Child Care (Amendment) Bill 2006 [Seanad]: Committee Stage.

This meeting has been convened to consider Committee Stage amendments of the Child Care (Amendment) Bill 2006. I welcome the Minister of State, Deputy Lenihan, and his officials to the meeting.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:

In page 3, line 30, to delete "five" and substitute "3".

This amendment seeks to have the five-year rule shortened to three years. Five years appears excessively long in respect of what we are dealing with.

This matter was considered on Second Stage in the Seanad and Dáil. Under this Bill, we are giving rights in respect of children to foster parents and as such a balance must be struck in that regard. Short-term fostering is used in the State and it is important those who take up that option are secure in the knowledge that their children will not necessarily be removed from them following a short period.

I have given a great deal of consideration to the period of time during which a child should be in the continuous care of a foster parent. The Bill requires that a child be in the care of a foster parent or relative for a continuous period of five years. I believe this is an appropriate period as the foster parents or relative will be experienced and will have demonstrated a capacity in respect of the child over a continuous period.

Instability or interruptions in placement would result in foster parents being unable to obtain increased autonomy in respect of a child. Where an order under this Bill is granted, the State is effectively delegating its responsibilities in respect of a child in care to a foster carer. The State cannot do this lightly. It must be satisfied that there is a demonstrated history of care on the part of the foster parent or relative in respect of the child concerned.

I accept that an issue arises in respect of short interruptions. For this reason, I accepted an amendment in the Seanad which provides that a short interruption in the placement of a child with the same foster parent or relative could be disregarded in calculating the continuous period of five years. However, I do not propose to go any further than this. In the circumstances, I cannot accept Deputy Twomey's amendment.

Is this the full list of amendments?

There is so much legislation going through the House during the dying days of this Dáil that one can become confused about what one is dealing with. We dealt last week with matters relating to HIQA, the Pharmacy Bill and the Medical Practitioners Bill. It appears everything is being rushed through at break neck speed.

This Bill is not being rushed through at break neck speed, which I regret.

I contributed to the Second Stage debate on this Bill which took place in November 2006 at which time we were hoping the Government would bring forward the legislation in respect of HIQA and the social services inspectorate. Many of the issues referred to in that contribution are now coming through at the speed of light.

The Deputy must be delighted all these things are happening.

I wonder if we will have to return to these matters in September. I must seek out a copy of the Minister of State's Second Stage contribution in which he stated he would introduce changes to the legislation on Committee Stage based on the recommendations in the Ferns Report.

Some of the recommendations in the Ferns Report require constitutional change, as has been made clear during the past few weeks. For example, placing the interagency groups on a statutory footing will require constitutional change. I made this clear when the Government introduced its proposals in respect of the amendment to the Constitution. I hope, Chairman, I am not out of order in speaking generally about this matter.

I signalled my intention on Second Stage to bring forward a number of amendments to this Bill. However, as we worked through the implications of the amendment which would be required to provide a statutory basis for the recommendations of the Ferns Report, it became clear from the conflicting opinions being received by the Garda, HSE and Department that a constitutional change would be required to place exchange of information on a solid foundation. That was the advice of the Attorney General prior to drafting the amendment to the Constitution. It is for that reason that amendments do not appear before the members today. To be fair, Deputy Twomey's party leader has indicated with the leader of the Labour Party that he has no objection to that aspect of the constitutional proposal.

It just goes to show the benefit to the Government of having time to think. We do not get the benefit of that doubt in respect of the other legislation which has flown through the committee over the past few days and which will fly through here in the next few days. Amendments were made to the Pharmacy Bill in the Seanad on Thursday night on which the Opposition had to make Second Stage contributions in the Dáil on Friday morning.

I will let the Deputy into a secret. I have other amendments I was anxious to bring forward and which do not involve the difficulties of the Ferns Report recommendations. They relate to the primary Act which is the Child Care Act 1991. Due to the fact that the facility to table amendments has been used so extensively, the Ceann Comhairle has ruled that one cannot bring forward amendments to amend a parent Act on Committee Stage. I will therefore have to bring the amendments forward when the Bill returns to the Dáil.

