he go back to ask for this issue to be re-examined? It is not going away.

Amendment, by leave, withdrawn.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I would have loved this Bill to go further. We had the discussion about changing "may" to "shall". That does not take away from the importance of the Bill, which will now go to the Lower House. I am a big believer that change is incremental. I therefore welcome the passage of the Bill through the House. I received correspondence from the Care Leavers' Network, which highlighted the importance of acting much earlier. Even when a child is 16, it can be too late. It is important to provide these young people with an education, housing rather than homeless accommodation, and continuing traditional, holistic and medical therapy, if required. They often suffer post-traumatic stress and they need to be helped. Family support should be offered, with opportunities for family therapy, especially with respect to sibling relationships. We often consider the parent and the child, but the sibling relationships are neglected.

More needs to be done for these children. None of us wants to read reports on children who have died in the care of the State, and we all want to do better. The Bill is a significant step in that direction and I thank the Minister and his officials for all the work they have done and for taking on the considerations of the Joint Committee on Health and Children during its hearings, which we greatly appreciate. I hope the legislation will be enacted in the coming weeks.

I thank the Minister and his officials for the work they have done. I welcome the passage of the Bill. Like Senator van Turnhout, on Second Stage I outlined provisions that I would have liked to see included, but it is great that this process will be put on a statutory footing. I am always nervous about the resources available to the agency. I hope the funding will always be available to provide necessary and adequate aftercare for these children and young adults and that the necessary personnel will be put in place with the expertise that is needed. I welcome the proposal for additional inspectors, which we did not discuss very much because the provision of aftercare took over in the debate. The Minister stated on Second Stage that he would appoint additional child care inspectors.

I also congratulate the Minister and his officials on the Bill's passage. I compliment the Department on all the work that has been done over the past four and a half years. We have at long last put the importance of children to the forefront. I congratulate the Minister, particularly on his commitment.

I thank the Senators for their contributions today and over the past two weeks. The Bill provides for an explicit requirement to prepare an aftercare plan in respect of a specified cohort of children and young people as they transition from State care. It puts aftercare planning on the same footing as other statutory obligations of the Child and Family Agency. The legislation underpins significant initiatives and reforms that have taken place in recent years, which have been developed with the goal of improving aftercare services to deliver better outcomes for young people leaving the care of the State.

The Bill attempts to take account of the need for a degree of nuance in planning for leaving care that is appropriate and sensitive to the young person's needs. I note the issue around siblings and, as one of 11 children, I would not underestimate the importance of that. Most importantly, the child or young person will have a central role in the development of the aftercare plan, which is critical at a time when we say we want to respect our young people and our children and we want them to be involved and able to contribute. Nothing could be more important from their point of view than being able to contribute to the plan that affects them so centrally and personally.

I pay tribute to the House for the manner in which the Bill has been welcomed and for the constructive comments and contributions given here. A number of issues were raised, including the question of providing aftercare support to young people in full-time education beyond the age of 23 and agreeing aftercare plans in advance of the deadline stipulated in the legislation. Our discussion of these and other topics raised has been fruitful. I would also like to acknowledge Senators' acceptance of the Bill at short notice, which will facilitate the progression of the Bill through the Houses as quickly as possible. I thank them for their contributions and for listening to what I have had to say on the legislation. Along with the other legislation passed over the past year and a half, this Bill will make Ireland a much better place for young people and children.

Question put and agreed to.
Sitting suspended at 1.10 p.m. and resumed at 2 p.m.