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

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to address Dáil Éireann on Second Stage of the Child Care (Amendment) Bill 2006, which provides that a foster parent or a relative who has had a child in his or her care for a period of five years, the child having been placed with him or her by the Health Service Executive, may apply for a court order for increased autonomy in respect of the care of the child.

I am pleased to note that this legislation has been passed by Seanad Éireann, subject to a small number of amendments. I thank Senators for their contribution to the Bill and for the worthwhile debate on the issues involved.

Child welfare and protection policy is grounded in the principle that children who cannot, for whatever reason, live with their own families are provided with an appropriate alternative. As Deputies are aware, studies have shown that the development of a child is best achieved in a loving family environment, which foster care can provide.

Foster care is the main form of alternative care provided by the Health Service Executive for children in need of care and protection. Our latest statistics, as of December 2004, establish that over 5,000 children and young people are currently in the care of the Health Service Executive. Almost 4,250, or 84%, of these children are in foster care. This represents an increase of 4% on the previous year's figures. This increase in foster care is welcome and is in line with Government policy. The number of children in residential care declined by almost 2%, from 527 to 442, between 2003 and 2004.

These figures show the critical importance of the foster care services in our child protection and welfare service. Families and family life are very important to all children and the opportunity to experience the qualities of family life is one of the main objectives of the national children's strategy. For those children who cannot be looked after in their own families and who need to be provided with alternative care, foster care provides the best way for them to experience family life. The challenge is to provide an appropriate response to this vulnerable group of children. This response must respect their rights to a childhood in a secure family environment so that they may fulfil their potential in adulthood.

In 2003 I launched a study undertaken by the former Eastern Region Health Authority entitled Counting on Foster Care — a comprehensive and detailed census of alternative family placement providers in the eastern region. The study outlined the varied routes taken by foster carers into the provision of such care. It is an in-depth examination of their views on the service they provide and the assistance they are given in providing that service.

One of the main features of this study was the broad range of information and statistics it had collated on foster carers. For example, the study indicated that in February 2001 up to 40% of foster care placements in the three area health boards were with relatives. This was considerably higher than the percentage of relative placement providers in England, at 12%, or Scotland, at 10%. This is a welcome finding as research has shown consistently positive outcomes for children fostered with relatives. The study showed that the range of motives of foster carers encompassed altruism and personal aspirations. Another point of interest was the range of individuals involved in foster care from all branches of society.

I was pleased to note that most carers found the experience of fostering enjoyable and that any concerns they had prior to fostering had been alleviated. The indications are that there are significant benefits to be derived from the fostering experience, for both the children and foster carer families. This provides us with valuable information for the recruitment of foster carers, with fostering being promoted as having something to offer not only to the children in care but to the foster families themselves.

The foster care allowance has been substantially increased from €90.85 per week for children under 12 years of age in August 2001 to €305 per week currently and from €108.88 per week for children aged 12 years and over to €334 per week currently. This increase has alleviated the need for foster parents to apply to the Health Service Executive for every extra financial need of their foster child or children.

Children in foster care are in the care of the State under the Child Care Act 1991 and foster carers undertake to care for these children on the State's behalf. As such they are a unique group in unique circumstances. The allowance is paid to foster carers for the benefit of the foster child and cannot therefore be considered an income or an income support. The allowance is paid in recognition of the obligations placed on foster carers to meet the standards set out in the care plan and to meet the standards set out in the national foster care standards.

Using all of these arguments, last year I sought to have the allowance included in the list of payments which are specified in the Finance Act as being exempt from income tax. I am pleased to say that I was successful and that these payments, as outlined in the Finance Act 2005, are exempt from income tax and shall not be taken into account in computing total income for the purpose of income tax legislation.

As a result of this Bill foster parents and relatives who have had a child in their care for a period of five years will no longer have to seek the permission of the Health Service Executive when certain decisions have to be made relating to the child. For example, they will not have to obtain permission to seek medical or dental treatment for a child or permission for a child to receive an immunisation or go on a school tour. The proposals outlined in the Bill will help to avoid the possible stigmatisation of these children in school contexts where they currently have to wait for longer than their peers or classmates for such permissions.

Two new sections, 43A and 43B, will be inserted into Part VI of the Child Care Act 1991. Section 43A(1) provides that a foster parent or relative may apply for a court order whether the child is in care on a voluntary basis under section 4 of the principal Act or is the subject of a care order under section 18 of that Act.

Section 43A(2) sets out the conditions on which the court must be satisfied before granting such an order. The child must have been in the care of the foster parent or relative for a period of five years; the granting of the order must be in the best interests of the child; and the Health Service Executive must consent. The parents having custody or the person actingin loco parentis must have consented if the child is in voluntary care and must be informed if the child is the subject of a care order. If the child is in voluntary care the parents who have surrendered the child into care have the right to veto any further step involving the transfer of rights. A court will have to take the decision on a person taken into the care of the HSE. The child’s wishes must also be taken into account in so far as is practicable.

Section 43A(3) provides that any interruption of the placement during that period of five years should be disregarded unless that interruption exceeds 30 days.

Section 43A(4) provides that the conditions relating to the notification or consent of the parent having custody or the person actingin loco parentis do not apply if the parent or the person acting in loco parentis is missing or cannot be found by the Health Service Executive, or the court so directs having regard to the child’s best interests.

Section 43A(5) provides that, subject to any conditions imposed by the court, an order granted authorises the foster parent or relative to whom it is granted, on behalf of the Health Service Executive, to have like control over the child as if it were the child's parent and to do what is reasonable to safeguard and promote the child's health, welfare and development. In addition the foster parent or relative is authorised under the order to give consent to any medical or psychiatric examination, treatment or assessment and to the issue of a passport or passport facilities for the child. The court may impose such conditions or restrictions as it thinks fit as to the extent of the authority granted. Consent given by a foster parent or relative to whom such an order has been granted will be sufficient authority for the carrying out of the medical or psychiatric examination, assessment or treatment or for the provision of a passport or passport facilities.

Section 43A(8) provides that where a foster parent or relative refuses to give consent in accordance with an order made under this Part, the Health Service Executive will have authority to give consent in accordance with section 18(3) of the principal Act. That is an essential safeguard in legislation of this type.

Section 43A(9) provides that any consent permissible under section 23 of the Non-Fatal Offences against the Person Act 1997 will continue to be an effective consent. Section 23 of that Act provides that a minor who has reached the age of 16 years may consent to any surgical, medical or dental treatment. That is the age of consent for medical purposes in our general legislation and it is important to translate and preserve that principle in the context of this legislation.

Section 43A(10) provides that any access arrangements in place before the granting of an order under this section will continue unless the court orders otherwise in accordance with section 37 of the principal Act. Section 43A(11) provides that, notwithstanding subsection (10), a court can at any time vary or discharge an access order, including an order which was continued or varied under subsection (10).

Section 43A(12) provides that any other functions of the Health Service Executive relating to the interest of a child, for example care planning, in accordance with any other provisions of the Child Care Act 1991 or regulations made under the Act will continue in force.

Section 43A(13) provides a definition of relevant time as being the time, in the case of a child in voluntary care, immediately before the child is taken into care and in the case of a child in care under a care order, immediately before the order is made.

Section 43B(1) provides that the court may vary or discharge an order made under this section on the application of the Health Service Executive, the person to whom the order was granted, a parent having custody at the time the child came into care or a person actingin loco parentis.

Section 43B(2) sets out the circumstances where an order granted under this section may cease to have effect. These include where a child in voluntary care returns to their parents or another person, where a care order is discharged, a child is adopted, a child is removed from the custody of the foster parent or relative by the Health Service Executive, the foster parent or relative requests that the child be removed by the Health Service Executive or the child concerned reaches 18 years of age or marries.

Part V of the Child Care Act 1991, which deals with jurisdictional proceedings, applies to proceedings taken under part VI and the new provisions will be in Part VI.

The importance the Government attaches to foster care was underlined by the publication in 2001 of the report of the working group on foster care, Foster Care: A Child-Centred Partnership. The report pointed the way forward to strengthening and developing the service and provided the guidelines to improve standards in foster care. Building on this work, national standards for foster care were published in 2003.

Since the publication of the standards the social services inspectorate has carried out a national audit and a pilot inspection of foster care services. The pilot inspection considered three of the standards of practice. Three community care areas nominated by the former health boards were inspected against these standards. These were located in the Health Service Executive eastern, southern and western regions. The sample group covered both urban and rural areas. The case files of a total of 56 children and young persons were considered during the inspection, representing approximately one third of the total number of children in foster care in the three areas.

On the basis of the information yielded by the pilot study, inspectors found that each of the community care areas provided a good foster care service. The inspectors found that the foster care service provided stability and continuity of care for the children and young people, with the majority of children having spent on average three quarters of their time in care in their current placement.

The inspection found that the services provided children and young people in foster care with an opportunity to maintain links with their families of origin. It was noted that over one third of the children and young people were placed with relative carers and two thirds of the children were living with at least one sibling at the time of the inspection. These figures were viewed as a demonstration of the former health boards' clear commitment to maintaining the connection between children and young people in the foster care system and their families of origin.

Each of the 56 children and young people had an allocated social worker and the inspectors found that the social workers provided a good service to the children. They visited them regularly and often helped them come to terms with the reasons that they came into care. They also maintained a high level of contact with the foster carers to provide them with support.

