I welcome the Minister of State to the committee. Apologies have been received from Deputy Jan O'Sullivan. The agreed time for the meeting is from 10.30 a.m. until 2 p.m. but there is no need to avail of all of that time. A briefing note has been circulated to members.
Amendments Nos. 1, 16 and 17 are related and may be discussed together.
I move amendment No. 1:
In page 5, subsection (5), line 27, to delete “section 6,” and substitute “sections 6 and 46,”.
This is a technical amendment that allows for the amendments to the Adoption Act in this Act to commence on the enactment of this Act.
Amendment No. 16 is an amendment to the definition of "bilateral agreement" and is also a technical amendment, removing the words "which agreement, by virtue of section 73, has the force of law from the definition of ‘bilateral agreement'." This amendment arises because we removed "has the force of law" from section 73.
Equally, amendment No. 17 is an amendment to the Long Title to include the Adoption Act 2010.
I am certainly happy to accept those amendments as technical in the context of other legislation that was passed.
I was under the impression this had been amended since the Seanad debate to get around a ruling on the public charge provision. Has it not been amended?
Was the Minister of State not sympathetic in the Seanad?
We want to make changes related to youth homelessness. The Deputy is talking about accommodation here. I have a speaking note that states that HIQA will inspect units now instead of just the HSE. We have all seen that where HIQA has stepped in to carry out inspections, it has been an agent of change. I do not recall conceding an amendment in the Seanad. The amendment has been ruled out of order this time.
I am concerned that HIQA's mandate does not extend to private residential child care facilities. That is a real problem. The ease with which a person can set himself up as a private residential child care provider requires closer scrutiny than is currently the case. There are some facilities operating in circumstances that are less than ideal. Who is responsible for ensuring the standards are appropriate and adequate? The Minister of State will be aware of HIQA's mandate in the State sector and in respect of the Ballydowd centre it has made recommendations which have been ignored by the HSE, the Department and by his office.
My concern is with private residential care centres that do not have the writ of HIQA on the matter of supervision, standards, regulations and the appropriateness of care provided. It is important that issue be addressed. If it cannot be addressed in section 5, I ask the Minister of State to come back to me on the matter at an early date.
The current position is that HIQA inspects HSE-run centres and the HSE inspects the private and voluntary sector. The Deputy is asking that HIQA inspects all facilities. That is provided for in the Health Act 2007 but it has not yet commenced.
In other words, it has not been provided for. It has been provided for but it has not commenced.
One of the Ryan implementation plan commitments was to ensure that would happen. HIQA will ultimately inspect, regulate and register all residential centres for children whether private, HSE provided or voluntary. That is the point I was trying to make. I hope that will go some way to making sure that what it is intended to achieve, in other words, that suitable and appropriate accommodation is always provided in these cases, is provided.
Would the Minister of State go so far as to accept that the situation currently is unsatisfactory? For example, if we take the powers exercised by HIQA in respect of HSE-run centres and the Ballydowd centre where, on two occasions, HIQA has made recommendations that the centre be no longer used, the HSE's response is not to close it but to continue to flout the regulation, the Office of the Minister of State appears to be absolutely powerless. I am talking about the private sector where the Minister of State said provision is made but the trigger to exercise that provision has not been pulled. If the State sector is in a position to ignore and flout recommendations of HIQA and the private sector is not even under the umbrella of HIQA, does he not accept the position is utterly unsatisfactory?
HIQA recommended that Ballydowd be closed. Nobody is flouting or ignoring it. It had several meetings with the HSE. I visited Ballydowd to see the position on the ground in early September and spoke to the three children present. To say that the reaction of my office is to ignore or flout the HIQA recommendations is inaccurate. We have taken great care to ensure those children are provided with the best care possible but the consequences of closing Ballydowd would be to make no special care arrangements available to any child. If we are about - as I know we all are - safeguarding children and trying to provide them with care appropriate to their needs, to simply close it down because HIQA said it is unsuitable would be to spite oneself. We have required the HSE to improve the facilities at Ballydowd. I saw that work in progress in early September. I intend to visit it early in the new year. When I spoke to those children they were well aware of their rights. All reports into their well-being are very positive; it is the built environment of Ballydowd that has been a cause for concern. The Ryan Implementation Plan contains a commitment to commence the Health Act in order that HIQA will be empowered to register and inspect all private residential facilities for children and voluntary sectors.
On Question Time today, priority questions will be about the Roscommon report. The Bill in front of us is the type of legislation we need to get right so that such events covered by the Roscommon report do not happen again. When the State provides care for children, the detail of that care should be laid down in legislation. State provided care is an expensive business. That the details of the care should be put into legislation is vitally important. In the event of things going wrong and if children suffer, it is important to be able to say that this or that service was not provided and the Minister of State was charged with the responsibility for providing it. What is missing from our discourse is responsibility. Nobody in Ireland appears to be responsible for the care of children - nobody's name is on the file.
My amendment was ruled out of order because it imposes a charge on the State. If an amendment was tabled to the effect that the tax take was reduced by 50%, that type of charge is significant, but when it comes to the care of children that is an expensive business and we must ensure the detail is in the legislation. We should look at this in terms of the minutiae of the legislation - the detail of children's lives needs to be in the legislation and there will be a cost. That amendments should be ruled out of order on the basis of imposing a charge on the State is ridiculous. Whether it is provided for in this or some other legislation there will be a cost. Given that we have not been good at caring for children, we need to be serious and become more responsible in that area.
If Deputy Lynch's amendment No. 2 was accepted it would not have the effect of closing Ballydowd because it deals only with the accommodation. The HIQA report on Ballydowd is not about what has been listed in the amendment about the rooms, lavatories and so on.
The diversionary tactics are to talk of the one family in Roscommon or children in Ballydowd whereas I am talking about all children. Our amendment, if accepted, would ensure that in the main, whether Ballydowd closes, children would be treated properly.
In fairness it is about homeless children. I thought we were here to discuss the amendment. I would be happy to discuss the Roscommon case but-----
The most vulnerable children.
The amendment was ruled out of order.
-----the amendment was ruled out of order.
Perhaps the Minister of State wishes to conclude.
I am happy.
Amendments Nos. 3 and 8 are related and may be discussed together.
I move amendment No. 3:
In page 8, line 28, to delete "detention" and substitute "placement".
We had a debate yesterday on the long-awaited Criminal Law (Insanity) Bill, which centred on language. This amendment is about language. Children should not be detained, but rather should be placed. It is a sensible amendment about language and language is important.
On amendment No. 8, I agree with Deputy Lynch's comments. This issue was discussed in the Seanad. I will not labour the point but it is one that was made to us by a number of advocacy groups. The Bill provides for the detention of a child upon the making of a special care order. I would have thought the Minister would agree that the words "detained" and "detention" are associated almost exclusively with proceedings of a criminal justice nature. How representative is that on the matter of the needs of children and young people and the services offered to young people in regard to high support care provision and residence? I accept that the focus of the Bill is on providing secure care for children in need of a high level of support. I would have thought we would seek to examine themes such as care, protection and welfare rather than use wording associated with criminal behaviour and the criminal justice system. It would have been appropriate to change the language in the legislation and use terms such as "secure care" or "care facility" rather than "detention centre" and "detained".
I agree in principle with my colleagues that we should seek to use terminology that expresses a caring attitude but if we were to change the wording in this Bill it would have implications for a good deal of other legislation. The line in question refers to the 2001 Act. The Minister and his Department might examine the wording to determine how we can come up with more caring wording in our legislation but what are the implications of changing it in this legislation?
