Oireachtas Joint and Select Committees
Tuesday, 22 October 2013
Committee on Health and Children: Select Sub-Committee on Children and Youth Affairs
Child and Family Agency Bill 2013: Committee Stage
Is it agreed to adjourn at 8 p.m., if we have not finished by then? Agreed. The only item on our agenda is Committee Stage of the Child and Family Agency Bill 2013. I welcome the Minister and all of her officials. I thank them for the considerable work they have put into the organisation and preparation of the Bill which is appreciated. I invite the Minister to make some brief opening remarks.
I am very pleased to bring the Bill before the sub-committee. I pay tribute to the staff in my Department and the officials who have worked so hard on this legislation. I pay tribute also to the Deputies with responsibility in this area, including Deputies Caoimhghín Ó Caoláin and Robert Troy, in particular, and the NGOs, the ISPCC, Barnardos, the CRA and many other bodies that have taken an interest in and which are very committed to what we are trying to do in the Bill, that is, establish the new Child and Family Agency.
My officials have approached the Bill in a collaborative fashion. Many of the amendments I will introduce will provide clarification that was sought on matters highlighted by a variety of people. They will bring the clarity people were looking for in a number of areas. I look forward to the discussion.
Let me summarise a number of points that we have discussed before. As members know, the Government is undertaking wide-ranging reform of children's services and the Bill forms a very significant part of that reform. The reform will continue long after the establishment of the Child and Family Agency. The Bill seeks to provide the organisational context, leadership focus and accountability mechanism within which improvements can be achieved. The reforms we are undertaking are systematic. The creation of an agency with dedicated responsibility for the services will ensure the changes introduced are championed, sustained and capable of being built upon. I do not need to repeat why there was an impetus for reform of children's services because there is a long history in this regard. We believe in bringing a dedicated management system into play from the front line to the national management team, led by Mr. Gordon Jeyes. The responsibilities of all personnel are exclusively focused on children and family services for the first time. That is very important. These services or arrangements are supported by a dedicated budget, segregated for the first time from the HSE Estimate. Common processes and information recording are being implemented around the country to ensure consistency and service provision. With Dr. Helen Buckley in place, we have an independent review system for serious incidents, leading to the publication of reports and management responses. There is also the work of HIQA. Every month or so, we receive a range of reports from HIQA. For the first time, it is examining child welfare and protection services, which is very positive. HIQA has highlighted some pre-existing weaknesses in this system. I am committed to addressing these weaknesses and taking on board the points HIQA makes.
The Bill seeks to facilitate each of the distinct elements that make up the programme of Government commitment through the creation of an agency that is dedicated solely and exclusively to children and families, that has an improved range of services to meet the needs of children and families and is subject to best practice in the discharge of its accountability to the Government and the Oireachtas. The need for a dedicated agency recognises that the complex operational management and reform of child welfare and protection services have jostled with many other competing objectives within the large and very demanding health and personal social service arena.
The Bill provides the mandate for a dedicated agency to lead the improvement of children's services. I will not repeat the services that will be provided from the establishment date because we had an opportunity to discuss them already. Suffice it to say they range from the child welfare and protection services, preschool inspection services, domestic, sexual and gender-based violence services, services related to the psychological welfare of children, existing family support agency responsibilities and National Educational Welfare Board services. The incorporation of preschool inspection services will further promote a nationally consistent approach to the regulation of preschool services. My amendments develop the preschool quality agenda about which I have been speaking in recent months. There is to be a stronger regime of inspection and registration in this area and a range of other initiatives to ensure the standards we want to see in our early years services.
Considerable attention has been paid in the drafting of the Bill to the recommendations of the task force on the Child and family Agency and, in particular, to enhancing accountability. I hope we will have a fruitful discussion in the course of our deliberations.
I join the Chairman in welcoming the Minister and her departmental colleagues.
I reconfirm my support for the passage of the Child and Family Agency Bill 2013. I welcome its publication and the opportunity to bring it through Committee, Report and Final Stages. I acknowledge that this is an important step forward, one that I absolutely support.
Let me use my opening words to reflect a concern I have. It was not a concern I had in approaching the Bill on Second Stage but is one that has arisen in the intervening period. I am interested in hearing the Minister elaborate on matters pertaining to Ráth na nÓg, the open high support unit that has been in situ in Castleblayney in my constituency for some years. I am concerned on a number of levels because it is very important that the new Child and Family Agency is launched on the best basis possible. We need to ensure the high standards we, as elected spokespersons, expect are adhered to across the board and that the new agency will guarantee a significant advance in the provision of supports and care for children as problems arise.
I am deeply concerned about the remarks attributed to the HSE's national director of children's services. I must record this because if I did not so, I would be remiss in my duty as national spokesperson on health and children's issues. I refer to the advent of the directive to close Ráth na nÓg following presentation of HIQA's report. The Minister mentioned the role of HIQA in the ongoing assessment of the suitability, or otherwise, of various facilities.
This all hinges on the issue of locking down the facility from 9 p.m. until 7.30 a.m. While there are other issues relating to the individual residents, this lock-down is unacceptable, irrespective of any difficulty arising from the inappropriateness of placing some of the children there. This is an open facility, yet, without any court or criminal justice system directive, the liberty of the children involved was taken from them. The direction came from the national office and Mr. Gordon Jeyes has indicated in an interview that he supports the measure, although he denies having issued the directive. He goes on to say any reasonable parent in the country would do the same. I do not believe reasonable parents across the country are locking up their children, irrespective of the difficulties or issues that present.
This is absolutely about the Bill; make no mistake about it because this is the head-designate of the Child and Family Agency. I am very anxious about the intent behind the establishment of the agency. At the end of the day, the structures will only be as good as the standards we expect and insist upon. The directive relating to the high support units promotes the use a model of care based on relationships, emotional containment and positive reinforcement which promotes consistency, predictability, dignity and meaningful controls. The aim is to help young people to develop internal controls of behaviour, enhance their self-esteem, facilitate the development of personal abilities and strengths and support their capacity for constructive choice, resilience and responsibility.
We did not, unfortuntely, have this discussion during the Second Stage debate because the issue had not been exposed. I will conclude. I intend to address the Bill in a very serious way, as it deserves. However, the remarks of Mr. Jeyes are not reasonable. If the issue concerned the inappropriateness of the placements, it should have been dealt with in a very different manner. Nobody-----
The Chair is fair and balanced, as the Deputy knows. I want to protect people who are not here, as well as those who are present. We are here to discuss the Bill, not the issue the Deputy has raised.
I want to ensure the best standards and practices apply in the protection of children. That is the only concern I have had from day one in terms of my role in this portfolio. I am saying without fear of challenge that a decision to lock the doors of this unit was made by individuals who had no authority, legal or otherwise, to so direct. It is a very serious matter and one that cannot be set aside or swept under the carpet. The remarks of the director-designate of the new body which we are considering run contrary to my view on what is appropriate.
No, I am not, with respect. We will go astray if we are not prepared to face these difficult issues. Facing them is the only way we can solve the problems and ensure they will not continue into the future.
