Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I thank the Chairman and members of the joint committee for inviting me to discuss the operational review of the Oberstown facility. When I last spoke to the committee about the Oberstown facility on 24 January, I was pleased to note the positive changes which were becoming evident at the time. I am pleased to say there appears to be continuing improvement in the operation of the campus. I would go so far as to say that at the end of 2018 the campus is a different place from what it was in December 2016. This is supported by the implementation of the recommendations made in the various reviews, including those in the operational review which have been implemented in the past year or two.

Committee members will be aware that I established a review implementation group in March 2017 to oversee implementation of all of the various recommendations made in the reports, including those made in the operational review. The group produced a coherent action plan to implement all of the recommendations. The plan which was completed in May was published on my Department's website at that time.

There is real evidence of positive change in the day-to-day operations of the Oberstown campus. I have seen it myself and know it through meeting the children, staff, management and board of the Oberstown campus. It is not just me who believes it. Most recently the change is reflected in the report of the Health Information and Quality Authority, HIQA, on its inspections of the campus. HIQA is authorised by me under the Children Act 2001 to undertake inspections of the Oberstown Children Detention Campus. The chairperson of the board of management invited HIQA to read the report on the operational review for its most recent unannounced inspection which was carried out between 7 and 13 March. The subsequent HIQA report on this inspection which was published on 9 October acknowledges that, having undergone major change in the past few years, the campus is now enjoying a period of relative stability. Overall, the inspection found that where the focus of campus management and resources had been applied to address identified issues within the campus, improvements were evident. The HIQA inspection report highlights that many of the recommendations identified by the review implementation group were implemented in full and that work on the remainder was under way at the time of the inspection. My Department continues to monitor the review implementation group and the second report on the implementation of its recommendations will issue shortly.

The operational review was carried out following a particularly difficult time at the Oberstown centre. There had been serious incidents, some of which were well publicised, involving young people which threatened the safety of the centre. The campus had been experiencing extraordinary difficulties in 2016 and there were severe industrial relations issues. There were also challenges in the structural redevelopment of the campus. There was a difficult change process following the amalgamation of three well established autonomous schools. These difficulties were well documented and well known at the time. Some youths who were under 18 years of age were still detained in St Patrick’s Institution and it was agreed that they would, in time, be detained in the Oberstown centre. This was a very positive development, one that was warmly welcomed in the Oireachtas and beyond, but it, undoubtedly, created anxiety for staff and children alike as the operational environment in Oberstown faced many changes.

Unlike many other detention facilities in other jurisdictions which operate more like prisons, the campus is based on a care ethos in a secure setting. This is a relatively unique but important approach. My visit last week has reinforced my confidence in how the Oberstown centre is delivering care and support for the children being detained in it. While the detention of any child is regrettable, the current atmosphere and operational structures in the Oberstown centre are focused on providing the best environment for children we can attain. I was, as always, impressed by the dedication and commitment of the staff and the board to ensuring the operation of the campus focused on what was best for the children who spent time in the centre.

Last week I experienced a significantly more stable campus than in September 2016 when the board of management commissioned an external independent review of operations and best practice at the centre. The review was undertaken by two international experts in this field, Professor Barry Goldson and Professor Nicholas Hardwick. The terms of reference agreed to for the review stated its aims were to evaluate practice and policy in line with international standards and best practice; to identify obstacles or barriers to achieving greater implementation of international standards and best practice and to make recommendations to ensure greater and more successful implementation of these standards. The board received the outcome of the review in February 2017. Its immediate concerns about the review were that it had moved outside the terms of reference that it had developed; that it did not demonstrate any process for verifying the accuracy of its claims; and that fair procedures had not been adhered to in the case of persons referred to in it.

When I was last before the committee, I advised the members that the board of management of Oberstown had decided that it was not safe to publish the report of that review. This decision was based on a careful and lengthy process of deliberation, including the commissioning of independent legal advice. I also told the committee there were several requests for its publication. I sought legal advice on the matter and the issue was the subject of detailed consideration and discussion involving the chair of the board of Oberstown and my Department. On foot of the legal advice that I received, I asked the chair of the board of management to confirm that fair procedures had been observed in advance of any decision to publish the report. At that time, we were still awaiting the chair’s final response on this matter. I advised the committee that further legal advice may have been required to ensure that fair procedures were adhered to and that I would decide whether the report could be released based on the chair’s response and any further legal advice that would be received. I also made clear that the board had carefully reviewed each recommendation made in the report and published those recommendations, together with the board’s response in July 2017. The publication of the recommendations ensured that the supportive and developmental aims of the review were met.

I wish to emphasise that my Department’s focus and that of Oberstown children detention campus is on the implementation of the recommendations to ensure that there is a safe and stable environment in Oberstown which is responsive to the needs of the children detained there by the children’s courts and for the staff who work there. I have been advised by the board that its decision not to publish the report of the operational review was not one that it either expected or wanted to make. It resulted from a lengthy, careful and extensive process of consideration which weighed up, in light of the independent legal advice, the legal risks associated with publication. The board had always intended to publish the report and, in taking its decision not to publish it, was exceptionally mindful of the importance of ensuring transparency and accountability in operations. I have been advised by the board that its aim in commissioning the operational review was specifically to understand how to retain the care ethos within a secure setting. The review was explicitly intended to be a supportive and developmental process constructed to enable the campus to move on. Integral to this process was feedback to the board, management of the campus, and staff. I am advised by the chairperson that this feedback did not happen. In addition, the findings of the report were never put to the board, the management of the campus or its staff for their response. This is the fundamental problem and provides the context for the legal risks associated with publication. It goes without saying that we always, in the legal context, have to ensure that any legal risks presented by publication of reports of this kind are very carefully weighed in the balance. This was what happened in this case. A careful process of consideration of the risks indicated in independent legal advice received brought the board regrettably to the conclusion that the risks of publication were too great.

Having been advised by the board of its decision, I then sought the advice of the Attorney General, who advised me that publication of the report was fraught with legal risk. In light of the risks and based on the legal advice received, I gave the matter careful consideration and, in July 2018, I concluded that it is not appropriate to publish the full report. It is imperative that a report of this kind should observe due process and fair procedures so that all persons referred to are treated appropriately. Where a person is the subject of proposed criticism, he or she is entitled to fair procedures. Following careful examination, the board was not in a position to ensure to either its satisfaction or mine that fair procedures had been applied before the report was finalised and submitted. My officials recently raised the question of the publication of a redacted version of the report with the chair of the board. However, I am advised that the board considered that there were serious flaws that could not be remedied at this stage and that redaction of the report was not feasible. The board has further advised me that the reviewers have requested a copy of the board’s independent legal advice before redactions can be made. In other words, while the reviewers offered to make redactions, they have always insisted that they would only make them once they saw the legal advice. The board remains of the view that the report cannot be published.

In reaching the conclusion not to publish the report, the board and I acted with due diligence, prudence and care to all of the parties affected and with regard, as is our responsibility, to what is in the best interest of the Oberstown children detention campus as a whole, including the best interests of the children under our care there. The recommendations of the report, all of which are at the kernel of how we move forward to make Oberstown a safer place for young people and staff, are being implemented as part of a significant package of reform in Oberstown, which is now well under way. The implementation of these recommendations has been my key priority to bring about improvements in standards. My Department is supporting and, where appropriate, monitoring the changes necessary to ensure that international standards and best practice are observed and to identify and address any barriers or challenges to maintaining our ethos of care.