I make a general point about special care. It is a unique form of civil detention, in other words, none of these children have done anything wrong but they are detained for their own safety. There are 5,800 children in care today and ten or 11 of them are in special care. The vast majority of them are in foster care. There are a few in residential care. Some are in high support care where there is no detention. They are not protected from absconding but the special care is the only form of civil detention we have and because it is a type of hybrid the High Court supervises every single aspect of it including its application, any possible variation, the discharge and the step down. All of that is properly supervised by the High Court and it is proposed that we put that in statute now. It is important that we see it for what it is, therefore.
I understand the point about using other terminology but when I visited some centres in September I asked the children how they were getting on and one of the remarks made which struck me was that they knew they had done nothing wrong but they could not get out. HIQA has noted that the children in Ballydowd and other special care facilities are aware of their rights. When HIQA representatives visit unannounced they talk to the children separately from the carers and there is a high level of awareness of the reason they are there, their rights and their access to advocacy. I understand the problem the Deputy is trying to tackle, namely, does the child believe there is a stigma about being under lock and key?
No. That is not-----
Our legal advice is that to use any other word would likely mislead and make the position uncertain for the courts, the Health Service Executive, parents, guardians, children and the general public as to the fact that special care involves detention of the child. Currently, the High Court orders made which provide for special care for children are called detention orders. Successive court judgments have used the term "detention" and judgments have been clear in their distinction between detention in a special care facility and detention under criminal statutes.
With regard to the children and detention schools where children have committed a crime under the Children Act and are being detained for an offence, we are trying to move away from the idea of even that being detention. There should be a much greater care aspect to that because they are children. That is what the Children Act 2001 tries to achieve. There is clear thinking around this issue and in practice children are very well aware of their rights. I am not inclined to accept the amendments.
I do not accept what the Minister has said. He began his contribution by pointing out the difference between criminal sanction and what is in effect a civil sanction, which I agree with him on, but then went on to justify it on the basis of certainty.
It is not a sanction. That is the key point.
The Minister made the distinction between criminal and civil but he does not draw any distinction in terms of the wording of the legislation. Deputy O'Hanlon made an interesting point. I went through the 1991 Act last night to determine the number of times "detention" and "detained" was used. Using a computer I am sure the number of times "detention" and "detained" is used in the Act could be found in the space of 60 seconds. It would not be a cumbersome job and I am sure the Department could do it with ease. That would allow us change "detention unit" to "special care unit", "detention" to "placement" and "detained" to "placed". It is a simple exercise and I do not accept that there is legal advice that would give rise to uncertainty. The Minister is not for turning, however. Once again he is taking the lazy route, and that is regrettable.
Perhaps the Minister misunderstands me. We are seeking to change the language, not the definition, the way it is implemented, what the courts do or the Minister's responsibilities. It is language we want to change, and sometimes language can change our attitudes. When we changed the language around children who were born outside of marriage, for instance, it changed our attitudes. It can take a while but it happens. Language changes our attitude and when it comes to children, attitude is very important. We are not looking to change the way this is implemented, the definition or a judge's opinion. We seek to change the language and whether it changes today or in five years time, the attitude will change. That is all we seek. I am sure when the courts have children before them, who are well represented, they will not take a different view of the care that child should have as a result of the language used. We are not looking to change the definition.
I attributed the Deputy's motivation for this amendment to what had happened in the Seanad. It was its Members concern that the children might feel stigmatised in some way. That is where that arose. It arose in the Seanad and we explored it in detail because I was sympathetic to the point. It makes sense but the legal advice on it is clear.
There was no laziness on my part as I checked if it was possible but I learned that a level of legal uncertainty would be created by not having a distinction between what is an ordinary placement and this type of order, which is not called a detention order but a special care order for the first time in the legislation, and that is made clear in the legislation. The proposal would create the uncertainty that I have described and that is why I am not inclined to accept the amendment.
How stands the amendment?
I suppose it is pointless to press it. I would like to retable a similar amendment on Report Stage.
Amendment No. 9 is related to amendment No. 4 and therefore amendments Nos. 4 and 9 may be discussed together.
I move amendment No. 4:
In page 45, line 18, before "shall" to insert the following:
"where an order to that effect is made by the High Court pursuant to section 23NF,".
The argument underpinning the tabling of this amendment is that the child's voice needs to be heard. I refer to circumstances where a child does not consent to an action or to something being imposed on him or her by the Health Service Executive. The Minister of State will probably not be inclined to accept this amendment, but what is proposed in this amendment will happen eventually and that will mean we will have to revisit this legislation or introduce further legislation. This is a good and worthwhile amendment and it brings us to where we need to be in terms of provision for children and how we treat them. The amendment inserts the following wording: "Without prejudice to the obligation of the Executive to have regard to the views of the child, bearing in mind the child's age and understanding, prior to taking steps under this section, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the child does not consent." It is about a third party-----
We are dealing with amendment No. 4 and amendment No. 9 which is related to it.
I apologise. I will simply leave it at that having moved the amendment.
Deputy Flanagan has a related amendment. Does he wish to speak to that?
If I may, amendment No. 4 provides that the High Court must make an order before the Health Service Executive can remove the child from the State. We are seeking a triple lock provision to ensure a child is not removed from the State by an over-zealous executive from the health service - I know they do not exist but one may present in the future - and that the High Court would have a position on this. This measure is a protection for the child more than anything else.
I call Deputy Flanagan to speak on the related amendment.
Where a child is being removed from the jurisdiction rather than voluntarily leaving it, irrespective of for what purpose or reason, it is important that would have the approval of the court. The removal of a child from the jurisdiction, perhaps against the will of the child, is a most serious occurrence and one the law must regard as such.
I wish to ask the Minister of State about a practice that has occurred in recent times, the placement of children in care or treatment facilities outside the jurisdiction, to which amendment No. 9 directly relates. I refer to the removal of children from the jurisdiction of this State to a placement overseas. How frequent is this occurrence? I understand children are being placed in Nevada in the United States, in Northern Ireland and in other European states. What are the decision-making process and costs involved in that? What facilities are available overseas and what type of treatment or care is being afforded to these people while being outside the jurisdiction? There is undoubtedly a cost factor involved. I would like to know how much that is and why efforts are not being made to provide such treatment, centres, care or, as the Minister of State might say, detention in this jurisdiction. It is an issue on which there has been very little public debate. I would like to ascertain from the Minister of State the frequency, numbers, reasoning and costs involved in that.
I do not call it detention; I call it special care. For the Deputy's information, I have always called it so.
The Minister of State could make such a change.
It is called a special care order in the definitions section. To deal with Deputy Lynch's point, she was correct in stating that the measure she proposes is a triple lock provision and, as such, it is unnecessary. Such a measure is provided in the sense that section 23ND of the principal Act states that if a child is to be permitted to reside outside the State or to leave the State for examination or otherwise, it must be done in accordance with section 23NF. One then has to read section 23NF to note what it contains, which is what the Deputy seeks to do in the amendment. The Deputy's amendment requires the insertion of the wording "where an order to that effect is made by the High Court pursuant to section 23NF". This is contained in the legislation. The section states it must be done in accordance with section 23NF. That safeguard is contained in the legislation. This amendment would add another belt and braces and in my view is unnecessary.