Thank you, Deputy. Before calling Deputy Robert Troy, I remind all members that we are dealing with Committee Stage of the Child and Family Agency Bill. We will deal with the Bill amendment by amendment and not with generalities. We are here to deal with specific amendments to the Bill and I hope we can stick to them. I call on Deputy Robert Troy to make his opening remarks, as all members are entitled to do.
I appreciate that, but I am due to speak during Private Members' time later.
It is very positive that we are here today. The expert group published a report in July 2012 and we have been waiting a long time for this day to come. We had a good discussion on the Bill on Second Stage prior to the summer recess. Many of the amendments I have submitted were drawn up in consultation with several children's organisations in an effort to improve the legislation. I certainly hope what we are going through today is not just for show. I hope the Minister is here with an open mind and willing to take on board suggestions from members of the Opposition, as well as from members of the Government parties. I hope all committee members will support those amendments which would improve the legislation.
A number of amendments have been ruled out of order because they involve a potential charge on the Exchequer. I am disappointed by this because the amendments speak to several areas identified by the expert group, namely, child and adolescent mental health services, public health nurse services and childminding services. It is disappointing that we cannot have a full and frank debate on these issues. While I must accept that the amendments have been ruled out of order, I am disappointed nonetheless.
For my part, I am here to be constructive. I have tabled amendments following consultations with various community groups and representative bodies in the child care sector. I hope we are not here for show and that our suggestions will be taken on board by the Minister.
I move amendment No. 1:
The aim of this amendment to section 2 is to ensure clarity about the definition of a child. The proposed amendment is in accordance with the legal advice received. The first print of the Bill intended to rely on the usual definition of a child. However, various definitions are provided across various Acts such as the Age of Majority Act 1985, the Child Care Act 1991, the Education Welfare Act 2000, the Children Act 2001, the Mental Health Act 2001, the Education for Persons with Special Needs Act 2004 and the Adoption Act 2010. The differences in what might be described as the usual definition of a child in the statutes referred to may give rise to a lack of clarity regarding the agency's remit in the absence of an explicit definition in the Bill. The need for a clear understanding of exactly what is intended by "a child" is at the centre of the Bill.
In page 10, between lines 1 and 2, to insert the following:“ “child” means a person under the age of 18 years other than a person who is or has been married;”.
It is the intention that services identified in the Bill such as psychology services should be provided for children aged under 18 years and it is necessary to ensure with absolute clarity that the provisions of the Bill allow for the agency to provide such services. The definition proposed will align the definition of a child in the Bill with that in the Child Care Act 1991. "A child"will mean "a person under the age of 18 years other than a person who is or has been married". This amendment will not change in any way the definition of a child in other statutes, including the Education Welfare Act 2000. Where the Child and Family Agency is carrying out functions pursuant to that Act, the definition of a child will be as provided under section 2 of that Act which states "child"' means:
a person resident in the State who has reached the age of six years and who (a) has not reached the age of 16 years, orThe effect of the amendment proposed will be to provide an explicit definition of a child to bring clarity to the issue of the remit of the agency and the services it will provide under the Child and Family Agency Bill.
(b) has not completed three years of post-primary education,whichever occurs later, but shall not include a person who has reached the age of 18 years.
Deputy Robert Troy was not here when I made the point that I had approached the amendments I had tabled in a collaborative fashion, having listened to many of the points made by a variety of people, including the Deputy himself and Deputy Caoimhghín Ó Caoláin, as well as numerous NGOs. A number of the amendments I am bringing forward reflect the discussions with officials of my Department.
I support the amendment. While I note the Minister has addressed some of the issues we have raised, I hope she will not copy the disposition of the Minister for Health who blanket-refuses any of the amendments presented by the Opposition which have been thought through carefully. I appeal to the Minister to consider favourably several Opposition amendments that are meritorious. I hope we will not go through the Bill’s passage simply for the sake of treading water, as Deputy Troy has already said. We want to see we have also made a difference to this process.
I move amendment No.2:
Section 8(10)(b) states the functions of the agency shall be to support and promote the development, welfare and protection of children. This amendment proposes to include educational welfare as a function too. The Minister may argue the use of the term “welfare” already covers this. However, I believe there is a need to be more specific. The right to education is already enshrined in the Constitution. This legalisation, accordingly, should reflect the importance of education and welfare. This is the area where there is the greatest potential to note child welfare issues which could be addressed quickly. The education system plays an important role in the protection and welfare of a child. It merits particular attention in section 8. I commend the amendment in both my own name and that of Deputy Troy to the Minister.
In page 12, subsection (1)(b), line 9, after “the” to insert “educational welfare,”.
The Bill would benefit from a more explicit acknowledgment of the importance of educational welfare. The link between school non-attendance and child welfare concerns are well known. It is important to recognise that educational welfare services are a route for identifying other underlying child protection issues. Greater visibility of the issue of educational welfare would help for greater buy-in from the staff of the National Education Welfare Board, NEWB. I hope the Minister will take our concerns on board.
The welfare of a child encompasses many aspects. I am satisfied the terms "development and welfare" encompass, in this regard, any functions transferring from the NEWB.
Educational welfare in its broadest sense is a function of teachers, schools, the National Educational Psychological Service, NEPS, and the National Council for Special Education, NCSE. If I accepted this amendment there is a risk it would explicitly suggest that educational welfare is solely the remit of the agency. This is not the case. The legislation and functions as set out in this Bill will not diminish the role previously carried out by the NEWB under the Education and Welfare Act 2000 in conjunction with schools. To be clear, the functions under that Act will transfer to the Child and Family Agency CFA. Section 8(1)(b) already satisfactorily captures the concept of educational attainment by children through the inclusion of the terms "development" and "welfare".
I do not propose to accept this amendment.
The Minister’s response is pretty well as I anticipated, unfortunately. I believe even with the NEWB being an integral part of the agency that there is a need for the affirmation of the importance of educational welfare. It is one of the most important cornerstones in the preparation of any young person. Accordingly, it should be enshrined in the legislation as a critical element of the supports that need to be promoted and sustained through a child’s life. The Minister’s expected reply does not dissuade me from the merit of including the term “educational welfare” in this section. It is a requirement of the Constitution and this legislation should reflect this. I commend the amendment to the Minister and I rest my case at that. I hope she will reconsider her initial response.
It is as I suspected. We will make our points but there will be a counterargument for every amendment.
It is important to explicitly acknowledge educational welfare in this section as a core attribute. The right to education is outlined in our Constitution and, accordingly, it should be acknowledged in this legislation. Would it make a material difference if this amendment were accepted?
There is a risk that it would explicitly suggest that educational welfare is solely the remit of the agency. We cannot have that in legislation. The legislation and functions as set out in this Bill will not diminish the role previously carried out by the NEWB under the Education and Welfare Act 2000 in conjunction with schools. To be clear, the functions under that Act will transfer to the CFA.
I have been examining submissions from the NGOs, as has Deputy Robert Troy, and have taken on board quite a number of points on the clarifications sought.