This was a pilot inspection. When the social services inspectorate is established on a statutory basis, it will be in a position to broaden the range of inspections undertaken against the national standards for foster care so we can ensure that services of the highest standard are provided throughout the country. I mention all of this to alleviate any concerns Members may have about the proposals outlined in the Bill. The proposals very sensibly give the foster parents greater autonomy in regard to the practical day-to-day care of the children entrusted to them. However, the children remain in the care of the HSE, which is responsible for their overall well-being and protection.

To be effective service providers we must have a long-term vision for the children in our care. We must empower these young persons while they are in foster care so they can be happy, secure and successful adults in society. The proposals in the Bill will help to give them a greater sense of belonging in a family where their foster parents are responsible for many of the practical decisions affecting their lives.

On a related matter, the adoption (Hague Convention, adoption authority and miscellaneous provisions) Bill. which is currently being drafted, will ratify the Hague Convention, bringing it into force under Irish law. The legislation will also establish the Adoption Board as an independent statutory body known as the Adoption Authority. The issue of the adoption of a person who is 18 years or more by the person's long-term foster carers is one of the issues I have under consideration in the context of the Bill. I am anxious to make legal provision in this regard. It can be done within our constitutional framework and would be of considerable assistance to foster parents and their children who wish to take that course of action.

I wish to inform the House of other matters which I hope to address on Committee Stage. All of these matters are within the scope and purpose of the child care legislation and the primary Act of 1991. The Government attaches a very high priority to the report of the Ferns Inquiry and to following up on the report's recommendations in the context of ensuring that effective child protection and welfare systems are in place to protect children. Before the publication of the Ferns Report, I sought the advice of the Attorney General on the report, including the issue of the Health Service Executive's powers in regard to third party abuse, which was raised in it. The advice was that the executive had general powers under the Child Care Act 1991 regarding third party abuse.

In line with the recommendations, however, it was considered that the Department of Health and Children, in conjunction with the Office of the Attorney General, should undertake an in-depth study of the HSE's powers in regard to third party abuse and that this would be followed by legislative proposals as required. Following further detailed discussions between my office and the Attorney General on the question of conducting the in-depth examination of these issues, my office and the Health Service Executive are examining in detail the various issues involved. I hope to conclude this process in the near future. The advice of the Attorney General will be sought on the outcome of these deliberations. Subject to Government approval, I will then publish legislative proposals relating to outstanding recommendations of the Ferns Report, in so far as they relate to legislative change and the Office of the Minister for Children, for inclusion on Committee Stage.

I also wish to introduce further legislative proposals which would provide for school age child care to come within the requirements of the Child Care Act 1991 in the same way as the pre-school services. I am also examining the guardianad litem service, which is provided under the Child Care Act 1991, as to whether it is possible to secure a greater uniformity of provision in this service. I will revert to the House on Committee Stage about these matters.

I am happy to commend this Bill to the House. I believe it provides for progressive social change in our foster care system. Over the decades, the number of children in secure long-term care has increased. There is a definite cohort of children in long-term foster care and it is important that their foster parents have a measure of stability regarding decisions they make on their behalf. It is also important that we lay the foundation for the further change of permitting the adoption of these children in appropriate circumstances and in their best interests.

I support this important legislation. We should take this opportunity to give credit to foster parents. They are a unique group of people in Irish society. Not everybody would or could do the work they do. They care for children in loco parentis. It is a difficult role because many of these children have difficulties, including behavioural difficulties. It is interesting that there are 5,000 children in care. There are more children in the care of the HSE than are attending primary schools in my constituency of County Wexford at present. That is a dramatic number. We seldom acknowledge the huge number of children in care.

Social workers should also see their role and ethos praised. There has been much criticism of some of the people who work in the HSE and social workers often bear the brunt of that criticism with regard to the care of children. There is a need to reinforce the ethos of social workers, which must also bein loco parentis. They see many terrible things and the difficulties that occur in families. Like all of us in the House, they can get despondent and despair that any of the problems can be corrected. People lose the will to do their job in the way they have been trained to do it. It is important to give credit to social workers; their job is extremely difficult. I hope they maintain the important ethos that what they do must be in the best interests of the child.

My main criticism of this legislation is the five year rule. Five years is too long. Two or three years should be more than enough. I am not sure why the Minister decided on a five year period. If a child is going to bond with his or her foster parents, it will usually happen relatively quickly. It would be a mark of respect both to the child and the foster parent if that period were shortened. That would better serve the interests of the children involved. Perhaps the Minister would explain why he decided on the relatively long period of five years before the foster parent can take care of a child as if it was his or her own. When the bonding process works well, it can happen over the course of a few months. It would be a mark of respect for both sides if we passed legislation that would acknowledge the bonding of the child and foster parent by permitting the extra responsibilities in a shorter duration of time. The period should be between two and three years.

I commend the Minister on his hard work. The Minister of State is obviously extremely dedicated to the job he does and puts a good deal of effort into the legislation he has been working on since he was given special responsibility for children. When one reflects on the hard work he must be doing behind the scenes in terms of trying to get this type of legislation right so that it will endure for the future, one concludes that it takes up a great deal of personal time, quite apart from his work time. Often very little credit is given to Members of this House who work hard on what they were elected to do, namely, formulate legislation and get it through the Oireachtas. While a certain amount of work is done on this side of the House, I acknowledge that it is probably easier for us to go through a piece of legislation with a view to exposing its problems. However, that is what democracy is about.

My concern about this Bill is similar to the position I hold on other Ministers, namely, the lack of legislation in this area. When one reflects on the whole Leas Cross debate in terms of protecting elderly people, it was not as if many of these problems were not known about or were unmentioned in numerous Government documents. There has been talk about protecting the elderly with an expanded social services inspectorate. While the Government is looking at HIQA legislation, I believe a different approach should be taken. Even on funding for the elderly for the future, all such concerns formed key arguments in Government documents as far back as 2001. Yet nothing has been done about the protection of elderly patients in the last five years. To me it was amazing to find out yesterday that two years since its establishment the reforming HSE, which is supposed to make the health service better, still does not have full regulations in place to operate a complaints procedure. Even its corporate governance was not signed off until recently.

I hope that does not happen in this regard. I shall really commend the Minister of State if he brings forward changes to the legislation on Committee Stage which are based on the recommendations made in the Ferns Report. I give credit to him, nonetheless, in so far as he is attempting to bring such matters forward quickly. Far too many Ministers are sitting on reports four or five years old which make recommendations to change legislation, while they come out with glib responses and soundbites for the media. They are not doing the hard work they need to do, and are not delivering on legislation. When this Bill is being debated on Committee Stage, I hope the Minister of State will bring forward good solid commitments to protect children in our society on the basis of the Ferns Report recommendations, because of the enormous number of scandals to do with children in recent years. In the event, we will give the Minister of State all the support he needs. I hope he will fight, too, from within Government, to get the social services inspectorate properly up and running — to get the Ministers concerned to do what they are supposed to do. It is not a matter of opening off-licences or glad-handing around the country, rather it is about getting appropriate legislation though the Oireachtas.

The Leas Cross scandal would never have happened if the former Minister for Health and Children, Deputy Martin, had been more awake regarding his job. That is definitely true. Those types of nursing homes would have been closed long ago. He would not have destroyed the reputations of an enormous number of nursing homes throughout the country if he had been doing his job, instead of posing as a glamour boy for the media. The HSE is not without its imperfections, as has been discerned over the last 20 months. The Minister of State said the onus was on the HSE to provide the necessary supports for carers. It is extremely important to know what precisely the HSE is doing to give supports to carers and people who are vulnerable. The dead hand of officialdom is demoralising social workers and everybody in the health service. In a recent case, when a carer looking after children with intellectual disabilities implied to the HSE that he might do something criminal, its response was equivalent to that of a squad team, kicking in doors, bringing in gardaí and social workers and generally overreacting. That person was trying to express a cry for help, and the HSE must recognise that the onus of responsibility is to deliver the services for people who are carers. It should not react in the manner of a police state when people become exasperated because nothing is happening. That is the next thing on which the Minister of State needs to focus his attention. He must ensure that the resources are available for the HSE and that it does its job.

Mr. Aidan Browne, the HSE's national director of community care, attended the Joint Committee on Health and Children yesterday and talked about issues regarding the elderly. He used a soft non-confrontational voice, which nearly lulled the committee members to sleep. The only trouble was that most of us who deal with the HSE were very angry with Mr. Browne's attitude. We know he has been trying to give the impression that he has been doing everything humanly possible, when he was doing nothing. He was writing letters and articles inThe Irish Times, indicating that the HSE was doing everything it possibly could and pleading that people were misquoting him. Two weeks later he was exposed in an official report and changed the bar again. I will not fall for any of that old nonsense from the HSE, and Deputy Brian Lenihan, as the Minister of State with responsibility for children, should ensure that the resources are in place for it to do its job properly.