In terms of the numbers sought by Deputy Flanagan, Nebraska is where Boys Town is located. The volume of special care orders in this country would be quite low, naturally, as I pointed out. There would be specific needs where the provision of that service in the State would not be justified by the volume of need. From time to time, therefore, as with any intervention, it may be necessary to seek help from outside the State. It happens in other areas of the health service, as we all know. It is protected here by High Court supervision at all times. An application must be made by the High Court to vary the existing special care order to authorise a child to be taken outside the State. It is done in accordance with section 23NF of the principal Act, which was the basis of Deputy Lynch's concern. As to the exact figures involved, I could not provide them off the top of my head, but Deputy Flanagan might table a parliamentary question on it and we will try to get back to him as quickly as possible.
In fairness, we are debating this legislation and it is not satisfactory for the Minister of State to tell me to leave this room, go to the plenary arena of the House and table a parliamentary question when the Minister of State could simply do me the courtesy of saying he does not have the information but he will provide it in writing in due course after the debate. That is what I ask him to do and I regret that I have to ask him for that.
I regret that I had to-----
For a Minister to tell a Deputy to table a parliamentary question on this matter is a little less than satisfactory.
I will take that back and I will write to the Deputy on that.
I thank the Minister for that.
This is particularly the case especially having regard to the record to the Minister of State's Department and of the HSE in replying to parliamentary questions.
We are departing from the subject matter.
We are but it is at the invitation-----
Let us be focused, please.
-----or the provocation of the Minister of the State.
The Deputy should not be provoked. Can we return to amendment No. 4? How stands the amendment?
I will not press the amendment, but I reserve the right to raise the matter on Report Stage.
Amendments Nos. 6, 7 and 10 are related to amendment No. 5 and, therefore, amendments Nos. 5 to 7, inclusive, and amendment No. 10 may be discussed together.
I move amendment No. 5:
In page 45, between lines 39 and 40, to insert the following subsection:
"(2) Without prejudice to the obligation of the Executive to have regard to the views of the child, bearing in mind the child's age and understanding, prior to taking steps under this section, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the child does not consent.".
I have made the argument for the inclusion of this amendment on the basis of having the voice of the child heard. We are moving in that direction, even if this amendment is not accepted for inclusion in this legislation.
If the amendment relating to the rights of the child is passed by the people, the Minister of State will have to come back anyway and do what we are proposing. I do not know what the Government will eventually decide to do with regard to the wording of the constitutional amendment, but I anticipate that it will have consequences for this legislation. Inserting the amendment would probably save us from what the Minister of State mentioned, the enormous task of changing the language used in legislation. We will eventually come back to having the voice of the child heard with regard to his or her care and how he or she feels he or she should be treated.
As amendments Nos. 6, 7 and 10 are related, does Deputy Flanagan wish to comment on them?
On amendment No. 6, we are dealing with the functions of the Health Service Executive in the provision of special care. Once the special care order has been made, section 23ND bestows on the HSE far-reaching powers. It is empowered to carry out a medical assessment, a psychological assessment, a psychiatric assessment and examinations, provide medical treatment and issue a passport to a child; therefore, the matter of parental or guardian consent in how it might do this is very important in the circumstances. The powers, in some cases, exclude a guardian. I am not sure that fits comfortably with the fundamental objective of all child care legislation, that the voice of the child not only be paramount but be heard. What happens if a child has a reasonable objection to the exercise of any of these far-reaching powers by the Health Service Executive? Where under the Bill can the voice of the child be taken into account, heard or acted upon? If we are promoting the best interests of the child on all occasions, that child should have a say in these matters on all occasions, particularly given that we are dealing with the most vulnerable children. In the case of care orders, we are talking about the most vulnerable children and it is essential, given the potential impact on the lives of the children, that my amendments are considered.
Obviously, the voice and views of the child should be heard and taken into account by the HSE and this is reflected in the existing Child Care Act 1991, as amended. Section 3 of that Act states the HSE must promote the welfare of the child and in so doing, in so far as is practicable, give due consideration, having regard to his or her age and understanding, to his or her wishes. The section has the same effect as the proposed amendment. Section 23ND(1)(b) of the Bill provides that the HSE “shall do what is reasonable, subject to this Part, to promote his or her health, development or welfare and protect his or her life, health, safety, development or welfare, having regard to all the circumstances of the child”. Therefore, the position is clear, both in current legislation and what is proposed in the Bill.
With regard to consent, providing a statutory provision for every time there is a disagreement could very well defeat the purpose of providing special care. The children involved are at the most vulnerable end of the scale and in special care because they might pose a risk to their own lives or the lives of others. That is the definition that would ground an application for the provision of special care. The obtaining of consent at every turn would have a damaging effect on the overall effectiveness of the special care order.
The proposed amendment to section 24 of the Child Care Act 1991 is to delete the words "in so far as practicable". This section requires that in such proceedings the High Court shall regard the welfare of the child as the first and paramount consideration and in so far as practicable give due consideration, having regard to his or her age and understanding, to his or her wishes. The Deputy wishes to delete the phrase "in so far as practicable".
That is proposed in amendment No. 10.
It is included in this group.
We are discussing them together. The words "in so far as practicable" are included as there might be situations where it is not practical or possible to consider the child's wishes. In addition, it must be borne in mind that these cases are being heard at the jurisdiction level of the High Court which is statutorily charged to regard the welfare of the child as the first and paramount consideration. Members of the committee who were members of the all-party committee on the Constitution will recall the significance of the phrase "the first and paramount consideration". It goes even further than the Convention on the Rights of the Child which refers to a primary consideration in stating the first and paramount consideration is the welfare of the child. It is an extremely robust duty of the High Court to consider what is in the best interests of the child. However, we must bear in mind the circumstances in which a special care order arises. That is the reason the phrase is retained.
On the issue of consent, Deputy Lynch's concerns were raised in the Seanad and we tabled an amendment on foot of that debate. Section 23ND(3) states: "Nothing in subsection (1)(d) or (2) shall be construed as making ineffective any consent which would have been effective if those provisions had not been enacted”. Consent pre-existing the HSE’s powers under a special care order would remain in force, that is, consent given by a parent, a guardian, somebody else who would have such a right or a child over the age of 16 years because a child who is 16 years old can consent to medical treatment. These consents would survive the making of a special care order.
We all know there are children aged ten or 11 years who are very aware of what is in their best interests. Children coming out of difficult circumstances, for example, know they do not want to go back to a particular setting. That type of age appropriateness is what we will have to return to in terms of the rights of the child, not the 16, 17 or 18 year old. It is generally accepted, although perhaps not legally, that people of that age should be able to make appropriate decisions for themselves. However, while some ten year old children might not be able to wash their hands, others of that age are very aware of their particular circumstances.
I did not address amendment No. 10. I listened to the Minister of State's remarks and he made a very good attempt at dealing with the issue. I accept that, but I am not 100% happy. What we are doing in the Bill is making the appointment of a guardian ad litem a requirement in all cases affecting children who are the subject of special care orders. The Minister of State stated this morning and in the Seanad that all children in special care proceedings receive representation by way of guardian ad litem, but I believe that is only true in the majority of cases. While I accept it is the majority, and perhaps even the vast majority, there are some cases where this is not so. I do not know how many and that is where I will concede the argument to the Minister of State. I would like there to be a statutory guarantee, which is what my amendment provides for.
My amendment provides a statutory guarantee that the appointment of a guardian ad litem is necessary and essential to ensure the best interests of the child are maintained and prioritised in these significant proceedings. The fact that the current legislation still permits or tolerates cases where such an appointment may not be made amounts to a gap, which could be a significant one.
I will not press the amendment. It is one I probably need to research to a greater extent. I will come back to it on Report Stage. I accept what the Minister of State has said but I am not sure how many cases there might be where it could be argued that the appointment of a guardian ad litem in certain circumstances cannot be in the best interests of the child. I am not convinced there are any cases where that could be the case.