Nowhere else in the section on the functions of the agency is there a reference to educational welfare. The only other point with regard to subsection (4)(d) concerns the education of persons with special educational needs. Including a reference to educational welfare vis-à-vis the functions of the agency would in no way suggest it was its sole responsibility. Nobody for one moment would believe this would be the case; we have a Department of Education and Skills which has primary responsibility for it. In this instance, the Bill states the agency shall support and promote. This most certainly should be part of its functions. If it is not to be accepted now, in the fullness of time it will be viewed by the new board as something which should certainly have been reflected on at this point. It would be better to do it now rather than perhaps being compelled to do it later.
I support the Minister in her explanation for not accepting the amendment. For a long time we have operated in silos. Responsibility for child protection lies with social workers, while responsibility for newborns rests with public health nurses, when really we all have a responsibility when it comes to children's development. Being overly prescriptive is to leave things out. Section 72 explicitly states, as does section 1, the Family Support Agency and the National Educational Welfare Board will be dissolved and their administration, business, connections and functions will transfer to the new agency. This is explicitly stated in sections 71 and 72 and referenced in section 8(1)(a). There is no need to say something twice and we should bear this in mind. I do not disagree that education is an integral part of development, but when we speak about child development, we are speaking about education in the home, the community and schools. It is the function of everybody, not just a particular agency, to ensure developmental milestones are met.
I move amendment No. 4:
What is sought is a change to section 8(1)(c) which reads that a function of the agency will be to "support and encourage the effective functioning of families". We seek to replace the reference to the word "families" such that the section would read "all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above". Paragraph (b) has not been amended as we would have wished, but we are no less enthusiastic in our effort to see this change effected.
In page 12, subsection (1)(c), line 12, to delete "families" and substitute the following:"all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above".
The reference to all families is to give recognition to the reality of all family units which constitute society today. The traditional notion of family is as might be suggested by the current wording. It is important to refer to "all families" because quite clearly there are a number of possible family arrangements which do and will apply and it is very important that they are acknowledged and that there is a sense of inclusivity and recognition. The reference to the role of parents or guardians in the family "as integral to the achievement of paragraph (b) above" is a reference to supporting and promoting, as is now the case, the continued development, welfare and protection of children. This reaffirms what is stated in paragraph (b) and clearly adds that the parents and guardians of the children concerned are part of addressing these critical areas of need in a child's developmental years, that is, development, welfare and protection. I commend the amendment and look forward to hearing what the Minister has to say.
Deputy Caoimhghín Ó Caoláin has outlined much of what lies behind the amendment. Including the word "all" in front of "families" is a reflection of the diversification of the family network in Ireland. It is no longer the conventional family of a mother, father and a number of children. The family home is made up of a different mixture, which is to be welcomed and acknowledged. It is only right that we acknowledge it in drafting the legislation. I echo what Deputy Caoimhghín Ó Caoláin stated on the issue of support and ensuring the appropriate proportional supports are acknowledged. The family is the best place for a child to be brought up and we should at all times look to support families in every way we can.
There has been much talk about going through the motions in approaching this legislation in the spirit in which it is intended. I was thrilled to see a very broad definition of family on page 10 of the Bill. It states "family" means spouse, parent, grandparent, step-parent, child, including a stepchild, grandchild, brother, sister, half-brother, half-sister and any other person who, in the opinion of the agency, has a bona fide interest in the child. I do not think this could be any more explicit or reflect the modern family structures one will find. I am very proud of the fact that this is the definition of family the Government has chosen to include. For a very long time families have been excluded. This is good legislation which includes a very broad definition of family, which is to be commended.
I thank the Deputies. As Deputy Ciara Conway has done, I refer committee members to page 10 of the Bill and the definition of family. Section 8(1)(c) is sufficiently broad to capture the intent of the amendment proposed. It is important to note that the definition of a family is broader than just parents and guardians. We must take account of the full scope covered by the definition on page 10. The insertion of the role of parent or guardian as integral to the achievement of paragraph (b) does not add anything to create or recognise a specific role for parents or guardians in supporting and promoting the development, welfare and protection of children. This matter is already provided for under the Constitution. The legislative framework and other legislation relating to the functions of the agency are all framed and bound by the constitutional commitment to the family. This provision is not required to underpin the role of parents. As in the case of any other statute provision, it is to be interpreted within the constitutional framework, but primarily I point to the definition of family in the Bill, which is very inclusive. It is broader than that suggested in the amendment which I will not accept for these reasons.
We have gone through the Bill thoroughly and put much work into it. We do not have to be referred to any other section to give voice or support to any position the Minister wants to take. This specifically concerns the functions of the agency. As appropriate, we should make reaffirmations if this is what we believe is required. In this instance, I believe a reference to all families is appropriate and it would in no way be undermined by the case presented. I do not see it in any way as a contraction in terms of the wide definition referred to when we speak about parents and guardians. Guardians can cover a range of situations and people may not be the natural parents with regard to arrangements which can be in place.
We are equally encompassing of all of the potential situations that can and do arise that make up the reality of Irish familial life today.
We are here today to try to improve and put the case we believe is appropriate having engaged with others who are at the coalface of child care and protection work. We share with those who have made the case to enhance the functions of the agency and so I hold to the position that I have already articulated.
Can I ask a question? I know that the Chairman is not the author of the decision but his is the unfortunate name appended to the letter of advice which states:
Let me examine my amendment. I sought to insert the following new subsection "(h) ensure the prevention of harm to a child from all forms of neglect and abuse." Surely the provision can hardly be a charge on the Exchequer. Surely this is a component part of the responsibilities of those we are now entrusting the new agency to, going forward. Surely that is what all of us are about, protecting children from harm, neglect and abuse?
Dear Deputy Ó Caoláin,
I regret to inform you that Amendments 6, 71 and 72, tabled by you for Committee Stage of the above Bill, must be ruled out of order as they involve a potential charge on the Exchequer.
We shall reach the later amendments in good time. However, I was taken aback that my amendment No. 6 was ruled out of order. It is beyond my understanding. It is what I can only describe as a device that has been used, time and time again, to set aside challenging, awkward or difficult amendments from Opposition voices. Amendment No. 6 is within the spirit of what the legislation is all about. I do not know whether the Minister wishes to comment. Does she share the same view?
No, she cannot respond. She will not be able to comment and one cannot move the amendments out of order. All I can tell the Deputy is that the information, that he alluded to in his remarks, imposes an allocation of resources for the purpose of involving a potential charge on the Exchequer and, therefore, the amendment has been ruled out of order. We will not have any discussion on the matter.
I have raised the matter so it opens the door. I appeal on the Minister to reflect on the words presented or words akin to what I have placed in amendment No. 6. If I, as an Opposition voice, cannot bring forward an amendment that mirrors the same position, perhaps the Minister might do so at Report Stage.
I know the amendment has been ruled out of order but I wish to respond briefly and say one sentence on the matter if I may. I am of the view that provision is already provided for in the Child Care Act. The agency will have a positive duty under section 3 of the Child Care Act 1991 to promote the welfare of children in its area who are not receiving adequate care and protection.
