Dáil Éireann díospóireacht -
Thursday, 7 Oct 2010

Vol. 717 No. 4

Child Care (Amendment) Bill 2009 [Seanad]: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Deputy James Bannon

I welcome the Minister of State to the House to take this important Bill.

When it comes to child care and protection, Ireland is a nation which promises to cherish all its children equally, but it has an abysmal record. The current Government is guilty of shameless delaying tactics when it comes to children's issues. It continues to drag its heels on the constitutional amendment on children's rights and, despite extensive lobbying from the Opposition, this matter remains unresolved. Perhaps the Minister of State will give some clarification today.

Interestingly in the light of the revelations two days ago about the three children who were abused by their father, section 4 of the Child Care Act 1991 places an obligation on health boards, now superseded by the HSE, to promote the welfare of children in its area who are not receiving protection and care from parents or guardians. How can children be put into the position where one child with similar problems to her siblings was not taken into care and the others experienced ongoing abuse, even when they were under the so called protection of the HSE? While reference was made in proceedings to the defiance of the HSE, why was such defiance not picked up on?

The HSE has been found wanting in this regard. It is unbelievable that despite a litany of such cases, protection measures are not foolproof and children continue to suffer unnecessarily from the trauma of abuse and violence. It is too late for the long-term welfare of an abused child to bring the perpetrator to justice. The acts have been committed, the trust broken, and the mental and emotional scars are life-long.

A striking omission in the current legislation is its failure to put guidelines for GALs or guardians on a statutory footing. The 1991 Act contains guidelines for the appointment of such guardians, who comprise the only independent evaluation mechanism in the health service, but made no provision for training, criteria for appointment or quality assurance. It is a significant lack in the current Bill that it fails to amend the omissions of the 1991 Act.

The Bill makes the situation worse, in that it proposes to limit the autonomy of the GALs and curtails their unfettered access to legal representation. The Bill gives the courts statutory discretion over whether a solicitor will be appointed for a GAL. This could impact adversely on a child or young person who relies on his or her GAL to put a case forward to counsel. That the fear of liability for costs also hangs over them is an outrage to basic justice. This issue needs to be addressed.

What Bill that purports to be in the interest of the child would seek to penalise an independent person seeking to help him or her? The message being sent out is that any opposition to the HSE will not be tolerated, even if it is in the interest of the child. Once again, children are being made aware that there is no one to turn to for help. This is a serious issue.

Will the Minister of State explain why he has seen fit to omit the issue of after care and support for all children leaving care? It seems that the only concern he has in this respect is one of cost. Mandatory after care is essential and he should know that the cost to the State in the long term could be considerably reduced were proper provision for after care planned and implemented. This is the classic case of being penny wise and pound foolish. In this instance, it is at the expense of the young and vulnerable in our society.

Section 22 of the 2009 Bill refers to after care and goes as far as to say that the HSE is to prepare and publish guidelines in respect of such care for those aged 18 years and over. However, this in no means goes far enough. As we know, if guidelines are to carry any weight, they must be guaranteed and followed through to positive action, yet here we have a problem. The Minister of State, while rushing to count the cost, is not considering the long-term well-being of the individual who is currently at the mercy of an inconsistent system of after care. Surely it is not rocket science to know that the only way to ensure a uniformity of services for after care is to include a legal entitlement to such in this Bill.

The Minister of State referred to the current system as a postcode lottery when speaking in the Seanad. Why should that situation be allowed to continue? Given the vulnerability of young people who have been in care and the burdens and mental anguish that many will carry around for the rest of their lives, surely the likelihood of such young adults, left to their own devices without guidance, turning to drugs and crime is high. This vulnerability should be recognised and measures put in place to allow those out of care to take their place in society in a structured and empowering manner. Anything less is an abandonment of the vulnerable to the streets to join the statistics of the homeless and those in poverty.

The Government must pledge to provide after care initiatives that develop life skills, build confidence and stress the importance of education and work programmes to allow a smooth transition to independent living. This is highlighted by the children themselves through the complaints service provided by the Office of the Ombudsman for Children. Focus Ireland has outlined the need for suitable accommodation and an out-of-hours system to protect young people who fall out of the care system before 18 years of age. This threshold needs to be extended to 21 years.

What exactly does the Minister of State understand the rights of children and young people to be? Does he believe they have such rights? If so, he should introduce legislation that ensures a rights-based protection service for every child in the country within the necessary statutory framework and in conjunction with a well resourced and multidisciplinary network with built in checks and balances. Such a service would be important.

What regard has been paid to the Lisbon treaty in the drawing up of this Bill? It would appear to have been small, if not non-existent. Where is the provision for children's rights to secure placements or to have their voices represented and heard? If the threat to parties to proceedings, in this case the GALs, is anything to go by, the current legislation will fail our children.

The Bill also fails to take regard of children's sensitivity to language. It is clear that discussing detention in terms of child care is creating an instantaneous stigma. In a recent debate, the Minister of State made no distinction between detention and placement and referred to "civil detention". One of the most glaring omissions in this Bill is its failure to recognise the rights of a child to representation in cases relating to special care orders. In this area the child in need of protection is worse off than a child in a criminal case who would have an automatic right to representation. This is serious. It surely infringes a child's rights to have no means of stating his or her feelings in regard to what is being decided.

We live in a time that we like to think has come a long way from the Victorian era, when a child was expected to be seen and not heard. It is time this was recognised by the courts and by legislation. However, current practice falls short of the requirements of Article 12 of the UN Convention on the Rights of the Child. This is an indictment of the current Government.

I broadly support this legislation but I look forward to assurances from the Minister that its discrepancies will be ironed out before the Bill passes into law. This is essentially a legal and technical Bill but I implore the Minister not to forget the human element. The children to whom this legislation relates have often been let down by parents or guardians, by society, and, as things stand, by the State.