There is no point in having the best legislation in the world or a Minister of State who is genuinely committed to children if the HSE falls down on its responsibilities. Its responsibilities include having the resources and keeping up the morale of the people it employs whether social workers, administrators or foster parents. It must ensure they have the help they require to look after these children. The figure is enormous — 5,000 children. We do not want to see the lives of 5,000 children damaged in any way because we do not fulfil our commitments, and that is extremely important. I know many of these children have no difficulties. They go into great families or stay with relatives. As a former general practitioner I have plenty of experience of children taken into care. It can be quite chaotic because in many instances the parents want to take their children back from foster care. One always tries to give the benefit of the doubt, but unfortunately that often fails. That is another thing the HSE must be careful about. The pendulum can swing both ways. Sometimes we get too liberal and children are damaged. Sometimes the pendulum swings the other way, we are too conservative and restrict children from going back to their families. That is why the lines of communication must be kept open. If we are very open and transparent about what we do, we can always allow ourselves to give the benefit of the doubt. We can allow children to go back, not just to have contact with the natural parents. Such initiative can also fail of course. There are problems arising from drink, drugs and relationships and people have problems coping. Some of these young and not-so-young parents who put children into foster care are just not capable of looking after them at a young age. All these difficulties must be acknowledged but they must be approached in a humane rather than a hardline official manner.

I have seen great people do this work, some of them extremely poor. They bring their prejudices with them and often display a tendency to cover themselves in the face of establishment diktats, which is not necessarily in the best interest of the people involved. There are also problems with the courts. The Minister of State should look at the way the courts are working. He is well aware of some of these issues. Others hit the headlines, such as access to children by fathers, or judgments almost written in stone where nobody has the courage to ask whether the right decisions had been taken. I have seen both mothers and fathers denied access to children, even where parents had radically changed their former behaviour regarding alcohol or drug abuse. They might have been wild young tearaways but have settled down. What is said in court about parents who were formerly engaged in alcohol or drug abuse, or who were wild in their youth, sticks to them for the rest of their lives, even when they settle down. Opinions of them are biased forever. We therefore need to consider how the courts operate. Politicians and general practitioners often use a lot more common sense than the letter of the law might prescribe.

Consider the recent row between the Minister of State with special responsibility for mental health services, Deputy Tim O'Malley, and the professors of psychiatry. Too many people take up positions on either end of the spectrum and this does nobody any good. The Minister of State, Deputy Brian Lenihan, needs to consider how the courts operate so their judgments will be more child friendly. The Deputy has great legal knowledge and this should be used to the maximum benefit in the House to deliver the political outcomes we always seek.

Many children are still in poverty. We can argue until the cows come home about relative and absolute poverty but the fact remains that many children are not getting the best from life. It is not necessarily a question of money. It is sometimes stated children are impoverished because their parents are spending so much on drink or are not spending money appropriately but it is sometimes the case that they cannot cope. The Minister of State should therefore promote the concept of parenting courses among the members of Cabinet.

A great study was carried out in the United States some years ago. The practitioners concerned were testing a trial drug for ADHD, which is disruptive behaviour in young children. The parents of the recruited children had to do a parenting course but while they were doing so half the children had to be taken off the drug because their behaviour improved dramatically. It was discovered that their condition was largely influenced by their parents not being able to carry out their parental duties as well as they believed they could.

Society is changing dramatically. There are more one-parent families than there were traditionally and the social cohesion that existed even a decade ago has declined. The extended family unit is not as prevalent as it used to be. Both parents work nowadays and some live in opposite parts of the country. Not all parents are in middle-income, two-car households but are often in lower-income groups. Many of those receiving family income supports are among the working poor. Perhaps they could benefit from my proposals. We should take a wider view of why children end up in care or are disruptive in school, and of why parents are having difficulties. We should determine ways to help them, including parenting courses.

The Taoiseach announced at the Fianna Fáil Ard-Fheis that he wanted to hold the referendum on children's right next February or March. I am sure it came as a great shock to the Minister of State, Deputy Brian Lenihan, because it certainly came as a great shock to me. On the basis of my preparatory work for the referendum and that of my colleagues who have more responsibility in this area, I felt the issue was so broad that we could not determine the wording to be inserted into the Constitution so soon. I was therefore quite surprised by the Taoiseach's statement and felt he must have received some extraordinary advice on how to change the Constitution. He may have received some of it from the Minister of State. I would certainly not like to believe somebody is attempting to use children for political gain or flying a kite in that regard. Perhaps we will hear more about this from the Minister of State.

This legislation is relatively straightforward. Nobody would have any great difficulties with what has been presented to us so far. The period in question should be shortened and the rights of children should be considered more broadly. I hope the Minister of State will make appropriate amendments on Committee Stage on foot of the recommendations in the Ferns Report. I hope he will push for other legislative measures to meet the needs of children before the Government leaves office some time next April or May and that he will ensure the HSE structure protects children.

We should consider expanding parenting courses for those who need them. This is done in anad hoc way across the country. Certain voluntary groups and other organisations funded by the HSE conduct them. It is necessary to talk to social workers who act in loco parentis and administrators in the HSE so we will not swing the pendulum too broadly. Nobody wants a repeat of the Cleveland affair in the Irish system, nor does anyone want to return to the days that produced the incident in Kilkenny so many years ago, which is driving much of the work we are doing today.

Having listened to Deputy Twomey, I find it amazing that everyone has a different view on children and that one always believes one's own advice is the best and should be followed. I would not disagree with 90% of what the Deputy said, but I would disagree with some points. For example, I believe our current position on rights, scrutiny and inspectorates has been informed by our historical position. We were in a terribly dark place in Ireland from the 1930s to the 1970s. Some of the reports on institutional abuse cover incidents dating right up to the early 1970s. We regarded certain groups in society as untouchable, beyond reproach and like Caesar's wife. They were not then and are not now. If we again believe that social workers, general practitioners, politicians, nuns and priests are perfect, it will not be long until we are back in a terribly dark place.

Following on my point that everyone believes one's own prescription for the future is correct, some 5% of individuals in positions that fall under the remit of this Bill are not good enough at what they do. They are corrupt and in the wrong profession. If we always bear this in mind, we will always be conscious that we may be placing our trust in an individual who is not capable of doing his or her job. We must be very careful about this. I had an experience with social workers that Stephen King could have written as a horror story. A situation was brought to my attention by very concerned people, whom I consider neither right nor left but sober individuals, who witnessed a situation developing in which a child was at risk. They felt that they could not stand by and allow it to continue. I went to the health board and said that I thought the child required additional support and that the board should ensure that it was protected. I was acting not as a family member but as a member of the public. The very senior social worker involved arrived at the house, and the first thing that she did was tell the family who had made the complaint.

I inquired about her name, which I will not give here, since I do not do that sort of thing. Naturally, the family was very upset, and I do not blame them. However, it turned out that the social worker had been assigned to the family and had not done her job. The reason that she was so upset was that she had been found out, although I could not have known that at the time. The upshot was that she was promoted.

I was about to say that.

She was promoted. A big plus is that she is no longer directly involved with children. That is why I am such a great believer in whistleblowers' charters, which we should have in all aspects of life. I could not believe what happened.

I look at people doing jobs. With experience, and having got to know people, one knows whether they are good and have the requisite interest. My instinct is not to trust a person on the first meeting. Perhaps that is a bad way to be, but it reflects my experience. I recently met a couple well into their 50s who had four small children with them. They were lovely children, well cared for and clearly very comfortable in the family situation, draped over the woman, who might have been their mother or grandmother. They turned out to be four foster children. It was an entire family made up of a diverse group but clearly very comfortable in one another's company and well cared for. That is the ideal for which we strive.

In those circumstances, this Bill is ideal, since it grants a kind of autonomy to those parents and reassures the children by stating that those whom they consider their parents, for whatever length of time, are there in times of crisis and emergency to tell them what to do without the drawn-out, bureaucratic nightmare of having to contact health boards or social workers, 95% of whom are good. The Bill is very good from that perspective. I started by saying that we all feel that we have the panacea regarding how children should be reared, what the future holds for them and what we should be doing as a society to protect them. None of us has that, since no child comes with a label stating how it should be washed, fed or reared; they are individuals like everyone else.

The Supreme Court decision of two weeks ago was an awful tragedy, and not just for the natural parents or those who cared for the child for two years. The dust will settle and things will come right, but the hurt will never go away, on either side. When one examines the detail of the case and considers the fact that the request for the child to be returned was made very early, one sees that it was not the fault of the adoptive or the biological parents. It was the fault of those in between, and sometimes people are inclined to believe that their vision of an individual's future is right and that only their prescription will work. However, that is not so. What happened in the case in question should be a lesson to us all.

I mentioned the four children I met recently and their very loving foster parents. However, we must be very careful that fostering, good as it is, is not adoption. It can progress thereto, but it is not the same thing. Some people place their children in care voluntarily because they simply cannot cope with the daily stress of their lives. Most of them do so on a short-term basis. It may not turn out to be short-term, but most do so with that intention. They ask for a month to get themselves back on their feet. It may take longer — and they may never quite be in a position to take their children back full-time — but they never place their children in care expecting it to continue until the child is an adult.

We must be very careful of the balance. The orders made are very good, and five years is a suitable period. It is not too short or too long. Let us imagine that a child is placed in foster care at three months, which I believe is the most common age. It will be five, going to school, settling into a community, and the biological parents at that stage have probably reached some kind of conclusion regarding where the child will be. The health board, if it is not a voluntary care order, will definitely have done so by that stage. However, the conclusion should not be reached any sooner. There is a difference, and one must be extremely careful of the natural parents' rights. We do not want the situation to arise where an order is made that people find very hard to reverse. Further important protection is provided by the fact that an access order can also be made after the residency orders have been granted. It is not a barrier to the biological parents having access to their children. The shutters do not come down, but a mechanism is provided whereby foster parents exercise more autonomy in the lives of the children for whom they care.