A guardian ad litem, GAL, is appointed in every application for a special care order but not in other care applications. That is the information available to me. We are coming to that in a later set of amendments. I am satisfied there are sufficient duties in law to require the courts and the HSE to regard the welfare of the child as the central principle governing any consideration of an application or applications to vary. We have a sufficiently robust statutory framework for that and I would not accept the amendments.
Amendments Nos. 11 to 13, inclusive, are related and will be discussed together.
I move amendment No. 11:
In page 63, lines 11 and 12, to delete paragraph (b).
We are still dealing with the importance of the guardian ad litem service, providing, as it should, a voice for the child and involving expressly the child in the decision-making process which concerns that child, ultimately leading to better outcomes and a greater level of welfare. The guardian ad litem is an experienced professional whose expertise is most valuable in providing the court with an independent assessment of the interests of the child. I believe independence is crucial to the work of the guardian at litem.
I am concerned about the matter of costs and the fact that the inability to provide for costs could well result in a situation where a child is disadvantaged. In particular, I am concerned at the insertion in subsection (2) of "reasonably", and my proposal in amendment No. 11 is to delete paragraph (b) which inserts that word. Who decides on the reasonableness or otherwise of costs incurred by the guardian at litem services? If it is decided by the HSE rather than by the court, then the independence of the guardian at litem service is at risk. There is something of a conflict in payment by the HSE, especially when cases directly involve it, that can expressly disadvantage the child.
Could we interrupt the proceedings now? A vote has been called in the House and I suggest we suspend until it is completed.
Indeed.
If there is to be a series of votes, I suggest we wait until the voting process is fully complete. Is that agreed? Agreed. We will suspend until the votes in the House are concluded.
I have dealt with amendment No. 11 and will move on to amendment No. 12.
Section 12, as drafted, seeks to place restrictions on the ability of guardians ad litem to instruct legal representatives, and these restrictions may have a considerable effect on the guardian’s ability to conduct that role as outlined. They are in violation of Articles 3 and 12 of the UN Convention on the Rights of the Child and it is essential that the shortcoming in the wording of the section is dealt with satisfactorily before the legislation is passed.
I am sure the Minister of State will be of the view that the appointment of the guardian ad litem in child law cases can be complex but the ultimate thread through the entire debate is the representation of the voice of the child to assist the court in making a decision. The importance of the contribution of the guardian has been long recognised and he or she might not on all occasions be expected to understand the legal complexities involved. There are issues relating to the Constitution, domestic law and international law. The guardian should be free and unfettered once appointed by the court to instruct legal representation, where necessary. In this jurisdiction, the guardian in District Court child care proceedings is always a notice party. Guardians frequently give evidence as to their professional opinion on the welfare of child, the wishes and requirements of the child and always in the best interest of the child.
Currently, the guardian ad litem is effectively treated as a witness rather than a party to the proceedings. He or she is subject to examination and cross-examination. There are circumstances where the guardian ad litem can be left exposed if the guardian does not have access to, or the right to, legal representation. These proceedings are often lengthy and adversarial and cross-examination may be difficult with the consequences of it being detrimental to the interests of the child. It is important that there are no restrictions on the rights or powers of the guardian to seek legal representation in circumstances where it is deemed not only appropriate but necessary. If not addressed by way of amendment, the anticipated effects of section 12 as currently worded would be that the HSE would only be responsible for the costs of the guardian if they are considered reasonable. Before the vote I referred to the possibility that the determination of what is or is not reasonable may well be detrimental to the child. Before proceeding further I wish to hear the Minister of State’s response to amendment No.11 with regard to the costs of the guardian ad litem and amendment No. 12 with regard to the status of the guardian ad litem.
As I have proposed on page 64 with regard to amendment No. 13 and the regulation of the guardian ad litem, it is important that we insert the regulatory process and that the Minister would be charged with the responsibility within three months of the legislation being enacted that the regulations with respect to the guardian ad litem would be published and that these would include specific reference to the registration, the role and functions, the qualifications and the training of the guardians.
As the Chairman is aware, the 1991 Act that we are amending provided for the appointment of a guardian ad litem. It did not provide any guidance as to training, qualification, appointment criteria or legal representation. There was no regulation or registration provision. I believe this is absolutely essential and no one could disagree with the premise that we must ensure there is quality assurance at all times.
In 2009, there was guidance on the role, qualifications and training of guardians ad litem in care proceedings. This was published by the Childrens Acts Advisory Board. However, it is regrettable that the Bill before us has failed to put these guidelines on a statutory footing. It has failed to extend the guidance to apply to High Court special care cases and it has failed to require a system of national registration of guardians. It is important to establish such measures. They are fundamentally related to child protection and form an integral part of what amounts to best practice in child protection. There is every reason to include the provisions in this amendment in the legislation.
Will the Minister of State address these three amendments? However, first I call Deputy Lynch.
Deputy Flanagan has covered the matter in great detail. Without wishing to offend every child care professional - I realise many excellent people work in the field as well - the cases which eventually come to the courts or which are highlighted in the newspapers indicate the children involved were not served well by professionals in the area. My concern relates to from where this pool of guardians will be drawn. I accept fully that in terms of domestic and international legislation and constitutional rights there must be a degree of training in place for these people to ensure not only that they look after the general well-being of the child, but that in cases where this has not been provided someone is available to recognise that there is recourse elsewhere. Such a person need not always be a psychiatrist, psychologist, social worker or a solicitor. Certain other people may have a better feel for the welfare of children than some of the automatic named professionals. From where will this pool be drawn? Who will present a list to the High Court judge and how will such a list be drawn up? Will the list be drawn from the regular pool, which has not always served the interests of children in the past?
I emphasise the point I made earlier with regard to Deputy Lynch's comments. It is true that we only see the negative cases coming through the courts.
If things work out, no one will report it and in the majority of cases they always do. From time to time foster children have expressed their frustration that whenever foster care is discussed in the media, it is always in a negative context. The public cannot weigh in the balance the good stuff that goes on against the negative cases which are, correctly, reported in the newspapers. There is a deficit in terms of the reporting. Dr. Carol Coulter has done a good job with a report into family law cases in this regard. We should do something similar with regard to child care cases.
At issue today is the matter of protecting children. This is why we are discussing it.
There is robust provision within the legislation to hear the voice of the child. The welfare of the child must be the paramount consideration in all of this. To give practical effect to this, a guardian ad litem can be appointed as the court sees fit. Reasonable costs are allowed. Generally, the guardian ad litem is a social worker or former social worker. He or she is appointed mostly from Barnardos although there are some independent guardians. From time to time they will require legal representation. Their duty is to provide information to the court concerning their view on the best interests of the child and to convey to the court the wishes of the child. These two may not be the same thing.
In all special care cases which is the area this legislation addresses, guardians ad litem, GALs, are appointed. However, in other care proceedings, for example, in the case of a supervision order, it is not necessarily the case that a GAL would be appointed. The discretion remains with the judge. There appears to be some disquiet to the effect that a judge might hold a grudge against certain GALs or solicitors representing GALs. One such report was contained in today’s Irish Examiner.
A grudge against whom?