I move amendment No. 7:
Amendment No. 7 substitutes a new subsection (3) and will at paragraph (a), give acknowledgement to family support as a preventative strategy in the context of child welfare and protection. Amendment No. 8 is a consequential amendment to give effect to a realignment of subsections (3) and (4) of section 8. Paragraph (b) of the new subsection (3) was included in section 8(3) of the Bill, as published, and it is restated in the revised subsection (3). Paragraph (c) was included in subsection (4) but has now been moved into the new subsection (3) in a restatement of the services the agency will provide in supporting and encouraging the effective functioning of families.
In page 12, lines 30 to 33, to delete subsection (3) and substitute the following:“(3) Without prejudice to the generality of subsection (1), in supporting and encouraging the effective functioning of families pursuant to subsection (1)(c), the Agency shall provide--(a) preventative family support services aimed at promoting the welfare of children,
(b) care and protection for victims of domestic, sexual or gender-based violence, whether in the context of the family or otherwise, and
(c) services relating to the psychological welfare of children and their families.”.
The intention and effect in Section 8(l)(c) which provides for the effective functioning of families is for a broad enabling provision to encompass all existing HSE and FSA functions which are transferring into the agency, in addition to child welfare and protection. The policy intent in the framing of the new agency has been to broaden the scope of the agency beyond the traditional concept of child welfare and protection to emphasise family support as an essential area of activity. The amendment is clear regarding the obligation and clarifies that there are:
(a) preventative family support services aimed at promoting the welfare of children,As Deputies will know, some concern has been expressed as to whether family support would be an explicit function of the Child and Family Agency. The amendment makes it absolutely clear that family support can be seen as equally important in promoting children's welfare and protection by allowing for a range of family support programmes and earlier interventions which might obviate the need for more complex and intrusive interventions at a later stage.
(b) care and protection for victims of domestic, sexual or gender-based violence, whether in the context of the family or otherwise, and
(c) services relating to the psychological welfare of children and their families.
While these functions are encompassed in the enabling provision contained in section 8(l)(c), I acknowledge that a more explicit reference, as I have done, to family support is important in terms of people understanding the functions of the agency, the approach to the work and the range of services that can be development. For that reason I shall introduce that amendment to section 8, to substitute a new subsection (3)(a) which incorporates that specific reference to family support services aimed at promoting the welfare of children. The amendment will provide for a more explicit expression of family support services, the blended Family Support Agency Act and Child Care Act functions, and give acknowledgement to family support as a preventative strategy in the context, as I have said, of child welfare and protection.
The particular services referred to in the new subsection (3) are without prejudice to the general application of subsection (l)(c) and the services that may be provided more generally under that subsection to support and encourage the effective functioning of families.
I wish to record my welcome for the Minister's amendment. I have examined it to try and sense if there was any diminution or dilution of the existing provision but did not find any. Therefore, I accept her amendment in good faith and it ensures greater clarity. That is the best answer that I can give. I support the amendment.
I move amendment No. 8:
In page 12, subsection (4), to delete lines 34 to 36 and substitute the following:“(4) The services referred to in subsection (3)(c) do not include--”.
I move amendment No. 10:
It currently reads:
In page 13, subsection (5), lines 5 and 6, to delete “and accountability” and substitute “, accountability and consistency”.
(5) The Agency shall, in the performance of its functions, demonstrate high standards of performance, transparency and accountability.We week to delete to words "and accountability" and add "accountability and consistency". The amended subsection would read:
(5) The Agency shall, in the performance of its functions demonstrate high standards of performance, transparency, accountability and consistency.We think that the addition of the word "consistency" is very important. There has been no end of situations, that one can refer to, that demonstrate, in the past, where inconsistency has been more the norm. I raised the issue at the outset which may not have pleased the Chairman or many others for that matter.
The fact of the matter is there are inconsistencies in the matter of the conduct regarding so-called open high-support units. That is just one instance, I could cite many more. Consistency is not an idle word that has been dreamed up to create an amendment for its own sake. I could cite any number of situations where the absence of consistency has been a matter of very clear concern to members of the committee not only in recent years but going back for some considerable time. I believe it is of such importance that we have now a new Child and Family Agency in the offing and the critical need for performance, transparency and accountability, are hugely important, but also consistency. I strongly recommend it to the Minister. I believe that in her own experience, the Minister knows well that the absence of consistency has been a major problem. in the past. Let us put it to bed now and make it abundantly clear that consistency is a critical part of what we expect in terms of the performance of the new agency.
I want to add my voice to what has been said. Deputy Caoimhghín Ó Caoláin has outlined the issue quite well. Unfortunately, there have been many inconsistencies in recent years and decades. It is clear from the harrowing reports compiled in that time that inconsistency and a lack of inter-agency co-operation are themes that recur. The Minister has alluded to that on many occasions in Dáil debates. What we are seeking is to demonstrate high standards of performance, transparency and accountability, three very appropriate adjectives, on a consistent basis. I fail to see what argument one could make for not doing so on a consistent basis and for not inserting it in the legislation. The high standards of performance, transparency and accountability must be adhered to on a consistent basis.
I agree that consistency is a key element of performance, transparency and accountability. There is no question about that. What I would debate is whether it needs a separate expression in the legislation and what precisely the meaning of that expression could give rise to in the legislation. In later sections the legislation places a responsibility on the agency to demonstrate to the Minister's satisfaction high standards of performance, transparency and accountability in terms of service provision. A very strong performance framework is set out in the legislation which provides a strong basis for monitoring and evaluating all of the work, whether it is service delivery, issues relating to consistency of service provision which is necessary at a national and regional level. We also have the development of a very comprehensive set of performance indicators to be reported on in a consistent manner from the agency. Mr. Gordon Jeyes has already started that process.
In regard to the points made earlier by Deputy Caoimhghín Ó Caoláin about Rath na nÓg the key factor there was that decisions had be made in terms of weighing up the risk to the particular children. At all times the best interests of those children were considered by the staff in determining the care and the decisions that had to be taken at any given time. I would have confidence in the role the CEO of the Child and Family Agency played in those decisions. Certainly it was a question of weighing up various risks in a unit that was originally built as a secure unit.
On the point about consistency, clearly if this were put into legislation, consistency in terms of the volume of location of services at any one time may run counter to important local variations in need. We would not want to get into a situation where that local variation, which is so important, becomes a problem. When making a decision about a particular circumstance, or particular child or a family, obviously varying approaches will be necessary and appropriate. Consistency in outcomes is obviously to be striven for but inevitably success may look different for different children in families. I will not accept the amendment. The issue will be dealt with in terms of the ongoing governance and performance indicators which the agency is under an obligation to report on a consistent basis.
At the outset and I will not go back there again, I would not like anyone to take up from the Minister's reply that it was the staff at Rath na nÓg who made the decision to lock up from 9 p.m. to 7.30 a.m. They were acting under instruction from the national office. I do not believe that the professionals would have viewed it as in any way enhancing the critical approach they would have to their job which is about building relationships. One does not build relationships with people one locks up at night. I believe the word "consistency" is very important. There are ample examples of where inconsistency has caused serious concerns. I have no doubt in my mind that if the Minister, for whom I have the highest regard, was sitting where Deputy Troy and I are sitting today and dealing with this Bill presented by another face that she would argue for the inclusion of the word "consistency" for all the right reasons. This is in the section dealing with the functions of the agency. We have not moved on yet to the best interests of the child. Consistency in relation to the functions of the agency needs to be explicitly reflected and it is not. It is not good enough, and I do not think it wears to suggest it is understood or is implicit in this or whatever is the case. I think we should be explicit and definite. Consistency and the highest standards are what we expect and will insist upon in respect of the functions of the agency once established. I believe this is a very important amendment. Placing the word "consistency" here is giving out the right message. I expect Deputy Troy would be of the same view that this is an amendment we would consider pressing. It is of that importance. I have no doubt that if the tables were reversed that the Minister would take exactly that position and I would commend her on it.
