Children Bill, 1999: Committee Stage (Resumed).

SECTION 16.

We will resume with amendment No. 17. Amendments Nos. 20, 30, 65 and 127 are related and are to be taken together by agreement.

I understand that has already been discussed with amendment No. 16 and will be decided upon when it is reached in sequence.

There are a number of amendments proposed to amendment No. 33 which were not moved or discussed. There is a Government amendment to amendment No. 33, then there are Deputy Shatter's amendments which were not moved.

When we reach amendment No. 33 we will take the amendments to it. I understand it is not allowed to go back to an amendment that has been decided and amendment No. 16 was agreed, so we are going on to amendment No. 17.

To clarify, amendment No. 16 was agreed and amendments Nos. 33 and 135 were moved but the amendments to amendment No. 33 were not moved?

They were discussed but not moved but we can come back to discuss them again by agreement at that time.

And the amendment to amendment No. 33 will only be taken when we get to amendment No. 33?

Yes. It is intended to suspend business at 4.10 p.m. in order that the Order of Business can be taken and the room is needed for another committee at 5 p.m. We have to be out by 4.45 p.m., so there is no point in coming back. We will look at a future meeting but it does not look as if we will be able to do so until around 20 March because of the Finance and Social Welfare Bills which are taking up all the time of the Bills Office.

Are we taking amendment No. 17 on its own?

We have decided to take amendments Nos. 17, 20, 30, 65 and 127 together.

I move amendment No. 17:

In page 22, to delete lines 26 to 30 and substitute the following:

"(2) Before applying for an order under this Part the health board shall-

(a) arrange for the convening of a family welfare conference (within the meaning of the Children Act, 2001) in respect of the child, and

(b) where, on the conclusion of the conference proceedings, it proposes to apply for a special care order in respect of the child, seek the views of the Special Residential Services Board established under section 226 of that Act on the proposal.”.

The primary purpose of these amendments is to provide an input for the special residential services board into deliberations when the question of making a detention order in respect of an offender under 16 years or a special care order in respect of a non-offending child arises. In the case of offending children, amendment No. 65 to section 103 adds the special residential services board to the list of bodies to whom a copy of probation officer's report can, on request, be made available. Such reports can be sought by the courts in any case where a child is found guilty of an offence but they must be sought when a court is of the opinion that the appropriate decision would be a detention or community sanction. The report should be lodged with the court at least four working days before the court resumes for the purpose of deciding how to deal with the child. The report remains the property of the court but all or any part of it can be made available to the groups listed in section 103, to whom I now propose to add the special residential services board. The reason for this can be understood when considering the final amendment in this grouping, amendment No. 127.

Section 227 sets out the functions of the special residential services board and to those have been added a new paragraph (d) under which the courts will be entitled to consult the board on identifying suitable places in children's detention schools for children found guilty of offences. Access to the reports is crucial if the board is to be able to assist the courts properly for that purpose. The material in the report will allow the board to determine the best and most suitable place for each young offender. It can liaise with the directors of the schools to ensure, among other things, that a place exists and where it exists. The court will, of course, continue to decide whether to impose detention on a child offender and, if so, to where the child should be referred - it could not be otherwise. These amendments propose to ensure that before making a decision a mechanism exists to keep the court fully informed and up-to-date on the places available at children detention schools and, of those, what is suitable in individual cases. With regard to non-offending children, I propose to make a significant change relating to the duties of health boards in relation to children who may be in need of special care and protection.

The purpose of Part III of the Bill is to enable boards to apply to the courts to detain in special care units children with serious behavioural difficulties. The philosophy of the Bill and the health board social services in this respect is that this option would only be used as a last resort. It is for that reason the Government introduced Part II, which established the family welfare conference on a statutory basis to be used as a gate-keeping mechanism in order to ensure no child was placed in a special care unit without all the other options first being explored.

Detaining a child in a special care unit is a very serious decision to make. In making such decisions, it is necessary to have regard to the civil rights of the child. I, therefore, propose to introduce an additional check into the system. Part II proposes to establish the special residential services board with the primary purpose of ensuring the efficient, effective and co-ordinated delivery of services to children detained in special detention schools or special care units. I now propose to give the board an additional role in relation to special care orders. As I have already explained, health boards will have to arrange a family welfare conference prior to applying for a special care order. Under these amendments, however, if after having the conference the special board proposes to apply for a special care order, it will first have to seek the views of the special residential services board. It is proposed to establish a panel of experts to advise the board so that it can effectively carry out this role. The special residential services board will, therefore, have an overview of all proposed admissions to special care units. They will be in a position to assess the appropriateness or otherwise of a child's admission to a special care unit and the board has already been established on an administrative basis and is currently developing protocols concerning the criteria for admission of children to special care units.

I am happy to recommend to the committee these amendments concerning the role of the residential services board.

I have no great difficulty with the theory of what the Minister of State is proposing here. The critical aspect of such a proposal is the extent to which the residential services board will be resourced and the extent to which there will be adequate provision of suitable secure centres for children. I do not wish to talk about the report on Newtown House but I suspect there is a need to carry out similar investigations into probably all the centres in which children are currently detained. I am sure the Minister of State is aware of an arrangement by the northern area health board and the other constituent boards of the ERHA whereby children are being cared for essentially by a security company. A child care division has been set up within the security company to get the health boards off the hook because of their inability to provide adequate places. There are all kinds ofad hoc arrangements throughout the eastern region and in other parts of the country. Houses are being policed by security, temporary and casual staff, very often without Garda clearance, who are employed to look after highly vulnerable children who need specialist care.

The damning aspect of the Newtown House report and the situation that prevails in many other centres is that there is no excuse for lack of resources which might have partly excused the treatment of children in the past. This area needs urgent attention and, while it is all right to have the residential services board adjudicating on these matters, what will it do where no appropriate places are available? Will the Minister of State with responsibility for children outline the action she is taking to ensure that adequate places are provided, that adequate numbers of appropriately trained staff are available to ensure the centres operate satisfactorily and that places are available when children come before the courts and the residential services board must adjudicate on them?

What powers will the residential services board have in relation to taking decisions about the early release of children from high support units in order to create space for additional children who need places? Does the Minister of State see that situation arising? Presumably she has concerns about the potential damage that could be done to children following a particular programme which may have been set out for him or her. I would welcome her views on the matter.

Yesterday we had a very damning report on residential child care. What emerged was a serious problem in relation to the turnover of staff, the use of temporary staff and the lack of monitoring at a number of levels. What role does the Minister of State see the special residential services board playing in monitoring, along with the ISSI, what is available to children? The report documented four incidents of physical restraint being used inappropriately and four investigations are ongoing. We do not as yet have the outcome of the investigations and their findings were not available to the ISSI. This raises some disturbing questions on which the Minister of State might wish to comment.

It is also very clear that it was not possible for the residential centres to put the needs of the children centre stage because of the lack of resources and the atmosphere of perpetual crisis in the home. This raises a whole range of serious questions, many of which we cannot raise here because we are dealing with a specific Bill and a specific initiative. What role will the special residential services board play in relation to the care available to children which was referred to at the family welfare conference? Will it have an ongoing monitoring role? If the care plan is not working out or if what was recommended at the family welfare conference was not being done, could the board act or who would act? How will that role be developed in this context?

Like Deputies Shortall and Fitzgerald, we are all disturbed at the findings of the report of the ISSI. This highlights the importance of the work of the inspectorate which to date has inspected approximately half the health board residential centres throughout the country and has found good and bad practice. This highlights the correct decision taken by the Government to set up the inspectorate. The regulations and draft standards have been devised by the inspectorate and the Department. They are the criteria against which each place is being matched at the moment. Therefore, it is important for each health board to ensure they meet those guidelines. Where recommendations have been made by the ISSI, resources have been made available to each health board to ensure they are implemented immediately. Arising from yesterday's report, I would ask that urgent action be taken. The health boards state they are carrying out their own investigations but I have asked each health board to report to me on what arrangements are in place to ensure the rights of children and families are protected and the various issues which have arisen.

Newtown House has been used as a background but this is a wider issue. It was an inappropriate use of the house, which was not designed or built for that purpose. No other provision was made available in 1996 and the house was used for children for whom it was not appropriate. In 1997 there were 17 places for high support and special care while now there more than 70 places and we are on target for an extra 56 places, the figure given by the health boards to meet their needs. Under the substantial building programme, those places are on target to come on stream by the end of the year.

As Deputy Shortall said, recruitment of staff is a problem. A fundamental review of training has been under way for the past few months. The Department, health board officials, employers and IMPACT are working closely on the type of training available to new entrants and the training necessary to upgrade skills and give recognition to people with experience who are already working in this difficult and challenging field.