A grudge against GALs or their legal representatives. This point was argued in the article in the Irish Examiner today. The article suggested that the District Court was not properly informed about the importance of this area, that the basis for the requirement is that District Court judges are not properly informed and that some bear a grudge against certain individuals. I am unsure whether it is possible to correct that problem with this amendment. One corrects such a problem by training judges properly. Judges have thousands of powers and one cannot simply paper over such matters. One must get to the core of a problem if it exists, that is, ensure judges are properly trained and aware of the powers they have and which they should discharge. It is up to all us to ensure this happens. It is reasonable in the case of this amendment for a High Court judge to appoint a GAL in all special care cases. However, the current legislation holds that the court may, if it sees fit, appoint a solicitor to represent the guardian ad litem in respect of proceedings and give directions as to the performance by the solicitor of his or her duties. This is the current position and I am satisfied it amounts to a sufficient vindication of the rights of the child and will enable his or her voice to be heard.
I am inclined to accept the general point being made in the last amendment from Deputy Flanagan. The requirement to have regulations with regard to the registration, role, qualifications and training of guardians has been around for too long. Perhaps we can come back on Report Stage with an amendment or perhaps we will work on the wording to deal with the specific details of what is required. I am inclined to accept the general principle of amendment No. 13 and will deal with it on Report Stage. As Deputy Flanagan says, the Children Acts Advisory Board published a report on this last year. We need to get on with the work and I am prepared to accept that principle in the legislation. I am concerned, however, about mounting legal costs. If it was simply up to a guardian to say he or she wanted a solicitor, this would inevitably have a serious effect of ratcheting up the legal costs associated with some of these applications. In some circumstances there is no need for legal representation.
I acknowledge what the Minister of State has said about amendment No. 13 and would be happy to withdraw it provided we come back to it on Report Stage. I have no difficulty with my wording being improved and thank the Minister of State for his comments. I am not happy, however, with the response to amendments Nos. 11 and 12. The Minister of State spoke of costs where they are not needed. I would have thought that would be something he could keep under review with the HSE. The HSE spent €2.4 million on counsel's fees in the past three years and €302,000 was spent on senior counsel in the District Court.
They were trying to protect themselves.
The Minister of State will be aware that senior counsel does not normally appear in the District Court. A sum of €302,000 spent on senior counsel in the District Court is, perhaps, something that might be examined. I do not wish to depart from the important legal point of my amendments, however, and I am anxious to press them.
The Minister of State refers to what he would regard as sufficient robust protection for the child under law in the principal Act and refers to section 24 of the 1991 Act which states that the welfare of the child should be paramount. No one has any difficulty with that. The Act states:
In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having a regard to the rights and duties of parents, whether under the Constitution or otherwise, shall -
(a) regard the welfare of the child as the first and paramount consideration, and
(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.
As I have said previously, the phrase "in so far as is practicable" could well be an out for the court. I am not suggesting it is used as such but it could be. Having heard the Minister of State refer to judges holding grudges, that makes my point all the more relevant.
I was referring to a point made by someone else.
The Minister of State referred to it and went on to say that there might be something in the training of judges that required attention. If that is the case, he should ensure the Courts Service and the Department of Justice and Law Reform engage in an appropriate level of action that will ensure such a charge cannot be levelled at judges. It is unacceptable in any democracy that cases would fall or be heard before a court where there was a doubt, as the Minister of State seems to suggest, with regard to the training of the person acting as chairman on the bench, a person who is in the circumstances all-powerful. I do not wish to go down that road as it is a deflection from the main point.
What we are debating is the proposed section 26(2C)(b) which states that the HSE will pay the costs and expenses reasonably incurred on behalf of the guardian in instructing a solicitor appointed by the court, subject to the option on the part of the HSE of having those costs taxed. The proposed section 26(3A) provides that the HSE may seek to have any other party to the proceedings bear the costs of the legal representatives appointed by the court to represent the guardian. Where I have a problem is that the provision does not expressly exclude the guardians from such an order. Therefore, the ordinary understanding from section 26(2C)(a) and (b), would be that the HSE would be able to seek a costs order against the guardian for the guardian’s costs. Will the Minister of State accept that the effect of such an order, requiring a guardian to bear the costs of his or her legal representation, will leave the guardian in an unenviable position and one of some risk? There appears to be no guidance in this section as to the circumstances in which such an order might be granted. The subsection does not appear to make any provision for costs orders against the guardian for any other parties’ costs.
I hope the fact the Chairman is moving forward in his chair is not an indication that he is impatient with my submission. The overall effect of section 12 is that guardians will be slower to retain legal representation. Where they do, they will be constrained in how they instruct their representatives by having to get leave of the court, by the possibility of judicial directions with regard to the instruction of legal representatives, and by the possibility of the adverse effect of being required to pay the cost of the legal representation themselves. What this section does is restrict the ability of the guardian to retain legal advice and to engage freely the services of legal personnel. If we are to be true to the spirit and the letter of section 24, we should not, where the best interests of the child are at stake, restrict the ability or capability of the guardian ad litem to seek legal representation.
The Minister of State did not refer to my earlier submission about a possible contravention of Articles 3 and 12 of the UN Convention on the Rights of the Child. Has he discussed the matter with the Attorney General and has he received legal advice on it? Bearing in mind that the HSE will always be represented, I believe there is an issue in this regard that upsets the balance between the guardian and the HSE, which could well be to the detriment of the child. Under the current wording of this Bill, there will be a further restriction on the ability of the guardian to seek legal advice where in his or her opinion it may be necessary.
To clarify, will the effect of the amendment be that the guardian ad litem employs a solicitor for himself or for the child?
For the child.
With regard to my reference to the article in the newspaper, I do not agree with the view expressed. The view is that the Bill is an assault on equality because of untrained and sometimes disinterested District Court judges who retain power. I do not agree with this loose and misguided criticism. The UN Convention on the Rights of the Child is not binding in Irish law but it has a persuasive effect and this is the general rule in regard to its provisions and equally, in guidelines that flow from the convention.
The Deputy's amendment proposes that the guardian appointed may appoint a solicitor to represent him or her in respect of those proceedings and to give directions on instruction of counsel. The guardian is, effectively, a witness to give expert views on the child and what might be in the child's best interests. The guardian should be suitably qualified to do this. From time to time the judge, if he or she thinks fit under current law, will appoint legal representation including counsel for the guardian. I have never heard of a situation where a witness can decide whether there would be legal representation. This is up to the judge to decide. If we do not have faith and confidence in judges to discharge their duties in law, which duties are very clearly set down, then what is the point of giving courts any powers? We have to have faith and confidence in the Judiciary to do this work.
Guardians are always appointed in cases of special care orders and legal representation for a guardian is appointed as the court thinks fit. We need to understand the context in which this happens. We need to more accurately describe the role and qualifications of a guardian ad litem . The current payment arrangements are unsatisfactory. The HSE is nearly always in conflict with the guardian ad litem in court but still pays the guardian ad litem. This is not a satisfactory arrangement and change is required in this respect. I am inclined, therefore, to accept the spirit of Deputy Flanagan’s amendment No. 13, but not the other amendments Nos. 11 and 12.
I will press the amendment. I cite the example to the Minister of State of a section 47 application where there is an application for directions. The child is in the care of the HSE and the District Court is asked to make a direction on the application of a guardian, for example. This is where we see the restrictive effect of section 12, where in most proceedings the guardian responds to an application from the HSE, for example, an application to extend an interim care order. If a guardian decides to make an application for directions under section 47 of the principal Act, the guardian is much more than a witness in that case; the guardian is a moving party. Therefore, the decision on whether to bring the matter before the court rests with the guardian. The guardian is grossly disadvantaged by the application of section 12 and this is an example of where the restrictive application of the section will militate against the role of the guardian and could well be detrimental to the best interests of the child. It is too restrictive. My amendments will ease that restriction and will allow a situation to obtain where the letter and the spirit of section 24 of the principal Act are honoured.
