The safety and protection of children remains the first priority of Government. This is done through the enforcement of Regulations which have children at the heart of their implementation. Tusla is the independent statutory regulator of early learning and care and school age childcare services in Ireland. In performing its regulatory function, its actions include responding to breaches of regulations while respecting fair procedures and natural justice. It also carries out significant activity each year to support services to be compliant.
Tusla’s Early Years Inspectorate was given substantial new powers just three years ago. These include the powers to:
Maintain a register of early years services;
Place conditions on that registration, refuse to register a service, or remove a service from the register where that service is not operating in accordance with the Regulations;
Prosecute a service that has not complied with a condition of registration;
Prosecute a person or persons who are operating an unregistered service; and
Re-examine the registration status of every service on at least a three-yearly cycle.
The legislation governing the regulation of early years services already provides for the fining of service providers that are in breach of their registration. Specifically, Section 58k of the Child Care Act, 1991 (as amended by Part 12 of the Child and Family Agency Act, 2013) sets out the circumstances under which a person may be found guilty of an offence under Part VIIA of the Act (including a breach of registration) and so shall be liable to a Class A fine.
Following the RTÉ Investigates broadcast Behind Closed Doors on 24th July 2019, I wrote to the Chairperson of Tusla to ask what additional powers Tusla’s Early Years Inspectorate might need in order to address concerns it may have about provision within years services. The Chairperson of Tusla wrote back to me in August, setting out a range of additional powers that might be provided to Tusla, which included:
- Power to close a service immediately where it has failed to register (rather than having to go to Court to seek a prosecution);
- The ability to request and acquire parents’ contact details, in order to inform parents as early as possible regarding ongoing investigation / proceedings;
- Power to require services to display, in a prominent position, their registration status, and any conditions attaching to the registration;
- Power to immediately close a service (already registered) where Tusla has evidence of very serious breach of regulations;
- A requirement to have a ‘fit person’ regulation related to the registered provider and person in charge;
- Provision, when a service is to be removed from the register, for a process to allow for continuation of the service under interim management where appropriate; and
- Adding Tusla to the list of services under protected disclosures legislation in order to enable staff working in early years services to make disclosures to Tusla.
Officials in my Department are now examining these and other options.
While it may be possible to give effect to some of these powers through Ministerial Order, some will require amendments to primary legislation, and careful consideration is needed to ensure that any measures taken are robust and legally sound. I have asked my officials to move as quickly as possible, but I recognise that there are complex legal issues involved which will take time to address.