Deputy Mary O’Rourke

I am very glad to speak on this Bill, which, as the previous speaker noted, is mainly of a technical nature. I think of the 1901 Child Care Bill and the various amendments since then which show that child care is evolving all the time in keeping with changed circumstances and the complex world in which we live, in particular the difficult and complex world in which young people live. I commend the Minister of State, Deputy Andrews, for gathering everything together into this Bill.

Child care — its meaning and needs — has been a constant theme running through much of the legislation introduced since this Government came into office. I was glad to note, inter alia, that on the same day the Minister of State spoke on Second Stage of this Bill there were health questions. It was that day or perhaps the following one he brought a question to Cabinet about the commissioning of a single person to take charge of child care and have an overall remit. That was a very good idea and I hope it comes to pass. The “if” factor lies in finding the right person who will be enabled to do that work.

In its nature the whole area of child care is enormous, very difficult and, in many cases, unmanageable, especially because of the numbers involved, what can happen and what has happened. The work involves getting a grip on all of that and trying to put it into shape. I hope the Minister of State and the HSE succeed in what they have set out to do.

It would be remiss of me when dealing with a child care Bill not to speak about the plans for the referendum on children's rights. I know I return to an old song of mine but it is one in which the Leas Cheann Comhairle, too, will be very interested. It is within the ambit, not exactly of this Bill but of child care in general. The Minister of State recently told me that events have moved on to a certain extent. Various Ministers and Departments have come back with informed submissions as to how they view the matter now and what effect, beneficial or otherwise, a referendum outcome would have on the Departments in question. I clearly understand this must be done and I hope all the Departments and Ministers have come forward with that material. The Minister of State may be able to speak on this matter at the conclusion of the Bill. I hope the view of the Attorney General on all the submissions so garnered will be available as soon as possible.

However, it was in February of this year that the committee arrived at and published its conclusion. I know things move slowly. I know about festina lente and all that. However, the way we are proceeding we are carrying on to the last vowel of festina lente. I hope the Minister of State will be able to gather everything together and having so done be able to produce the Cabinet’s response to our work. That done, the matter will be open for all of us but we do not want to keep remaking the wheel. That is how I see the difficulty. The Minister of State will come back to the committee with what has been gathered but the committee has been dissolved and is no longer a burden on the State, financial or otherwise. We have freedom on a Wednesday evening — to do other things, not to go out and high-skite it.

Governments sometimes move in such a fashion, hoping things will go off the boil and somehow people will no longer be interested in a topic. Much of what we debate when we debate child care Bills and amendments thereto goes back very far. A child grows up to be a teenager and a young adult and then, for one reason or another — I hesitate to use the term "gets into trouble" — finds life not working out for him or her. How far back in that child's life must one go before the roots of what went wrong can be traced? So often that is the case. One is told to go back to primary schools to take a measure. There was a very good such measure when we started many years ago. I hesitate to say in my time because sometimes I am so caught up in the question it will be very long ago.

Home-school liaison teachers were a great incentive and have proved their worth over the years. They were trained as teachers but do not teach. They occupy a position liaising between the parents or, in many cases, the parent, and the school to ensure the child is secure both in his or her background and in the school environment. Many cases were cut off at the pass that might have left a young person in greater danger, with things not working out in his or her life. That is how it happens. Of course, it is not enough merely to go back to primary school. There is the education of young would-be parents who I presume start off in the main, no matter what their circumstances may be, delighted to have a pregnancy and to bear a child. The child comes into the world then and there are families in danger of being lost along the way. Perhaps it is time for intervention at that point. We may have all the measures and the time and trouble taken into trying to devise structures now to deal with young people who are in need of care, as is being drawn together in this Bill, but how many such exist? There is no way of quantifying or qualifying that number, so one does not know. Some way should be found for governments to put a cost on intervention early care at the time they are drawing up budgets. In the event, such figures might be included in the primary budget or perhaps the early care budget for the Department of Health and Children. However, it is impossible to quantify because one does not know how many young people or families were helped as they went through particular times of difficulty.

Incidentally, I wholeheartedly commend the early school year young children now enjoy before they enrol in primary school. It has been a wonderful success. I believe it was born out of financial stringency, but the result has been wonderful for children. It is a delight for their parents as well as themselves that they have the opportunity of professional care in that very precious first year before they enter primary education. My two children went to school when they were just four — one in August and the other in September — and I often wondered whether I was cruel or wrong to send them at such an early age. One went and cried all the time and the other laughed all the time, so it is probably down to the nature of the individual child.

However, I believe four is a very young age for a child to go to school, whereas this preschool initiative is ideal. I commend the Minister of State, his officials and the Department on the work put into that. I see them every day when I am at home, or here in Dublin, trotting along with their parents, carers or guardians as they are being brought to one of these classes. It is professional and wonderful, and gives a measure of social interaction which is a big thing for an only child or for someone from an area that is not particularly child friendly, who lives in an apartment perhaps and does not have ease of access to playgrounds, etc. This is a very good use of money and I urge the Minister of State to endeavour to keep the beady eye of the Department of Finance off that preschool year.

Having bitten the dust and come up with a far more equitable and suitable solution for some of the moneys which were not being used for the purposes people thought they were intended, the Minister of State is to be commended in this regard. I always called that big money that came every three months or so to young parents "fairy money". They had not expected it but suddenly it came, and they just spent it. However, this initiative is money well spent and I hope there are many productive years ahead regarding the preschool year. It is so worthwhile. I believe it will be one of those early interventions that will have results as the child grows up and goes through the primary school process where he or she will be better adjusted. Children will be better able to stand up for themselves because bullying goes on at all ages. They will be better able to learn and absorb and be better adjusted in both school and home life. It is one of those early interventions which is well worth the money and the care that went into devising it.