I move amendment No. 12:
In page 63, to delete lines 35 to 42 and substitute the following:
"(a) the guardian ad litem appointed may appoint a solicitor to represent them in respect of those proceedings and give directions as to the performance of the solicitor of his or her duties, which may include, if necessary, having regard to the circumstances of the case, directions in relation to the instruction of counsel, and”.
Is Deputy Flanagan moving amendment No. 13?
In deference to the Minister's commitment to come back before Report Stage, I will withdraw the amendment.
On section 12, I still have a difficulty as to this application, as to how it will work and I intend coming back to it on Report Stage.
This may have been discussed earlier. I again refer the Minister of State to what I said about the need to ensure that private residential child care providers be subject to regulation, that HIQA be the appropriate regulatory body and that we deal with the Ballydowd situation, for example, where HIQA has exercised its powers, role and function, to very good effect by inspecting and producing reports that have not been challenged to any great extent but the consequences of the report being that very little happens and premises like Ballydowd which HIQA recommends should be closed, still continue. It is not sufficient for the Minister of State to say that this is how it must be and hope that matters can be resolved at some stage in the future. These are statutory regulations and statutory breaches and the response of the authorities, who have been found to have very serious questions to answer regarding the operation of the premises, can still continue to flout the law.
Amendments Nos. 14 and 15 are related and may be discussed together.
I move amendment No. 14:
In page 67, before section 22, to insert the following new section:
22.—Section 45 (as amended by the Act of 2004) of the Principal Act is amended by substituting the following section for section 45—
"45.—(1) (a) Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2), assist him or her for so long as the Executive is satisfied as to his or her need for assistance and, subject to paragraph (b), he or she has not attained the age of 21 years.
(b) Where that person attains the age of 21 years, the Executive shall continue to provide such assistance until the completion of the course of education in which he or she is engaged.
(2) (a) The Health Service Executive shall assist a person under this section in one or more of the following ways—
(i) by causing him or her to be visited or assisted;
(ii) by arranging for the completion of his or her education and by contributing towards his or her maintenance while he or she is completing his or her education;
(iii) by placing him or her in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(iv) by providing a residential aftercare programme for him or her;
(v) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years;
(vi) by arranging for any existing or emerging health care needs to be addressed by appropriate qualified persons.
(b) For the purposes of this section, the Minister shall prescribe the manner in which aftercare may be provided.
(3) In providing assistance under this section, the Executive shall comply with any general directions given by the Minister.
(4) For the purposes of this section, the reference in subsection (1)(a) to the care of the Health Service Executive includes special care provided under Part IVA (as amended by the Child Care (Amendment) Act 2010).”.”.
This is a new section but it is not a new section in many ways. The original section provided that the HSE may provide assistance, may assist in education. The original section provides for where children leave the care of the HSE. We propose that where a child leaves the care of the Health Service Executive, the executive shall, in accordance with subsection (2) assist him or her for so long as the executive is satisfied as to his or her need for assistance and subject to paragraph (b), he or she has not attained the age of 21 years. This new section is to ensure after-care. As public representatives we have all met young men and women who have been in care for a considerable time. The issue is not about foster care or institutional care at that stage in their lives, it is that they are out in the world with no one to guide or help them.
The local authority in Cork has provided the Foyer scheme, which teaches people between the ages of 18 and 22 who are in danger of becoming homeless the things most of us learn in our own homes. We are all familiar with statistics relating to suicide, or to kids coming out of care and getting into trouble. We all know the statistics. The numbers are not enormous but they represent a high percentage of those who come out of care. We need to ensure the HSE continues to support and care for children who come out of the care of the State, for example, by setting them up and guiding them along the path to make a life for themselves. Our amendment refers to the need to deal with the local authority on behalf of such people, with them and for them. They may need assistance with education, jobs, trades and suitable accommodation. All of the stuff we assume is being looked after is not being looked after. The Minister of State used the term "may". While these things "may" be provided, in most instances they are not. We are saying they "shall" be provided.
This is a most important issue. I agree with everything Deputy Lynch has said. The Bill fails to address the need to ensure children leaving care are entitled to an after-care plan and to services. Too many people leave care without adequate support. Two in five children revert to bad behaviour after their release from care, according to a recent report in The Irish Times. A study by the Children Acts advisory board, which was established to advise the Government, found deficiencies in how children are placed in secure care and discharged from secure units. In addition to the shortage of placements, there is very little after-care. Three quarters of those children who are at risk of homelessness experience homelessness after their applications for special care have been dealt with.
We have received submissions from various expert groups and advocacy groups, including Focus Ireland and the Ombudsman for Children. They have pointed out that children and adults are often homeless and fearful when they leave State care. Such people receive little help and have little hope. The lack of preparation of such people prior to their departure from care could be examined even if the matter of after-care is not addressed. Preparation for after-care is important. When people leave foster homes and care centres to go into the real world, their future is unknown. Great trauma is visited on them in many cases.
Section 45 of the Bill should deal adequately with after-care. The HSE should be bound by statute to assist in a number of ways. We have set out some of those ways in our amendment, which is broadly similar to Deputy Lynch's amendment. Those of us on the Opposition benches accept there may be specific issues with the framing of our amendments. I will certainly withdraw my amendment in favour of a similar amendment from the Minister of State, on behalf of the Government, as long as this situation is dealt with. People who leave care tend to have poor levels of educational achievement. Many of them have not completed second level education. I am sure the Minister of State has figures in that regard. If he cannot provide them now, perhaps he can do so by means of a note in the future.
I was very taken by the story of the former Manchester United and Ireland international footballer, Mr. Paul McGrath. He is a hero in Ireland. I do not wish to delay the meeting. Mr. McGrath has spoken poignantly about the challenges he faced when he left care just before his 18th birthday:
The longest walk of my life was the one that took me out of Dublin's orphanage system in the late 70s. I was petrified. [.] I was totally unprepared for a life of independence. In fact, it would take me months to come to terms with the fact that I was now, essentially, in charge of my own care. To me, the most important thing coming out of care is to know that there is somewhere you can go back to. That you're not entirely isolated. I wouldn't say that I felt a loner when I came out, but I did feel exposed. Looking back, I wasn't being pushed out, but that's pretty much how it felt to me at the time. I was being released into the real world, but I missed the comfort of familiarity. Of routine. Of having been institutionalised, I suppose.
That is one of the many recurring stories we hear. One of the saddest aspects of Mr. McGrath's story is that it happened in the late 1970s. Can the Minister of State tell us what has changed in the 30 years since then? Those who need after-care most do not qualify for it.
I ask the Minister of State to pay some heed to a document, Left Out On Their Own, which was produced by Focus Ireland in 2000. I will not quote from the study, which related to young people living in care in Ireland. Almost 70% of those who were studied during the compilation of the report experienced homelessness within two years of leaving the care of the HSE. The report's key recommendations have not been acted upon, and remain as recommendations.
I will conclude by reiterating that after-care must be recognised in statute. The State must act in loco parentis. It must ensure that people leaving care are entitled to the benefits of a transition process. The Minister of State and the members of this committee, as legislators, have received sufficient warnings in various documents and reports. We have been given enough information and advice to the effect that there are serious gaps in support of advice and advocacy. After-care is currently provided on an irregular or ad hoc basis. It is unsatisfactory and insubstantial.
A report produced by the Ombudsman for Children contained the results of the "Big Ballot" exercise that the ombudsman undertook with children. We have spoken about the voice of the child being paramount. The Big Ballot showed that children in care is a big issue. Many children who leave care experience a lack of support as they go out into the world. Their needs cannot be met unless they are recognised in statute. The acceptance by the Minister of State of my amendment and Deputy Lynch's amendment is important if the welfare and the position of the child are to be put in a true light.
