Amendment No. 178a is in the names of Deputies Yates and Barnes.
I move amendment No. 178a:
In page 20, subsection (1), line 23, to delete "may" and substitute "shall".
This seeks to make the approval of children's residential centres mandatory. It is, in our view, important that there should be prior approval to the establishment of any children's residential centre in Part VII of the Bill and, therefore, we seek to change the word "may" to "shall".
It might be helpful if I began by setting out the present position in relation to the approval of residential centres for children. Under current legislation there are two categories of children's homes. The Children Act, 1908 provides for the certification of certain homes as industrial schools. As the title suggests, these homes originally dealt in the main with young offenders. However, for many years now, they have withdrawn from that type of work and they now cater for deprived and neglected children placed by health boards. There are some 20 homes in this category and they include the following homes with which Members of the committee may be familiar: St. Kieran's, Rathdrum, County Wicklow; St. Vincent's, Fair Street, Drogheda, County Louth; St. Ann's, Kilmacud, County Dublin; Gracepark and Mayfield in Waterford and Nazareth Home, Tralee, County Kerry.
The second category of homes are those approved by the Minister for Health under the Health Act, 1953, for the reception of children in the care of health boards. Again, there are about 20 homes in this category, which include Madonna House, Dublin; Miss Carr's Home, Ranelagh, Dublin; St. Muriel's Nursery, Fahan, County Donegal; and Family Group Home, Town's Park, Wexford. While these two categories of homes have developed under two different statutes they all now deliver a similar service for children in the care of health boards and all are funded by the health boards.
By virtue of section 50 it is intended that they would cease to be certified as industrial schools or approved homes, as the case may be, and would become children's residential centres. The point I wish to make in the context of the present amendment is that under existing law there is no requirement on a religious community, or other body, who propose to establish a residential home for children, to seek approval or indeed recognition from a health board or from the Minister for Health. The decision to apply for approval is entirely at their discretion.
In practice, the management of such homes do apply for approval or certification, in order to secure a commitment of financial support from the health board for their operations. However, in some cases, homes may be set up and operated without any direct support from a health board. A good example of this is the shelter for homeless boys in Ballymun operated by the Arrupe Society, which is supported from the National Lottery, but has not been formally approved or certified by the Minister for Health. While I can see some merit in the suggestion that it should be essential that homes are approved before they begin to operate, we need to be careful that such a requirement would not stifle voluntary bodies, in responding to the accommodation needs of children and young persons at risk. There is a danger that imposing a strict system of prior approval would act as a break on the initiative of groups working to deal with the problem of the young homeless. That is why the Bill does not propose a mandatory system of approval, but follows the existing legislation by leaving the matter at the discretion of the management of the homes concerned.
I hope that this will help to clarify the situation and, perhaps, other Members and, indeed, Deputy Yates will have further views on this amendment. I would like to hear the views of the committee before I take a firm line on this proposal.
The present wording of section 44 (1) could lead to a situation that, if any manager decides to put his centre outside the scope of this Act, he can do so by not applying. It strikes me as completely different if the Minister wishes to exempt certain categories but, in the way the subsection is phrased, different residential centres which the Minister might wish to include in the future would be excluded. That is because it states the manager may apply to the Minister for approval but he or she may not if they do not want to. We have got to look at this, without being sensational about it, bearing in mind that in Northern Ireland some very serious allegations were made about certain centres and some very serious investigations were carried out. I do not wish to go into those in detail but they are well known to all members. It is important that the regulations which are seen to be desirable in Part VII of the Bill are applied uniformly across the board. I would ask the Minister — as he seems to have a fairly flexible attitude to this — to reconsider this matter and make it mandatory.
I should say that I have received representations from the most reputable types of people involved in residential child care. They have approached Deputy Barnes and myself in the last week or two. Having spotted this matter and asked that it be made mandatory.