I have been in touch with the Minister of State, as he knows, to highlight the fact that in some cases there is a need for a child to have a second chance at that one-year intervention. However, that is a separate issue and I do not intend to raise it here, apart from noting that such cases exist and deserve to be examined.

Of all the places around the Cabinet table, the position held by the Minister of State, I believe, is one of great depth, complexity and responsibility. The previous Taoiseach, Deputy Bertie Ahern, devised the idea that the Minister of State with responsibility for children should attend Cabinet. In an earlier Administration, Deputy Rabbitte was the so-called "high chair" Minister of State. In this case it is a high chair, because it is for children. I believe, however, that of all the Ministers around the table, the burden of hope rests with the Minister of State with responsibility for children and for what he and that section of the Department of Health and Children can do for young people. It is an onerous task, a very heavy responsibility, and I know the Government aims to do the very best it can in that regard.

Regarding the referendum, I strongly believe that in years to come, the year of dalliance that we have now had for the consideration of departmental reports will bear fruit. In the nature of things Departments do not like to take on extra responsibility. In some cases, in terms of the wording we produced, extra responsibilities will be imposed on some Departments. In the event, that will be for the good of children in the future so that the aura of certainty and maturity they need can surround them. I can talk about these matters here because the Bill we are discussing goes into great detail about the method and how interventions can be made for the child's good and his or her health, moral and social development.

I have listened, read and studied many things that have been said since the wording of the amendment was published. However, I do not hold with the view vouchsafed by one particular commentator to the effect that it is an attempt by me or the Government to go into homes, snatch children and bring them away. Who would ever wish to do that? Anyone who comments along those lines has not analysed the meaning behind the wording. We have been quite clear that it relates to that extra attention that can be given to a family before it might come to the pass that intervention is considered the proper and most suitable option. I know people have different viewpoints, and I have no difficulty with that. However, a different point of view should be based on the factual situation, not on incorrect information.

I wish the Minister of State well with this Bill. It is tidying up legislation that seeks to bring things together. Any good housekeeper seeks to do that with his or her affairs, and that is what the Bill is about. I am quite sure that what arises from it will be good and I look forward, quite shortly I hope, to hearing his view on the next step towards making the constitutional amendment for children a reality.

Deputy Mary Upton

I wish to share my time with Deputy Caoimhghín Ó Caoláin, with the permission of the House.

I welcome the opportunity to speak in this debate. This is very important legislation which puts the granting of special care orders by the High Court on a statutory footing, and that is to be welcomed. I understand that special care orders have been granted in the past by the District Court. However, given the stature of the High Court, placing this procedure on a statutory footing provides a certainty of approach for the professionals who work in the area of child care services.

Child care services, including crisis intervention, is probably one of the most difficult areas to work in and I have the height of regard for the people working in any of the professions that relate to this area given the challenges they have to undertake and the very tough decisions they sometimes have to make. I do not believe any of us would like to find ourselves in that position very often because of the difficult circumstances surrounding many of the cases and the enormous responsibility on the shoulders of the individual who makes a recommendation on child care.

We must recognise that the professionals in those fields work hard and are truly committed. I have met a number of them over the years. They provide care in residential homes, for example, and are faced with a range of challenges as they try to maintain a number of teenagers who are separated from their families and dealing with the emotional effects of their circumstances. It is an extremely difficult job and we must commend them for doing such challenging work.

The issue of child care was brought to the fore last year with the release of the Ryan report. The catalogue of failures by the State detailed in the report left an indelible mark on our collective consciousness. Surely such failure must never be allowed to happen again. One of the most distressing aspects of the report was the fact that children, when their time in an institution was finished, were simply let go to fend for themselves in a world for which they were completely unprepared. It is unconscionable now that a young adult, having just turned 18 and without any support network, would be allowed to find his or her own way in the world. Indeed, it was a recommendation of the Ryan report that children who have been in State care should have access to support services once they leave direct care. In light of past failings by the State, legislation must now be framed to ensure that the best interests of the child are always at the centre of the legislation. The Bill is moving in that direction, which I welcome.

The Seanad debates on this legislation showed widespread agreement on the importance of after-care services. The six Labour Party Senators proposed a comprehensive after-care programme that could be tailored to suit the needs of individuals needing care. It is the type of programme that should be at the heart of any new recommendations, because the needs of each child are different. I acknowledge that this will be time-consuming and possibly costly in the short term, but it is important that the needs of individuals are taken account of. The current legislation, while not explicitly containing a requirement for after-care services, does state that where after-care is required, a plan should be prepared and implemented. Senator Alex White made the point that after-care should be guaranteed on the basis that when a decision is made on the need for provision of such care, it is impossible to foresee what may happen to a person leaving care and, as such, it should be a mandatory process with continuous monitoring of such persons in order to afford them preventative help should they require it.

A child who may not feel he or she wishes to avail of support services at 18, for example, may realise later that he or she is in an entirely new environment and does have a need for support. Depending on the kind of background or institution he or she has come from, the person may have no capacity to survive in the world or deal with any challenges.

The Minister of State stated in the Seanad debate that once need has been established, the legislation requires the HSE to provide after-care services. He also stated that he would consider moving this out of the realm of interpretation into a more literal expression of the intentions of the Oireachtas in this area. I would like to be assured that further consideration has been given to this idea since the Seanad debate.

We know from research done by Focus Ireland that persons who leave care and are not provided with support services have a higher risk of becoming homeless, becoming involved in criminality or developing addiction problems. There is an obligation on us to provide these children with the necessary after-care supports, whether it is education, housing, guidance, emotional support or even just follow-up visits to see how they are faring after their time in care. I recognise the legislation requires the provision of after-care where there is a need but when the provision of a service such as after-care support is discretionary, there is always the possibility of a child's falling through the cracks.