I echo the comments of Deputies Kathleen Lynch and Charles Flanagan, who have proposed amendments on the issue of after-care. I do not want to repeat the points they have made. It is important that proper and adequate provision is made for children when they reach their 18th birthday. As the previous speakers said, existing legislation provides that the HSE "may" continue to provide services beyond someone's 18th birthday. I do not think that is an adequate means of dealing with the issues that have been raised by members of this committee, by various groups and by individuals who are concerned about the lack of proper provision for children beyond their 18th birthdays. It is timely that I received a letter this morning from Mr. Philip Garland, who is the HSE assistant national director with responsibility for children and family social services. The letter, which was dated 29 October last, related to a parliamentary question I tabled on 1 December 2009. I wanted to know whether any of the five children who disappeared from HSE accommodation in September 2009 had been traced. It took almost 12 months for the HSE to issue a response, informing me that three of them had been traced. If the Health Service Executive cannot meet its legal responsibility to take care of children aged under 18 years, what chance is there that it will take responsibility for such children when they reach their 18th birthday? It is crucial that proper statutory provision is made for children aged 18 years and over. We must not allow these children to be cast off - to the relief of the Health Service Executive - once they reach their 18th birthday because they are no longer the legal responsibility of the HSE. We must make proper provision by providing after care support, accommodation, training and education. Reaching their 18th birthday is a traumatic experience for the children in question.
Deputy Charles Flanagan spoke eloquently about the case of former Ireland football player, Paul McGrath, which is indicative of the problems facing children in care. I hope the Minister of State will not inform the committee that provision has been made for such children on the basis that it has been written into the legislation that after care may be continued after the 18th birthday. That is not good enough. I have spoken to the Minister of State at length about the hundreds of children who have gone missing from HSE-run accommodation. Most of the children in question have a different skin pigment from the majority of people in this country, which appears to be the reason they are not treated as a priority. I hope the position will change in that regard. If the HSE does not care about children when they are under 18 years of age, what chance is there that action will be taken when they reach their 18th birthday?
In recent days, I have received a number of telephone calls from people who are involved with children who were placed in care and are making it into local newspapers as a result of drug addiction and petty and serious crime convictions. Society will pay a high price in the long term for failing to target such children by providing the supports they need beyond their 18th birthday. It is crucial that this is done.
I hope the Minister of State will look favourably and sympathetically on the amendments. He is free to make slight changes to the text if required. It is an urgent necessity that the legislation make statutory provision for after care for children beyond their 18th birthday.
I propose to briefly discuss one issue, namely, educational achievement among those emerging from care. I do not have statistics on this matter, although such figures should be available. At the Irish Foster Care Association conference, which was held at the weekend and which I attended, the Mayo child care manager pointed out that of the 30 children who had emerged from care in the previous year - in other words, they had reached their 18th birthday during the year - 23 had completed their leaving certificate, while some of the others were still studying the leaving certificate. Moreover, a couple of them were in college and all of them had ambitions to attend third level education. It is dangerous to state that children in foster care have poor educational achievement. While they definitely experience problems, the information I received at the weekend was positive in respect of educational achievement among children in foster care.
This is fostering week when special efforts are made to recruit people to engage in foster care. As politicians, we have a duty to leave the Punch and Judy show to one side from time to time, particularly when we discuss issues of this nature.
If the Minister of State is referring to my contribution, his comment is unworthy of this debate, particularly as it comes from a Minister. He indicated he does not have figures on educational achievement among children in foster care. Why does he not have such figures? Who has them and why does the Minister of State not get them and provide them to members? The anecdotal evidence and reports available to me show that the case the Minister described is the exception rather than the norm.
I ask Deputies to allow the Minister of State to reply without interruption please.
I am not seeking to upset Deputy Flanagan but merely trying to contribute a different point of view to the discussion. Everybody gets into high dudgeon when I-----
The Minister of State argued that my comments on this matter were dangerous and compared them to a Punch and Judy show.
They were unhelpful.
I ask him to address the issues raised. I also ask the Chairman to assist in ensuring the Minister of State does so by way of reply.
It is staggering to hear this type of commentary given the number of attempts that have been made to ensure politicians do not contribute to creating a spiral of fear among those involved in foster care who are trying, as health professionals, to help children in care. The work this group does is among the most difficult work done in this country yet it is routinely derided. I am unapologetic about standing up for the hundreds of individuals who do extraordinary work on behalf of the most vulnerable children in this country. They have asked me to raise this point from time to time, not in the context of this discussion but whenever the opportunity arises, and I make no apology for doing so.
I will now address the issues raised by the amendments.
Perhaps the Minister of State will be a little more humble in his approach. He did not make an apology.
I have no intention of apologising.
Please allow the Minister of State to continue without interruption.
He should apologise for many of the transgressions of his Government and Department.
The Deputy had made his contribution.
On the question as to what has changed since the late 1970s, section 45 has been introduced. While I do not intend to be glib in this respect, the after care provisions in section 45 were given effect in the Child Care Act of 1991, which I understand was commenced in 1996. I believe members are ad idem on the importance of after care, an issue about which I have spoken at length.
The current legal position is that the HSE must form an opinion as to whether there is a need for after care in respect of every child leaving care. If it is of the opinion that after care is necessary, this creates a mandatory requirement to provide such care. I have gone through the legal advice on this matter carefully and I will spell out the position. Section 45, as currently drafted in the 1991 Act, creates a statutory power. The HSE, as recipient of this power, must put itself in a position where it can exercise the power, should the need arise. My legal advice is that this provision places a mandatory obligation to provide after care where a need has been established for such care on foot of an assessment.
This matter has been clarified in recent months, as I noted in the Seanad. I issued instructions to the HSE by letter in June 2010 that it should formulate and implement appropriate administrative policies and procedures on how after care is provided. As a number of Deputies noted, the current system of after care is ad hoc and the availability of a good after care service depends on where one lives. The HSE is in consultation with the relevant non-governmental organisations and is in the final stages of completing its work in this regard.
On budgetary measures, an additional €1 million was provided last year for rolling out improved after care services, including the appointment of a number of after care workers for the various NGOs. This sum will be spent by the end of 2010 and is, in the context of recent developments, extremely significant.
Any child who emerges from care is exempt from the lower jobseeker's allowance that would normally apply to those aged under 25 years. This announcement, which was made in last year's budget, is a further acknowledgement that this special category of individuals requires the highest level of care and attention. I am not inclined to accept the amendment.
What he have heard is again based on an opinion, in other words, the legislation provides that the HSE will form an opinion as to whether a person needs support.
The position set out in the Deputy's amendment is similar. It states that the Health Service Executive shall assist a person "for as long as the Executive is satisfied as to his or her need for assistance".
The word "shall" is used.
The HSE must still form an opinion. If it forms such an opinion, it will give rise to a mandatory requirement. The provision ticks the box in terms of what we are trying to achieve.
The HSE must first form an opinion. It has been the experience of all Deputies that the assessment is not done. I do not know the reason for this failure. Perhaps it is because there are too few social workers available.