I should like to add my support to what Deputy Yates has said. Indeed, I am heartened that the Minister has said that maybe we should look at this again. I want to pay tribute to everybody, including the Minister, for the efforts being made to ensure that the highest qualifications, standards and regulations pertain. Children in children's residential centres are even more vulnerable than those we spoke about at our last meeting, those in pre-school centres. In fact, as Deputy Yates has said, some of those involved in the management of those very reputable residential centres have said they would be seriously worried if we do not have the type of regulations and standards outlined. Also, we must ensure they have the status to enable them to continue practising within their residential centres.
For those reasons, and because we have such a tremendous commitment to children who find themselves in residential care, I am heartened by the Minister's reply. I would like to think he can accept our amendment.
I support the two previous speakers. In relation to the consistency of the Bill, the question of "may" or "shall" does have implications for sections 46, 47 and 48. A decision, for example, to retain "may" rather than "shall", as has been proposed, would mean that the succeeding sections only apply to those who have voluntarily put themselves within the ambit of approval and control. There is the real possibility, by retaining "may", that one is creating a set of institutions who have volunteered for standards and who, thereby, in the succeeding sections, have laid themselves open to inspection, procedures, closure and other matters. At the same time people wishing to stay out of the ambit of such accountability and scrutiny, a case for which has been adequately made already, may just simply stand alone. One is left in the rather invidious position of having those who are most anxious for scrutiny volunteering for standards while, at the same time, allowing the possibility of those who wish to avoid these standards of inspection, procedures, closure and so forth, standing completely separate from this.
It is very important to identify the principle that is at stake here. Running right through this Bill there is constant tension between the free scope of voluntary provision and the State's insistence on basic standards and State control. This tension occurs again and again in the Bill. In this instance there is a very good case because this is the core of the thing to, in fact, substitute "shall" for "may". I certainly recommend that course of action to the Minister.
I support the amendment. It is necessary in this case that the word "shall" be substituted for "may", because, in the whole scenario of fitness and so forth it should be mandatory to have somebody appointed. Otherwise there would be a certain looseness about the whole organisation. It is something, as was mentioned by previous speakers, that should not cause great concern but it would be a weakness, in my opinion, not to have the word "shall" included.
I cannot help feeling that we are possibly speaking about the same thing here. At various stages throughout the Bill the words used are "children's residential centre". Section 44 (5) reads: "a centre which is approved under this section is referred to in this Act as a children's residential centre". I take it, therefore, that one which would not be approved under this Act would not be a children's residential centre and that, accordingly, there is already provision within the ambit of the legislation for the position to be mandatory.
Deputy Higgins made a valid point when he said that throughout the Bill there is this tension between whether there should be a flexibility of approach or we make mandatory or statutory regulations. That tension is there the whole time. I would not like to see the Bill being too rigid and setting up very bureaucratic structures, but I take the point that has been made in relation to this particular section that if we do not change "may" to "shall" all the other sections as regards regulations — 45, 46, 47, etc. — even those outside this formal approval system, should be subject to the same constraints and controls as those that opt in. I do not know whether that is a feasible proposition but the point is well made that you cannot have groups staying outside the regulations because their standards are not sufficiently high. I do not know whether to change "may" to "shall" or to put an extra section in here at some stage to state that the Minister shall have the power to bring others under the minimum standards as well. I do not know what way to do it. but I definitely feel something should be done to amend this section.
There is unanimity on the Committee that this should be looked at again. I would ask the Minister to do that. If you are putting in "shall" and making it mandatory, then surely there has to be another subsection or section to this Part where there would be penalties for any centre that had not applied to be registered. Perhaps the Minister would confirm that he would have to put in some penalty if there was a failure to apply. There would have to be an inspectorate in the Department to ensure that all the residential centres had in fact applied.
I have listened with interest to the very fine contributions made on this amendment. In response to Deputy Ahern's question this is something to which we would have to give strong consideration and it probably would need an inspectorate at least involving the health inspectorate and the various health boards, and that would be the minimum that would be needed.