I ask the Minister of State whether the financial impact of the provision of guaranteed services is a factor in determining whether the provision of such services should be mandatory. The reason I ask is that in many estimations of the cost of potential public expenditure, there is a failure to appreciate the cost of not spending the money. If after-care support is not provided, the State may end up paying much more in dealing with the effects of homelessness, criminality or other potential consequences of a lack of support, not to mention the cost to the child who has been overlooked and forgotten.

This legislation is a vehicle through which the State may intervene if the welfare of a child is at risk or if a child is a risk to him- or herself. It is important, however, to consider preventative measures. Everybody who has spoken on this will agree that intervention and preventative measures — which can be used to avert the requirement for a child to be taken away from its family — are important. It is also universally agreed that children should be taken into care only as a last resort. This implies that the situation must be unbearable or intolerable for the child and, for one reason or another, the child is at serious risk.

In my constituency area of Ballyfermot there was a recent pilot programme called Strengthening Families, run by the Ballyfermot STAR organisation, which provides guidance and education to drug users, their families and the community. This programme provided substantial social interventions for a pilot group of ten or 11 families. The interventions took the form of ordinary, practical things, but counselling was also provided and families were followed through. When reports were relayed back from those families, the outcome was found to be one of enormous success. Credit is due to Ballyfermot STAR for having organised it.

The project provided professional support to the families of drug users in the form of a skills training programme to improve family relationships, parenting skills and children's social skills and behaviour. Families were encouraged, for example, to sit down for a family meal once or twice a week. Ordinary things that others might take for granted were unfamiliar, unfortunately, to these families. The results for the families were positive and encouraging. By intervening early, the programme reduced the risk of child neglect in high-risk families where drug use was an issue. The evidence from international trials of this method is also positive. I support the idea that initiatives such as this, which provide early intervention and family supports, be considered and supported as a means to prevent the need to adopt many of the measures outlined in the legislation. Such measures may be useful as a means of after-care support if a child, for example, wishes to return to live with his or her biological parents. The project in Ballyfermot was particularly successful from that point of view.

The State must not fail vulnerable children ever again. The spectre of the Ryan report hangs heavily over many people in this country and, unfortunately, will continue to do so for some time. I must say, with some regret, that I am all too familiar with cases of children who are clearly at risk in my own constituency and who are open to exploitation by unscrupulous people who have no regard for the law and, more unfortunately, for the well-being of children. The children do not have caring families, for a variety of reasons, but when it comes to protecting them, the State is going in slow motion.

The issue of before-care must not be neglected either. It is timely to consider the supports and services that are available for such children. I fully agree with Deputy O'Rourke's point about intervention at a very early stage, which I believe is the only way to go. We must establish support structures from the earliest stage. Parents must know how to look after their children. If they are not, for whatever reason, able to do that constructively without intervention, then such intervention must be put in place.

Deputy Caoimhghín Ó Caoláin

Ba mhaith liom mo bhuíochas a ghabháil leis an Teachta Upton.

This Bill is welcome as a necessary updating of legal provisions relating to special care for children. It is a complex and technical Bill and will likely receive little attention from the wider public and even less in the news media. All the more reason, then, for it to be properly debated and scrutinised in the Houses of the Oireachtas.

A number of significant gaps have been identified in the Bill by those working on the front line in this area, and the Government should listen carefully to those informed concerns.

It needs to fill the legislative gaps and the gaps in service provision accordingly. I hope the Government agrees to adopt the constructive amendments that will be tabled on Committee Stage.

The context of this Bill is a greater focus than ever before on the legal rights of children. The Joint Committee on the Constitutional Amendment on Children, on which I served, worked very hard and produced a significant body of work but its recommendations now need to be acted upon. Above all, we need to see the Government proceeding with the referendum to insert strengthened rights for children in the Constitution.

It would be far better if we were considering this Bill with the constitutional amendment on children already in place. At the very least we should have a clear Government commitment to hold the referendum and within a stated timeframe. Regrettably, that is something we yet do not have. The Government says it has a range of concerns about the wording agreed by the committee. The Government was represented on the committee and had all the advice available to it then that it has now and which it claims is urging hesitation and delay. From our point of view as Opposition voices a postponement of the referendum may yet occur. I do not doubt the sincerity of the Minister of State, Deputy Barry Andrews, but the situation regarding the referendum casts a shadow over this Bill and its passage. The Government can remove that cloud to some extent by ensuring that a much improved Bill emerges from Committee Stage and I so urge.

Leadership is needed, not only in terms of legislation but in ensuring reform and improvement in the delivery of services. Over the summer we had the shocking report by the Health Information and Quality Authority, HIQA, on the quality, safety and management of HSE foster care services in Dublin. The most damning finding was that the problems were known for years but were not addressed, thus exposing, as stated in the report, "serious deficiencies in the effectiveness, accountability, governance and management of these services, and the lack of emphasis on a child-centred culture at all levels of the HSE, but more significantly at senior management level". The HSE was found deficient in its vetting, assessment and approval of foster carers, particularly relative carers.

HIQA also raised serious concerns about child protection practices. The fact that these findings were made about two Dublin areas but that a third area was found to be mostly safe and well organised emphasises the need for management in the culpable areas to be held accountable. It beggars belief that no action was taken by the HSE against management in the two Dublin areas where HIQA found massive management failures that endangered children. HSE managers are to remain unaccountable. That is totally unacceptable to this Deputy and the party I represent.

The HIQA report raised wider questions about the ability of the HSE to fulfil its child protection responsibilities and exposed the failure of Government in both child protection strategy and the provision of resources. It is against that background that we consider the extensive powers and responsibilities of the HSE as reaffirmed in this Bill. Those powers and responsibilities must be exercised within an ethos of accountability in which the child always — I emphasise always — comes first. Ultimately it is the Minister's responsibility to ensure the HSE is doing its job properly.

