Mr. Pat Smyth:

I thank the Chairman and members for the opportunity to address the committee in order to provide context for and information on the role and remit of Tusla’s early years' inspectorate. I am joined by my colleagues Mr. Brian Lee, the director of quality assurance, within whose directorate the children's regulation service sits. I am also joined by Ms Fiona McDonnell, the national director of the children’s services regulation, and Mr. Cormac Quinlan, the director of transformation and policy.

As the regulator of the sector, and as the State’s dedicated agency for child protection and welfare, Tusla found the adult behaviour towards children and the serious breaches of regulations at Hyde and Seek crèches shown in the RTÉ broadcast shocking, unacceptable and worrying at the very least. Tusla’s early years inspectorate is the independent statutory regulator of early years services in Ireland and the largest children's regulator in the State. It has responsibility for the registration and inspection of pre-schools, play groups, nurseries, crèches, day care and similar services that cater for children aged up to six years. Every registered service provider in Ireland, of which there are almost 4,500, has been inspected by Tusla's early years inspectorate. The early years inspection service was introduced in 1997. In my written submission I have set out the various regulations and Acts that provide the powers to register and deregister services and enhance the enforcement powers of the inspectorate.

While Tusla works actively with service providers to highlight areas where improvements are necessary in order to improve standards in service that promote the safety and well-being of children, it is important to note that it is the responsibility of the registered providers to ensure that they are compliant with the regulations. Key statistics on the early years inspectorate include that there are approximately 4,500 registered early years services. Last year, 2,500 of these services, which is well over 50%, were inspected.

We also managed 413 unsolicited information cases regarding the early years service last year. Almost 5,000 inspection outcome reports were published on the website. Some 254 incidents were notified to the inspectorate in 2018 by service providers. Approximately 1,400 change-in-circumstances requests, which relate to the services provided by providers, were received and addressed by the inspectorate in 2018. We had one full prosecution of early years services, which commenced in 2018 and was completed this year. A total of 138 services closed in 2018, some as a result of Tusla interventions. Five services were removed from the early years register by Tusla in 2018 and to date in 2019.

Since the introduction of legislative reform and the Child Care Act 1991 (Early Years Services) Regulations 2016, it is an offence to operate a service that was not approved to operate under this regulation. As we have set out, Tusla has powers to enforce that. In summary, these powers involve: maintaining a register; placing conditions on a service where this is found to be appropriate; prosecuting a service that has not complied with a condition of registration; prosecuting a person or persons operating an unregistered service; re-examining the registration status of every service on at least a three-yearly cycle; and approving change of circumstances applications. As a regulator, it is vital that Tusla exercises its regulatory powers in a proportionate manner, first, to drive improvement and, second, to respond to continuous and serious breaches of regulations within its remit while balancing the rights of providers to fair procedures and natural justice. This is an important and difficult balance to achieve at times because deregistering a service can have a major impact on a community and parents. The quality and safety of care received by children is the end result of a wide range of decisions made by a number of different stakeholders. Such stakeholders include: providers themselves, in the context of their policies, training and guidance, local governance and internal control arrangements, and compliance with the regulations; professionals who work within those services in respect of education, training and the care of the children; parents and guardians in respect of what they access, see and understand from the services; commissioners; regulators; other bodies; and legislation. While regulation and inspection are essential components in identifying and addressing risks within the early years sector, the early years inspectorate alone cannot regulate for individual behaviours that are not in evidence during inspections or not reported to Tusla through other appropriate channels such as Children First mandatory reporting or the early years inspectorate. It is the professionalism of individuals that keeps children safe and also ensures the delivery of good care.

To give a sense of the extent of the services that have been put in place since 2014, achievements of the early years inspectorate since that year include the establishment of national governance to ensure standardisation of inspection practices across the country. An unsolicited information office was established in January 2018 to process information, concerns and complaints about early years services. An online system to submit unsolicited information to the inspectorate is also available. A stakeholder consultative forum was developed in 2015 to ensure that the inspectorate listens to the voice of the stakeholders, Government and the relevant authorities. We established the national regulatory support forum in 2017 to provide supports to providers and respond to parent queries. Following extensive consultation with the sector, the early years inspectorate published a quality and regulatory framework that is underpinned by research and best practice to make explicit what the requirements are under each regulation available for providers, students and parents. At present, there are 58 full-time staff working in the inspectorate.

Tusla’s early years inspectorate had acted appropriately as the regulator and was applying its regulatory and prosecutorial powers proportionate to the risks and issues in each of the crèches in question, based on the verifiable information available to it. Tusla had concerns regarding repeated breaches of compliance with regulations in all the Hyde and Seek services which were informed by inspection, some of which was triggered by information received through the unsolicited information office. The continued breaches of regulations resulted in a number of enforcement actions. For example, Hyde and Seek Glasnevin was successfully prosecuted by Tusla in 2019 for the operation of an unregistered service. Enforcement activity began in January 2018 when this matter was first brought to our attention. Hyde and Seek Shaw Street was inspected in September 2018 and July 2019 and is subject to ongoing enforcement action. Hyde and Seek Tolka Road has been subject to a significant level of regulatory enforcement activity and referrals have been made to Tusla’s child protection and welfare services.

It is important to state in the clearest terms possible, however, that Tusla’s early years inspectorate had no evidence of the serious child protection concerns or the high degree of serious non-compliance with standards that was shown in the RTÉ programme. Indeed, the behaviours displayed are unlikely ever to be evident during an inspection and we rely on good governance practice and appropriate mandatory reporting under Children First or through Tusla’s unsolicited information office for the notification of child protection concerns. Furthermore, if issues of non-compliance are evident during an inspection, these are brought to the attention of the service provider for immediate action.

RTÉ’s programme "Crèches - Behind Closed Doors" contained distressing footage which caused upset and anxiety for parents, guardians and the general public. Tusla first received information from RTÉ in July in respect of serious concerns regarding the quality of care in these services which provided evidence of poor practice and allowed the early years inspectorate to take additional action further to that set out earlier. Tusla contacted RTÉ to seek any further information that would assist us to take further action to protect children and footage of a chronology of events identified by them since they commenced their undercover investigation last April was provided. There is ongoing liaison with RTÉ in this regard to identify and address any child protection concerns.

Tusla has a primary responsibility to promote the safety and well-being of children and should always be informed when a person has reasonable grounds for concern that a child may have been, is being or is at risk of being abused or neglected. These concerns are screened and assessed as appropriate under Children First. Where there is an immediate and serious risk to a child, Tusla provides an immediate response. All cases of suspected child abuse are reported to An Garda Síochána. While this is a separate and distinct role in the protection of children from that of the early years inspectorate, there are clear links between the two. Every early years provider must ensure that employees are trained in their obligations under Children First and every childcare worker in an early years service has a legal mandate under Children First to immediately report child protection or welfare concerns, or any observation of harm to a child, to the relevant social work department. Every organisation and professional also has a professional and ethical responsibility to report their concern. Tusla's website has extensive information and links to provide anybody with the relevant information and training around this. Where Tusla’s early years inspectorate receives a child protection concern, it is referred to the child protection team, which follows up accordingly.

The practice and behaviours broadcast in the "Prime Time" programme are an exception in the sector, are obviously unacceptable and are a clear breach not only of the regulations but of the trust placed by parents in the owners of Hyde and Seek. I can offer assurance that having inspected all 4,435 registered service providers across 26 counties, most facilities are compliant with the majority of regulations and where non-compliances are identified, the vast majority of service providers work closely with Tusla to implement the necessary improvements.