Vol. 713 No. 2
With the permission of the Chair, I wish to share time with Deputy Caoimhghín Ó Caoláin. I will give eight minutes to Deputy Ó Caoláin.
Earlier this morning we were endeavouring to get more time allotted for consideration of this legislation and particularly for Committee and Report Stages but we were not successful. I note that Report Stage of the Road Traffic Bill 2009 has been allocated a time of three hours this evening and it will not be guillotined.
The Order of Business has been agreed. We are now discussing the Bill.
I am making a general point that the House is able to give more than three hours for Report Stage of a Bill dealing with road traffic and we have been given three quarters of an hour for Committee and Report Stages of a Bill dealing with the welfare of children and children who have died in the care of the State. It seems this is an unbalanced use of parliamentary time. I have to ask which is more important. Why should more than three hours be given to one Stage of a Bill dealing with road traffic and three quarters of an hour in total given to Committee and Report Stages of a Bill dealing with children who have died in the care of the State?
However, this Bill is progress and I do not wish to sound churlish about it. It is designed to facilitate the operation of the independent group comprising Geoffrey Shannon and Norah Gibbons to carry out a full review of the deaths of children in the care of the State. To that extent, I do not wish to impede the progress of the Bill in any way. It is vital the review team is given the access to the information and files it requires in order to carry out this review. However, the group is forced to take a circuitous route by accessing this information from the HSE by way of the Minister of State's office. The HSE can decide that relevant information should be given and volunteer to provide it and supply to the review group by way of the Minister of State's office or the Minister can request the HSE to hand over certain information to the review group. One of the main points made by the Ombudsman for Children is that, either way, the independent review group does not have the power to demand the files it requires to carry out the review. This is a fundamental failing.
The Minister of State will have taken legal advice and he may well say it is not possible to do this under current legislation and that further legislation may be required to give the review the full powers to access the information it requires rather than be forced to go through the Minister of State's office to the HSE. In my view, public confidence would be increased if the group could access the information directly and if it was empowered to publish its report upon completion. The Minister of State has said the report will be published and this is to be welcomed. The public need to get all the available information.
Dr. Siobhán Barry, a clinical psychologist, has stated that, in her view, the Children First guidelines should have required this information to be automatically transferred in any case. The Child Care Act 2001 is being quoted as the reason the Government was given the advice it could not deal with this issue without introducing the legislation today. Dr. Barry suggests that, because the primary interest of children is paramount, the Children First guidelines should have obliged the HSE to hand over the files to the independent review group without the need for legislation. If the Children First guidelines were statutory rather than non-statutory provisions, they would at least have had parity with the Child Care Act 2001. If these guidelines were statutory provisions, the issue in the Child Care Act 2001 would have been required to be dealt with in the House. I ask the Minister of State when the Children First guidelines will be put on a statutory basis.
Other issues raised in the context of this Bill include the issue of the in camera rule. The Minister of State in his contribution last night referred to Carol Coulter’s review of the family courts and the effect of the in camera rule. There has been a widespread debate about the effect of this rule. Information of public importance and to the good of vulnerable children is not available because of the in camera rule. It is the case that no appropriate record exists in the family courts to allow information be used either by the media, policymakers or public representatives who are people who have the interests of children at heart. The very valuable information available in the family courts could be used for the development of policy in this area and in the interests of children.
I know the Minister of State has an interest in this regard and I would like to see some progress as it has been discussed for a long time. There seems no reason not to have more information available for policymaking than what is currently available from the family courts. The in camera rule was never designed to preclude this kind of information from being used. It is designed to protect the identity and interests of children and other vulnerable people in the context of family law cases. This issue needs to be addressed quickly.
We all want to see this review carried out as quickly as possible with the full information required. Both Mr. Shannon and Ms Gibbons have stressed that this review is about learning lessons from what happened in the past and to ensure that procedures are put in place for the future so that children in care are properly cared for and they are not left vulnerable to go to Garda stations at night in order to seek shelter. In some of the cases highlighted, young people were in and out of all sorts of different care provision facilities and completely inappropriate situations and with nowhere to go during the day time. They were not protected from adults who preyed upon them in a variety of ways and ultimately, for example, this led to the death of Daniel McAnaspie and other heart-rending cases of young people in care who simply were not cared for.
Last week during a debate the Minister of State correctly made the point that prevention is crucial in all these situations and early intervention is much more valuable than crisis management. However, we still have a crisis management situation in our child care services. I wish to highlight situations in which if a young person has problems, he or she only obtains intervention when the problem becomes almost insoluble because things have gone so far. We need to be able to intervene with families at an early stage so that a problem does not become so great that it is insoluble and in many cases, it is the law rather than the welfare services that intervene. There will be some opportunity, but not nearly enough, to tease out the issues in this Bill on Committee and Report Stages. We need a lot more time to deal with this because it is extremely important for the future welfare of vulnerable children in our society.
This Bill, as I have said today and previously, should not be necessary, but some have argued and we must now accept it is necessary in law for the reasons stated. The Bill arises from the immediate need for the Health Service Executive to provide information to the investigation into the deaths of children in the care of the State established by Minister of State with responsibility for children, Deputy Barry Andrews. For that reason the Bill is welcome, because it facilitates an investigation that is necessary and urgent.