Residential care and, in particular, high support and special care are used as a last resort and should always continue to be used as a last resort. The people working in this area are dealing with the most disturbed children. One of the main points made yesterday was the need for health boards to support their managers and staff. I requested them to do this and to report back to me on the mechanisms they have in place in this area.

The role of the special residential services board should be looked at together with the social services inspectorate which will continue to carry out inspections. The inspectorate has been expanded and five full-time inspectors will be working to ensure inspections are expedited so that progress is made in identifying good practice and wiping out bad practice. As the special residential services board will have a chief executive, full resources and back-up, it is ideally placed to carry out its functions to co-ordinate and ensure the proper use of facilities, liaise with courts and monitor and review the level and nature of support structures. It will also carry out research, which is important, and promote and organise seminars, conferences, etc. More particularly, it will co-ordinate the provision of services. As it crosses all of the residential services it will take in the education, justice and health aspects. In the past we did not have co-ordination between the three Departments.

Having established the residential services board on an interim basis last year, I have tabled amendments based on the value of its work. I see a role for it in assisting the courts in their work and in providing an extra check and security for children who are placed in special care units. The Deputy asked if it would have a specific role in reducing the length of time a child is in care. As these children can only be placed in these units under a court order, it is only the court which can reduce the time and the board would have to go back to it - in future it will be the District Court.

I accept that some of the other places being used are inappropriate. It is not acceptable that hotels or Garda stations should be used for children. When the new places are up and running there will not be a demand for such places. However, there will always be a need for individual arrangements for children, particularly those who are very disturbed and who need special care and who have particular difficulties. It is envisaged that there will be approximately 160 places by this time next year, including individual packages.

Under section 23K special care units will have to be certified by the Minister, so obviously only suitable and appropriate ones will be certified. An inspection will take place before they are certified. The special residential services board is a co-ordinating board which can assist with offending and non-offending children. Based on its experience during the past year, my aim is to give the board an extra role in assisting co-ordination between the courts and health boards, particularly in terms of respecting the rights of children and ensuring they are not detained unless as a last resort.

Will the Minister explain what she has in mind in terms of ensuring that an adequate number of staff is available? It is fine to talk about safeguarding the rights of children but what happens in practice is that when a child comes before the court and there is no place available the health board rents a house and then tries to get people to staff it. Very often they have to employ casual security men and, with a bit of luck, they get somebody with a background in child care. I accept the Minister's point that these children are particularly difficult to deal with. When there is a crisis the children are restrained for their own safety and to prevent them from smashing up the house, hotel room or holiday home, as is the case in County Wicklow. There are umpteen cases where a house leased by a health board was smashed up and destroyed within a few days by a particularly difficult child. One is talking about damage limitation in such situations and people having to use muscle to restrain children. The crisis response by the health board in such circumstances is entirely inappropriate and, as the Newtown report has proven, it is impossible to safeguard the rights of children in such cases.

The Minister referred to the training and up-skilling of staff. This is the most urgent aspect of the child care issue and I would like to know what precisely she has in mind. There is a need for an urgent task force response to deal with the recruitment of people, selling the notion of a career in child care and ensuring there is speedy training and up-skilling of people. Has the Minister set a target by which the group has to put forward recommendations and a timescale within which they would be implemented? What figure does she have in mind in terms of staff?

Over the past year or so announcements have been made on the amount of funding in the child care area. Yet people working on the ground have told me the funding has not been used to create the new services and supports they need. Is there a blockage between the Department of Finance, the Department of Health and Children and the health boards which need these services for children? Does the Minister of State accept that the Newtown House report illustrates that, despite the fine words and extra money, the support services on the ground for these at risk children are not there? This is not the 1970s, 1980s or the 1990s. It is 2001 and this service, which deals with the most at risk children in the most difficult circumstances, does not have appropriate or specialist staff. We are completely and totally failing these children.

What emergency action is the Minister taking to create the necessary support services to ensure that children referred by the High Court for care and attention and specialist help will get it? The most at risk children in residential care have to wait several months for the most basic psychological/psychiatric assessments. If they were at home they might be assessed quicker. Will the Minister agree that we need an emergency package of measures, including training? Austria has put in place specialist training and fast tracked the system. We need fast track so that highly specialist trained teams are available and ready to respond to the needs of these children. Despite the Minister of State's efforts, this report is an indictment that the money is not creating the services needed. This is an up-to-date report and the services are sadly lacking. What immediate and urgent action is being undertaken? I appreciate training and recruiting good staff takes a long time. If we can react to an agricultural crisis and to a crisis when thousands of refugees are coming here, surely an emergency plan can be put in place to create the support services that should be available so that we are not publishing a report like this in 2001 which is a litany of failure so far as the needs of these children are concerned. I appreciate the enormous hard work done by those working in residential child care. They need supports.

Another question arises which is relevant to the overview role. Why is it that the staff who work here are paid less than staff working on the education side? We say reward is important in this area because it is so difficult. This report documents that these staff are paid less than staff in educational units looking after disadvantaged children. If this Children Bill is to be seen to be real, these are the questions that have to be answered. Having a family welfare conference and referring the case to the special residential services board will not be of much use if the services which these children and their families need are not available.

I have allowed a certain latitude because the report which was published recently is an important one.

That item is on the Adjournment tonight. I would like to take up the issues raised because they are important, so too are the amendments to the Bill. I am anxious to move the Bill forward because it is important that it be passed given that it allows for many other options.

There has been a huge increase in investment during the term of this Government in that over £90 million extra has been put into child care services along with a capital programme of £30 million to build up the places to which I have already referred. Obviously there is emphasis on early intervention, prevention, family support and on the ground work. The business plans from the health boards, on foot of the allocations received, show that 600 to 700 extra posts will be created this year throughout the country in the child care services. I understand from those who have a generic training in child care that residential care is more challenging and more difficult than community or family support work. Given that much is put into the community, people are being drawn away and given other options. On the other hand, given that the training is generic it is being looked at to ensure it has components of residential care so that students get a better experience of residential care and are not turned off before going into it. When appropriate places are available, such as Ballydowd, which are secure and built to spec, life will be made easier for those in residential care. The support structures for the staff and the managers in these places need to be put in place by the health boards. It is important that the children are not just getting secure accommodation but care and therapy. On foot of the report yesterday, under the Childcare Act, I instructed all health boards to give priority to children in residential care for psychological and psychiatric services; unusually these children already get it for dental care. The aim is to help these children to reintegrate with their families, where possible, as soon as possible.

Despite the progress made, the public perception of these places is negative. Health boards have found it difficult to source sites. There have been planning objections and delays which add to the difficulties but progress has been made and we are now on target. Staff recruitment continues to be a difficulty. The health boards have recruited in Scandinavia, South Africa and Australia. Garda clearance is essential. Recently, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, said a special unit would be set up to expedite this but it must be thorough. Nobody can work in the child care area without Garda clearance. Extra money has been provided for recruitment. The fundamental review of training and upskilling is taking place. I have been in discussions with the NCEA, Dublin Institute of Technology and there are proposals for working with the NUI. Originally one of the groups working on it had suggested 18 months but I said we could not afford to wait, that the matter had to be expedited with a view to having something in place the next academic year. That means there will have to be agreement not only between the colleges and the working group but also with IMPACT and the effect it will have on allowing people release from work. It is definitely in hand because it was one of the issues highlighted by the composite report of the SSI last year. We all accept what needs to be done and it is important to recognise that the children being dealt with at this level is a small proportion of all the children in care. There are 4,500 children in care, 3,500 in foster care and the remainder are in residential care, a small number of whom are in high support and special care. They are children of the late 1980s who were not given priority in recent decades. I hope that the money being provided for early intervention will mean that as teenagers they will not experience the same problems.

There has been criticism of the lack of co-ordination between the different areas. The special residential services board, whose work I have witnessed at first hand in the past year, will provide the necessary co-ordination in the residential services.

I note that Deputy Shatter was on Question Time with the Taoiseach and that he has caught up on matters.

I wish to deal specifically with the first amendment to be followed by something the Minister has said. The primary amendment is amendment No. 17 and related amendments. I apologise to colleagues if I repeat anything they have said. I am not sure to what extent the amendment has been teased out. I oppose the amendment. I regard it as a bizarre example of a bureaucratic exercise that will inevitably ensure that emergency action is not taken. I fail to understand the thinking behind it and I have no idea where the Minister is coming from. It may be that she had enlightened the committee before my arrival. However, I want to put the amendment in context.