The Minister of State needs to listen very carefully to the considered submissions of a range of responsible organisations who have raised concerns and proposed improvements in this Bill. They have the first-hand knowledge and expertise that comes from working with the children for whom this legislation is primarily intended.

Prominent among the recommendations for an improved Bill is the call for a statutory right to aftercare. Focus Ireland has done much work in this area and is to be commended for its efforts. There is surely no valid counter-argument to the call for the HSE to be required in this legislation to ensure that there is after-care provision for young people leaving care at the age of 18, should they actually require it.

I understand the Minister of State has suggested that only a small minority leaving the care system need such aftercare. Even if this were the case it would be no argument against making aftercare a statutory right for the people concerned and an obligation on the HSE in the first instance. The Minister of State's contention that it is only a small minority does not stand up to scrutiny. I reject that claim. The case for a statutory right to aftercare has been made comprehensively and is, I believe, irrefutable. Its absence can only add to the tragically growing numbers of young people experiencing homelessness, addiction and a life of misery after they are abandoned by the care system when they reach 18 years of age.

There is a range of other concerns that have been raised and need to be addressed. Time does not permit an exposition on each of them but I will mention some of the main points. A set of complex problems have been identified in regard to the provisions of guardian ad litem services. In summary what is needed is reform of the guardian ad litem system to better represent and protect children and to ensure that their voices are heard. The Bill does not go far enough in that regard. I urge the Minister of State to engage directly with the appropriate organisations, Focus Ireland, Barnardos, the Irish Association of Young People in Care and the Irish Foster Care Association on this aspect of the Bill.

Clarification is sought as to whether section 23NF of the Bill requires the HSE to obtain a High Court order before removing the child from this jurisdiction. There is a need to develop a therapeutic dimension to special care. I recommend to the Minister of State that a new section be inserted in the Bill to place an absolute responsibility on the State to accommodate all young people appropriately, taking account of their needs. I deplore the recent return to a mentality that would rather clamp down on homeless young people for begging on the street than address the causes of homelessness and the needs of the homeless.

The Bill should be used as an opportunity to place the 2004 regulations on the operation of special care units into primary legislation. Concern has also been expressed about the Bill's removal of the obligation on the HSE to convene family welfare conferences. Perhaps the Minister of State would address this and the other concerns I have raised when he concludes the debate on this Stage.

The Sinn Féin Deputies are happy to support the Bill and we urge the Government to take on board the constructive proposals for its improvement and enhancement. It is not about making us happier that he would do this, it is about ensuring we have legislation that will be fit for purpose and that will make a real difference in the lives of those who most need our help and support.

Acting Chairman (Deputy Michael Kennedy)

I call Deputy Margaret Conlon who, I understand, is sharing time with Deputy Bobby Aylward. There are 20 minutes in the slot.

Deputy Margaret Conlon

That is correct. I welcome the opportunity to contribute to the debate on the Child Care (Amendment) Bill. It is an important and timely debate and it is right and proper that we should give it the time it deserves in the House.

We are seeking to minimise the tragic circumstances that befall some young people in our country. These circumstances are often highlighted in the media but they can have the potential to destroy the lives of some of these young people. The publication of the Ryan and Murphy reports shocked us to our very core. Innocent young children were cruelly treated and abused at the hands of those who were supposed to care for them and who purported to have their best interests at heart. The treatment was criminal. It was inhumane. It was totally unacceptable to society and the net result was the lives of many young people were destroyed and a blight put on their futures.

We are called to ensure that the likes of this will never happen again and that we will never be in a situation where we are standing up speaking about such abhorrent crimes. Any Bill that offers protection, support and assistance to vulnerable children is certainly to be welcomed. This Bill seeks to offer that protection and support to these children. Many of them are vulnerable through no fault of their own. Many have only known a life of dysfunction, where normality is something that is completely alien to them.

This Bill allows the HSE to apply to the High Court for a special care order for a child between 11 and 17. This is always done in the best interests of the child and it must be as a last resort. Special care will provide the child with care that addresses his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, while also including medical and psychiatric assessment, examination, treatment and educational supervision. That is to be welcomed because it gives these children a second chance and it is in their best interests.

State care can be traumatic for these children as they are removed from what is normal for them. They need care and support. Their time spent in care should ensure that when they leave and return back to the big bad world, that they are in a better place than when they left it and entered State care. I believe that aftercare is very important for them. If aftercare is not good, they may quickly regress and all the good work might be undone. Somebody made the point to me that one does not take away the soother and the comfort blanket from children in the one day. They have to be weaned little by little. While I would not advocate a culture of dependency, I would say that these children need the support and assistance of the service providers to allow them and grow into independent and confident young people. This will require different interventions and different time scales, depending on each individual. No two cases are the same, but there must be consistency across the country in the provision of aftercare to ensure that the same high standards apply.

It is important to recognise that the families require support and assistance to enable them to cope. It is very difficult for families to cope with young people whose behaviour is challenging, and these families deserve to be supported. Being a parent is the one job in life for which there is little training. Parents bring home their new baby and they have to figure it out as they go along. Dealing with children who have challenging behaviour and who pose difficulties in the family setting is very difficult. It is not a sign of weakness for people to say that they cannot cope and that they need help. The HSE and the social services are there to help and will provide support and assistance to those families who need it.

I listened to Deputy Blaney's contribution on Tuesday and I agree with his commentary on education. As someone who was involved in education, we have a tremendous gift. The little ones go to school at the age of four and they are like sponges. Everything teacher says is correct. We have a huge gift as we are able to transform their young minds and turn them into positive individuals, who in turn will make a valued contribution to society. I do not think our teachers get enough credit for the excellent work that they do. There often tends to be negative commentary about them in the media, as there is about other sectors of the public service. They do a tremendous job and they have shaped us as individuals for generations. They continue to do that with the young people of today.