There has been a rule whereby we have to submit our amendments a week in advance of consideration of legislation if a week is available between Second and Committee Stages, which is no longer the case. The rule is in place to give the Government time to think about our proposals. The Ceann Comhairle was right to make the ruling referred to by the Minister of State because the Government has begun to drop amendments on our desks on the morning on which they are to be debated on Committee Stage. It is hardly an appropriate approach by even the longest stretch of the imagination if we are to hold a proper debate on legislation on Committee Stage. It is farcical. In the Medical Practitioners Bill, Pharmacy Bill and the legislation on HIQA, significant changes to primary Acts were notified literally hours before they were to be debated on Committee Stage.

My amendments were drafted for the Deputies over a week ago. I understand that the ruling of the Ceann Comhairle was that they should be considered in the House due to their implications for the Long Title.

They may be going before the House, but that is as far as it goes. We are being provided with amendments only two hours before we are required to vote on them.

I am happy to circulate my amendments today. I can do so at the end when we have completed our discussion of the substantive matters before us.

Does Deputy McManus wish to speak to the specific amendment before us or refer to the wider issue?

There is a danger that we may end up blaming the Ceann Comhairle for a failure to ensure proper legislative scrutiny. The Ceann Comhairle is only processing procedure, practice and Standing Orders. It seems strange that the Minister of State could put forward amendments which were not accepted by the Ceann Comhairle given that there was adequate time to draft them. It is not as if we are not getting to scrutinise them because they are being rushed in at the last minute. We are not considering them until Report Stage because they do not comply with Standing Orders.

That is the view of the Ceann Comhairle and I accept and respect it.

We have to accept it. However, it raises the issue of the Minister of State's approach. Why are we not processing legislation in the normal way? The five Stages are in place for good reason. They provide for proper scrutiny. Deputy Twomey has pointed out that we are chasing amendments all over the place on other Bills. While there was no problem with time on this Bill, the Minister of State is in the same position as his senior Minister and is slipping in amendments on Report Stage which should be subject to scrutiny on Committee Stage. If the proposed amendments do not fit in the current Bill, other legislation may be required. It is not satisfactory that we are being steamrolled into passing legislation that we have not had a chance to scrutinise or that amendments are being piggy-backed onto legislation. If they were not being piggy-backed, we could discuss them now. I accept that the Minister of State is trying to be helpful in promising to publish the amendments but they will still not be dealt with until Report Stage. That is not satisfactory.

It is the Ceann Comhairle's function to make rulings. I am not piggy-backing. We are talking about the Child Care Act 1991, the fundamental legislation. Were I to do what the Deputy advocates I would, I presume, publish the Child Care (No. 2) Bill and deal with the issues in that way.

Somebody might.

This Bill does not piggy-back on other legislation.

That is exactly what it does; otherwise we would not have a problem. However, let us not labour the point.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 are cognate, while amendment No. 7 is related. Therefore, amendments Nos. 2, 3 and 7 may be discussed together.

I move amendment No. 2:

In page 4, lines 8 to 10, to delete all words from and including "a" in line 8 down to and including "time" in line 10 and substitute "the parents of the child".

The new subparagraph (i) in section 43A(1)(d) adopts the view that there is no need to contact the non-custodial parent, normally the father, or even to inform him that an order is to be made. It is no answer to say the father is often unknown, as paragraph (a) in section 43A(4) provides for an express opt-out in that case. The effect of the wording which I am seeking to change is that an order can be made without notification to the father, even if his whereabouts are well known.

Amendment No. 3 would make a similar change to deal with discriminatory practice. The subparagraph in question is contrary to the policy of section 37(1) of the principal Act which allows any parent to apply for access. This section only allows a custodial parent, normally the mother, to apply for a variation of the order.