The new power we are seeking to put into the 1991 Act is Part VIA which deals with children in need of special care or protection. As I understand it, the intention is to make statutory provision to address the type of difficulties that have resulted in the High Court hearing a plethora of cases relating to children who have fallen outside the safety net in existing child care legislation and in the provision of residential homes. This section sets out a procedure. The oddity of the amendment can only be understood in the context of what the section, in its original form, envisages and the damage the amendment does to it. Section 23A which is to be inserted in the 1991 Act provides that where it appears to a health board, with respect to a child, that the child requires special care or protection which he or she is unlikely to receive unless a court makes an order in respect of the child, being one of the type of orders that can be made under this Part, it is the duty of the health board to apply whichever order is appropriate, whether it is an order under 23B or 23C, which we will come to further on. If the health board is of the view that a child requires special care or protection, it is the duty of the health board to apply for a court order.

There is a proviso to the exercise of the duty under the measures as currently drafted. The proviso is that the health board cannot make an application to the court without first arranging a family welfare conference. That is the first step. I assume the arranging of a family welfare conference is a last throw of the dice to see if some arrangements can be put in place in relation to the child which may obviate the necessity of making an application to the courts. It is clear under section 23A as drafted that the health board has a duty to apply to the court for an order for special care and protection for a child subject to subsection (2), and the subject is the family welfare conference.

The way this would operate if it were in place is that the child in need of care and protection would be identified and it would be decided that the only way to provide that care and protection is to bring an application under this section but before that is done, a family welfare conference would be held in the hope that some alternative mechanism may be available. There is nothing unreasonable about any of that provided the family welfare conference is arranged fairly rapidly if there is a child with special problems.

We have not dealt with this aspect by way of amendment and I want to point out to the Minister that on Report Stage I will bring forward an amendment to subsection (2) because making it an obligation in all circumstances to first arrange a family welfare conference before the health board can exercise its duty to make a court application may, in relation to some children, create a position where a child at serious risk must remain at risk while the bureaucratic exercise of arranging a family welfare conference is gone through, even where it is known that there is no possibility that the family welfare conference can provide a solution to the child's problem. The general thinking is that there have to be circumstances under section 23A in which the health board can exercise its obligation without arranging for a family welfare conference, but that is another day's work. Nevertheless, we have had many instances where a child in need was identified and it is reasonable to arrange a conference before making a decision to go to court.

The Minister's amendment does something odd, and I do not understand the reason for it if this legislation is supposed to be child centred. Presumably if the health board decides a child is in need of special care and attention, professional staff attached to the health board will have made that assessment based on their expertise, their involvement with the family concerned and their involvement with a particular child. Those people who have made that assessment are the people who will, I assume, participate in a family welfare conference.

Let us assume that at the end of the family welfare conference it is decided that, in the interests of the child's welfare, a court application will be made because there is no alternative. What does the Minister's amendment do? It seeks to ensure that before applying for an order to the court, the health board will not only call a family welfare conference but "where, on the conclusion of the conference proceedings, it proposes to apply for a special care order in respect of the child, [the health board will] seek the views of the Special Residential Services Board . . . ". What is the point of that? The special residential services board has a plethora of different functions, one of which is to advise the Minister. It is not a case conference. It will have no special knowledge of the particular child. Its knowledge of the particular child will derive directly from what is reported to it by health board personnel or by the convenor of the family welfare conference.

If the special residential services board has a function, as it appears to have, under section 226 - it has so many functions it appears the Minister will be relieved of all responsibility for everything - to co-ordinate the delivery of residential accommodation, it would not be unreasonable that, if a health board social worker was of the view a child required special care and that arrangements required court orders, and if he or she was not sure where the child should go or the facilities that were available, they talked to someone in the special residential services board to enlighten themselves and fill the gaps in their own information. The special residential services board should have no role in determining whether the welfare of an individual child requires that a court application be made. This is creating a bureaucracy on top of a bureaucracy.

If a child requires intervention, the health board personnel's assessment is then subject to a review by a special residential services board. Can the special residential services board ask the qualified social workers who have carried out the assessment not to make the court application? On what basis could they do that? The special residential services board is set up to advise the Minister on policy relating to children. Will the special residential services board say it is far too embarrassing to let this application be made because it will highlight a gap in our services? Does that veto the bringing of an application to the courts?

I do not understand the reason for putting in place this extra layer of bureaucracy. How will the special residential services board process this? Let us assume there were 25 children evenly distributed among each of the different health boards who are in need of special care orders. Does each of those cases have to be reviewed by the special residential services board before a court application can be made? What is the purpose of this amendment? I suggest that whatever the Minister has in mind, this is unworkable. This is creating an extra layer of bureaucracy that will delay the bringing of necessary court applications to protect the welfare of children. I do not understand the thinking behind it and it should be teased out.

Having said that, I want to return briefly to the discussion that was taking place when I was in the Dáil Chamber during Taoiseach's Question Time. The report published today into Newtown House focuses on something that is very stark and very real. We have had a plethora of reports including one on Kelly Fitzgerald who died, the Madonna House report and various reports in the early 1990s which produced a series of recommendations needed to ensure that these types of events do not happen again. However, they have happened again in what was supposed to be a newly reorganised home providing residential care for children with particular needs.

It is an absolute scandal that there is now a need for an investigation into allegations that four children in this home were abused. It is an unmitigated scandal that this occurred during the lifetime of this Government in circumstances where this Government, on the first day it came into office, promised a social services inspectorate backed up by statute, delayed two years to put the inspectorate in place and still has not provided it with any statutory basis. It is a disgrace that unqualified staff are operating in this home. It is totally inexplicable that children with special needs have been tied down, locked in rooms and not provided with professional care. If it is still not possible to recruit properly trained staff to ensure children with special needs in these homes are properly looked after, there is something seriously wrong with the remuneration structures. It is not only about working conditions. It also involves the wage levels available and the failure by the Government to recognise the expertise and qualifications needed to provide services for children in this type of residential home.

With all due respect to the Minister of State who means well, I am fed up listening to her in soft RTE radio interviews. Interviewers, who do not have a clue about needs in this area and ignore the debates on this type of Bill, ask the Minister of State easy questions and she gives public relations, user friendly replies. The Government has been in office for four years and there is no excuse for what happened in this residential home. We have run out of excuses. It is not the 1950s or 1960s when we did not know or understand what was happening. It is not the 1970s when people started to uncover child sexual abuse. It is not the 1980s or 1990s when people looked aghast at events in Madonna House and could not believe that it had happened in Ireland. It happened repeatedly.

The health boards have certain responsibilities, but, ultimately, the Minister for Health and Children or whoever is put in charge of dealing with issues relating to children bears responsibility. The Minister for the Marine and Natural Resources, Deputy Fahey, told the nation that he was a great Minister of State with responsibility for children, but he has flown the coup. Does anybody in government ever accept responsibility for disasters that afflict children due to massive failures in policy, resources and in terms of insight and understanding? The report highlights in a stark way the total failure of the Government to put in place much needed services within any reasonable timeframe. For too long it has been left to High Court judges to shine the light on what is happening in areas that successive Ministers for Health and Children under this Administration would prefer were not debated in public except in easy, user friendly interviews with members of the media who touch on these issues whenever there is a scandal or a crisis, but have no detailed knowledge of what they are discussing.

This relates specifically to Part IVA of the Bill which deals with children in need of special care or protection. The media do not realise, and the Minister has not yet admitted in an interview, that an Opposition proposal, supported by the Fine Gael Party and the Labour Party, would have guaranteed that Part 3 of the Bill came into force on the day the legislation was enacted. This would have ensured a legislative structure was in place and there was no abdication of legislative responsibility with the High Court filling the gap. Neither the Minister nor the media appear to realise that the Government voted down at the committee the wishes of members of the Opposition that this Part of the Bill should be brought into force immediately. The debacle highlighted in the report of the social services inspectorate is the stark reality of the failure of the Government to deal with these issues. If these services are not properly provided, the amendments we are debating, such as the one to which I referred, and this part of the legislation will be meaningless headlines or comment. If the services are not provided, everything in the Bill will be utterly irrelevant.

It is regrettable that Members do not have copies of the social services inspectorate's report. My colleague, Deputy Fitzgerald, had to make telephone calls seeking a copy. As a consequence, she received it yesterday evening. Various other Members and I have not been furnished with a copy. We should not have to individually telephone the social services inspectorate seeking the report. A copy was not in my pigeon hole in Leinster House by 2.15 p.m. today, although I do not know if other Deputies received it. My colleague, Deputy Fitzgerald, received a copy because she rang and specifically asked for it. This is not good enough.

I am sure I will receive the same latitude. Deputy Shatter's contribution was only a media broadcast because we had a reasoned debate on the issue earlier.

It is time for some outrage on the issue, not only reasoned debate.

The social services inspectorate is an independent body and I received a copy of the report yesterday morning. The agreement was that the families would then receive it and that it would be made public subsequently. The Deputy is free to contact this independent body and I am sure it would be more than happy to provide him with a copy of the report which is also available on the Internet.

Members should be furnished with a copy.