I see from the transcript of the debate in the Seanad that the Minister agreed to consider the list of people with a bona fide interest in a child's life. I agree that the list should perhaps be more precise, including the immediate family and siblings. However, we must do something about grandparents' rights. They need not necessarily be included in the Bill, but they must be examined with the utmost care. As Deputy Twomey said, apart from when the child is very young and the arrangement is voluntary, a child usually enters care at a fairly chaotic time in its life, and that may be why fostering can take some time to settle. The grandparents may very well be the only stable point in the child's life at that stage. I have seen cases where grandparents, seeing that there is chaos in the family home, have pursued the health board, now the HSE, to ensure the child's best interests are taken on board and that he or she is taken into care.

Grandparents have a special role to play. Not all grandparents find themselves in the situation I described but we must make some provision for situations where children are placed in care even though they have grandparents who wish to be involved in their care. It is unacceptable that a child who has lived with his or her grandparents for several years may end up in foster care and the grandparents have no right of access.

I agree with the Minister of State that the list of people with a bona fide interest in a child's life must be precise. Grandparents should be included on that list so they can apply to the court for access. My heart goes out to grandparents who, having enjoyed a close relationship with their grandchild, must then endure the sudden cutting off of that relationship. This happens not only in foster care situations but also in cases, for example, where one of the child's parents remarries and the new spouse, usually contrary to the child's wishes, does not want the grandparents involved in his or her life. We must be farsighted in dealing with this issue.

Family life is changing dramatically but it should not be beyond the wit of legislators to regulate these social changes. Like Deputy Twomey, I was amazed to hear the Taoiseach speak about a referendum on children's rights. It is not that simple. One cannot simply put together a formula of words on which everyone will agree. The best interests of children should be at the heart of everything that affects their welfare. I am not certain, however, that we can devise a formula of words for insertion in the Constitution that will ensure that.

We spent two years trying to secure constitutional rights for people with disabilities, including children. We were told by a succession of Ministers, however, that this type of constitutional provision could not be made and would be unenforceable. How can the Taoiseach now tell us that it will be done in regard to children's rights by means of a simple formula of words before the next election? If it can be done in this instance, why was it not done in respect of people with disabilities, a more manageable and readily identifiable group?

More than 5,000 children are currently resident in various types of care. I am always astonished this figure is not higher given that the supports provided by extended family networks are generally no longer in place. Moreover, communities are not as strong as they were, although the situation is not as bad as is usually suggested. The way in which we manage children in care is vitally important. If these children have a good experience of childhood, a good education and emerge into adulthood as well rounded people, they can play an important part in society. On the other hand, we know what happens when children are treated poorly.

The family to whom I referred, comprising the parents and four foster children, told me they were planning to go on a holiday. That is why I am particularly interested in the passport issue. I can only imagine the hoops these parents had to go through to secure passports for their four children, who were all close in age. It is vitally important that foster parents are able to give permission for children to go abroad for limited periods of time, on school trips, for example. Children who have not had the best start in life need more support to make up for the difficulties they face. This is why the role of grandparents can be particularly important.

It is not reasonable or acceptable that any judge should be expected to hear cases regarding drink driving, assaults, neighbours' disputes and so on all morning and then have to deal with family law matters in the afternoon. It is a specialised area that requires a specialised approach. Such hearings should not take place in the court house in Cork or elsewhere where defendants in criminal cases are in handcuffs. The cases are different and should be treated as such.

Serious and careful consideration should be given to the introduction of a magistrate system such as that which exists in Britain, which avails of the expertise of psychologists and specialists in family law in an informal setting. This would remove some of the stress from proceedings and would undoubtedly better serve those involved in family law cases. We must seriously consider the introduction of specialised sittings for family law matters.

I agree with the Minister of State's observation in the Seanad that the list of persons who could apply for access to a child should be clearly defined. This is a good and workable Bill so long as the sensitivity of the biological parents is not interfered with in any way and that people are not led to believe that foster care is some type of short-term adoption. In the aftermath of the recent Supreme Court decision in the Baby Ann case and other cases, we must be sensitive to both sides while always bearing in mind that our priority should be the best interests of the child. It is that which should always guide us.

I propose to share time with Deputy Catherine Murphy.

Is that agreed? Agreed.

I thank the Minister of State for outlining these proposals in detail. He will have the full support of the House for this Bill. I will not speak for long because most of the issues have been covered.

One of the main functions of this legislation is to ensure foster carers are not obliged to obtain permission to seek medical or dental treatment or immunisation for a child, or to allow the child to travel abroad for a school trip, for example. The proposals in this Bill will prevent the stigmatisation of foster children. We cannot underestimate the feelings of alienation of foster children among their peer group. It can be painful for them if they are placed further outside the loop because of issues like this. The legislation closes that gap which is welcome.

In the Seanad the Minister of State saluted the work of foster parents. All Members should pay tribute to foster families. We were reminded how important their work is when we learned that the children of the recently murdered Latvian lady were to be put in foster care. One can only imagine the trauma these children are suffering. We ought to bear in mind the difficulties with which their foster parents will have to contend. These children are now without their mother and with people they do not know. Likewise, the new foster parents are with strange children with whom they will try to forge a bond in difficult circumstances. This legislation breaks down bureaucratic barriers for simple matters in fostering, allowing foster children to feel more at one with their foster parents.

The Minister of State claimed the Bill's proposals would give young people in foster care a sense of belonging in a foster family. He referred to the adoption of the Hague Convention and the adoption authority Bill. This legislation will establish the Adoption Board as an independent statutory body known as the adoption authority. When will this Bill be published, as it is an important part of family law?

The Minister of State stated he sought the advice of the Attorney General on the issue of the HSE's powers with regard to third party abuses as raised in the Ferns Report. The HSE had general powers under the Child Care Act 1991 regarding third party abuse. An in-depth study on the HSE's powers in this area has been undertaken and the Minister of State is considering legislative proposals. Will he outline the proposals he has in mind? When discussing the protection of our children, this is an important issue.

I compliment the Minister of State on the Bill. If a strong body of legislation to protect our children can be brought together, we will all, particularly the Minister of State, have done the State some service.

I am not too old to remember the orphanages in the 1970s. I was in a class in Goldenbridge for a year where there were orphans from Keogh Square, Inchicore. It left an indelible mark on me concerning poverty and the lives of children who had no parental support, a different experience to mine. In those days, there was an expectation that adults always acted in the interests of children. Unfortunately, a substantial number of notorious cases have highlighted that at times neither adults nor the State acted in the interests of children.

The legislation is thoughtful. The Minister of State is sincere in his drive to put in place a body of legislation for child protection. Apart from legislation, support networks are needed in this area. Last week, I was impressed when Nora Gibbons of Barnardo's noted that in the Baby Ann case there were lawyers for the prospective adoptive parents and the natural parents but none for the child. One cannot describe a situation as child-centred without having a mechanism that will put the child on an equal footing with other parties. This absence needs to be addressed.

I sat on the Commission on the Family for three years. With the amount of documentation presented to it, my eyesight almost suffered. My experience with the commission highlighted how difficult it would be to frame a constitutional formula in this area. The commission spent weeks simply trying to agree a definition for the family. We came to the conclusion it could not be given a definite legal term but a description as something to be nurtured and supported. It was the family function we focused on rather than a legal definition. It will be difficult to find suitable wording for the constitutional referendum on children's rights. While I believe there is a need for the referendum, the terminology and balance must be got right.

I agree with Deputy Lynch on the role of grandparents. While I accept the Bill may not provide the legislative context for their role, with people living longer, grandparents play a major role in a child's upbringing. While I was not fortunate enough to really know my grandparents, my children knew, and still know, theirs very well. To be disconnected from grandparents can be a major loss in a child's life. Given the number of children born to non-married couples, the rights of unmarried fathers must be recognised. This comes down to what is in the interests of the child. If we genuinely see the interest of the child as being central, one can see the richness a grandparent and father can bring to it. We must move away from family conflicts and find mechanisms to help families to engage with their children.

The Constitution determines the definition of the family and a foster parent is very muchin loco parentis, not on the same footing as a natural parent. Foster parents have told me they have been fulfilled by the role they have played but have felt there were legal and cultural difficulties in them acting in the interests of the child. Some of the provisions in this Bill will address that issue. Giving permission for a child to go on a school tour is a good case in point. There is also an attitude to be addressed to ensure that people do not treat a foster parent differently. It is difficult enough for foster parents to feel part of a semi-permanent arrangement without meeting other obstacles highlighting that difference which are not in the child’s interest. This may not be a legal issue only but also a cultural one.

Ba mhaith liom a rá that I welcome this Bill as a further necessary reform of legislation regarding the care of children and the rights and responsibilities of foster parents and of relatives caring for children.

Much attention has recently been paid to the need to vindicate further the rights of children. It is a pity that this arose in the somewhat confusing way occasioned by the Taoiseach's announcement at the Fianna Fáil Ard-Fheis of the Government's intention to better enshrine children's rights in the Constitution. With respect, the statements of an tAire Stáit, as well as those of the Taoiseach, have left us none the wiser as to whether the Government really intends to hold such a referendum before the dissolution of this Dáil. That is the critical point which the Aire Stáit might clarify at the end of this debate.

I have already written to the Deputy. My door is open.