I also want to echo Deputy O'Rourke's sentiments about the free preschool year. It has been widely welcomed by all. It has been a tremendous initiative. I like the aspect where access is provided to all. Every child is treated equally and is able to avail of it. It helps children with their socialisation and it makes transition into primary school easier. One such preschool has been set up in my own parish recently. My children did not have the luxury of going to preschool because it did not exist. Now there are far more providers and the facilities are excellent. I see the little ones heading in there full of enthusiasm and happy to be going there. They even wonder on Saturday and Sunday why they cannot go. That helps with their transition into primary school.

I join with others in commending the Minister of State. I know that he has listened carefully to the various organisations, including Focus Ireland, and that he will take their views into consideration. He has always been available to listen to those who represent the voices of our children and that is to be commended. As a member of the joint committee dealing with the constitutional referendum on children, I am aware that he attended every meeting. He listened to everything that was said. While I understand that there are complex legal issues in drafting the wording for a referendum, I would look forward to it being brought before the people as soon as possible.

I commend the Minister of State on the commitment he has shown in dealing with children's issues. I welcome the Second Reading of this Bill and the opportunity it provides to Deputies on all sides of the House to express their views. While I do not have the legal training, I know of the incidences that I have come across before and during my time in this House. That makes the passing of this Bill a priority for all of us.

Deputy Bobby Aylward

I thank my colleague for sharing time with me. I am happy to speak in support of the Bill before the House today. I compliment the Minister of State on bringing this socially enlightened Bill before the Oireachtas. The proposed legislation is timely and I believe it represents a sensitive, fair and proper balance in reconciling the personal rights and liberties of a vulnerable child while also having due regard to the need for a third party to protect and uphold those rights in instances where it is necessary to have positive State intervention to promote the essential integrity and welfare of the child who may be at risk.

The Bill sets out a practical statutory framework and an exhaustive procedure to be adopted. It permits the HSE to apply to the High Court for special care orders to detain children who are in need of special care services. This type of detention is sought only as a last resort and where other forms of residential or community care are regarded as unsuitable or ineffective. The objective of such a drastic but necessary measure is to provide a supportive and stabilising period for a child. During that period, the child and his or her family receive the constructive support of a range of professional services from social care workers, psychologists, social workers and teachers. Each child has a specially devised care plan which is developed to meet individual needs and difficulties, and the application of this tailored plan is monitored and supervised by the HSE.

The Child Care Act 1991 was amended by the Children Act of 2001 and that legislation allowed for applications for special care orders to be heard before the District Court. At present, under its constitutional power of inherent jurisdiction, the High Court hears applications for children to be detained so that special care can be afforded to them by the Health Service Executive.

By definition, special care necessitates the civil detention of a child and that detention is secured in the best interests of the child's welfare, which is always the paramount consideration. The detention involves protection in a special care unit where suitable educational supervision and the necessary therapeutic supports are put in place for the child. This is conducted in a safe and secure environment which is conducive to the child's rehabilitation and adjustment. The objective of special care is to provide a period of structured and planned care to enable and equip that child to return to less secure care as soon as possible, or, if appropriate, to return to the family home. Under a special care order, the HSE effectively acts in loco parentis. It assumes full responsibility for the child as if it were a parent of the child and it is required to promote and protect the child’s health, development and overall welfare.

The Child Care (Amendment) Bill 2009 will give legislative force to the High Court powers in respect of applications for child care orders. It will have original statutory jurisdiction to hear applications by the HSE for special care orders or interim special care orders and other related matters in respect of children where their welfare and well-being may require their detention in a special care unit. The Bill also provides that special care units will be rigorously inspected within the scope of the Health Act 2007. The Bill also proposes to dissolve the Children Acts Advisory Board which I support and which is fully consistent with stated Government policy on the imperative to achieve efficiencies and to rationalise Stage agencies.

The Bill is comprehensive and sets out in some detail the exact legal procedures to be observed throughout this delicate process from considering the child for special care, the application for the order, the hearing of the case, the granting of the order, the care of the child under the order, right through to the ultimate discharge of the order. In assessing objectively whether a child requires special care, the HSE must be absolutely satisfied that the behaviour of the child poses a real and substantial risk to his or her life, health, safety, development or welfare. The Bill then allows the HSE to apply to the High Court for a special care order for a child who is aged between 11 and 17 years.

The Bill also provides for various circumstances where the child is, or has been, the subject of criminal proceedings and it includes precise provisions whereby the HSE may apply for a special care order or may continue to provide special care where a child has been charged with an offence. The HSE may also apply for a special care order for a child who has been found guilty or has been convicted of a criminal offence and where, following that conviction, a custodial sentence was imposed and that sentence has been served.

The HSE may also apply for a special care order, or may continue to provide special care, where: a suspended custodial sentence has been imposed on a child; the making of a children detention order has been deferred or has been suspended; or a Children Act order has been made in respect of a child. The HSE shall not, however, apply for a special care order, or where a special care order is in place it shall apply to the High Court to discharge it, where a child is remanded in custody or where a custodial sentence is imposed on a child. The HSE is obliged to make arrangements to allow the child, who is the subject of a special care order, to meet any person for the purpose of his or her legal representation, and for the child's attendance in court on any criminal charge.

In any proceedings provided for under this Bill, the High Court is required to have cognisance of the rights and duties of parents, whether under the Constitution or otherwise, and to regard the welfare of the child as the primary and paramount consideration and, in so far as is practicable, to give consideration, in light of the child's age and understanding, to the express wishes of the child. The High Court may order that the child be joined as a party to the proceedings and may make an order appointing appropriate legal representation for the child. The Bill also provides that, where the child is not a party to the proceedings, the High Court may, where it is satisfied that it is necessary in the child's interest, appoint a guardian ad litem for the child and the High Court has discretion to appoint legal representation for the guardian ad litem.