It is an independent body. It has nothing to do with the Houses of the Oireachtas.

The body is under the aegis of the Department and has no statutory independence whatsoever.

It is an independent body. If the Deputy wants a copy of the report, he should ring the inspectorate and it would be more than happy to provide it for him. It is also available on the Internet.

I hoped the Minister of State would show members of the committee courtesy in the context of dealing with the Bill by ensuring a body attached to her Department supplied Members with an important report published by it.

As the Minister of State explained, it is an independent body. I am sure the committee's secretariat would have organised a copy of the report if it had been sought. I ask members to get back to dealing with the Bill.

The report will be available on the Internet today. Deputy Shatter has chosen to make the matter political. We agree that Newtown House is and was an unsuitable place for high support and special care. It was transformed into such use in 1996, during, as the Deputy will recall, the previous Government's term of office when no provision was made to enable health boards even commence the planning process for such places of high support and special care.

It has been in operation for almost four years while the Minister of State's Government has been in office.

The Deputy had an opportunity to contribute without interruption.

We have been through the building programme. Some 17 places were available before the Government took office. There are now over 70. The other 56 are on target for the end of the year.

The problems in Newtown House emerged under the Government's watch. Children have been abused in this facility——

Please, Deputy.

——while the Minister of State's party has been in government and occupying the Department of Health and Children. It is as simple as that.

The Deputy had a good run. Will he, please, allow the Minister of State to contribute?

Perhaps we can continue when the Deputy has finished playing to the gallery. The social services inspectorate was established by the Government. I requested it last year, on foot of concerns expressed to me about Newtown House, to produce a report.

They were expressed to Mr. Justice Kelly in the High Court.

These are important matters.

I understand the matter will be discussed during the Adjournment debate. This is not the forum for it. Deputy Shatter made important points on amendment No. 17.

He also made points that need to be addressed, if he would allow me an opportunity to do so. I asked the social services inspectorate last July, on foot of concerns expressed to me, to bring forward its inspection of Newtown House and it did so obligingly. This highlights the value and importance of the role of the SSI, which the Government established. The Government has given resources to all the health boards to implement all the recommendations of the SSI. It is also important to remember that the health boards have statutory responsibility——

The Minister of State regards it as praiseworthy that children were abused under the Government's watch and that, after almost three years in office, it managed to have an inspection. It is an extraordinary approach.

If I may——

It is obvious that the Minister of State's work on this matter was exemplary.

The SSI was established in April 1999. It is important to realise the health boards have statutory responsibility——

It was promised in June 1997.

At least, we kept our promise, unlike many others in relation to promises given.

Legislation was promised in June 1997 which we still have not seen.

It highlights the importance of the SSI's work——

In the interests of making progress on the Bill, I ask the Minister of State——

There are two further points.

Perhaps everybody could agree to cool down and address the amendment.

The health boards have statutory responsibility for child care services and the issues are being addressed by them. I appreciate fully the importance of implementing Part 3 and other sections of the Bill. It would help if we were allowed to finish Committee Stage.

Why did the Government vote down the proposal that it come into force when the legislation was enacted?

That is history.

It is not; it is reality.

An effort to get the Bill passed would help.

It happened previously, Deputy.

It is time we moved away from fiction and into reality in these areas.

It is time we got back to amendment No. 17. I ask the Minister of State to address the queries raised by the Deputy.

Unfortunately, the Deputy missed my introduction and the explanation for the amendment. I do not propose to repeat it. He can look at the "blacks".

Detention must be used as a last resort, the principle behind the measure. Obviously, a family welfare conference is one check. If there is likely to be a delay, the Bill provides that the health board can apply for an interim care order. Given that taking a child's liberty is very serious, whether the child be offending or non-offending, the child's rights, including civil rights, must be safeguarded.

The idea behind this is that the special residential services board would have an overview of all admissions throughout the country. A panel of experts reviewing reports will ensure uniformity. This will mean that places are being used by the right people at the right time. In the past year it has been found that different standards and criteria have been used in different areas to deal with what would be deemed to be troubled children. In the interests of the child and the protection of the rights of the child, this extra check and balance should be in place before the child is placed in detention.

The other purposes of the provision are to ensure a better co-ordination of the use of the places and to assist the courts. While we cannot take a direct role in their work this would assist the courts in identifying available places. This has been looked for.

Will the Minister of State explain how these extra checks and balances will work? At the end of a family welfare conference determining that in the interests of the child a court application be made, within what period of time will the residential services board be required to review the papers furnished to it? What type of papers and information will be furnished? Will it get a verbatim report of what happened in the family welfare conference or a synopsised view? Will recommendations be furnished? If the residential services board determines that a court application should not be made, will it give reasons for that? If the health board continues to believe that it should be made, what will happen in relation to a child?

The residential services board would not be at liberty to receive a full report on the family welfare conference but it would be able to receive a report on the proceedings and the results. The board would also be in a position to get, and refer to the panel of experts, psychiatric or psychological reports and reports relevant to seeking an order to have a child detained. It will be required to give reasons it considers that a child would not be suitable.

If an application is made for special care and it is not perhaps deemed to be suitable by the residential services board, it may recommend either high support or ordinary residential care. A recommendation would be made, but of concern here is to provide an extra check to help ensure that a child's liberty is not taken except as a last resort.

What time frame is envisaged?

The residential services board would set its own procedure, but the time frame involved would have to be very quick, immediately on foot of a family welfare conference.

There have been a couple of hundred cases in the High Court and the procedures envisaged would be applied to them. If 25 or 30 such applications came before the special residential services board, will the Minister of State explain who will comprise the committee of experts and how and within what time frame will they be processed?

Perhaps the Deputy is confusing the different types of cases. There have not been anything like a couple of hundred cases relating to special care. There have been cases involving children with autism, but we are not concerned with them here. We are only concerned with children with special care orders, which is a confined number of cases. The health boards decided that 100 extra high support and special care places were needed. The number of cases involved here would be substantially less than that because of the absence of high support places. Decisions are based on the principle of last resort. Nobody, be they professionals or otherwise, can use this too readily. It is in the interests of protecting the child that the special residential services board has an overview of the criteria to be applied in taking away a person's liberty.

For good reason the board should have a bureaucratic overview to monitor what happens to ensure that gaps in services are filled. That is reasonable. It is a different matter that it should deal with individual cases and possibly undermine the judgment of professionals attached to health boards who may determine that an intervention is necessary in respect of a child. The two functions are getting confused. The Minister of State is unable to explain within what time frame matters will be dealt. Should a report be made from a family welfare conference this section should be invoked to the benefit of a child by the making of a court application.

The Minister of State said the health board shall seek the views of the special residential services board. Will she clarify what she means by this? Will the board give its view on the advisability of seeking a special care order, the appropriateness of different care options or the availability of care placements?

Views will be sought on placing a child in special care, not on whether a specific place should be chosen or whether it should be special care or high support, but on making an application to the court to seek an order for special care. The board will not advise but a panel of experts who will base their views on reports, not on meetings with the child or the child's family. This could be done very quickly and the advice could be submitted with the application to the court, which will then have the benefit of not only an application from the health board but a report from a panel of experts from the special residential services board. This would ensure that standardised criteria are being used across the country.

Amendment put.
The Select Committee divided: Tá, 8; Níl, 7.

  • Ahern, Michael.
  • Ardagh, Seán.
  • Brady, Martin.
  • Hanafin, Mary.
  • Kitt, Michael.
  • McGuinness, John.
  • Wade, Eddie.
  • Wright, G. V.

Níl

  • Clune, Deirdre.
  • Finucane, Michael.
  • Howlin, Brendan.
  • Neville, Dan.
  • O’Keeffe, Jim.
  • Shatter, Alan.
  • Shortall, Róisín.
Amendment declared carried.

I move amendment No. 18:

In page 22, line 31, after "parent" to insert "or guardian".

In this amendment I propose to amend section 23A(3) as inserted by section 16, which states:

Where a parent of a child requests a health board to apply for an order under this Part in respect of the child and the board decides not to do so, it shall inform the parent in writing of the reasons for its decision

by inserting the words "or guardian" after the word "parent". It would then read:

Where a parent or guardian of a child requests a health board to apply for an order under this Part in respect of the child and the board decides not to do so, it shall inform the parent or guardian in writing of the reasons for its decision.

This is a technical amendment to apply in circumstances where a child may be in the care of someone who is not his or her parent and may be his or her guardian. It is to ensure the guardian is informed as to what is happening. The guardian can request the health board to apply for an order under the new Part to be inserted into the 1991 Act.

In the spirit of co-operation which Deputy Shatter does not share, I am happy to accept the amendment. I thank the Deputy for pointing it out.

Amendment agreed to.

Amendment No. 21 is consequential on amendment No. 19 and amendments Nos. 29 and 31 are related and all may be taken together by agreement.