I agree that it is an important element of performance management and members have heard me say that often enough. The problem in relation to the statutory mandate in putting it into legislation. I believe it may give rise to difficulties of interpretation which could be genuinely problematic. It would obviously make it justiciable. I could suggest that in the section which gives the Minister power to give guidance to the agency that the principle on consistency is dealt with in a way that captures what the Deputy is seeking in this amendment. That would tie it more to the performance element and the reporting back from the agency to the Minister. That would be one place where we could elaborate on it.
In section 48, which provides that notwithstanding the guidance provided by the performance framework, the Minister may at any time issue additional guidelines in writing to the agency. I suggest that those guidelines would take into account the points being made by the Deputy. I think they would do that anyway, but I suggest I can make explicit here the point being raised in the Deputy's amendment.
This refers to additional guidelines, but I would like best practice to be established from the outset, which is the reason the amendment is raised where it is - in the section dealing with the functions of the agency. While I accept the Minister has endeavoured in some way to meet our concerns with her proposal, I do not accept that my concern is covered by the suggestion that this is something the Minister may or may not do. The section refers to the power of the Minister to issue guidelines to the agency, notwithstanding the guidance provided by the performance framework, and states that such guidance may relate to additional policy guidance or changes in policy in the prioritisation of business plan commitments.
I would have thought consistency would be a cornerstone of the agency's whole approach to its work, and not something the Minister or whoever may replace her in the future may or may not suggest - that it would be optional. I believe consistency is not an option or something that is at the Minister's behest, as it pleases the Minister of the day. I believe it is an absolute requirement of the new child and family agency. While Deputy Troy will explain his position, my view is that this is something we should expect as one of the first principles of performance by the new agency and board in overseeing the functions of the agency.
I believe that where we propose to present this in the Bill is the most appropriate place. We are talking about the performance of the agency’s functions and the need for it to demonstrate the highest standards of performance, transparency, accountability and consistency. What we want is the highest standards in all of these areas, in the interest of the children who will come under the agency’s interest and concern over time. I hope the Minister will do better than what she has just come back with.
I seek clarification from the Minister. In her contribution, she mentioned that the proposal made in the amendment might somehow tie the hands of the professionals when dealing with a particular child welfare case or issue. Obviously, there must be some latitude with regard to what interventions and supports are needed, because no two cases or remedies are the same. However, I understand this section of the legislation to be concerned with the overall performance of the agency rather than the nitty-gritty of what the professionals are doing on a day-to-day basis. My concern is that the agency will perform to a high standard and be transparent and accountable, and that the general principles will be consistent, more in the macro sense than in the micro sense the Minister seems to describe. Perhaps my understanding is wrong, but I believe we are talking about consistency on the macro level with regard to the performance of the agency. Therefore, I would be happy to see the word "consistency" inserted here and do not feel it would tie the hands of the professionals working with vulnerable families and children at the micro level. Will the Minister clarify this for me?
I see the intention behind the suggestion put forward by both Deputies, but that is not necessarily how the provision would be interpreted legally if included in the legislation. The Deputy used the word "performance". I believe the performance framework is where that issue should be addressed, because in that performance framework we will be talking about the need for consistency in regard to the work the agency is doing and the processes it uses. For example, we will want to see consistency in planning for children in care, the allocation of social workers and the appointment of social workers to children in care and those in foster care. The performance framework, which is dealt with in section 41, is where that issue will be dealt with, rather than including it in this section of the legislation.
My concern is that the wording in section 48 is not adequate. The word "may" is used, which suggests the Minister "may" at any time do something. We will come to amendments I hope to press, one of which the Minister has knocked on the head already, in which I want to move from "may" to "shall".
As I said earlier, this is optional and is not something we can be certain the Minister or whoever follows her will do. The section provides that the Minister may at any time issue additional guidelines. I suggest that consistency is of such importance that it is not an additional guideline, but something we expect from day one. It is not an afterthought but is something that is required now. We will fight the "may" or "shall" battle with later amendments but, with respect, I do not believe that section 48 achieves what I and Deputy Troy hoped to achieve in arguing the case for consistency. As I said, I could bring to the attention of the Minister any number of files in which inconsistency has been a huge concern to us as voices in the interest of children over a number of years. It is from the get-go, from day one, that we want to make it clear that we expect consistency.
Obviously I support the principle of consistency, but the debate is about whether inserting it in this section would deliver what the Deputy seeks. The judicial interpretation could be varied. I am advised it is not wise to include it in this way. However, we clearly want consistency in the approach of the agency and its standards. I believe the governance and performance framework areas are where this requirement can best be met. There, it can be met in a more nuanced way that is more appropriate than can be achieved by inserting the word "consistency" at this point in the legislation.
I move amendment No. 11:
Without going over all of the reasons we believe consistency is important, exactly the same arguments apply with regard to equality and non-discrimination. We believe these are important core performance guidelines that should be there from day one.
In page 13, between lines 6 and 7, to insert the following subsection: "(6) In the performance of its functions, the Agency shall have regard to the principles of equality and non-discrimination.".
There is so much hope for the Child and Family Agency. People have campaigned and worked towards its realisation over a long period of time. We want it to be the very best it can be - fit for purpose in every way - and we want core standards and beliefs to be enshrined in all that it must aspire to. Therefore, that the principles of equality and non-discrimination should apply.
With regard to children, there are ample examples. There is not only the consistency versus inconsistency issue, but the examples of inequality and discrimination affecting children from a variety of backgrounds and with different experiences of life, those from marginalised communities and those from different familial make-ups. We want only that every child be treated equally and with the same regard and consideration. Therefore, we believe that affirmation of the principles of equality and non-discrimination are very important indeed.
That is the only reason for the amendment.
It seems as if we are just going backwards and forwards, agreeing with Deputy Ó Caoláin' s points. I acknowledge the Equal Status Act exists and that it ensures we cannot be discriminatory to any section of society, and that is only right and proper. This legislation would be enhanced, however, if it were clearly and explicitly marked out that the agency in the performance of its functions "shall have regard to the principles of equality and non-discrimination". That gives a clear and explicit meaning about what the agency can and cannot do. The agency will have to deal with families and people in society from a diverse background, whether they are young, old, black, white, ethnic minority groups, people with disabilities, Travellers, or whatever. It is only right and proper to have this marked out in the legislation from day one. I support Deputy Ó Caoláin' s point and I fail to see why we would not have this outlined explicitly, bearing in mind the existing Equal Status Act.