We all appreciate that we are dealing with difficult, complex and problematic areas when we talk about the custody of children. It is discriminatory to exclude one parent on the grounds that he — it is more likely to be the father — is the non-custodial parent. The Minister of State will emphasise the importance of fathers being responsible for their children but the Bill does not apply that principle, one I support.

The Deputy's amendments Nos. 2, 3, and 7 are being discussed together. Amendment No. 2 seeks to introduce the words "the parents of the child" in the context of a voluntary care arrangement. A child placed in voluntary care will be placed there on consent of a particular party and the effect of the Bill cannot be triggered without the consent of that party. That is the current position which amendment No. 3 reflects. Where a child is surrendered into voluntary care, under section 43A(4)(b), the person making the surrender consents to it. That principle is worked out throughout the legislation to ensure the appropriate consent to each further step must be given by the parent or parents having custody or the person acting in loco parentis to the child when the child was placed in care. As they are the people who voluntarily placed the child in care, it follows that they should consent to this further step.

Were I to do as the Deputy advocates I would have to change the entire system governed by the 1991 Act as to who can and cannot be served with proceedings. It is not possible to do this. Amendment No. 3 seeks to do the same in the context of children taken into care. Amendment No. 3 states that, where a child is taken into care, the HSE exercises the powers of a parent. In such a case, the party must clearly be notified of the application, but he or she does not enjoy a right of veto, since the child is already in care. In such circumstances, normally the only legal obligation regarding children being taken into care is that the court must notify the parents, parent with custody, or person actingin loco parentis. However, in the context of a care order, the court is also obliged to have regard to the rights and duties of parents, whether under the Constitution or otherwise. That obligation forms part of the legislation, with regard being taken of the position of any parent as it stands.

The third amendment relates to page 6 and deals with the variation, discharge or cessation of an order. That too is consequential on the earlier two points. However, children are taken into care either voluntarily or by court order. In all such cases, the Act provides for notifying the parents, parent with custody, or personin loco parentis. That is the scheme laid down in the Act. Social workers must deal with the appearance of who is taking responsibility for the child under the legislation, but the courts have powers to add other parties. Under section 22 of the Act, the court may, on the application of any person, vary or discharge a care or supervision order or any condition or direction attaching to one, or discharge the care order or make the supervision order in respect of the child. It is not the case that persons are being shut out from appearing before the courts regarding such matters. While they may do so, there is no obligation to notify them under the legislation, and that basic scheme is not being changed.

I do not want to labour this, but I had thought that the point of introducing new legislation was to change matters. The Minister of State is telling us that this is the way in which the scheme was designed and that we will therefore not change it. However, that argument is not terribly strong. That a parent may appear before the court without enjoying greater rights than any other person strikes me as not according him or her particularly strong rights. What happens if the parent does not even know what is happening, since he or she was not notified?

Perhaps I might refer the Deputy to section 24 of the Child Care Act 1991, which I did not mention earlier. It states:

In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.

That section is the basic provision that governs how the court approaches all such matters, including the various powers conferred under the amending legislation. It is clear that, under the primary legislation applicable in this case, the courts must have regard to the rights and duties of all parents, whether under the Constitution or otherwise. That is already covered regarding this Act. I appreciate what Deputy McManus is arguing, namely, that we should go a step further—

I am arguing simply that we should act in accordance with the relevant principles and spirit.

—and impose an obligation on the HSE to notify such persons. That would be a major obligation for the HSE, which would then have to make inquiries. The HSE's fundamental concerns under the Child Care Act 1991 are child care and protection and intervention to protect the child. It is not like a lawyer investigating a title; the protection of a child is at stake. The Act naturally and properly proceeds on the assumption that the HSE will notify either the parent with custody or the person standing in a parental relationship to the child. That is how the HSE proceeds in such matters and what the legislation envisages. If there are problems with other parties, the courts can notify them and bring them into the process, or they can apply to the courts to be brought in. There is nothing to prevent that under the legislation. However, it is not desirable to impose a super-added obligation on the HSE to check who all these parties are.