The introduction of a requirement that all homes be approved would need major changes in this Part of the Bill beyond what is proposed in this amendment. For example, it would be necessary to provide for a right of appeal in the event that an application for approval was refused. It might also be necessary to create an offence of carrying on homes without approval in order to ensure that the provisions were observed. Provisions of this kind are not in the Bill at the moment. There are many homes operating in Dublin, Galway and different places which were set up by a voluntary effort and commitment without approval and they are getting somead hoc support via the health boards, the national lottery and the youth and sport section of the Department of Education. They have no clear criteria or approval. In view of all that has been said, I would be prepared to look at this again on Report Stage, provided Deputies are prepared to withdraw amendment No. 178a.
Yes, on the understanding that the Minister is giving a commitment that it will be mandatory with appeals and penalties. Do I take it that that is what he is saying?
I am saying we will come back with what we hope will be to the Deputy's satisfaction on Report Stage.
Has the Minister had any communication from the Child Care Coalition or from any other bodies as to their attitude about this suggestion that it be made mandatory?
In the Child Care Coalition document we have their attitude on it. We have had communications from interested groups and in view of the Deputy's desires and expressions, and the submissions we have received, we would like to have another look at this whole situation.
Might I just take up the question again in relation to section 44 (5). The point made by another speaker in relation to 44 (5), which refers to a children's residential centre, seems to be valid. Whether one likes it or not, section 44 (5) does set us a problem — it says a centre which is approved under this section is referred to in this Act as a children's residential centre. That is the positive side of it. The form of the wording almost presumes and brings into existence centres which are not approved under this section. Unfortunately in so far as sections 45, 46 and 47 set up procedures, they are all predicated on the existence of a children's residential centre. I am not pressing the point but what I am saying is that if the Minister is looking again at the section, it would be worth while seeing how such general powers of inspection and standards could be worded and extended to cover all locations in which children may find themselves. As section 44 (5) is worded it is capable of being restrictive in relation to the implementation of the controls in the later sections.
I agree with Deputy Higgins' comments on section 44 (5). We have not the power, as of now, to carry out inspections on unapproved homes and centres and that is something that worries me. The State, health boards and agencies, at the request of some responsible person, be they a public representative or some other concerned person, should have the right to carry out inspections. We will look at this whole situation again.
I move amendment No. 179:
In page 20, subsection (2), lines 26 and 27, to delete "may, if he so thinks fit," and substitute "shall".
In order to shorten the debate, may I suggest that amendments Nos. 179, 180, 181 and 182 be discussed together. They all essentially substitute "may" for "shall". They all have the same underlying point as the last amendment, which is to make this section more effective and to avoid repetition. Could I suggest that they be taken together?
I will respond as positively as I can if you put them all together.
One of the centres the Minister referred to — St. Kieran's, Rathdrum — is in my own home town. I am particularlyau fait with what happens there. The conditions are excellent and the place is run by committees and dedicated people. However, there is always the possibility that there could be a change of management or personnel in that or any other establishment. Perhaps that change in management or in personnel could lead to a certain laxity or a reduction in standards. It is absolutely vital that there be supervision and inspection to ensure that proper standards obtain and continue to be maintained. I would ask the Minister to give this careful consideration. I would have thought that this is an amendment of meritorious proportions.
I strongly agree with Deputy Jacob. It is absolutely essential that the regulations are mandatory in the interest of the children in care. I would strongly urge the Minister to look sympathetically at this amendment.
In view of my commitment on the previous amendment I would be prepared again to reconsider this one on Report Stage also if the Deputy is prepared to withdraw it.
We proceed to consideration of amendment No. 180 in the name of Deputy Sherlock. Amendment No. 181 is cognate so, by agreement, amendments Nos. 180 and 181 will be taken together.
I move amendment No. 180:
In page 20, subsection (1), line 50, to delete "may" and substitute "shall".