Is that not precisely the point? If every principle had to be repeated in every piece of legislation the reading of the Statute Book as a whole would lose meaning. The Equal Status Act 2012 will apply in full to the child and family agency legislation and its principles need not be restated in the Bill. One could make the argument that if some items from the Statute Book are repeated but not others more impact is being given to those rather than to other principles contained therein. Obviously I do not disagree that the equal status legislation should apply. I certainly take Deputy Ó Caoláin' s point about inequalities where children are concerned but there is no need to restate what is already clearly laid out in legislation and applies absolutely.
In addition, there is the new general scheme of the Irish human rights and equality commission Bill 2012, as published, which proposes to introduce a positive duty on the public sector. Head 36 of that legislation states that "a public body shall in the exercise of its function have due regard to the need to eliminate prohibitive discrimination, promote equality of opportunity treatment and protect the human rights of its staff and persons to whom it provides services". Even stronger legislation is to come, therefore, about the application of this legislation to agencies, including the child and family agency. I do not reject the amendment because I do not agree with it but the principle is already well established, the legislation is in place and applies to the agency. It is not necessary to repeat it. I take this opportunity to point out it applies to the agency, absolutely, and the new legislation will give an even stronger format for the application of those principles.
With respect to the Minister, this is just a slap-down. Her response does not hold, given any scrutiny of the points we have discussed, for example: "the agency shall in the performance of its functions demonstrate high standards of performance, transparency and accountability". We might have assumed as much and would hardly expect it to perform other than to the highest standards. That is all accepted and understood. We could go to paragraph 9 which states "the agency shall use the resources available to it in the most beneficial, effective and efficient manner". Why say that? We can assume and presume that it will not be wasteful and will not discard without due consideration in terms of cost. Either it merits inclusion or it does not. I do not expect the agency to be wasteful or to employ resources, scarce as they are today, in anything other than a beneficial, effective and efficient manner.
There is no consistency in the Minister's reply. It is just a formula of words of rejection. I record this with regret. I believe the principles of equality and non-discrimination are an absolute imperative for inclusion in this legislation. We have ample reason to believe this. History shows report after report revealing that anything but equality and non-discrimination were the order of the day. It has been a weakness of structures in the past that they have failed to heed and take note of this.
In further areas of the Bill we will address the right of the child to be heard and matters pertaining. We need clear understanding on the part of all concerned that children must be treated equally and in a non-discriminatory manner. We must say this because historically in Irish society they have been treated unequally and in a discriminatory way. All the evidence is stacked up on shelf after shelf in the Minister's office, as she knows only too well. It is not only about scarce resources but about the standards we expect and I believe we should affirm this in laying out the functions of the agency from day one. We want nothing less.
To reiterate, the Equal Status Act applies in full and does not need to be restated. I am sure the Deputy would accept that legislation will fully apply to the child and family agency, with all its provisions in respect of principles of equality and non-discrimination.
Before we move to amendment No. 12, I remind members of the long-standing parliamentary practice and ruling of the Chair that they should not comment on, criticise or make charges against any individual, organisation or entity.
I move amendment No. 12:
In other words, the agency shall facilitate and promote enhanced interagency co-operation to ensure that services for children are co-ordinated and provide an integrated response to the needs of children and the families.
In page 13, subsection (8), line 12, after “shall” to insert “facilitate and”.
On Second Stage I pointed out that given the lack of a framework of interagency co-operation, as featured in so many reports, it is important that this agency should promote enhanced interagency co-operation to ensure that services for children are co-ordinated and provide an integrated response to the needs of children and the families. I am conscious in proposing this and the following amendment that we are not being strong enough on having inter-agency co-operation. By inserting the word "facilitate" we want to ensure that we are serious about inter-agency co-operation. I would welcome the Minister's opinion.
Although I see the Deputy's point I believe what he is seeking is well provided for. The word "promote" means to help the progress of something or to support and encourage it. At a very minimum I see that as facilitating, therefore the word "promote" incorporates facilitating and including the extra wording does not add to the policy objective.
This is a very serious obligation and we stated we would deal with it in the context of the legislation. Section 8(8) promotes enhanced inter-agency co-operation in order to ensure services for children will be co-ordinated. In addition, it will facilitate integrated responses to the needs of children and their families. This means that there will be a strong obligation on the agency and that said obligation will include the facilitation of inter-agency work in order to ensure the services are responding in a way in which, as Deputy Caoimhghín Ó Caoláin noted, they did not in the past. It is clear from all of the reports that inter-agency co-operation is an absolutely critical element in delivering effective services. I put it to Deputy Robert Troy that the term "promote" encapsulates facilitation of inter-agency co-operation and that, as a result, the additional word is not necessary.
Having examined the matter at length, I was of the opinion that including the word "facilitate" would provide a stronger meaning. The Minister correctly condemned previous Administrations for the lack of inter-agency co-operation in this sector. It is extremely important for us to ensure, by means of the legislation, that there will be strong inter-agency co-operation. Successive reports have highlighted the lack of inter-agency co-operation as one of the systemic failures within the sector for a number of decades. The Minister and I have often cited cases where issues of concern relating to vulnerable children or families have been referred to multiple agencies and where there has been no co-operation or joined-up thinking. In addition, there were no referrals and there was a proliferation of files as a result. The Minister has indicated her view to the effect that the word "promote" is sufficiently strong. I am of the view that use of the phrase "to facilitate and promote" would give rise to a stronger meaning. As stated in respect of an earlier amendment, I do not see the harm that would be done by broadening the scope of the section. We must ensure from the day on which the legislation is enacted, there will be proper inter-agency co-operation, which is critically important. As use of the word "facilitate" would give rise to a broader meaning, I ask the Minister to reconsider.
The Deputy will acknowledge that this is the first occasion on which we are placing, via child protection legislation, a strong and explicit obligation on particular bodies to promote inter-agency co-operation. This is being done for the very reasons outlined by the Deputy. There has been a gap and there was no statutory underpinning to support inter-agency co-operation. We are putting in place a strong statutory provision which states: "The Agency shall promote enhanced inter-agency cooperation to ensure that services for children are co-ordinated and provide an integrated response to the needs of children and their families". In addition, section 8(6) states: "The Agency shall collaborate with any person that the Agency considers appropriate in relation to any matter connected to the Agency’s functions". Therefore, collaboration is also facilitated. The various reports to which Deputy Caoimhghín Ó Caoláin referred highlighted the fact that services for children were not co-ordinated.
As indicated, this is the first occasion on which a provision of this nature is being made in child protection legislation. I am making this provision on foot of the discussions in which we have engaged and as a result of the various reports which have been compiled and which clearly show that while many people were working with families, they were not working closely with and co-operating with each other. In section 8(8) the word "shall" which is very strong is used and there is a clear statement on the need to co-operate. In addition, it is stated the agency will promote enhanced inter-agency co-operation. I understand the Deputy's approach to this matter, but I remain strongly of the view that the word "promote" is very broad, strong and proactive in meaning. It will give rise to the outcome we are seeking, namely, inter-agency co-operation.
