Dr. Karen McAuley:

The Ombudsman for Children's Office, OCO, thanks the committee for the invitation to appear before it today to discuss the general scheme of the child care (amendment) Bill 2023. The Ombudsman for Children, Dr. Niall Muldoon, sends his apologies. He is unable to attend this meeting due to a pre-existing work commitment.

As members of the committee are aware, the OCO was established in 2004 under the Ombudsman for Children Act 2002. It is an independent statutory body that has two core statutory functions. These are: to promote the rights and welfare of children up to 18 years of age; and to examine and investigate complaints made by or for children about the administrative actions of public bodies, schools and voluntary hospitals that have or may have adversely affected a child.

As has been mentioned, the former Department of Children and Youth Affairs initiated a review of the Child Care Act 1991 in 2017. As we noted in our written statement, the OCO has engaged with the review process at different stages since then.

The OCO welcomes the publication of the general scheme of the Bill in last month. Having undertaken an initial review of the general scheme, we would like to offer brief observations on a number of the proposals set out in it.

First, we welcome several proposals detailed in the general scheme. While in need of further refinement, among the proposals that we regard as broadly positive are the proposal under head 4 to include a new section on guiding principles, the proposal under head 9 to place children and young people’s services committees on a statutory footing, the proposal under head 11 to establish a national Child Care Act advisory committee to examine the operation of sections of the revised 1991 Act, and the proposals under heads 28 to 39, inclusive, concerning the regulation, registration and inspection of early years and child minding services.

As committee members may have noted, the proposals under head 11 relating to a new national Child Care Act advisory committee include a provision that "the Ombudsman for Children shall review and advise on the recommendations to be prepared by the National Advisory Committee". It may be helpful to clarify that the Department and the OCO discussed the Department’s proposal to establish this new statutory duty for the Ombudsman for Children at a meeting at the end of February 2023. In this regard, the Ombudsman for Children has indicated to the Department that while he is open in principle to this proposed new statutory duty, his support for it is contingent on a number of matters being further discussed and agreed.

There are also proposals under the 2023 general scheme about which we have significant concerns and to which we would encourage the committee to give particular attention during the pre-legislative scrutiny process. These are the proposals under head 7 regarding voluntary care, the proposals under head 8 regarding children who are temporarily out of home, the proposals under head 10 concerning the duty of relevant bodies to co-operate and the proposals under head 44 as regards Tusla’s duty to receive and assess reports concerning alleged harm or risk of harm to a child, including the proposal to place the child abuse substantiation procedure, CASP, on a statutory footing.

We note that some proposals set out in the Department’s 2020 consultation paper regarding the review of the Act have not carried over into the general scheme. Of particular concern is the fact that the Department has not followed through on its proposal that the revised 1991 Act would strengthen the visibility of and provision for unaccompanied children seeking asylum and taken into care. Our understanding is that the general scheme sets out proposals for legislative changes to the 1991 Act that the Department is in a position to bring forward at this stage and that additional amendments to the 1991 Act and other related legislation may be proposed at a later stage in the context of a process to consolidate the 1991 Act. We believe that it would be helpful and important for the Department to provide timelines for when it intends to address matters that have not been included in the general scheme.

We suggest that consideration could usefully be given to mobilising the general scheme to: prohibit the placement of children in unregulated accommodation and establish a statutory duty for Tusla to ensure that there are sufficient appropriate placements within each administrative area, including for children in need of emergency accommodation; require that alternative care placements are in proximity to children’s former homes and schools facilitate the joint placement of siblings and are suitable for additional needs that children may have; to expressly require Tusla to have a system in place to identify and support teenagers at risk of being sexually or criminally exploited; and clarify Tusla’s role regarding children in informal kinship care and in private foster care arrangements.

In our written submission to the Department in February 2018, the OCO welcomed the review of the 1991 Act as a vital opportunity for the State to affirm its commitment and give appropriate legislative underpinning to its obligations to respect, protect and fulfil the rights of children affected by the 1991 Act’s provisions. In this regard, we encouraged the Department to mobilise the review of the Act to put in place a robust legislative framework that sets a high bar for the State. As noted, we broadly welcome several proposals set out in the general scheme. Overall, however, the general scheme appears to be lacking in sufficient vision and ambition.

We thank the committee for its invitation to meet it today. My colleagues, Nuala Ward and Ciara Gill, and I are happy to take questions.