I move amendment No. 19:

In page 22, between lines 35 and 36, to insert the following subsection:

"(4) Where a health board decides not to apply for an order under this Part following receipt by it of a request from a child's parent or guardian that it does so, or unreasonably delays in making such application, the parent or guardian may make application to the court under this Part.".

The amendment seeks to insert an additional subsection into the Bill in the new section 23A of the new Part IVA as inserted by section 16. The new Part IVA to be inserted into the 1991 Act is designed to provide a statutory basis for dealing with the type of applications brought to the High Court in reliance on the Constitution where children are in need of special care or protection. Court applications have been brought to the High Court by health boards, parents or relations of a child on his or her behalf. In the context of recognising that parents have fundamental constitutional rights where their children are concerned, and also in recognising that health boards do not always make correct judgments - if we have not learned that by now, we certainly should have - it is important this Part is not interpreted in future by the courts as foreclosing on the rights of parents with a child with certain difficulties to apply to the courts directly for special care or protection for their child.

Including this provision in the Bill through this amendment is more necessary as a consequence of amendment No. 17 being incorporated into the Bill. It is designed to ensure that, where a health board declines to make an application under Part IVA, a parent can bring such an application. The health board has the primary obligation but, where it declines to make such an application and a parent genuinely believes his or her child requires the special care which can be provided under the Part, he or she can make the court application. Ultimately it will be for the court to decide whether specific protection is required for the child. I hope this can be agreed to. I cannot see any reason it should not. If a parent makes an application and it is inappropriate that such special care or protection be provided for a child, the court will so adjudicate.

The other important element is if a health board delays unreasonably in making an application. A parent or guardian may be of the view that a child urgently requires a certain type of care but perhaps the health board is not of that view. Many cases before the courts recently have derived from the views of parents being different to the views of health boards or of those in the Department of Health and Children responsible for this area. In the case of the welfare of children who have had a plethora of court orders made, health boards have not consented to and the Department of Health and Children has been less than happy to have seen these orders made. That is clear from the arguments made to court on occasion as to why these orders should not be made. Parents must have this constitutional right and it should be incorporated within this legislation.

The unreasonable delay issue in particular may now derive from amendment No. 17 having been made where, even if a health board is of the view that an application should be made on behalf of a child for his or her benefit, it must first obtain the sanction of the special residential services board and that sanction may take a few days, weeks or months. The Minister of State does not know because she cannot tell the committee that, if sanction is sought, it will be given or denied with four or seven days or two weeks or months. There is a possibility that there may be unreasonable delays for which a health board is not responsible. Amendment No. 19 would allow a parent or guardian who believes his or her child is at risk and needs special care or protection or poses a certain risk, possibly to others, to make this application.

The other amendments are consequential on amendment No. 19 and I will not address them in detail at this time because their incorporation into the Bill relies on the adoption of the new subsection (4) into section 23A as inserted by section 16.

I cannot accept any of these amendments on the basis that what is involved is taking away the liberty of a child who also has rights. While parents certainly have rights, our legal advice is that they do not have a constitutional right to apply to have a child detained in a special care unit. The purpose of the checks and balances of the previous section is to ensure a child is detained only as a last resort. It is for that reason the family welfare conferences are to be held so that a parent will agree to the plan for a child now that the views of the special residential services board will be sought. Deputy Shatter referred to the word "sanction". Nowhere is that used. It is the views of the board that will be sought.

It is important to outline that we speak of children who have not offended. For that reason, they do not have the same protection as children before the courts on criminal charges. It is obviously a serious decision to detain a child who is not an offender. For that reason, that decision must be left with the court based on an application from the health board with the checks and balances in place. Parents should not have the right to apply directly to the courts to try to avoid the checks and balances in place in the interests of the rights of children. I cannot accept the amendments.

The objection raised by the Minister of State is not only spurious but misconceived on the basis of her understanding of what this legislation will do. She argued that parents should not have the right to apply to a court to have a child detained because we are talking about "taking away the liberty of a child". The Minister of State is saying that a health board, unrelated to a child, should have the right to apply to the courts to take away the liberty of a child but his or her parents should not.

The Minister of State confuses the right to make an application to a court with a court determining that a detention order should be made. Whether a health board or a parent makes the application, the fact of its being made does not, of necessity, mean the court order sought will be granted. In determining whether a court order sought should be granted, section 23B as inserted by section 16 is the operative section. It states:

A court may, on the application of a health board with respect to a child who is in its care or who resides or is found within its area, make a special care order in respect of the child if it is satisfied that-

(a) the behaviour of the child is such that it poses a real and substantial risk to his or her health, safety, development or welfare,

and

(b) the child requires special care or protection which he or she is unlikely to receive unless the court makes such an order.

What is objectionable about a parent making an application to a court in respect of his or her child and a special care order being made in respect of the child if, following the parent making that application, the court is satisfied that the behaviour of the child is such that it poses a real and substantial risk to his or her health, safety, development or welfare and that the child requires special care or protection which he or she is unlikely to receive unless the care order is made?

It is an extraordinarily odd argument to suggest that to allow a parent to apply for a special care order because the behaviour of the child poses a real and substantial risk to the child's health, safety, development or welfare is unacceptable while suggesting that allowing health boards to make such applications is acceptable. Of course health boards should be allowed to make such applications but there are parents who, due to the difficult personality disorders of a child, cannot cope with their child and who may make a judgment that their child is suicidal or self-destructive or is behaving in a manner that poses a risk to his/herself and possibly to others. From observing the child at close quarters, the parents may conclude that the only way to protect their own child is for the courts to make an order providing the child with special care. Parents may even reach a conclusion that a health board whose help they have sought is too slow in providing that help. Social workers are overworked and the parents and child may be on a waiting list for assessment. In the meantime the child is at risk and behaving in a manner that indicates he or she should be taken into care. The Minister of State knows, as do I, that we have health board waiting lists of children who are at risk and who require assessment. This is not a party political issue but a practical matter of ensuring that children have the protection to which they are entitled and that no child is detained under this provision except in very serious circumstances. Where parents make a judgment that the welfare of their own child requires that that child be detained, which is a difficult and tragic judgment for them to make, they should have the right to ask a court to adjudicate as to whether that is appropriate. That takes nobody's constitutional right away. The courts will apply the same criteria to that application as apply when a health board makes an application. The court would be entitled to ask why the parents are making the application in circumstances in which the health board has not made an application in respect of the same child. The court may want its own independent assessment carried out, though there may be a difficulty in that if it asks the Dublin probation and welfare service to do this, it might have to wait nine to 12 months as it lacks the personnel to carry out assessments.

That is another important aspect of this issue. There is no logic in saying a health board can make this application while denying that right to parents, particularly when parents can currently make such an application, under the Constitution, to the courts. There is a risk that if we do not include this in the legislation we will have one framework operating by way of statute and a second, constitutional route, also operating and being utilised by parents. There will be a lack of uniformity in the approach, which the Minister appears to wish to put in place.

This is a curious amendment. In his last amendment the Deputy sought to knock this down on the basis that the health board were the professionals and that all the professional analyses would have been done, so there would be no need for an extra check. Here he wants to avoid all the professionals and analyses and have no checks and balances. The fact that we have already included two checks secures the rights of the child. A special care unit is not about locking up bold children. It is very secure placement for seriously disturbed children; they would be put there for a certain length of time by court order. It is important in the interests of the child that that is backed up by the proper professional analysis and support and by the family welfare conference, on which everyone is agreed. It is also important to recognise the rights of the child while not in any way taking away from the constitutional rights of the parents and that this is only used as a last resort. For that reason I cannot accept these amendments.

Amendment put and declared lost.

Amendment No. 20 has already been discussed with amendment No. 17.

I move amendment No. 20:

In page 22, line 39, after "area" to insert "and having taken into account the views of the Special Residential Services Board referred to in section 23A(2)(b)”.

Amendment put and declared carried.
Amendment No. 21 not moved.

Amendment No. 23 is an alternative to amendment No. 22, so amendments Nos. 22 and 23 are to be taken together by agreement.

I move amendment No. 22:

In page 23, lines 27 to 29, to delete "being a period which is not less than 6 months or more than 12 months".

Section 23B deals with special care orders and contains provisions in subsection (4) which states that subject to subsections (5) and (6) a special care order shall remain in force for a period to be specified in the order, being a period not less than six months or more than 12 months.

I propose to delete "being a period which is not less than 6 months or more than 12 months". It effectively leaves this to the courts in the context of assessing what are the interests of the child and applying the criteria under section 23B to determine the period during which the special care order should be in force. That does not mean that a child is forever more subject to that order, because the later subsection (5) provides that if, while a special care order is in force in respect of a child, it appears to the health board concerned that the circumstances which led to the making of the order no longer exist with respect to the child, the health board shall, as soon as practicable, apply to the court which made the order to have the order discharged.