The figures released by the HSE on 4 June brought to 188 the number of children who died in the past decade either in State care or who were known to the social services. This is a shocking figure, which makes it all the more urgent that the HSE files are released to the special investigation team established by the Minister of State, Deputy Barry Andrews. I wish Norah Gibbons and Jeffrey Shannon well in their important work. As I said when the figures were released, if legal obstacles to the release of the files really do exist, they should be removed as a matter of urgency. To that extent, I welcome this Bill.
Before going into the details of the Bill, I must point out that we are having this debate at a time when the Government is cutting back on social welfare, education, health and on social care services in a way that hits marginalised families and vulnerable children worst. These are the essential supports which help address child poverty and neglect. Undermining these services through cuts will condemn more children to the margins and to the risk of neglect and abuse. I urge the Minister of State to use his voice at the Cabinet table at every opportunity to make these important and salient points to his colleagues in their respective ministries.
This Bill should not be necessary. Why should we have to legislate to compel the HSE to "ensure that the Minister is appropriately briefed by the HSE on all matters that he or she needs to be aware of in a timely and appropriate manner"? Surely that should happen as a matter of course. However, it clearly does not. I believe that is a consequence of the role of the HSE as envisaged by the Government when it was established. It was set up to insulate the Minister and to act as a buffer between the Government and its responsibility to be accountable to elected representatives and the public.
There is clearly a bunker mentality in the HSE. In an article in The Irish Times on 1 June, the Ombudsman and Information Commissioner, Emily O’Reilly, highlighted a case where the HSE spuriously used the in camera rule as the basis of its claim that an investigation by the Ombudsman, which had nothing to do with any particular child, was illegal. The HSE dragged the issue to the courts, incurring substantial costs to itself and, after the court struck out the action, paying the costs of the Ombudsman and the other party as well. As it turned out, the HSE implemented the Ombudsman’s recommendations anyway. The Ombudsman described this as “a bizarre experience” in which the HSE “displayed a capacity for ill-founded legalism matched only by a lack of common sense”. In response, in a letter to the editor, the HSE national director of integrated services, Laverne McGuinness, strongly refuted the Ombudsman’s arguments. However, they are compelling arguments for anyone who wants to take note.
Seeing two such important public bodies, charged with the protection of the lives and the rights of citizens, arguing in this way does little for public confidence. Who is the arbiter here? It must be the Minister, the Government and the elected representatives of the people in the Oireachtas. It is elected representatives here who have brought the deaths of children in care to the fore, who have pressed the Government on it and who have caused the investigation to be initiated by the Minister of State. That is the reason accountability is so important.
We owe a debt of gratitude to the Ombudsman for Children, Emily Logan, for her timely and clear-sighted advice on the Bill. I urge the Minister of State to take on board the three principal concerns raised by her. Her first concern is that the independent group carrying out the investigation cannot directly source information and documents from the HSE, because it is the Minister alone who, under this Bill, determines what is relevant. This may weaken public confidence in the investigation. I have no doubt but that it probably will. The Ombudsman for Children calls for a properly constituted statutory inquiry, with its own means of compelling documents and information rather than relying on the Minister's power to do so. There is also a serious concern that the Bill will not permit the investigation team to publish any report it may issue. This is because, under the Bill, the information goes to the Minister and only he may use it, including for publication. The third point of concern raised by the Ombudsman for Children is the fact that the Bill does not allow the Minister or the investigation team to publish any information or documentation derived from in camera proceedings, even if it is considered to be in the public interest to do so.
I urge the Minister of State to take these important reservations on board and to accept the relevant amendments, as tabled by my colleagues, on Committee Stage. While accepting the urgency of the issues at stake, I regret the decision of the House earlier to force this legislation through by guillotine. The legislation is rushed and like all rushed legislation, it has its share of flaws. We must always guard against the danger of rushed and ill-considered legislation. In light of the difficulties and information provided, including the legitimately held concerns and fears of many now known to the Minister of State, will he now accept the key amendments that seek to address the identified fault lines in the proposed Bill? The Ombudsman for Children has considered the legislation very carefully. The Minister of State has a responsibility to take these concerns on board and to reflect them in the course of the passage of the Bill. It should be duly amended so that it has not only the support in terms of its intent of all parties in the House but the confidence of all voices who speak here in the interest of children across the board.
I conclude by urging the Minister of State to take on board the important concerns that have been expressed not only by the Ombudsman for Children, but by all voices here across all Opposition parties.
I am glad to be able to respond to the comments made by Members last night and this afternoon. This is important legislation and I genuinely am glad the three Members who spoke welcomed it, albeit obviously and naturally with various caveats. The purpose of the Bill is clear and focused. Given the short available timeframe within which it was drafted, it was drafted with great care and went through a thorough and rigorous process. I reject the assertion by Deputy Shatter that it is woolly, ill thought out or suffering from the problems that normally are associated with legislation that is introduced on an emergency basis. This reflects its great importance. The reason it is being brought forward so quickly is to enable the independent review group to receive important files that had been the subject of legal advice for the HSE and that had not been provided to it.