With respect, I am not asking that the word "promote" be replaced with "facilitate". I am asking that both be included in order that the provision might have a broader effect. The Minister is correct in that this matter has not been dealt with in legislation heretofore and I compliment her on seeking to address it now. However, there is nothing to prevent us from making the legislation even stronger. What the Minister has stated is not a reason for failing to strengthen the legislation. She has often referred to what is being done in the Bill as the biggest reform of the public service that the Government has undertaken. This legislation is extremely important and we have been waiting for it over 18 months. All I am trying to do is ensure the system will operate in the best way possible from the outset. I am not suggesting we substitute the word "facilitate" for "promote, rather I am advocating that it be added to the provision to broaden and strengthen it and ensure there will be no recurrence of the horrific events recounted in the report on child death and many other reports. That is the position from which I am coming in this matter. Inclusion of the word "facilitate" would strengthen the provision. It certainly would not weaken it in any way. In that context, I ask the Minister to reconsider.
I will reconsider the position before Report Stage. As stated, the word "promote" is strong, proactive and broad. I am not sure whether that is the position with "facilitate". However, I will examine the matter in more detail and revert to the Deputy on Report Stage.
I move amendment No. 13:
This amendment seeks to insert in section 8(8) the words "and intra-agency". There is a good reason to do this. If the amendment is accepted, the subsection will read:
In page 13, subsection (8), line 12, after "inter-agency" to insert "and intra-agency".
(8) The Agency shall promote enhanced inter-agency and intra-agency co-operation to ensure that services for children are co-ordinated and provide an integrated response to the needs of children and their families.I stand open to correction but the new agency will be one of the largest entities in the public service and have of the order of more than 4,000 employees. It will require to follow certain principles in carrying out its functions and meeting its responsibilities. In that context, it should promote enhanced inter-agency and intra-agency co-operation. The purpose of the legislation is to ensure services for children will be co-ordinated and that there will be an integrated response to the needs of children and their families. It is the latter which underlines the need for intra-agency co-operation. I commend the amendment to the Minister in the hope she might agree that it would enhance subsection (8)
We are bringing together the three agencies and the other elements on the service in order to create a single agency. That is the purpose of the legislation. There will no longer be a need for intra-agency co-operation because there will be only one agency involved. The main reason I do not wish to accept the amendment is it implies that separate agencies will continue to work together under the umbrella of the Child and Family Agency. The entire principle underpinning the Bill is to bring together the agencies in an integrated way in order that they will operate as one, despite the fact that they had responsibility for different areas in the past. We are concerned with integration. Section 8(9) states: "In the performance of its functions, the Agency shall use the resources available to it in the most beneficial, effective and efficient manner".
One would expect that, but it is about all those different elements coming together and acting as one in the interests of a particular family. It is no longer a matter for the education welfare section or family support section; it is about getting the best services to the family that they need at a particular time. The term "inter-agency" makes sense because it refers to agencies outside the Child and Family Agency; however, the term "intra-agency" does not make as much sense in this section.
Am I right in thinking there are still areas that directly affect the well-being of children and families that do not come under this agency's remit, including childhood and adolescent services and public health nurses?
The point those is that these are inter-agency, because they are outside the Child and Family Agency. Deputy Ó Caoláin's amendment implies that it would apply within the agency. "Inter-agency" captures the ongoing relationship with the public health nurses. The intention of the amendment is that intra-agency co-operation will exist, for example, in what was formerly the Family Support Agency and the Education Welfare Board. The goal of the agency is the integration of those services, so "intra-agency" is the wrong concept to apply.
To return to the premise I outlined at the start and the reason for the amendment, a small entity is being established. We could name several agencies, and they would all fit on a single floor somewhere. This is a huge step and one I welcome very much. If one examines the numbers of people employed in any number of large entities within State agencies, one can see there is a need for inter-agency and intra-agency co-operation. I do not suggest the component parts will continue to struggle, fall apart, fail to co-operate and become a single entity. We want them to leave all those previous demarcation lines outside the new agency and be integral. It is in the integral interest that I believe it is an addition to and an affirmation of our expectations.
Again: "The Agency shall promote...". This is within the agency. It is not only its external relationships and engagements but, within itself, co-operation to ensure services for children are co-ordinated. This will apply across the country and provide an integrated response to the needs of children and their families. It is only an effort to see if there is the possibility of improvement. I believe there is. Inter-agency co-operation stands on its own merit but intra-agency is another dimension. That is not to suggest, as the Minister may have picked up, that I am at all concerned that we will have competing entities, part of the new, amorphous mass. However we need internally to promote co-operation across all the different newly-defined roles and functions of the new agency, and promote the very best we expect from that entity.
My main concern about the Deputy's point is that it would copper-fasten in the legislation almost a silo mentality regarding the different elements coming together to form the agency. In section 50(2) the first code of governance talks about the transition issues:
I am happy to examine this further and will return to it on Report Stage having examined the precise meaning of intra-agency and how it might apply here, if the Deputy is happy to do that, but I am concerned that it would copper-fasten in legislation a less-than-integrated approach to the agency's development.
The first code of governance shall include details of the methods to be used to bring about the integration of the governance systems deriving from a transfer of functions to the Agency from--(a) the Health Service Executive, and
(b) the dissolved bodies.
I welcome that. I will withdraw my amendment with the option to reintroduce it on Report Stage. On that subsection, in terms of what Deputy Troy and I said about our two consecutive amendments, if the Minister can come back with a formula we will both be happy to support what changes she wishes to introduce. The intention of the amendment is not to suggest that the component parts will continue to work at some distance from each other. I am trying to focus on the creation of the new entity with the diverse roles and responsibilities it will create within itself.
I move amendment No. 14:
This corrects an omission in the first print of the Bill and inserts the words "Subject to this Act" at section 8(11). It will clarify that, notwithstanding other provisions of the Act, such as section 14, the duty of the agency to furnish information to the Minister, section 5, a requirement to furnish information in documents, section 47, the power of the Minister to give directions to the agency, and section 48, the power of the Minister to issue guidelines to the agency, the agency shall be independent in the performance of its functions. To respect the exercise of professional judgement in a particular case, section 47(5) makes it clear that a direction given by the Minister shall not interfere with the exercise of professional judgement in a particular case. Similarly, section 47(6) makes it clear that a Minister shall not give a direction relating to a decision for the provision of a service by or on behalf of the agency to a particular person. The effect of this amendment is to bring clarity to the effect of section 8(11) providing for the agency's independence.
In page 13, subsection (11), line 21, to delete "The" and substitute "Subject to this Act, the".
I move amendment No. 15:
This is a very important area - the best interests and views of the child. Section 9(1) of the legislation reads: "The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), have regard to the best interests of the child in all matters." That is weak. The words "have regard" mean "take into account", and that falls far short of everything we have addressed heretofore. I am mindful of having been in this room over a two-year period attending some 62 meetings as a member of the all-party group that worked towards the wording of the children's referendum, and this critical area was addressed during that time. It was part of the discourse in the very successful promotion of the children's rights referendum. It is very important, and this does not reflect the spirit of the all-party consideration of the best interests and views of the child. Therefore, we have put forward wording that better encapsulates the spirit of the all-party position in terms of the children's referendum and all the debate that has swirled around it since.