Where a special care order has effect, the Bill provides that the HSE shall have the like control over the child as if the HSE were a parent of that child and may do what is reasonable to promote and protect the child's health, development and welfare, and has the authority to decide on the nature of the special care to be provided to the child. The HSE is also vested with the authority to give consent to any medical or psychiatric examination, treatment or assessment which the child may need. The HSE is also given the authority to give consent to the application for, and the issuing of, a passport for the child.

A special care order will cease to have effect when a child reaches the age of 18 years. A special care order may be of up to three months duration and the High Court may grant, on an application by the HSE, up to two extensions and each may be up to a maximum of three months duration. Accordingly, the maximum duration of a special care order will nine months in total. The High Court will continue to have an ongoing supervisory role and will undertake a review, in each four-week period for which the special care order has effect to consider whether the child continues to require special care to adequately address his or her conduct or behaviour, the risk of harm to his or her life, health, safety, development or welfare which may be posed by that behaviour, and individual care requirements for the child will be appraised.

The HSE may apply to the High Court for an interim special care order for a period of up to 14 days, including any period which has been granted on foot of an ex-parte application for an interim special care order, which can be extended by the High Court on application by the HSE up to a further 21 days. An ex-parte application for an interim special care order may be made to the High Court by the HSE for a period of up to eight days and this cannot be extended.

The High Court may make an order for the purpose of executing a special care order directing a person, having custody of the child, to deliver the child to the custody of the HSE or directing the Garda Síochána to search, find and deliver the child into the custody of the HSE. The Bill also provides that the High Court may issue a warrant authorising the Garda Síochána to enter — by force if necessary — any house or other premises where the child is thought to be for the purpose of executing a special care order.

Where the High Court makes a special care order, it may, in the interests of justice or the protection of the child, give directions in respect of a named person or persons, which may include a parent, a guardian or a person acting in loco parentis, on the withholding of the special care unit’s address and the access of persons to the child while the child is resident in the special care unit.

The Bill provides for an amendment to section 12 of the Child Care Act 1991. Currently a garda can enter a building without a warrant if there is not sufficient time to make an application for an emergency care order and there is immediate and serious risk to the health or welfare of the child. The effect of the amendment to section 12 is that a garda, who believes that there is an immediate and serious risk to the health or welfare of a child, can also enter a building without a warrant if there is not sufficient time in the circumstances to obtain a warrant under section 35 of the Child Care Act 1991 to execute an order which has been made by a justice directing that a child be placed or maintained in the care of the HSE. I commend the Bill to the House.

Minister of State at the Department of Health and Children (Deputy Barry Andrews)

I thank all the Deputies who contributed to the debate yesterday and today, following the discussions in the Seanad in the previous term. I preface my comments on special care and foster care generally by pointing out as mentioned by other Deputies that the vast majority of children in foster care and special care do extremely well. They have great outcomes. They are all achieving educationally and socially and are preparing for life in a very good way. Foster care is often described as ordinary people doing extraordinary things for some of the most vulnerable children and while it is natural that a great deal of negative publicity surrounds this area, we must remind ourselves constantly that, for the thousands of children, care provided via the Health Service Executive and foster parents is of the first order in this country and children do extremely well.

The main objective of the Bill is to safeguard the best interests of children, and specific issues have been raised in that regard during the course of the debate. Deputy Flanagan raised an issue specifically in regard to section 23ND, which deals with the functions of the HSE providing special care and section 23NF, which deals with the release of a child from special care for medical purposes outside the State. Among other things, it provides that the High Court may vary the special care order accordingly, and section 23NF(15) states that the High Court is required to satisfy itself of all factors related to the welfare of the child before it varies a special care order.

The question of guardians ad litim was raised by a number of Deputies. The Bill provides that the court may provide a guardian ad litim to the child if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so. In practice, guardians ad litim are appointed in all special care cases. Deputy Flanagan raised that issue. It is true to say that guardians ad litim are not appointed in all care applications but they are appointed in all special care cases.

Last year, I launched the Children Act Advisory Board's guidance on the subject of guardians ad litim, and I continue to have discussions about the way those recommendations can be acted upon. I said we would see how that guidance worked in practice before we would move to act on other commitments in this area.

The Bill also provides that the HSE may enter into an agreement or arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit by a service provider from the private or voluntary sector. Some Deputies spoke about that with concern. I have met some of the private providers and far from the characterisation of them being fly by night in any sense, they are very committed and thorough. I can confirm that such an arrangement, if it is made by the HSE, for a special care unit to be provided will be subject to the same standards and regulations made under the Health Act 2007 for the inspection by HIQA. In addition, the HSE is required to supervise and monitor the special care unit under such an arrangement, and a child placed in a unit provided under such an arrangement will remain in the custody of the HSE.

Other issues were raised in the debate. Deputy Flanagan asked the reason the Ballydowd unit remains open considering that the Health Information and Quality Authority, HIQA, recommended that it be closed. The reason is that it is very difficult to provide alternative accommodation at this time. I visited Ballydowd last month. There were three young boys there and I had a chat with them. They were quite happy that they were being well looked after. All of the reviews of Ballydowd that pointed out the problems regarding the build environment of that unit have stated also that the children are well aware of their rights, they get a very good education, at all times their detention is supervised by the High Court and they are provided with social workers and interventions, as appropriate. However, the HSE remains determined that Ballydowd be closed. In the meantime, refurbishment works are going on; I saw them when I visited last month. However, there will probably be an increase in demand for special care in the coming years and, therefore, it provides the HSE with a challenge to meet the increased capacity and requirement that will exist. The HSE has also met and consulted with HIQA on this matter regarding the closure of Ballydowd.