Section 45 is very strong and it makes provision for the centres to secure the safety and well-being of children in such centres. It refers also to the design, maintenance, repair, ventilation, heating, equipment and facilities to be provided in such centres. I see a weakness in the first line that the Minister "may make regulations". It would really strengthen it if the word "shall" was substituted for "may". Subsection (2) provides that regulations under this section "may prescribe requirements", whereas the word "shall" there, would be more effective. I note that the child care coalition agree with both amendments Nos. 180 and 181 and they make a telling point, which I quote:
A children's home providing care for children removed from their own home without resources i.e. adequate staff and facilities could compound experiences of previous abuse and neglect.
I am sure that is something this committee would be most anxious to avoid.
My question relates to No. (2). I agree, generally, with the strengthening of the section by putting in the word "shall" and it is something that should be considered. I am wondering in relation to subsection (2). If that change to "shall" under this section is made, does that confine the Minister to make regulations under (a), (b), (c), (d) or has the Minister discretion then to add other things? Is he strictly confined to making regulations under those four headings? If he is, then I would have a problem about supporting that and I ask that it may be looked at again. If they are the only requirements the Minister possibly can go outside the ambit of (a), (b), (c), (d), but if the word "shall" is substituted he could be confined legally to just considering those four headings. I would like somebody to answer that.
I would agree with Deputy Sherlock's amendment here and the regulations should be mandatory as to the conduct of children's residential centres and for securing their safety and well-being. It is necessary that this be amended to be a requirement in the interests of children in care.
I feel also that amendment No. 181 becomes superfluous and unnecessary because it is without prejudice to the generality of subsection (1). This already prescribes the regulations as to the conduct of the centre and to secure the safety and well-being of children in such centres would be already mandatory. It could be left general in relation to what precisely the safety and well-being of children in such centres are. The requirements of subsection (2) would be, in my view, in no way prejudiced by leaving in the word "may".
I am quite happy to accept amendment No. 180 tabled by Deputy Sherlock. It is definitely our intention to make these regulations as soon as the Bill becomes law. On amendment No. 181 I am advised that "may" is the correct word here and that changing it to "shall" could create some difficulties. The purpose of this section is to highlight some of the main areas that may be dealt with in regulations. It is not intended to be an exhaustive list and I think this takes care of the point being made by Deputy Dempsey and, perhaps Deputy O'Donoghue.
Equally, however, it may not be necessary for the Minister to make regulations in relation to all of the matters mentioned. For example, the adequacy of lighting in the premises might be dealt with under the planning codes and it might not be necessary for the Minister for Health to set down any requirements in this area. The danger is that if we were to insert "shall" here and the Minister did not impose requirements under each and every heading, the entire regulations might be declared defective. I know that the Deputies here and, indeed, our representatives do not intend that this should happen, but it could happen and we must guard against the possibility. If the Deputies are prepared to withdraw the amendment I will be happy to give an assurance that the regulations will be as comprehensive as necessary to safeguard children living in homes.
Section 46 deals with the very important matter of inspection of children's homes, in this instance residential homes. Has the Minister any idea who the authorised person might be who will carry out the inspection, and how often will the inspections be carried out. Will it be once a year, or will it be open-ended?
We will consider all that on Report Stage, because it is important that we would have the right of inspection at any time of a centre where children are kept and cared for. The principle of the inspection would be based on the maximum flexibility without notice at any time. This would ensure that we would get the best information possible and be able to evaluate and assess the situation in the best interests of the children kept in these centres. I would think that, initially, it would be a matter for the health inspectors and, perhaps, other professionals in the health boards to carry out the inspections, but this is something we will consider and come back to on Report Stage.
On the point I made earlier in relation to section 46 (c), "the manager of the centre shall permit". There is no penalty against him if he does not, apart from the power to withdraw approval. I think that should be covered in the the subsection dealing with the mandatory aspect.
We will examine that in the context of access, inspection, flexibility and penalties, if at all possible, and come back to it on Report Stage. It is a very delicate area but we will look at it.
Would all homes be inspected once a year?
I would hope that after the Bill becomes law all homes would be inspected and a report filed on them. After that it would be a matter for the professionals, in consultation with the Department and the health boards, to decide when and how often such inspections were necessary.