The Deputy is aware of amendment No. 23 where the Minister of State is substituting three months instead of the six months and 12 months.

I am. I am saying that subsection (4) should not curtail the court in determining the length of time a special care order should remain in force. It may well be that it should be less than six months - the Minister of State now says it should be not less than three months - and it may be that the court decides in the case of some child that an order should be made for a number of weeks rather than three months, while an order for another child might be for a year and a half or two years. Whatever time period is provided will always be open to review under this section. The provisions in the section as it stands and those proposed by the Minister of State are too constraining on a court's determining the best course of action for a particular child.

My amendment proposes reducing the time from six months in the original Bill to three months, again on the understanding that a special care unit should only be used as a last resort and for as short a time as possible. This matter was raised by several Deputies on Second Stage. They felt the duration of a special care order was too long and could lead to children being unnecessarily detained. It was felt this could happen through the health boards, even though the health boards have a duty to discharge the order where the grounds no longer obtain. We felt in reviewing this that, if a child is to be placed under a special care order, three months would be the time in which therapeutic care would be needed and that anything shorter probably would not work. If it needs to be longer than six months an extension could be applied for.

Deputy Shatter's amendment proposes to delete the time limits altogether, which means a special care order could be made indefinitely. We could end up with a child being placed in a unit with no minimum or, even worse, no maximum time specified. I recommend my own amendment No. 23

Amendment put and declared lost.

I move amendment No. 23:

In page 23, lines 28 and 29, to delete "6 months or more than 12 months" and substitute "3 months or more than 6 months".

Amendment agreed to.

We agreed to finish at 4.10 p.m. for the Order of Business. Unless there is a desire on the part of all parties to carry on, we will now adjourn.

I think the Order of Business is late because there will be private notice questions on the foot and mouth crisis. If so, perhaps we can carry on until 4.30 p.m.

Yes, if Deputy Shortall agrees. Is that agreed? Agreed. Amendments Nos. 24 and 25 are related and may be discussed together.

I move amendment No. 24:

In page 23, line 40, after "concerned" to insert "or to a parent or guardian of a child".

The amendment proposes to insert additional words in subsection (5) of paragraph 23B. Subsection (5) reads, "If, while a special care order is in force in respect of a child, it appears to the health board concerned that the circumstances which led to the making of the order no longer exist with respect to the child, the board shall as soon as practicable apply to the court which made the order to have the order discharged." The amendment proposes to include after the word "concerned" the words "or to a parent or guardian of a child". The subsection would then read, "If, while a special care order is in force in respect of a child, it appears to the health board concerned or to a parent or guardian of a child that the circumstances which led to the making of the order no longer exist with respect to the child, the board shall as soon as practicable apply to the court which made the order to have the order discharged." This should read, ". . . the board, or a parent or guardian, shall as soon as practicable apply to the court which made the order to have the order discharged."

The amendment seeks to raise the issue that where it appears either to the health board or a parent or guardian of a child, while a special care order is in force, that there is no reason for the order to remain in force, not only should the health board, but that the parent or guardian should have the right to apply to the court to have the order discharged. Parental rights must be respected in this context. The rights of children must also be protected. It may well be the case that health boards under pressure of work may be slow to reach a conclusion that there is no need for such an order to remain in force. As matters stand, if a special care order is made - let us assume one is made for six months - and after two or three months the health board does not take action to have the order terminated and it becomes clear to a parent or guardian that the difficulties of the child have been addressed, neither the parent nor the guardian has any mechanism whereby he or she can have the order set aside. That is, probably, unconstitutional. It is important that parents or guardians should have that right. The fact that a parent or guardian makes an application does not necessarily mean that the court will grant it if it is clear that the child still has difficulties that require him or her to be detained.

The Minister of State referred to the need to ensure children are not detained for longer than is necessary. It is unprecedented in the context of child care law whereby a health board can have a child taken into care that the parent does not have a right to apply to have him or her removed from care where a judgment is made that it may not be necessary. Under the Child Care Act, 1991, the general care provisions which allow health boards to take children into care make provision for parents to apply to have children removed from care.

It would be inappropriate to include the amendment in the subsection which relates to the obligations of health boards in the context of their powers in relation to special care orders. It is their responsibility to arrange to provide the appropriate services and the necessary special care and attention. They are, therefore, the bodies in the best position to determine the circumstances which gave rise to the order in the first place if they should cease to exist. It should remain the obligation of the health board to seek a discharge under those circumstances. The obligation should not be imposed on parents or guardians.

Where Deputies are concerned about the rights of parents or guardians, this is, probably, addressed in paragraph 23F which allows a court, of its own motion or on the application of any person, vary or discharge a special care order. This would allow a parent or guardian to seek a discharge of the order. I do not propose to accept the amendment.

That is a reasonable response.

Amendment, by leave, withdrawn.
Amendment No. 25 not moved.

Amendment No. 27 is an alternative to amendment No. 26. Amendments Nos. 26 and 27 may, therefore, be discussed together.

I move amendment No. 26:

In page 23, to delete lines 46 to 51.

The power to detain persons over the age of 18 years seems to be in breach of Article 5 of the European Convention on Human Rights. Where there is an ongoing problem with a person18 years or over engaging in anti-social behaviour, there is a remedy in criminal law, civil commitment or a new civil jurisdiction to prohibit anti-social behaviour. The Minister of State accepts this aspect.

As it stands, the subsection allows courts to extend special care orders beyond a child's eighteenth birthday in certain circumstances. Having considered the concerns expressed, I propose to delete part of the provision. Apart from concerns in relation to civil liberties to which the Deputy referred, it is not desirable that children and adults be placed in the same facilities, particularly those which restrict the liberty of the client. It is still open to health boards to provide after care services for any child reaching the age of 18 years placed in a special care unit under section 45 of the Child Care Act, 1991.

I cannot accept the amendment because the proposal would allow a court to make an order which could extend beyond a child's eighteenth birthday without a court review taking place. I propose that amendment No 26 be rejected and amendment No. 27 be accepted.

I accept the Minister of State's recommendation.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 23, lines 48 to 51, to delete all words from and including "unless" in line 48 down to and including "otherwise" in line 51.

Amendment agreed to.

I move amendment No. 28:

In page 24, line 11, after "health" to insert ", education".

Amendment agreed to.

I move amendment No. 29:

In page 24, line 22, after "health board" to insert "or a parent or guardian of a child or a person acting in loco parentis".

Amendment put and declared lost.

I move amendment No. 30:

In page 24, to delete lines 23 to 34 and substitute the following:

"(a) that the health board is complying with the requirements of section 23A(2) in relation to the making of an application for a special care order in respect of a child, and”.

Amendment put and declared carried.
Amendment No. 31 not moved.

I move amendment No. 32:

In page 25, line 29, to delete "interests of justice or the".

The new section 23C(3) under section 16 provides:

An application for an interim special care order or for an extension of a period mentioned in subsection (2) shall be made on notice to a parent having custody of the child or a person acting in loco parentis or, where appropriate, to the health board concerned, except where, having regard to the interests of justice or the welfare of the child, the judge otherwise directs.

I propose to delete the words "interests of justice or the". It is only in circumstances where the welfare of the child is relevant that a judge should be able to otherwise direct. The concept of the interests of justice is far too broad and the focus in this decision should be on the welfare of the child.

I was not sure from where the Deputy was coming in the amendment. I do not envisage many cases where the interests of justice would not be served by notifying the parties included under the Child Care Act. There may be rare occasions where a parent cannot be found and a judge would have to have discretion. It is prudent to retain the words.

I want to be helpful to the Minister of State. My point is that it would only be very serious circumstances which could give rise to parents not being notified and those serious circumstances could only relate to the welfare of the child. It would be difficult to envisage circumstances unrelated to the welfare of the child which could produce a situation where it was decided, in the interests of justice, not to inform the parents. We should be careful how we draft the legislation. Interests of justice are superfluous and the only circumstance in which parents should not be notified is where the welfare of the child so demands it. I do not understand how the concept of interests of justice adds anything to the position.

It follows the wording of an interim order under the Child Care Act.

That does not mean it is right.

It is an added check.

Will the Minister of State look at the matter between now and Report Stage?

I will look at the wording to see if it is necessary to retain it.

Amendment, by leave, withdrawn.

I move amendment No. 33:

In page 29, line 25, to delete "unit.'." and substitute the following:

"unit.