I know but I hope the Aire Stáit will clarify this for us. Much of the work regarding placing children's rights in the Constitution has already been done. The All-Party Committee on the Constitution in 2004 and 2005 reviewed several related articles and submissions were made on children's rights, including proposed wordings from Sinn Féin and others. The Government majority on the committee opposed the idea of a comprehensive amendment on children's rights. Instead of the committee proceeding with the proposal and seeking the advice of constitutional lawyers available to the committee, the matter was shelved. Now the Government is apparently resurrecting the idea of an amendment on children's rights but in a most confusing way.

Sinn Féin argued in its submission to the all-party committee that the balance between the rights of the family as a unit and the rights of individual members favours the family disproportionately, in a manner potentially in conflict with the International Convention on the Rights of the Child, and the implications of this for the rights of children, particularly in respect of child protection.

The minimal wording proposed by the majority on the all-party committee does not adequately address this issue while Article 41.1.1 of the Constitution states that the family is "the natural primary and fundamental group of Society, and as moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". It lacks a specific comprehensive article on the rights of the child.

The constitutional issues remain to be fully teased out but the Bill before us today deals on a more practical level with the rights and needs of children in foster care or in the care of their relatives. More than 4,200 children are fostered in the 26 counties. Over 1,500 of these have been in care for five years or more, though not all may have been in the same placement throughout the five year period.

The Bill's stated aim to is give long-term foster parents and relatives more autonomy on issues such as consent to medical examinations and treatment and applying for passports, as well as needs that arise regularly, such as giving permission for children and young people to participate in school tours or other such educational, sporting or leisure activities, where adult permission is required. This would remove inconvenience and embarrassment for foster children who face delays and obstructions in joining the normal activities that their friends and fellow pupils take for granted. Anything which removes forms of differentiation, or even stigma, for children in foster care is to be welcomed.

In practice, this is probably a grey area of the law and I presume that many relatives who care for children, due to the inability of a parent or parents to do so, fulfil these functions without having their status checked by schools for the purposes of such permissions. Obviously, foster parents would be conscious of all their legal obligations but I doubt very much if this is the case with relatives. This matter needs to be addressed, without unduly burdening relatives caring for children.

There is a distinction to be made in cases where informal arrangements exist between parents and other relatives to care for children without reference to the Health Service Executive, in which case I presume the provisions of this Bill do not apply. As in all cases, the welfare and rights of the child need to be paramount.

The Bill provides that a foster parent or a relative who has cared for a child for a continuous period of five years, the child having been placed with him or her by the Health Service Executive, may apply for a court order for increased autonomy in regard to the care of the child. On Second Stage in the Seanad, Senator Henry questioned the five year stipulation. I share her concern. It seems a long period. It is also a continuous period and does not take account of breaks that may occur in that period of foster care. There is a need for more flexibility here and I ask the Minister to reconsider a shorter period, as well as some provision for breaks in the period of care. For example, a child may return for a time to his or her natural parent or parents but may have to return to foster care.

We accepted an amendment on that in the Seanad.

I understood that the amendment on this point was not accepted in the Seanad.

It was accepted.

I welcome that, if that is the case.

We accepted it on the continuity issue.

There may have been another amendment on one of the key points, the length of time. While I welcome the Aire Stáit's clarification, I recommend that he reconsider the length of time. Five years is a long time, one third of a child's growth years from infancy to young adulthood at 18 years, and may be too long in this context.

The case of grandparents who look after their grandchildren has been highlighted previously here and we have called for more support for them. In many cases, grandparents are looking after the children of their children, particularly in areas of Dublin city, but it is not confined to them. Even in a rural constituency such as mine, I know of grandparents who are the primary carers because, sadly, their children have succumbed to the scourge of drug addiction. They need every support in their work of care, including legal protection as well as financial and welfare support from all the relevant agencies. I again appeal to the Government to give special attention to this special category of carers. I echo what other speakers have said in this regard.

Tribute should be paid to the thousands of people who take children into foster care and give of themselves and their families to provide the love, attention and support all children need and deserve. The Irish Foster Care Association provides a network for foster parents and highlights their work. I commend its endeavours. While the vast majority of foster parents provide excellent care, as with all adults with power over children, there is always the danger of abuse. We must ensure the systems are firmly in place to guarantee that no child would be placed in a dangerous situation. However, as we know, abuse has happened and does happen.

I previously made representations to the Minister of State, which he may recall, regarding a case of alleged abuse brought to my attention. This case highlights the need for attention to be paid to the plight of those who "may" have been subject to abuse while in foster care. We have no idea how widespread this may have been, especially in times when such abuse was much more hidden than it is today, and given the large numbers of children who have been placed in foster care over many years.

The Minister of State should explore setting up a scheme of redress for people who suffered abuse while in foster care. The precedent has been set with the Residential Institutions Redress Board. The care of these children was entrusted by the State to institutions and foster parents and the State must accept its responsibility. The Minister of State might commence with an investigation of this issue and then initiate action as appropriate. I look forward to hearing from him in that regard. The first step would be to invite those who may be affected to come forward and to consult with them directly, as, for example, in the case which I recently highlighted to the Minister of State.

In addressing the Bill I am struck by the need for the State to inform people of their rights, as children, parents, carers — including foster carers — under the Constitution and in terms of the whole range of family law. Sadly, in most cases, people only become aware of their rights and obligations when a problem arises. I urge the Minister to examine this need to inform people of their rights and to act accordingly.

I welcome the Bill and look forward to further legislation in the related area of adoption which we have highlighted at various opportunities on the Order of Business. Overall, we need to develop a progressive framework of laws that fully vindicate the rights of children and of all those who care for them.

Tá áthas orm deis a fháil cúpla focal a rá ar an ábhar tábhachtach seo. Caithfidh go dtugann sé an-spreagadh don Aire a chloisint go bhfuil tacaíocht ag teacht ó gach cúinne den Teach don Bhille.

I am delighted to welcome the Child Care (Amendment) Bill. I compliment the Minister of State, Deputy Brian Lenihan, and the officials in his Department for the fine work they have done in crafting this important legislation.

This short legislation will bestow basic but fundamental rights on children and guardians in the many foster care relationships that exist. I am pleased to note the Bill has the support of the Irish Foster Carers Association, whose members are tireless advocates for the foster service. Undoubtedly, they are best placed to evaluate the implications of the Bill.

In acknowledgement of the valuable service these foster homes offer both the State and the children they welcome into their homes, it is appropriate we take the necessary action to make the commitment and responsibility that they embrace less onerous and afford them the status of any other primary carer of children, whether that be a parent or an institution, in the delivery of basic day-to-day routines for those children.

While the legislation addresses practical issues with which any parent would be familiar, it is also significant in the parity of esteem it offers children in a foster care environment, which they may share with natural children of that household. Every effort should be made to ensure children who have arrived into the foster care system, through vulnerable circumstances beyond their control, should not be further stigmatised by onerous regulations that set them aside from their peers. As any parent or child carer will attest, children are very sensitive to issues that differentiate them from their peers. In this case, the simple tasks of securing permission for routine medical procedures or occasional visits abroad with school or family are constant reminders that highlight their difference. While each incident on its own is probably a cause of minor discomfort, the cumulative effect of this reminder can only have a negative impact on the psychology of the child.

It is imperative that when circumstances arise that require the placement of a child in foster care, every effort would be made to cement the bonds within that foster care family. It is fitting that the Bill would be passed in order to engender an environment that would enable the natural development of family bonds by removing unnecessary obstacles and distinctions. The current position, I respectfully suggest, is also inconsiderate of the welfare and convenience of the many foster parents who do this State such a wonderful service by providing a loving and supportive environment for vulnerable children. I am struck by the number of such foster parents who do so, not just on an occasional basis but who have done this work for many years. Sometimes individual children are cared for on a short-term basis but in other cases the period of care is long term. I recently met a lady in my constituency who is in her early 60s and is still providing foster care. She has cared for no less than 15 children during her married life and in so doing she has made an enormous contribution to society.

At a time when the privilege of adopting a child has become a relatively rare phenomenon, the increased rights that this Act bestows on foster parents could result in those who might seek adoption considering fostering as a practical alternative in realising their dream to raise children. As a parent, I can honestly say that rearing children is not always the idyll presented in a Norman Rockwell scene, but can at times be challenging and difficult. It is, nonetheless, life affirming to witness and guide young people in fulfilling their potential. I hope the work of this House in this regard will result in many more families being encouraged to undertake this responsible but rewarding role.

While approximately 5,000 children are officially fostered in Ireland, it is generally acknowledged that many more children are being cared for by family members other than their parents, most often by grandparents. A number of speakers have alluded to this. Deputy Lynch suggested that perhaps a legislative framework could be established to enshrine the connectivity between grandparents and grandchildren. Despite the undoubted skill of the Minister of State, I am unsure as to whether it would be possible to design such legislation. Nonetheless, it is important to state that the relationship that exists between grandparents and grandchildren are genuinely life enhancing. These unofficial guardians and carers have heretofore been discouraged from seeking official recognition of their role by bureaucratic procedures such as those being removed as part of this timely legislation and, as such, have found themselves deprived of the significant financial aid afforded to recognised foster carers. It is my hope that these informal family arrangements will now be recognised and supported routinely in a manner similar to those offered to registered foster carers. In so doing we would improve the financial circumstances of carers and the children they cherish. It is also worth noting that this Bill should have the very practical effect of relieving qualified social workers in the HSE of the time consuming and tedious duties of processing requests for minor medical procedures and travel arrangements which, in turn, will see their expertise better applied to the more serious child welfare cases that require ongoing attention. All of us in this House are aware, from the work we do in our constituencies, of the need to have considerable resources applied to supporting vulnerable families in communities so that we can, as much as possible, avoid situations in which children have to be placed in foster care. Members will agree on the need to continue to target resources in that direction. In my 20 years working as a public representative I have observed the tendency to over complicate and regulate, simple practices and, procedures. I am heartened that today the Minister is rectifying an example of this tendency.