The issue of aftercare was raised by a number of Deputies, including Deputies Upton and Ó Caoláin among others. I made mention of that in the Seanad previously and it concerns the issue of section 45 of the Child Care Act. It departs as an issue from what we are discussing in this legislation because we are dealing with special care specifically. Aftercare applies to all care situations where a child is in foster care, residential care or some other form of care. Nevertheless, it is a live issue. I often say that if we are to learn anything from the Ryan report we must recognise that many children who come from care backgrounds can have difficulties later in life and unless we provide for a strong, statutory transition period between childhood and adulthood we will be turning a deaf ear to the obvious testimonies that are detailed in the Ryan report.

For that reason, I have obtained legal advice to the effect that the requirement to have aftercare is a mandatory one where it is determined that the need is present. In other words, an assessment is done before the child leaves care and if there is a requirement for aftercare it must be provided. It has a mandatory element to it, therefore. That legal advice is being disseminated to the HSE by my office. The HSE is currently working on an aftercare protocol for the entire country to ensure we can avoid the point made by Deputy Upton that we have a postcode lottery in terms of where one lives and whether one gets aftercare.

Furthermore, as mentioned in my original contribution, in last year's budget the Minister, Deputy Brian Lenihan, committed a sum of €15 million to ensure the implementation of the recommendations in the Ryan report and included in that €15 million was €1 million specifically for aftercare. In the national service plan of the HSE for 2010 that expenditure is to include the recruitment of ten aftercare workers and non-pay associated costs; a financial support package for young people moving into aftercare from foster care, residential care and supported lodgings; the maintenance and refurbishment of existing aftercare premises; and the funding of the Irish Association of Young People in Care to develop a national advocacy and support service for young people in care, leaving care and aftercare, to include the recruitment of six staff and associated non-pay costs. Between those three initiatives — the protocol, the new legal understanding of section 45 of the Child Care Act and the funding which will provide extra staff and better premises — I believe we will have better outcomes and a better transition between those children who have left care and them achieving adulthood.

Deputy Flanagan inquired as to whether there was consultation with stakeholders. I assure him that I have ongoing consultation with the stakeholders at all times. I do not believe I could be accused of having a closed door policy towards anybody who wishes to raise issues with me.

A number of additional issues arose in this debate. Deputy O'Rourke raised the issue of the referendum. As I said last week in a separate situation, the position is that we have gone through a very detailed process with each of the Departments looking at the substance of the recommendations from the committee. It is my determination to respect the wording as set out by the committee but it is important that we must be determined that we will not have any unintended consequences. We have seen where that went wrong in the early 1980s where something can be put into the Constitution that has consequences that can come back to haunt us subsequently. We need to get that right but we are making substantial progress in this area. Deputy O'Sullivan raised that issue as well.

Regarding social workers, Deputy Flanagan made the point that they do exceptionally difficult work. There was an excellent programme on the BBC this week which I would recommend to anybody who wishes to get a good grounding in what happens in care situations, the tough backgrounds and difficult families that some children come from and the extraordinarily difficult choices social workers have to make. It was a one hour documentary called "Kids in Care", which was revealing and uplifting to a great extent. It highlighted how dedicated people are in trying to improve these children's lives.

On legal costs, Deputy Flanagan raised the question of why senior counsel are going into the District Court. It is required under the legislation that the jurisdiction of the District Court is used and if we change that to the Circuit Court or the High Court we would increase costs and not decrease them, which was his concern. I have been reassured by the HSE that it is tendering for this work for legal services in respect of care proceedings, which should have a dramatic impact.

I echo what Deputy O'Rourke and Deputy Connaughton had to say about the early childhood care and education, ECCE, scheme. It offers us a huge opportunity to develop early intervention methodologies for children who present with any kind of early difficulties, particularly in their more formative years, than has been possible. We also have a much smaller ratio of children to carers in this situation as opposed to in primary school. It is, therefore, a wonderful opportunity to identify problems early on.

Deputy Naughten raised the general issue of whether the HSE is fit for purpose with regard to children in family services. As I have said previously, the HSE is uniquely positioned, through its primary care strategy, to provide children in family services with a way of ensuring a link in to other services, such as psychologists, speech and language therapists and occupational therapists, that are needed to enhance children's lives and provide for proper early intervention.

I will conclude on the question of the purpose of the legislation, which many speakers have said is technical and complicated. It clarifies some of the issues up to now. In particular, it gives a statutory basis for what the High Court has been doing for the past few years on the basis of its inherent jurisdiction. It gives much greater clarity as to the basis upon which special care orders can be made and allows for much longer special care or detention than has been the case up to now. In my discussions with some of the managers of these units around the country, they have said that if we could provide a more stable placement or period of detention and for better interventions. It is not just about a place of safety or warehousing a child. One must be able to do something and intervene in some way. It will be good if a longer period of detention, with all the safeguards of constant High Court observation of the detention, can result in better outcomes.

Up to now the situation has been that if a child is subject to any kind of criminal proceedings, a special care order cannot be sought or continued with. This sometimes allowed the HSE to wash its hands of a difficult case, simply because a criminal proceeding had commenced. This will no longer be the case. Even if a child has been convicted and given a sentence short of detention, a special care order or an application for one can continue. This means the criminal justice system and the care system are not separated. From now on the service must wrap around the child and we will no longer have the situation where the child's circumstances must suit the service. It is the other way around. This is a profound difference and it is very satisfying to see there is broad acceptance for this principle in both the criminal justice and care systems. This provision should be a model for how these two systems should operate together for the benefit of children. I commend the Bill to the House and look forward to Committee Stage.

Question put and agreed to.