PART IV B

Private Foster Care

23O. In this Part-

'authorised officer' means a person appointed by a health board under section 23S;

'health board' means the health board for the area in which a child resides before being placed under a private foster care arrangement and also, if the child, on or after being so placed, goes to reside in the area of another health board, that other health board;

'private foster care arrangement' means any arrangement or undertaking whereby a child is for more than 14 days in the full-time care, for reward or otherwise, of a person other than his or her parent or guardian, a person cohabiting with a parent or guardian or a relative, except where the child-

(a) is residing at a boarding school and receiving full-time education,

(b) is in an institution managed by or on behalf of a Minister of the Government or a health board,

(c) is in an institution in which the majority of persons being cared for and maintained are being treated for acute illness,

(d) is in an institution for the care and maintenance of children with a disability,

(e) is in a mental institution within the meaning of the Mental Treatment Acts, 1945 to 1966,

(f) is detained in a children detention school or children detention centre within the meaning of the Children Act, 2001,

(g) is placed for adoption under the Adoption Acts, 1952 to 1998,

(h) is in the care of a health board,

(i) is on holidays for a continuous period not exceeding 42 days, or

(j) is placed with a person or body for primarily educational purposes;

'relative', in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the whole blood, half blood or by affinity, and includes the spouse of any such person and any person cohabiting with any such person.

23P. (1) A person arranging or undertaking a private foster care arrangement shall give notice to the health board in the manner specified in section 23Q not less than thirty days before the placement.

(2) Where a child is placed in a private foster care arrangement owing to an unforeseen emergency, both the person making the arrangement and the person undertaking it shall notify the health board in the manner specified in section 23Q as soon as practicable and not more than 2 working days after the placement.

(3) Any person arranging or undertaking a private foster care arrangement on the commencement of this Part who has submitted to the health board before such commencement the information it requires in relation to the arrangement or undertaking shall be deemed to have complied with subsection (1).

23Q. (1) Any person arranging or undertaking a private foster care arrangement shall submit to the health board in writing-

(a) the person’s name and address,

(b) the name, sex, date and place of birth and address of the child concerned,

(c) the name and address of the parent or guardian of the child,

(d) if the child’s residence is changed, the child’s new address,

(e) if the private foster care arrangement terminates, the reasons for its termination,

and any other information that the health board may consider necessary in relation to any persons involved in the arrangement.

(2) Any person arranging a private foster care arrangement shall submit to the relevant health board, in writing, the name and address of the person undertaking the arrangmentand any other information in respect of thatperson that the health board may consider necessary.

23R. It shall be the duty of every person arranging or undertaking a private foster care arrangement in relation to a child to take all reasonable measures to safeguard the child's health, safety and welfare.

23S. (1) A health board shall appoint such and so many of its officers as it thinks fit to be authorised officers for the purposes of this Part.

(2) Each authorised officer shall be given a warrant of his or her appointment and, when exercising any power conferred by this Part, shall, on request by any person affected, produce the warrant or a copy thereof, together with a form of personal identification.

23T. (1) Where the relevant health board has received a notice in accordance with section 23P in respect of a private foster care arrangement, an authorised officer may at all reasonable times enter any premises (including a private dwelling) in which the child concerned is residing.

(2) A judge of the District Court may, if satisfied on the sworn information of an authorised officer that there are reasonable grounds for believing that a private foster care arrangement has been arranged or undertaken and that the health board has not received the requisite notice, issue a warrant authorising an authorised officer, accompanied if necessary by other persons, to enter, if need by reasonable force, and inspect any premises (including a private dwelling) in which the child may be residing.

(3) An authorised officer, on entering any such premises, shall investigate the care and attention that the child is receiving and the condition of the premises with a view to ensuring that the person undertaking the arrangement is complying with his or her duty to take all reasonable measures to safeguard the child's health, safety and welfare.

(4) An authorised officer may request a member of the Garda Síochána to accompany him or her when carrying out an inspection.

23U. If a health board believes-

(a) that a person who is arranging or undertaking a private foster care arrangement has not notified it under section 23P, or

(b) that such a person is not taking all reasonable measures to safeguard the health, safety and welfare of the child concerned,

it may apply to the District Court for one of the following orders:

(i) that a supervision order under section 19 be made in respect of the child,

(ii) that the child be taken into the care of the health board under section 13, 17 or 18,

(iii) that the arrangement be terminated and the child returned to his or her parents or guardian,

and the Court may order accordingly.

23V. (1) A person shall not arrange or undertake a private foster care arrangement for the purpose of adopting a child under the Adoption Acts, 1952 to 1998.

(2) Any person undertaking a private foster care arrangement in respect of a child shall not apply under those Acts to adopt the child unless-

(a) the child is eligible for adoption under the Adoption Acts, 1952 to 1998, and

(b) the relevant health board has consented to the continuance of the arrangement pending the completion of an assessment of that person under those Acts.

(3) If a health board believes that a person who is arranging or undertaking a private foster care arrangement is doing so incontravention of subsection (1) or (2), it may apply to the District Court for an order either-

(a) that the child be taken into its care under section 13, 17 or 18, or

(b) that the arrangement be terminated and the child returned to his or her parents parents or guardian,

and the Court may order accordingly.

23W.(1) Any person-

(a) who while arranging or undertaking a private foster care arrangement does not notify the relevant health board under section 23P,

(b) who contravenes section 23R,

(c) who refuses to allow an authorised officer to enter any premises in accordance with subsection (1) or (2) of section 23T or obstructs or impedes an authorised officer in the exercise of his or her powers under that section,

(d) who while arranging or undertaking a private foster care arrangement knowingly or wilfully makes or causes or procures any other person to make a false or misleading statement to the relevant health board,

(e) who contravenes section 23V(1), or

(f) who does not comply with an order under paragaraph (ii) or (iii) of section 23U or under section 23V(3),

is guilty of an offence and liable on summary conviction to a fine not exceeding £1,500.

(2) Where a person is convicted of an offence under this section, the District Court may by order prohibit the person from arranging or undertaking a private foster care arrangement for such period as may be specified in the order.

23X. This Part is without prejudice to any other provision of this Act or any provision of the Children Act, 2001, which imposes, in the interests of a child, duties or obligations on a health board or a member of the Garda Síochána.'.".

I move amendment No. 1 to amendment No. 33:

In the new section 23O, in the third and fourth lines of the definition of "private foster care arrangement" to delete "or otherwise".

The Minister of State's amendment defines a private foster care arrangement as "any arrangement or undertaking whereby a child is for more than 14 days in the full-time care, for reward or otherwise, of a person other than his or her parent or guardian, a person cohabiting with a parent or guardian or a relative, except where the child is . . . " The amendment lists a series of different arrangements. I propose to delete the words "or otherwise" as I am not sure what they add to the provision, particularly when one takes into account the various exceptions listed. I am open to persuasion by the Minister of State that the words "or otherwise" have some function which make them worth retaining.

I cannot accept the amendment as under amendment No. 33 it is intended that, regardless of whether there is a reward, the health board will be notified of a private foster care arrangement. The principal reason for the amendment is to ensure health boards are made aware of these arrangements, can monitor and supervise them if they consider there is a possibility that the child is vulnerable or at risk and in a position to take the appropriate action, if necessary. That is the reason amendment No. 33 is being inserted in the Child Care Act, 1991. I do not consider that the distinction proposed in the Deputy's amendment between being placed for reward or not is appropriate.

I am aware that provisions were proposed in the Child Care (Care and Protection) Bill, 1985, in relation to private foster care and that it contained this distinction. It qualified it, however, by stating that "a person undertaking the care and maintenance of a child should be deemed to do so for reward if he receives any payment or gift of money or money's worth or any promise of such a payment or gift in connection therewith, irrespective of whether he makes a profit or intends to make a profit".

Under the Deputy's amendment even this qualification would not apply. In order to ensure no obstacle can be put in the way of health boards in fulfilling their obligations it is preferable to adopt a straightforward approach and impose the obligation on all persons arranging or undertaking foster care arrangements as defined in section 23O regardless of whether there is a reward. I cannot accept the amendment.

The exceptions listed in amendment No. 33 detail a series of possible arrangements, many of which one would expect to be included. One exception is where a child is on holidays for a continuous period not exceeding 42 days. Let me give a practical example. Let us say parents travel abroad for three weeks while the child is at school and the child takes up residence with the parents of a friend who attends the same school and it is not for reward. Is that a private foster care arrangement? It does not come under the category of being placed with a person or body for primarily educational purposes as the child does not live in the school and is not on holidays. This is not unusual among families. Is it necessary to report it to a health board which will have to undertake an assessment?

Paragraph (i) provides for a 42 day period, while paragraph (j) refers to “primarily educational purposes”. The people concerned are excluded as the child is receiving an education. The purpose is to ensure children who have been placed for other purposes are notified to the health board.