I hope this Bill is a precursor to others that will address related issues such as the rights of foster children to choose official adoption into their foster family at age of consent. In the debate in the Seanad the right of these children to family inheritance under the same favourable tax provisions that apply in respect of the natural children of a family was raised. I add my voice to the call made in the Seanad. It is something the Minister might address in his response or in future legislative proposals.

Our 21st century society presents us with many complex issues, particularly around the definition of family. With the passage of time and the increasingly multiracial nature of our society we have a broader and more open definition of what constitutes a family. In the course of the passage of this Bill through Seanad Éireann a number of Senators mentioned the current position of unmarried fathersvis-à-vis their offspring. This topic also arose on a number of occasions in this House today. The Government has made strong efforts in pursuing biological fathers for the financial support of their children. While this action has yielded considerable results it is also symbolic of the responsibility the State expects parents to take for their children. In the interests of fairness it is only right that we should recognise the rights of unmarried fathers, rights similar to those we confer upon fathers within the legal state of marriage. We are now a country of multicultural influences where there are many definitions of family. We as legislators have a duty to accommodate this dynamic by framing responsible and just laws that confer rights on the relevant stakeholders within these families, while at all times using the primary welfare of the child as a compass for this decision making. I look forward to seeing the Minister bringing forward other pioneering and relevant legislation in this area.

I welcome this Bill for the commonsense approach it offers to the daily occurrences of family life for those in foster care but, more importantly, for its significance in acknowledging the primary rights of the child and the important status the State must give to those who give of themselves as foster care providers. I again compliment the Minister on the sterling work he has done in taking on the new and challenging role as Minister for Children. The public have great confidence in him. Members of the House have today signalled their confidence in him. I look forward to the debate he has instigated on the rights of the child. I commend the Bill to the House.

I am glad to have the opportunity to speak on this legislation. Everybody in this House has dealt with individual cases in their constituencies as a result of which they got immediate inspiration as to what changes are needed in the law. Sometimes such changes work and sometimes they do not. One of our colleagues recently mentioned the rights and entitlements of children and parents. Protecting both involves a very critical balancing act and must be carefully addressed as we proceed into the future.

The purpose of the Bill is to provide that a foster parent or relative who has had a child in their care for a continuous period of five years, the child having been placed with them by the Health Service Executive, may apply to the court for increased autonomy in relation to the care of the child. That is fine on the surface. However, problems will arise. People will resort to the courts on a more regular basis to pursue their rights or what they perceive as their rights. The focus may not necessarily be on the rights of the child in the first instance but on the perceived rights of the parent or foster parent. Such cases will require the judgment of Solomon because, in my dealings with the public, I sometimes find it extremely difficult to come down on one side or the other and be certain I have taken the right side. It could be that for one reason or another one of the parties has tried to exclude the other and an argument has ensued as to whether that party has established the necessary bona fides to proceed. The party in question may prove his or her case, but when the case is examined, taking into account what the child wants or what might be in the best interests of the child, questions might arise as to whether the course of action taken was the right one.

A question arises as to when is a child not a child. The issue of the age of consent, the age of reason and so on arises. Like everybody else in this House, I have dealt with cases involving wayward children. All children are entitled to be wayward. I am talking about children who resent parental authority and decide to absent themselves from school and from home. In what way will the law now protect the parent? Will it ignore what may happen in the context of the child's future prospects? If, for example, a 15 or 16-year-old boy or girl is encouraged away from home for a continuous period in the company of an adult of the opposite sex, does the law support the return to parental authority of that child? As the law stands, the answer is "No" unless the parents have the wherewithal to contest a case in the courts. Nothing happens automatically. The case must go to court and the outcome depends on the weights and balances of the law, as the Minister of State, who is the expert in that area, knows. I do not blame the Minister of State.

My expertise is becoming outdated.

The Minister of State's expertise in that area is well known. In such situations, parents approach public representatives because, as legislators, they would be expected to be able to inform parents. Public representatives can approach the Health Education Bureau, the Garda Síochána or the health services. The response of the health services is usually that the matter is confidential and they cannot talk to public representatives, which is crazy. The Garda Síochána tries to be helpful, although one might have to go back again and again. The Health Education Bureau is so understaffed that it would have to drop half its workload to devote attention to the issue. I am talking only about cases with which I have dealt and continue to deal. I presume this kind of situation is widespread throughout the country. In dealing with the legislation before us we must have due regard for what the rights of the child mean and also the long-term interest of the child. Whatever other influence may fall over the child regardless of his or her age may have a bearing on his or her life as a child, teenager and adult. From my initial examination of the Bill, we need to be careful. I hope we do not run into an area that will cause contention in the future.

As a former member of a health board, like many Members of this House, I needed to get involved in individual cases on behalf of people wishing to adopt. It can be heartbreaking for them if it does not work out. If the adoption procedure is not adhered to in the letter and spirit, it will be a cause of great concern afterwards. For example, if the adoptive parent is given the impression that all procedures have been complied with and it is now only a formality, we are into dangerous territory. I am sure the Minister of State from his legal practice will give chapter and verse to substantiate that. While we cannot anticipate every situation, we must lay down guidelines to ensure as far as possible the natural and adoptive parents do not come into conflict. The only people who can do that are those who process and apply the regulations on adoption.

It is difficult to be judgmental in such cases. However, one must recognise that we must think about the child's future and how he or she might want to know who his or her natural parents were and why he or she was adopted. Equally if a bond has been established with the adoptive parents the question can be asked of the bond that has developed. The area is fraught with pitfalls and future difficulties may arise, notwithstanding the purpose of the Bill. We have all come across confrontations between parents — married couples and partners — who for one reason or another find that the relationship has broken down and a battle for custody emerges. As the Minister of State knows this area is fraught with difficulty and has become very expensive.

In countless cases children have been removed from the jurisdiction to the east and the west and ultimately have been the subject of long, drawn out legal battles. I am not sure whether the rights of the child form part of the consideration. It would appear that while a judgment might contain references to the rights of the child, I do not know whether the child knows at that stage what is happening. I am not certain as to what should happen. One side will try to prove that the other side is unfit as a parent or guardian and unfit to have custody of children. A sad and sorry situation develops in such circumstances. Ultimately it comes down to the law deciding. The courts may decide rightly or wrongly — we have no way of knowing. When the situation degenerates to that extent it is far better to sit down and work out an amicable resolution rather than go down the route of confrontation which ultimately will fall to be decided by the courts.

In the definition of foster parent or guardian — I presume it will also apply to a guardian in the future — I wonder whether we are likely to see an exacerbation of confrontation between natural parents and foster parents or guardians. The Minister of State might dwell on the matter in his reply. While I do not wish to be critical of the health services, from my dealings with such situations the Garda responds as it is bound to do. However, if public representatives inquire on behalf of a person or persons into a situation of this nature, which we are entitled to do, there is a resentment that we are inquiring into a matter about which we are not qualified to talk. That impression is regularly created and is unacceptable. A public representative has duties, including statutory duties, one of which is to bring to the attention of the authorities issues which may be of concern to them and which in their opinion might lead to one or other party being at risk. It is the duty of a public representative to relay that information to the relevant authorities. It is the duty of the relevant authority to take whatever action needs to be taken within the law. It is not its duty to tell the public representative to push off, that it is a private matter and that it and nobody else is qualified to deal with it.

Such action would be beneficial to everybody, children and parents, including parents who do their best and may not be able to achieve their best. It is the duty of the relevant section in the Health Service Executive to respond. At times it may be difficult to explain the situation. If a public allegation is made it may be difficult — the public representative will obviously try not to do so in order not to create difficulties for families concerned. We have had cases of serious doubt as to whether the welfare of children was being adequately catered for — I do not intend going into them now. During my time in this House I have seen such situations. I have seen cases to which attention was drawn and they were being monitored. In most such cases everything went fine. However, whenever things went wrong in such cases, somebody always claimed that the law was inadequate and there was not sufficient law to deal with the situation. That is not true — the law is always there to deal with that kind of or any similar situation. It is necessary that people recognise that. Whenever such a situation arises people always call for a change in the law.

While this is not a political point, whenever we hear a request for a change in the law, I immediately look behind it to ascertain what happened and what should have happened and did not happen to protect the vulnerable child or adult. I would like these matters to be capable of resolution without the necessity to enter the courts every five minutes. In his reply the Minister of State may well say that if nothing else will resolve the problem, that is the natural order of things. I would like to feel that everything was being catered for.

Previous speakers referred to children being in the charge of foster parents for continuous periods. Will that be similar to some of the situations relating to the granting of naturalisation to people who are refugees? A specific period is set out after which they will be considered. Deducted from that, however, will be certain instances such as leaving the country for a period, for whatever purpose or reason, or having a particular difficulty, such as, for example, one of a financial nature. Will the Minister of State indicate whether provision is being made in this regard. If I had had more time to read the Bill this morning — unfortunately, I was otherwise engaged and could not devote more time to it — I would have more to say about it.