The last time I checked there was only one other parent. It only takes two parents, not numerous other parties.

That is fully reflected in the legislation. The status of parents is set out in the Constitution.

Yes, it is in the Constitution. If we are applying the spirit of the Constitution, my amendments should be acceptable. It is not a case of trying to find a person who has gone missing. I refer to cases where somebody is clearly present and it is known that he or she will not be notified. That is a pity. I will withdraw the amendment but I maintain that this provision is regressive rather than progressive.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 5, between lines 16 and 17, to insert the following:

"(7) Where a consent is given under subsection (6), the foster parent or relative of the child shall inform the Health Service Executive as soon as may be reasonable.".

This amendment proposes that foster parents must inform the HSE if they avail of any of the consents provided in this legislation such as securing a passport for their child, having him or her examined by a medical doctor or allowing him or her to receive psychiatric treatment.

The purpose of the Bill is to give foster parents and relatives caring for children for a continuous period of five years or more, some autonomy in the day-to-day care of those children. It would be excessively bureaucratic to require that they keep the HSE informed of a consent given in accordance with an order under this section. Such orders permit foster parents to make various decisions in respect of their children, including obtaining a passport, issues relating to their upbringing and education, granting permission to attend a school tour and giving consent for them to undergo a medical operation. The HSE continues to have a role in the child's life and care through its involvement in the review of the implementation of his or her care plan. If there are significant issues in respect of which the foster carers need advice, they continue to have access to a named social worker, known as a link worker, who will provide information, advice and support.

There is a balance in the legislation. One of its objectives is to address the unsatisfactory situation whereby a great deal of social work time is spent in issuing consents and deciding whether it is appropriate for children in long-term foster care to obtain passports, travel or undergo medical operations when the foster parents have demonstrated a capacity to make these decisions for the child. We may err in the opposite direction if we insist that foster parent must keep some type of minute book of all such decisions.

We should look at what happens in reality. It is interesting to consider what was topical when Second Stage of the Bill was taken last November. The last Fianna Fáil Ard-Fheis has just finished and the Taoiseach had made the grand announcement about a referendum on children which was to have happened by now. This will obviously not happen because somebody seems to have talked sense into the Taoiseach in the meantime.

Also at that time, we became aware of a case with the HSE where a family who had fostered children with autistic tendencies made contact with the HSE to imply that something serious might happen. To anybody who is medically trained or has some degree of cop-on, this was clearly a cry for help from a family in difficulty because it was not receiving the resources it expected from the HSE in looking after these children. The response of the HSE was to get a court order and more or less kick in the door of the person's house to try to take the children back. The Garda and the HSE were very heavy-handed. The Minister of State says families will be asked to make decisions on behalf of foster children but the HSE remains the parent of the child to some extent and full care of the child will not be handed over to the fostering family. Prior to the introduction of this legislation it was extremely difficult for families to do anything in regard to their foster child. They needed the consent of the HSE to have the child vaccinated. Before the child could go on a school trip the foster parents had to get the consent of the HSE.

There is no reason families should not inform the HSE in regard to certain decisions even though they do not have to get the consent of the HSE. In regard to major decisions, for example, where the child requires a surgical operation, or has attended an accident and emergency unit with a significant injury on a number of occasions, or requires psychiatric or psychological help, the HSE should be informed. In such circumstances a social worker reviewing the case might form the opinion that there may be underlying problems. I am concerned to ensure that we do not move from a situation where there is too much control over what foster parents do in respect of children to one where there is too little control. As long as the HSE remains the parent of the child, there should be a list of matters affecting children in respect of which it must be informed and that should be included in the child's case file.

I do not suggest that the HSE continue to be heavy-handed when people seek support. I am talking about being sensible about how we look after children. I do not want to see the pendulum swing completely the other way so that we walk away from the issue if there are signs that there may be a problem. The number of visits to an accident and emergency unit may be a sign that a child is being physically abused. A need for psychiatric assistance may point to psychological or sexual abuse. If parents are expected to notify the HSE, it would be of help in the overall care of the child without being too intrusive.