The Minister of State spoke at length about members making generalisations. He should clarify that not one speaker referred to the role of foster parents. We all know the extraordinary job foster parents do. The issue is children who come out of care. Will the Minister of State close his eyes for a minute and ask himself whether he would put his 18 year old outside the door and tell him that he was on his own now? For good or ill society has developed in such a way that 18 year olds are not what they were. They probably remain children for much longer now than they did in the past. Would the Minister of State expect his 18 year old child to find his own accommodation, buy his own clothes and manage on approximately €200 a week without ever having shopped, paid a utility bill or cooked for himself in addition to finding his own accommodation? It is not good enough to say that some children will manage and others will not. We have a responsibility to ensure that children coming out of care are supported and maintained by the State for a certain length of time until they are able to manage on their own. To make a decision on the matter all one has to do is ask whether one would expect one's own child to do that. If social workers were to ask themselves that question we would have different outcomes. I would not leave my 18 year old outside the door and say he is on his own now. That is really where we are coming from. That is what the Minister of State needs to think about.
The after care services must be mandatory rather than optional. One point to which we have not adverted is that investment in after care results in a reduction in expenditure in, for example, the criminal justice system. The Minister of State will appreciate that. Section 45 should be strengthened to provide essential support for all children leaving care until they reach the age of 21. If, as the Minister of State has said, the legal advice is that this happens anyway then why does he not accept the amendment?
The legislative provision is not the impediment; the impediment is the implementation of it. That is being addressed. We have provided extra resources through the budgetary provision last year. The protocol is now being finalised about how after care should be provided throughout the country so that a national provision is in place for the first time. The NGOs have strong views about the draft protocol which is currently being circulated. That will give us a much clearer idea of what should be provided and will clarify the rights of children.
The Health Service Executive is providing leaving care plans in respect of children emerging from care. There is no question of putting a child out on the street. Ultimately, we will get to a situation where the Child Care Act might apply until the age of 21 and after care would continue to the age of 24. Deputy Lynch is correct; the 18 year old of today is a different person to the 18 year old of 20 years or 30 years ago. That is the provision. The developments in the past 18 months in terms of clarifying the nature of the section and the additional resources will have the desired effect expressed by committee members.
I move amendment No. 15:
In page 67, before section 22, to insert the following new section:
"22.—Section 45 (as amended by the Act of 2004) of the Principal Act is amended by substituting the following section for section 45—
"45.—(1) (a) Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2),assist him for so long as the Executive is satisfied as to his need for assistance and, subject to paragraph (b), he has not attained the age of 21 years.
b) Where the Health Service Executive is assisting a person in accordance with subsection (2)(b), and that person attains the age of 21 years, the Executive shall continue to provide such assistance until the completion of the course of education in which he is engaged.
(2) (a) The Health Service Executive shall assist a person under this section in one or more of the following ways—
(i) by causing him to be visited or assisted;
(ii) by arranging for the completion of his education and by contributing towards his maintenance while he is completing his education;
(iii) by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(iv) by providing a residential aftercare programme for him;
(v) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years;
(vi) by arranging for any existing or emerging health care needs to be addressed by appropriate qualified persons;
(b) For the purposes of this section, the Minister shall prescribe the manner in which aftercare is to be provided by regulation.
(3) Any arrangement made by a health board under section 55(4) or (5) of the Health Act, 1953, in force immediately before the commencement of this section shall continue in force as if made under this section.
(4) In providing assistance under this section, a health board shall comply with any general directions given by the Minister.
(5) For the purposes of this section, the reference in subsection (1)(a) to the care of the Health Service Executive includes special care provided under Part IVA (as amended by the Child Care (Amendment) Act 2010.”.”.
On the basis that the Minister of State has conceded that the legislative provision is not the issue I will press the amendment and ask him not to oppose it.
Section 35 proposes the abolition of the Children Acts Advisory Board. As far as I can gather all powers are to be vested in the Minister. What is the rationale behind that?
It has been decided in the context of the need to rationalise State agencies and in accordance with Government policy to subsume many of the functions of the board into my office. There will be virtually no loss of functions resulting from the disestablishment of the board as much of its work will transfer to my office. My office currently promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children. They are functions which were also carried out by the board. Two of the board's functions relating to special care for children are not being subsumed into my office. The first relates to publishing criteria for the admission and discharge from special care units and the second relates to giving views on any proposal of the Health Service Executive to apply to detained children for the purposes of providing special care.
These functions were provided in the context of applications for special care orders being heard in the District Court. However, the Bill provides for the High Court to have statutory jurisdiction to decide on such applications. This is an appropriate level for such cases given the effect of such orders. In this context it is considered that there is no need to specifically provide for the board functions which are not being subsumed into my office. In addition, the HSE has in place an admissions and discharge committee which examines all proposed applications being considered by the Health Service Executive for the detention of children for the purpose of special care. The Bill also provides for the Health Service Executive to publish guidelines in respect of the procedures for the discharge and release of children from special care. That is the reason for the dissolution.
I oppose this section. It is staggering to consider the quangos that have been set up by the Government and the amount of money involved. I do not usually make political points when it comes to such significant legislation which we must be careful about, but I question this decision in the context of the existing number of quangos, what they cost and the questionable value they offer in comparison to what it is proposed to dissolve such as, to all intents and purposes, the Equality Authority, the Combat Poverty Agency and now this board. I could give the Minister of State a list of ten quangos he should dissolve. It appears to me that it is only the boards that have the interest and protection of the citizen at heart that are being dismantled.
This is not a jibe at the Minister of State, but our record on children is appalling. I accept the point that there are thousands of children who live fulfilled lives in care. I know some of them. However, we have let the most vulnerable children slip through the net. It is undeniable that their lives have been blighted and ruined. The architecture of how we protect our children should be strengthened. I do not understand why we go through the hoops on these issues and then start to dismantle the low level of existing protection in terms of how children are dealt with by the State. This is a bad move. Perhaps the dissolution could happen in ten years time when we have all of this right; when we have implemented all the provisions of the Child Care Act, enough professionals are in place and society has been sufficiently educated to know that children are valuable and deserve to be protected. Perhaps it can be done in that case, but doing it now definitely sends out the wrong signal to children. It is not a good idea. I am opposing the section.
The board has been good. The proposal is not a reflection on the work it has done; we are simply transferring the functions to my office. There is no loss of function. We have come a long way. While the Deputy says circumstances are bad, we must eliminate some State agencies. We still have the Ombudsman for Children to advocate for children and we still have eight NGOs that represent children and which are, to a greater or lesser extent, funded by the taxpayer. There are other NGOs that are not funded by the State and they also advocate for children. There is a national children's strategy and the Office of the Minister for Children and Youth Affairs, which is represented at the Cabinet table. There have been many extremely positive developments in recent years. While we may exaggerate the improvements and others may exaggerate the failings, we need to move forward with this dissolution.
I move amendment No. 16:
In page 74, after line 46, to insert the following new section:
46.—The Adoption Act 2010 is amended—
(a) in section 3, by substituting the following definition for the definition of “bilateral agreement”:
" ‘bilateral agreement' means an agreement referred to in section 73 entered into by the Government and a non-contracting state concerning intercountry adoption;",
(b) in section 157(f), by substituting “section 13” for “section 13(1)”, and
(c) in section 158(d), by substituting “section 23V(2)(a)” for “section 23V(2)(d)”.”.
I move amendment No. 17:
In page 5, line 14, after "2001;" to insert "TO AMEND THE ADOPTION ACT 2010;".
I am considering an amendment to section 23E for Report Stage. The section places an obligation on the HSE to inform the High Court when applying for a special care order of a suspended custodial sentence or deferred children detention orders in respect of the child. I am considering, subject to legal advice, an amendment to place an obligation on the justice system to provide the information to the HSE as required.
Can that note be circulated?
I am sure that will be done.
I thank the Minister of State and his officials for attending and for the considerable work done on the Bill.
I thank the members and staff of the committee for all their assistance.