The new section 43A(3) provides that the conditions in respect of the notification or consent of the parent having custody or the person actingin loco parentis do not apply if the parent or person acting in loco parentis is missing or cannot be found by the Health Service Executive or the court so directs having regard to the child’s best interests. Perhaps the Minister might elucidate further on that section in the context of what it will mean in practice. Will it mean that the respective legal teams will have a great opportunity to array themselves on opposite sides and engage in a long battle? Case law will build up over time and I presume that this will determine what will be the outcome. However, case law can change the position and can create situations where the original intention behind legislation may become somewhat obscure and, as a result, further changes may be required.

From my experience in the House, I am aware that attempts to legislate in respect of human relationships are fraught with difficulty. Regardless of how one goes about it and no matter what law is passed, situations will develop that were not and could not have been anticipated. If such situations were anticipated, by the time the case has been argued, it would be impossible to determine who was right and who was wrong.

I hope the legislation will prove helpful. I also hope that it will not be a stop-gap measure because I do not like such measures. Any such measures that have been introduced in the House in the past have been found to be flawed and faulty and have usually necessitated the introduction of further primary legislation to replace them.

The Minister of State has 15 minutes and more in which to reply.

I may be exercising a comprehensive right of reply in order to reassure the public that we are at our business.

I thank Deputies for the generous welcome that has been extended to this Bill. It is a measure of the understanding Members have for those who undertake fostering and foster care. The debate illustrated a deep understanding of the nature of the difficulties that people who engage in the fostering of children face. Even Deputy Durkan was at his most philosophical in his consideration of the legislation. I will deal in detail with the points he raised. As an analysis of contemporary society and the role of litigation therein, his contribution was extremely interesting.

I wish to begin by outlining the current position with regard to the numbers in foster care. I provided some indicative figures earlier but I have since been provided with up-to-date statistics from the HSE performance monitoring report for the second quarter — April to June — of this year. These figures have not been finally validated but it is worth placing them on the record of the House. There are over 5,193 children and young persons in the care of the State and 88% of them, or 4,561, are in foster care placements. Of the number in foster care placements, 3,130, or 68.6%, were placed with foster carers and a further 1,431, or 31.4%, were placed with relatives. I will return to the issue of relatives because many Members alluded to it.

A total of 50 children were in residential care and 106 were at home awaiting foster placements at the end of June 2006. Some 101 new and approved foster parents were recruited in the first half of 2006 and 59 foster carers permanently left the service. A total of 80.3% of approved foster carers had allocated named social workers. The question of support for foster carers was raised in the debate and I will return to it later. Approximately 88% of children in foster care have allocated named social workers. Those are the up-to-date figures and they are worth reflecting upon in the context of this debate.

I wish to place on the record another set of figures compiled in respect of an analysis of our child care interim dataset for 2004. The figures to which I refer illustrate the issues we are addressing in the legislation in a neat fashion. There were 4,243 children in foster care in 2004 and, of these, 1,509 were in care for five years or more. That is a substantial number. A child who is in care for five years or more clearly has a bonded relationship with an entirely new family. It is with this matter that the legislation is designed to deal. I can provide more detailed figures in respect of the different periods but the figure of 1,509 is important. Of those children to whom I refer, 1,118 were in general foster care. A further 11 were in foster care but were children with very special requirements who needed additional supports, 379 were in relative foster care and one was in a pre-adoptive foster placement. It is interesting that the child who was recently the subject of Supreme Court litigation was in a pre-adoptive foster placement. The figures are worth reflecting upon in the context of the Bill.

Deputy Twomey expressed a generous welcome to the Bill on behalf of the Fine Gael Party. I thank him for his comments. The Deputy's experience as a general practitioner extends way beyond the treatment of patients. As with most GPs, he is well aware of social workers and their practices and their merits and demerits. He spoke very well on that matter and raised a number of interesting points.

Deputy Twomey inquired as to how I arrived at a decision that five years should be the relevant period for the purposes of the legislation. This matter was also raised in the Upper House. It is fair to say that the Deputy is anxious to see a reduction in that period to three or even two years because he feels that this would be in the best interests of the child and the foster parents. There is a difficulty — we will probably discuss it on Committee Stage — in that there are often breaks in the continuity of foster care placement. It is difficult to secure that element of continuity. I appreciate the spirit in which Deputy Twomey raised this matter but there are difficulties in respect of it.

I considered this matter carefully and I assure Deputy Durkan that the figure of five years was not plucked out of the sky. The requirement in the Bill that a child be in the care of a foster parent or a relative for a continuous period of five years is appropriate because after five years have elapsed, foster parents or relative foster carers will be experienced and will have a sufficient level of understanding of the needs of the foster child. If there are instances of instability or interruption in the placement, it is not appropriate for foster carers to have increased autonomy in respect of the child. I accepted an amendment in the Seanad, which provided for a disregard of brief interruptions, which is important, but Members must understand that when an order is granted under the legislation in respect of a child, it means the State, through the HSE, will delegate its responsibilities for him or her to a foster carer. All the rights and obligations of the State in respect of the child can be transferred to the foster parent but this cannot be done lightly. The State must be satisfied there is an unblemished history of care on the part of the foster parent or relative. I considered this issue at length and, on balance, five years is the correct period. I have listened to the views of Members of both Houses and I will listen to the views of Deputies on Committee Stage. Periods of two and three years have been proposed but I would not entertain such a period in the context of such a far reaching delegation. I will reflect on the Second Stage debate and the upcoming debate on Committee Stage and I will take account of the views of national organisations but I am not disposed to depart from the period specified in the legislation, although I am open to further persuasion.

Deputy Twomey referred to the social services inspectorate and nursing homes. The inspectorate has done a marvellous job inspecting children's facilities and many improvements have been made. Reports are submitted to my office, which have raised questions about practices. While, on occasion, the reports have been disregarded without their recommendations being implemented, a momentum for change and improvement and appropriate standards is built up over time through them. The Deputy stated the HSE is not without imperfections and Deputy Durkan will concur with that view.

The Minister of State is correct.

I am not sure whether it is in order for a mere Minister of State at the Department to join in the chorus but it is essential the HSE implements its obligations under the legislation and I am confident it will do so.

One of the advantages of the legislation is that a great deal of unnecessary work will be obviated for social workers, permitting them to focus on more important work relating to children's issues. It is ridiculous and foolish that a foster parent who has cared for a child for ten years must obtain a letter from a social worker to obtain a passport for the child. That stigmatises him or her because if he or she is going on a school tour or a holiday, permission is required and the foster parent must have recourse to HSE social workers. A more extreme example relates to medical treatment, which the foster parent will be permitted to make a decision on under this legislation. On occasion, social workers have felt impelled to have recourse to the courts to permit a medical operation for a foster child. Parents in a normal family do not have to go to court to approve an operation for one of their children. I hope the legislation will obviate this need in regard to foster children and permit such decisions to be made by the foster parent. This will save significant time for social workers and enable them to address many other matters than need attention and to support foster parents, when required.

Deputies Twomey and Durkan referred to the operation of the Children's Court. Deputy Twomey was concerned that the judges of the court should have sufficient expertise and understanding of the needs of children in these cases. My office has been engaged in discussions with the President of the District Court on this subject in recent months and I hope to bring forward proposals in this regard. Anything related to the courts is fraught with constitutional difficulties but, on receipt of the appropriate advices from the Attorney General, I hope to take action in this area.

Deputy Twomey also referred to child poverty. The Government has taken 100,000 children out of the consistent poverty net, yet an unacceptable number remain in it. The Deputy correctly stated the problem of child poverty in our affluent society increasingly relates to cultural rather than material factors, which must be addressed.

He also referred to the referendum on children's rights announced by the Taoiseach and questioned whether it would be possible to execute it in a few months. Mrs. Justice McGuinness raised this issue in her report on the Kilkenny incest investigation more than a decade ago while an all-party committee examined the issue at length before publishing a report last spring. I acknowledge the broad welcome extended by Deputy Kenny and Fine Gael for the proposal. I have written to Deputy Kenny in this regard and I look forward to his response because this issue must be addressed. I thank Deputy Twomey for his welcome for the legislation on behalf of the principal Opposition party.

Deputy Lynch took issue with Deputy Twomey regarding the five-year period. She is satisfied this period is correct but her concern related to what happened to children in the past in Ireland. Without singling out members of a church or a religious organisation, she stated everybody, including public representatives, teachers and parents, cannot have the attitude that there are untouchables in our society and we must be very careful when delegating responsibilities for children. For those reasons, she was anxious to stand on the five-year period and she agreed with my judgment, for which I thank her.

She also raised last week's Supreme Court decision in the adoption case and the fact that a request had been made after 11 months for the return of the child. The decision illustrates a particular context in which we must examine constitutional change. Much discussion has centred on where the principle of the best interests of the child should apply. I agree with Mr. Justice Hardiman's judgment that, in general, the best place for a child is in his or her family and that is how his or her rights can best be vindicated. However, the difficulty under the current constitutional arrangement is that when the family breaks down or the parents fail and the child enters the adoption or care system, it is not unequivocal in our constitutional order that those decisions must be taken in the best interest of the child. Nobody can propose that a child should be taken into the care system in his or her best interest but, once a need to intervene is demonstrated, whether that is due to abuse, neglect or abandonment or whether the parents voluntarily relinquish their child into the care or adoption system, our Constitution does not provide plainly and unequivocally that subsequent decisions about the child should be made in his or her best interest.