The Deputy has touched on the heart of this legislation. He has replied to my point in his earlier amendment where he suggested a reduction in the five-year rule to three years. Clearly a balance must be struck in this legislation. That is the reason I decided on the period of five years and recommended that to the Government as the appropriate period of time in which a foster parent would have demonstrated a very substantial capacity in regard to the ongoing upbringing of the child. If we are to give foster parents real responsibility, it is difficult to devise a legal formula to cover the types of matters the Deputy mentioned. I accept the HSE has an ongoing obligation because the child is still in the care of the HSE and thereby of the State, but the element of supervision the HSE will exercise is clearly relaxed because the parent has been given autonomy in regard to certain decisions.

There is no reason what the Deputy recommends cannot be worked out on a practical level in the context of care plans or ongoing planning for the child at the time of the making of the court order in regard to the foster care parents. In making an order — and it should be remembered that the demonstrated capacity of five years is only a precondition for the exercise by the court of the jurisdiction in this matter — the court can subject the order to such conditions as the court deems appropriate and such conditions could include matters of the type the Deputy has outlined. I am not sure, however, whether it would be desirable to specify that in legislation. The formula the Deputy proposed does not specify which of the new powers foster parents have must be notified to the HSE. The Deputy subsequently gave examples such as visits to accident and emergency units. It would be difficult to codify this in legislation.

Under this Bill, the court has the power to attach conditions. In that context, the court would be in a position to make such directions as it believed appropriate in respect of the future relationship of the foster parent with the Health Service Executive. On the children referendum, I am pleased with the progress made in the discussions with the Fine Gael and Labour Party spokespersons.

The Opposition is sensible not to fly such kites.

The Deputy should be careful. His party may yet introduce the proposal and he may have to study it.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 6, between lines 15 and 16, to insert the following:"(14) In this section, "missing", in respect of a parent, means a parent who has had no contact whatsoever with either the child or the Health Service Executive for a continuous period of at least 1 year.".

We decided not to insert a definition of "missing" in the legislation. Section 43A(4)(a) provides that the court will have to be satisfied that a parent or other person is missing and cannot be found by the Health Service Executive. Therefore, it will be a matter for the court to decide, based on the information provided to it by the HSE on the efforts made to contact the person, whether it is satisfied that the parent or other person is missing and cannot be found. It is therefore not proposed to accept this amendment.

This section deals with when the consent of a parent can be dispensed with. The court must be satisfied that a person is missing and cannot be found by the Health Service Executive. Essentially, determination of matters of this type are left to the courts. It is not considered desirable to fetter the discretion of the court in deciding whether a person is missing by inserting a specific time limit as proposed.

Am I correct that the Minister of State will bring forward other changes in this regard on Report Stage?

Yes. Will Deputy McManus move her amendment?

No, she will resubmit it on Report Stage.

I am sympathetic to it and will take another look at it between now and Report Stage.

The Minister of State will not have much to do on Report Stage.

If Members wish I can go through what I propose to do on Report Stage which I understand is scheduled to be taken following the Easter recess.

Does the Minister of State envisage we will be here?

Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.
Question proposed: "That section 2 stand part of the Bill."

I will undertake to have amendment No. 8 examined between now and Report Stage as I believe it is worth examining.

It is unusual for a Minister of State to agree to amendment tabled by the Opposition.

I did not say I agreed with it, I said it was worth examining.

Question put and agreed to.
Section 3 agreed to.
Title agreed to.

I thank the Minister and his officials and the members for their usual constructive contributions.

We have tried to be constructive this morning but we may not be so constructive on Thursday.

I am prepared to circulate now the amendments the Government proposes to table on Report Stage along with an explanatory document. I can arrange for briefings for the Deputies and their advisers.

That would be great. I thank the Minister of State.

Bill reported without amendment.