I do not think that is correct. For example, if my wife and I go on holidays for four weeks during school term my child moves in next door with a neighbour whose child goes to the same school, the child is not on holidays and will attend school. The child is not placed with a person or body for primarily educational purposes but for the purpose of living with them while the child goes to school. Presumably it excludes a child who is placed in a boarding school. The child is placed with a person or body for primarily educational purposes. If a child goes to the Gaeltacht for Irish classes for a month, does this mean the health board is invoked to carry out assessments? I am not trying to be difficult but I can see good reasons for retaining "or otherwise". All sorts of family situations will arise that could result in it being suggested that people are in breach of the provisions of this Bill or could involve health boards in circumstances in which they have enough on their plate and do not need to be involved.

A child who is residing at a place for specific educational purposes is covered in paragraph (a) which states "is residing at a boarding school and receiving full-time education".

It is intended that paragraph (j) would deal with a child who is placed with somebody while attending school. The situations referred to by the Deputy are covered in paragraphs (i) and (j). Following discussions in relation to children who are sent to a particular area to attend a particular school paragraph (j) was included even though the school would not be the house at which they would reside, as that would be covered by the earlier paragraph.

I will not press the amendment but I ask the Minister of State to have another look at it between now and Report Stage in the context of some of the social and family arrangements which families make to ensure that circumstances do not need to come to the attention of health boards and do not give rise to difficulties in the future.

I will certainly do that.

Amendment, by leave, withdrawn.

I move amendment No. 2 to amendment No. 33:

In the sixth line of the new section 23P(2), to delete "2" and substitute "14".

Subsection (2) provides:

Where a child is placed in a private foster care arrangement owing to an unforeseen emergency, both the person making the arrangement and the person undertaking it shall notify the health board in the manner specified in section 23Q as soon as practicable and not more than 2 working days after the placement.

I propose that the two working days be substituted by 14 working days after the placement as this could involve health boards in circumstances in which it is completely unnecessary, for example, if a mother is taken sick and detained in hospital for a week and a child goes to stay with a friend or a neighbour for a week or ten days. Certainly if it was to be a long-term stay, there is no reason it should not come under the normal foster care arrangements. For example, in the event of a bereavement of a relation or friend in America, England or somewhere in Europe where the parents go to the funeral and want to spend a few days with the family, the two day rule imposes legal obligations on health boards in circumstances which are much too speedy, particularly in the case of unforeseen emergencies. The reality is that many people will fall foul of this provision without knowing it applies to them. This will undermine the workings of the legislation and hence the suggestion that the two days be amended to 14 days. The 14 days are not written in tablets of stone. The Minister may consider that it should be seven or ten days, but I want to draw attention to the two day rule which is unnecessary in the context of the emergencies envisaged.

Because I am such a soft, reasonable person I am happy to accept the amendment.

Thank you.

Amendment agreed to.

I move amendment No. 3 to amendment No. 33:

In the fourth line of the new section 23R, after "welfare" to insert "and to regard the welfare of the child as the first and paramount consideration".

Section 23R reads:

It shall be the duty of every person arranging or undertaking a private foster care arrangement in relation to a child to take all reasonable measures to safeguard the child's health, safety and welfare.

It is proposed after the word "welfare" to insert "and to regard the welfare of the child as the first and paramount consideration". The amendment seeks to ensure that in whatever private foster care arrangements are made it is the duty of those involved to regard the welfare of the child as of the first and paramount consideration. Under section 3 of the Guardianship of Infants Act, 1964, which deals with issues relating to the guardianship and custody of children, the courts are generally required to regard the welfare of the child as the first and paramount consideration. It is a principle that should be applicable here. It does not damage the section but it ensures that arrangements are child centred.

It seems implicit in the section.

I have no problem in principle with Deputy Shatter's amendment and I agree with his intention. However, there may be a technical difficulty in accepting the amendment as tabled because section 23W makes it an offence to contravene section 23R - that is, that it would be an offence not to take reasonable measures to safeguard the health, safety and welfare of the child. Under the proposed amendment laws have to be established that a person did not have regard to the welfare of the child as the first and paramount consideration. I shall take up the matter with the Parliamentary Counsel to see how the amendment can be incorporated.

Amendment, by leave, withdrawn.

I move amendment No. 4 to amendment No. 33:

In the new section 23U, before paragraph (i), to insert the following:

"(i) that the person or persons who arranged the foster care arrangement and the person or persons undertaking such arrangement co-operate with the health board in assessing whether it is in the interests of the child's welfare that the arrangement continue to be terminated".

Section 23U relates to the institution of proceedings by health boards. It states:

If a health board believes-

(a) that a person who is arranging or undertaking a private foster care arrangement has not notified it under section 23P, or

(b) that such a person is not taking all reasonable measures to safeguard the health, safety and welfare of the child concerned, it may apply to the District Court for one of the following orders: . . .

The section lists the different orders the District Court can make. I suggest as an alternative order the following:

that the person or persons who arranged the foster care arrangement and the person or persons undertaking such arrangement co-operate with the health board in assessing whether it is in the interests of the child's welfare that the arrangement continue or be terminated.

The purpose of this proposal is that this section allows the health board to make an application to the District Court for a number of different types of orders where it believes it has not got proper notification that a child is with foster parents. The orders that the court can make are a supervision order, a care order or that the foster care arrangement be terminated. The problem for the health board may be that it may not have got the notification it requires. It may be that all it needs is that the foster parents, or the people acting as foster parents, co-operate with it in the undertaking of an assessment. There is no obligation for them to do so at present. What is available here is a blunt instrument. It may be that a child has been in the care of foster parents for a lengthy period and perhaps because people did not know the law notification was not given or, perhaps, what was an emergency placing became long-term.

For a health board to determine what is in the best interests of a child it may be that it requires a court order that will guarantee that the foster parents co-operate in the carrying out of an assessment to allow the health board make a decision on how to approach matters. In a sense, it is an order the court could make without depriving the health board at a later stage of having the foster care arrangement terminated or the child taken into care. It is giving a useful additional power to health boards to intervene in circumstances where it was not forewarned of a foster care arrangement before it took place, or informed some days after a child was placed in foster care that the child was to remain with particular foster parents.

It is envisaged that the health board would only apply for these orders in the event of non-co-operation. It would have already gone down that route. It probably would be impossible to get a court order to make somebody co-operate. This amendment is being inserted into the Childcare Act, 1991, and is governed by the principle set out in section 3 of that Act so there would always be an obligation on the health board to act in a manner that regards the welfare of the child of paramount importance having regard to the rights of parents, etc. If the health board considered it appropriate to supervise the situation voluntarily in co-operation with the private foster carers, it is open to the board to do that. In fact, it does that in a number of situations. Because it is understood that that road would already be travelled before the health board would apply for a court order, this amendment is not necessary.

The Minister may correct me but it is my understanding from recollection that the Childcare Act, 1991, contains provisions that allow the District Court to make orders to facilitate a health board assessing parents who have not co-operated with a health board where the health board is concerned about the welfare of a child. It may be that because foster parents do not understand their legal obligations or because they are irritated by the health board's interference, or for other wrong headed reasons but which they believe are valid, they may not co-operate with a health board in the carrying out of an assessment. It may be the case that a child is doing well with those foster parents and that his or her welfare requires that the child remains with them but the health board does not know that because of the lack of co-operation. Initial lack of co-operation does not necessarily mean that a child should not remain with a particular group of foster parents.

The Minister said that if there is non-co-operation there must be a problem, and I appreciate that, but the problem might be with authority figures or a health board, or a personality difference with a particular social worker. There are various reasons people do not co-operate with State agencies. It is not only because they are abusing a child or misbehaving towards a child. This is a power that is something additional that could be availed of by health boards but which does not take away from all the other court orders the courts can make. It may be that a health board wrongly reaches a conclusion that a child should be removed from foster parents and the foster parents may themselves wish that an order be made and that before the court considers a supervision order or a care order, an assessment is carried out and the results of that assessment are known. I am not suggesting that this section is needed because health boards will misbehave. I am just suggesting it is an additional order that the courts might usefully be able to make which, from my recollection, mirrors certain powers under the Childcare Act.

The principles of the Childcare Act would apply here and the jurisdiction of the courts would still apply. On the understanding that the health boards would only go to the court when all else fails, and that they could continue to do it voluntarily, I do not see the need to put this element in the Bill. This is a temporary, short-term arrangement for foster care. The very least that could be expected is that co-operation would be forthcoming.

The Minister and I disagree on the section.

Does the Deputy disagree vehemently on it?

Amendment No. 4 to amendment No. 33 put and declared lost.

I thank the Minister of State, Deputy Hanafin, and her officials for coming here today. The next meeting will be on Tuesday, 20 March. If there is a change in that date, we will let members know. The reason 20 March was decided on is that the Finance Bill and the Social Welfare Bill will be taking up the time of the Bills Office for the next few weeks.

The Select Committee adjourned at 4.45 p.m.