Upon examination, the Supreme Court had a difficult decision to make. Based on the facts, the Supreme Court's decision may have been in the best interests of the child, but there was a legal difficulty, namely, while the child had been placed in the adoption system, the subsequent marriage of the natural parents meant that the Supreme Court could not legally address the issue of what was in the child's best interests. The Supreme Court needed to mechanically apply an inflexible rule of law that required the return of the child to the natural parents.

That the Supreme Court did not address itself to the question of the child's best interests poses a difficulty. In the case in question, it might be difficult to argue with the conclusion on the facts because the period after which the return of the child was sought was short, but if a child was voluntarily placed in foster care for a period of eight, nine or ten years and the natural parent sought his or her return, the best interests of the child would not determine his or her future under our current constitutional arrangement.

That is right.

We must reflect on this issue and be careful in our debate on the referendum. I agree with Deputy Durkan that the rights and authority of parents under the Constitution must be safeguarded and respected. This is not a matter of a block transfer of rights.

Several Deputies referred to difficulties that have arisen with social workers in other jurisdictions. We must proceed with great care in this area because a balance must be struck. The leaders of the other parties will discuss that balance with me.

I have addressed the question of the Supreme Court decision raised by Deputy Lynch. She turned to the question of access rights and the importance of grandparents in that context. Recent legislation has recognised the potential role of grandparents and I assure Deputy Lynch that section 37 of the Child Care Act 1991 respects that position and provides that, when a child is in the care of a health board, the board shall "facilitate reasonable access to the child by his parents, any person acting inloco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child”.

That is a dangerous area.

I will revert to that matter. Section 37 of the Act is the primary legislation governing this amending Bill. The position of the grandparent is safeguarded — I will confine myself to that narrow point at this stage — under section 37.

Deputy Lynch turned to the question of the constitutional amendment and raised the issue of the best interests of children. When children are taken into care or are in the adoption process, decisions made about them should be made in their best interests, but to extend that principle to other areas will require considerable elucidation and discussion. The Deputy referred to the need for specialised sittings for family law matters, an issue on which I touched when I indicated the importance of a fresh examination of how the courts approach the question of children. I thank the Deputy for welcoming the Bill on behalf of the Labour Party.

Deputy Gormley welcomed the Bill and raised the question of the sense of belonging between a foster child and a foster parent. I agree that this sense is important, but, as Deputy Durkan pointed out, it is possible for two different sets of individuals to have this sense of belonging. The best interests of the child must come into play in this respect. Regarding the discussion on children in the adoption and care processes, particularly vulnerable children, people should realise that children must have rights and cannot be objects or commodities for others. In some of the more lurid debates, sight of this aspect can be lost.

The Deputy asked when the Hague Convention will be transposed into legislation. The drafting of the legislation is at a final stage and I hope to publish it early next year. He also referred to the signalling of my intention to incorporate on Committee Stage further amendments in respect of the Ferns Report. He wanted further information on what is envisaged.

The Ferns Report made a number of recommendations concerning legal changes. One recommendation was to create an offence of reckless endangerment where a person wilfully fails to have regard to the risks to which a child is exposed and to attempt to address in criminal legislation the problem of a failure to report, namely, the issue of mandatory reporting. The offence in question has been legislated for in the Criminal Justice Act 2006.

The report raised a doubt about the powers of the Health Service Executive to investigate a third party abuse of children. I sought the opinion of the Attorney General, who reassured me that there were no difficulties in that regard. Nevertheless, the report recommended an in-depth study of the matter, which we have practically completed. If necessary, we will clarify those powers.

The report also recommended that some form of injunction or restraining order should be available and that it should be possible to apply for such an order against a person who poses a grave risk to children and has unsupervised access to them. Under current child care legislation, the HSE can supervise children or remove them from persons who have care or custody of them, but it will have no power to seek restraining orders against third parties under this Bill. Empowering the HSE in this regard would not be done without difficulty and the report requested that we consider this issue. The HSE cannot be transformed into some type of police authority — a balance must be struck.

Organisations with employees or volunteers who have substantial dealings with children must address their own responsibilities. While the HSE has such responsibilities in regard to its large number of employees, to task it with dealing with the responsibilities of other organisations raises significant questions. However, I am prepared to address the matter and determine whether a formula can be devised to examine it.

Another of the report's recommendations was the establishment of interagency groups to pool information between the HSE, local diocesan authorities and the Garda Síochána. Everyone co-operated in the Ferns context, but the sharing of information of that character poses substantial legal difficulties in terms of freedom of information and data protection legislation and civil law relating to the protection of the reputations of individuals. Legal protection must be provided to persons who engage in information-sharing exercises of this type. If we are to legislate in this regard, the legislation cannot address a particular denomination or religious denominations in general. It must extend to the convening of such information-sharing exercises in a wide variety of contexts. This and other matters stemming from the Ferns Report are under examination and I thank Deputy Gormley for his request for information.

Deputy Catherine Murphy welcomed the legislation and was concerned by the assumption that adults always act in the interests of child. This was not always the case and the State did not always act in the interests of children. I agree with the Deputy that support networks are necessary, for which reason the legislation is important. For many years, it has been requested and advocated by the Irish Foster Care Association and it will free up time spent on social work. Deputy Catherine Murphy referred to the position of grandparents and that is addressed in section 37 of the primary legislation. She also said it was important to effect constitutional change to put children on an equal footing and I welcome her support in that connection. She also asked wider questions, as did Deputy Durkan, about recognition for mothers and fathers. If, in this referendum, we can confine ourselves to how we can, as far as is practicable, secure the best interests of children we will have achieved something. If we enter the realm of the wide variety of other relationships which we all know exist in modern Ireland we will embark on a very difficult task.

Deputy Catherine Murphy concluded by questioning whether there was a legal and cultural difficulty relating to fostering in general, and whether a certain mindset existed in that regard. In some ways she reminded me of the episode in the Gilbert and Sullivan operetta about baby farming, in somehow suggesting that fostering was not valued highly enough. In recent years the State has gone a long way towards valuing fostering, not just in the material sense but in the legal sense by means of legislation such as this. We are very anxious to promote fostering in every possible way. It is important that people consider the option of fostering and those who undertake it do not do so on exclusively financial grounds but make a substantial altruistic commitment, which is very welcome.

Deputy Ó Caoláin was concerned about the proposed constitutional referendum and undertook to discuss the matter with me, in which I am happy to oblige. He was also concerned about the five-year period, which he thought too long. As I explained to the House, a careful balance must be struck between the rights of parents and the State, the child and the foster parents. The State has taken the children in question into care. If a child is surrendered into care the parents can always revoke their decision but where the State has obtained an order in the District Court and taken a child into care that child is then in the direct care of the State. We propose to delegate potentially all our responsibilities towards that child to another person and must proceed with great caution, which the five-year term reflects.

Deputy Ó Caoláin also raised the question of informal arrangements. All in this House are aware of a grandparent, uncle, aunt or other relative who minds a child because the child has lost his or her parents or because the parents are unwilling or lack the capacity to look after him or her. It is a common phenomenon but the position of the Department of Health and Children is that the State only intervenes when the child needs care and protection. If the informal arrangement is working the State does not intervene. There may be issues about income support but they are a matter for the social welfare system in terms of the amounts of money transferred to the persons caring for the children and the adequacy of the supports they receive. Legitimate questions can be raised in that issue but, as far as the care and protection system is concerned, we intervene only when necessary. Care and protection can be provided within or outside a marriage, in a formal or informal relationship.

This legislation relates to children who are in care and protection. It is desirable where possible that such children be fostered with relatives, although that is not always possible. Nevertheless, we in this jurisdiction have a better record than most in managing to place children with relatives when they need foster care.

I join with Deputy Ó Fearghaíl in paying tribute to the Irish Foster Care Association because it does tremendous work in this area. He touched on the merits of the legislation and said it was important to cement the bonds in a foster care family and enable the natural development of family bonds, on which I agree with him. However, that is a reason for being very careful about the period of time we choose, which also touches on what Deputy Durkan said to the effect that prescribing too short a period can foment litigation. Deputy Ó Fearghaíl also said it was important to help those who wanted to foster, on which I also agree with him. He also raised the question of inheritance rights but this legislation has nothing to do with inheritance rights. For inheritance rights to apply it is necessary to adopt a foster child. As I explained on opening this debate, it is proposed under adoption legislation that a foster child who has reached the age of 18 and has lived for five years with foster parents can be adopted at that stage with the agreement of all the parties concerned.

Deputy Durkan raised a number of points. I hope that my reply so far will persuade him that this is not a stopgap measure and is an attempt to strike a balance in this area. He rightly raised the danger of litigation, drawing on his own experience as a member of a health board to outline the disputes that can arise among a wide variety of persons about a particular child. All I can do is reassure him that this legislation has been drawn up with great care. The application cannot be made to the court without the sanction of the Health Service Executive so a unilateralist approach is not possible. Once the application is taken to court, parties must be notified but we have written into the legislation the principle that the court must have regard to the best interests of the child in making its decision. Beyond that I am not sure that, as legislators, we can go very far, but I wish to highlight those two safeguards which were introduced to address the entirely legitimate concerns Deputy Durkan has expressed.

I hope this legislation can be progressive social legislation, which I believe it will be, and not a happy hunting ground for the legal profession.

Question put and agreed to.