I should also state that this is an important area in respect of balancing rights. Everyone is aware that one must balance the rights of individuals to their privacy against the important public interest in this area. I acknowledge there always will be a media interest in this kind of area, that is, the often tragic end to an individual who has been in the care system but who has been failed by the care system or by factors external to the HSE. As I stated in a previous debate, as was acknowledged by Deputy Jan O'Sullivan, I would prefer a little more focus on the manner in which one can intervene at an earlier stage to avoid such tragedies from transpiring. Unfortunately, this has not been possible in the crisis management scenario that has obtained for some time. Consequently, one must accept there always will be interest in this area and, therefore, one must set up a systematic way of examining cases of serious incidents and deaths in care.
This is the reason I asked HIQA to provide guidance for the HSE in this area last July. It did so by setting up an independent review panel under the chairmanship of Dr. Helen Buckley, which already has begun its work. I also decided it was necessary to conduct a retrospective examination of the manner in which the HSE had both investigated and recorded information in this regard. I was delighted that Mr. Geoffrey Shannon and Ms Norah Gibbons agreed to take part. While it was unfortunate that a legal issue arose and that perhaps it did not arise in a sufficiently timely way, nevertheless this legislation underscores the Government's commitment to ensuring that a report will be produced that will provide an insight into some of the issues that have arisen over the last decade.
I wish to deal with some of the specific issues that were raised by Members. First, I refer to the question of whether the independent review group can get files directly from the HSE, which was raised by all three speakers. I set up the independent review group specifically because I wish to introduce a degree of transparency that has not been in place heretofore and wish to introduce timely reporting. I seek the restoration of public confidence in this area and that is the reason it would be ridiculous for me not to facilitate the independent review group in respect of any files it proposes to seek from the HSE. Moreover, it should be made clear that the independent review group has been able to obtain files from the HSE, other than those that are restricted by the legal principles the HSE has been advised it must accept. Second, the Health Act I propose to amend with this legislation deals with the relationship between the Department of Health and Children and the HSE. It is naturally the case that were one to consider this within a wider sphere, one might look at six months of consultation or at a White Paper or beyond the position on which one has been able to focus so specifically with regard to this legislation.
A question also has been raised in respect of publication and it is clear there has been a problem with regard to publication. Moreover, such problems do not exist within this jurisdiction alone. The publication of any such material always entails trying to strike the correct balance. I make the point that the publication by Fine Gael of the TF case tipped the balance more heavily in favour of the public interest in transparency and tipped it away from the right of individuals to their privacy. It was an act with which I sincerely disagreed, as did others. For example, the Irish Foster Care Association made clear its dissatisfaction, as did the Irish Association of Young People in Care. This simply underlines the difficulty associated with publication in this area and Members must be more mature about their discussions on this issue. They should forget about censorship, secrecy and all narrative that is designed to deliberately undermine public confidence in a child protection service that in general works extremely well. Thousands of children in foster care must listen day in and day out to comments being made, without great consideration, to the effect that our child protection system is chaotic. However, this is not the case.
I acknowledge there are deficits, as does the HSE and no one could argue otherwise. Broadly speaking, however, the vast majority of children who are in our care system receive a good service. One need only look at the HIQA report into, for example, special care, which stated that almost all the children in special care were in receipt of a very good service, were highly conscious of their rights and were satisfied that they were receiving a good service in special care. These are the most troubled children in Ireland and this is to the credit of the HSE. Sometimes, Members do not talk enough about the positives.
I am determined that the Government will publish this report when the independent review group has completed its work. It will be my responsibility to publish it and this will be done in a timely fashion. The in camera rule has been cited by the HSE as one of the reasons it was precluded from handing over the information to the independent review group and there has been some commentary about the need to elicit a lot more information about child care proceedings than has been the case in the past. The Child Care (Amendment) Act 2007 was passed to allow me, as the responsible Minister, to appoint a person or persons to undertake an investigation of and to report on proceedings in the child care courts in order to have a better foundation for policy in the future.
Deputy Ó Caoláin also commented on budgetary measures and how they are having an effect. While he is correct, one also must acknowledge that the budgetary measures taken over the last 18 months have been progressive. The burden has been weighed more heavily on those with higher incomes and protections have been afforded to those who are vulnerable such as pensioners and people with a higher reliance on social welfare. All analysis points to this and even Fr. Seán Healy made comments in that regard about the budget of April 2009. Moreover, one cannot forget that in the most recent budget of December 2009, the Government committed €15 million to provide for the delivery of the implementation plan arising from the Ryan report, including the appointment of 200 additional social workers to provide the kind of care that all Members seek to have in place.
The question of the independence of the review group also has been raised and I repeat that the two individuals concerned, whom everyone wishes well, have reputations that no one can question. Under no circumstances would they accept the task I have given to them, were their independence not absolutely guaranteed. I will have ongoing discussions with them to ensure they are properly resourced and are in a position to provide for the conclusion of their investigations within the timeframe they envisage.
I acknowledge this Bill constitutes emergency legislation.
