Ms Marissa Ryan:

Good afternoon. We thank the Cathaoirleach, committee staff and esteemed members of the joint committee for the invitation to contribute to its pre-legislative scrutiny of the general scheme of the child care (amendment) Bill 2023.

EPIC is an independent children’s rights organisation that works with and for children in State care and young care leavers. A central part of EPIC’s work is the provision of an independent, human rights-based advocacy service to this cohort. The policy development undertaken by EPIC seeks to create positive change in the care system at a systemic level using the evidence from our advocacy service caseload. All EPIC’s work is grounded in the UN Convention on the Rights of the Child, UNCRC, especially Article 12, which provides for the child’s right to be heard and to participate in decision-making, including through a representative or appropriate body.

EPIC acknowledges the progress made by the Oireachtas to date in enhancing the rights of children and young people in care or with care experience. EPIC believes that the general scheme of the child care (amendment) Bill 2023 offers the Oireachtas a real opportunity to ensure that the lives and well-being of children in its care are prioritised and to ensure that provisions are made for these children to transition to adulthood in a manner in which they are supported to thrive and achieve the best possible outcomes. The most notable amendment being proposed by the general scheme is the guiding principles in head 4, which provide an explicit focus on the best interests of the child and centre the voice of the child in decision-making processes and service provision, thus upholding Ireland’s obligations under article 12 of the UNCRC and article 42A of Bunreacht na hÉireann. In EPIC’s experience, successful care journeys are contingent on: the child’s views being sought and considered; efforts being made to gain a clear picture of their wishes, thoughts, and feelings; and children and young people in care being viewed with agency and as rights holders. While in the care system, children and young people are too often expected to contend with a complex array of systems and processes and to engage with a range of professionals and State agencies that most adults would find difficult to navigate. As a result, their ability to ensure their wishes and feelings are heard, understood and taken seriously by agencies can be impeded. The provision of independent advocacy is intended to empower children and young people to express their views and that they are supported to do so. Since 1999, EPIC’s national advocacy service has worked with children when their care is at a critical juncture, and in cases where an advocate can bring clarity and understanding of the child’s perspective, helping to ensure the child remains the focus and contributing to child-centred practice. While not currently enshrined in Irish law, we believe children have a right to independent advocacy while in State care. This is not only recognised in the UNCRC, but has also been recommended by State inquiries, such as the report of the Commission to Inquire into Child Abuse, also known as the Ryan report. Other countries have enshrined this right in national law. For example, the United Kingdom enshrined the right to independent advocacy for children in care in 1989.

Independent advocacy services already exist in Ireland and have proven beneficial to other marginalised groups. For example, independent advocacy for adults with disabilities was established by the Citizens Information Act 2007 and is carried out by the National Advocacy Service for People with Disabilities. Given that the general scheme of the child care (amendment) Bill 2023 proposes to vindicate the rights of a child to be heard in matters affecting them, EPIC believes that access to independent advocacy can tangibly uphold this right and should be enshrined in law.

In support of strengthening a rights-based, child-centred protection and welfare system that recognises the separate and complementary roles and safeguards provided by social workers, guardians ad litemand advocates, the nature of individual care orders should not impact on a child’s rights while in care. This is why we welcome elements of the proposals by the Department to address critical issues in sections relating to voluntary care, supports for children temporarily out of home and the efforts to address critical gaps in the co-operation of State bodies in meeting their duty of care. However, there is still significant room to strengthen these provisions. Regarding voluntary care, dealt with in head 7, we welcome moves to assess the continuance of a voluntary arrangement and the underlining of voluntary care as a temporary arrangement. However, we recommend that a maximum period be inserted after which a judicial review of the arrangement would automatically be triggered to consider the options outlined in the proposed new subsection (3).

Regarding supports for children temporarily out of home, dealt with in head 8, while these proposals reflect a departure from the current model, EPIC has observed instances where the current section 5 has been used when children required welfare and care protections beyond their immediate need for accommodation. This has resulted in their needs often not being met. Section 5 appears to operate in isolation from the rest of the Act to a point where children under this section are not deemed to be in care and do not have the welfare and protection they require. The section must be strengthened further to resolve this.

Regarding the duty to cooperate provisions in head 10, we have long held that when the State is acting in loco parentis, there is a duty of care across relevant Departments and State agencies. However, we observe that the Department of Children, Equality, Disability, Integration and Youth and the Child and Family Agency, Tusla, are too often left with responsibility for all matters relating to children in care and young care leavers, including matters that should be addressed by bodies that have the statutory obligation and capacity to do so. The impact of this can result in children in care and young people leaving care sometimes being left without entitlements critical to their development, welfare and protection. This is sadly all too common in areas such as health, including access to child and adolescent mental health services, CAMHS, disability and housing and homelessness.

The negative outcomes for children and young people which transpire from breakdowns in interagency collaboration are well documented. The new legislation must seek to resolve this or children will continue to be failed by a lack of guidance and the clear, unambiguous delegation of duty that is required to meet their needs. We are disappointed to see that certain critical provisions for young people have not been brought into the general scheme, including the aftercare eligibility criteria under section 45, a dedicated section to support unaccompanied minors and a much-needed update to the in camerarule. During the pre-legislative session last week, the Department indicated a willingness to address key issues relating to aftercare eligibility and unaccompanied minors in its contribution. We believe that a commitment to report on such matters can be legislated for to acknowledge these much-needed reforms and to ensure they are conducted in a timely fashion.

In conclusion, we look forward to discussing these proposals and how they may be improved further. We have also circulated a submission on same to committee members to aid their ongoing deliberations. We thank members for the opportunity to contribute and look forward to answering their questions.