In page 13, lines 26 to 28, to delete subsection (1) and substitute the following:“9.--(1) The Agency shall, in performing its functions under section 8(1)(a), (b) or (c) in respect of an individual child or family, regard the best interests of the child as a primary consideration.”.
So it is that we propose the deletion of the wording of section 9(1) as presented in the draft legislation, and the placing instead of the following: "9.-(1) The Agency shall, in performing its functions under section 8(1 )(a), (b) or (c) in respect of an individual child or family, regard the best interests of the child as a primary consideration." There is a huge gap from the wording of having "regard to the best interests of the child in all matters" to a situation where we would "regard the best interests of the child as a primary consideration".
This has been an accepted approach to this issue. I had understood all along that we had a cross-party understanding and acceptance that the best interests of the child were, indeed, the primary consideration in all matters pertaining to the child and its future. I will not labour the case. The Minister is at least as familiar, if not more familiar, with the arguments around this than any of us here. I believe she will know the case I am putting to merit her most favourable consideration. I believe that anything less than affirming the best interests of the child as a primary consideration is to dilute that absolute requirement, as I see it.
It is welcome that the best interest principle is explicitly included in the Bill, rightly so, considering that we went through the children's rights referendum 12 months ago and it will be explicitly inserted into the Constitution. As Deputy Caoimhghín Ó Caoláin said, the hard work has been done. The Minister and Deputy Ó Caoláin were on the all-party Oireachtas committee in this regard. It is only right and proper that this is included in the Bill. Nonetheless, the best interest principle could be strengthened in terms of having the "best interests of the child as a primary consideration", which would ensure Ireland is totally compliant with the European Convention on the Rights of the Child. Given so much good work was done on an all-party basis in the previous Dáil, that we have gone to the country and that the children's rights referendum has been passed, we should ensure that, while it is welcome it is included in the Bill, it is included as strongly as possible. By including "primary consideration", we will ensure the best interest principle is inserted in the strongest way possible.
Sections 9(1) and (2) must be read together. It is very clear in section 9(2) that, when we are talking about the welfare of children, their care and safety or anything to do with the Adoption Act, the best interests of the child are the paramount consideration. That is an important separation, whereby it is very clear that, in any of those issues to do with the welfare, care or protection of the child, the best interests of the child are paramount - it is actually stated as "paramount consideration".
When one is talking about the function of the agency, this amendment suggests that, from section 8(1) down, the best interests of the child should be the "primary consideration". I would have some concerns about this, and I will outline the reasons for this, bearing in mind that sections 9(1) and (2) need to be read together.
Section 9(1) of the Bill refers to the agency "making decisions about the performance of its functions". This provision relates to the decisions the agency must make in terms of how it delivers services in accordance with priorities laid down in the performance framework set out by the Minister. That provision is not only about decisions related to individual children in cases that involve them, but decisions on policy and strategy, for example, all of which must "have regard to the best interests of the child". Section 8(1)(f) states that one of the functions of the agency is to "undertake or commission research into matters related to the functions". Therefore, the Deputy is suggesting that, in that situation, the best interests of the child should be a primary consideration. I believe that "having regard to the best interests of the child" is strong and makes sense in terms of those provisions, while having it as a "paramount consideration" in regard to child care or adoption decisions is the right thing to do. There is a separation where "paramount" is the guiding principle and where "having regard to the best interests" is the important thing.
There is another point I would make for the Deputies' consideration. The work of the agency may not be directly child-related in some instances, for example, in regard to marriage guidance counselling, bereavement counselling or domestic and sexual violence where a child may not be involved. As we debated during the children's rights referendum, there is a question of the balance to be struck between these rights and the rights of others, including those deriving from the Constitution. Obviously, "primary" gives a particular weighting in favour of the best interests of one individual child. As I said, I believe the inclusion of "paramount", where I have it in the legislation, is very important.
I believe it is reasonable to ensure the "best interests" are considered and that decision making within the agency has a statutory underpinning for a child-centred approach. As Deputy Troy rightly pointed out, there is a child-centred approach to the functions of the agency, which is expressed in various ways, depending on which functions we are talking about. This seems to me the appropriate way to do it, for the reasons I have outlined.
Section 9(2) is very particular. It refers specifically to functions under the terms of the Child Care Act 1991 or the Adoption Act 2010, and very rightly makes the point in regard to "paramount consideration". With Deputy Troy, I have put down a further amendment in regard to section 9(2) on which we will reflect in a few moments. However, section 9(1), which we are seeking to strengthen, refers quite particularly to sections 8(1)(a), (b) and (c), which we addressed some time back in today's debate, and it would "have regard to the best interests of the child in all matters". The two sections are most definitely not addressing the same issues and, while I acknowledge that subsection (2) is incorporated in subsection (1), subsection (2) deals with a whole other array of issues outside the terms of the Child Care Act 1991 and the Adoption Act 2010. Therefore, I believe that having "regard to the best interests of the child in all matters" in terms of section 9(1) falls far short of what should be there. It is not contradictory in any way, nor is the language competing, for us to change section 9(1) to "as a primary consideration".
The Minister then went on to section 9(2) in the context of the Child Care Act 1991 and the Adoption Act 2010, where the term is "paramount consideration". I suppose one could argue that "paramount" gives it an even stronger connotation. However, I have no doubt in regard to all of the other matters that pertain in regard to children, and which the agency will have responsibility for outside the terms of the Child Care Act 1991 and the Adoption Act 2010, that we need to affirm in the strongest possible terms the "primary consideration" of the best interests of the child.
I believe this is what is required. The term "having regard to" does not, of itself, compel in terms of decisions made or outcomes arrived at. There could be situations where decisions were taken where the best interests of the child were clearly not the end result in any consideration. That simply would not be tolerable, in my view.
This is about children. What was wrong in the past was that children's interests were not given primary or indeed paramount consideration. I welcome the use of that phraseology in section 9(2). It is long past time they were given primary consideration and not just regard, never mind 'due regard'. People could claim they had given regard to the interests of the child - in order words, taken them into consideration - but that does not of itself necessarily mean that the outcome was in the best interest of the child and that other competing interests were not given precedence or preference. I do not want to see a situation in which competing interests have preference over the best interests of a child, who cannot fight his or her own corner or represent himself or herself as we would wish. We want to see not only the best interests of children confirmed but their voice and views fully taken into account. That is what my amendment No. 15 seeks to establish. I think we need to start off at the best possible point, which in my view means moving from the words "have regard to the best interest of the child in all matters" to "regard the best interests of the child as a primary consideration." in section 9(1). I thought we had all arrived at that consensus some considerable time ago.
The main problem with accepting the Deputy's amendment to change the wording to "regard the best interests of the child as a primary consideration" is the interaction with the wide range of functions the agency has, and the issue of the balance of other rights. That is why the text is currently phrased as it is.
I would like to consider this amendment further and I will examine the question of how it interacts with the function of the agency. Given the broad range of functions the agency has and the broad range of services it provides, I have very strong legal advice that the consideration of other rights may come into play and that the wording "have regard to the best interests of the child..." is the appropriate formulation. It is a key issue with regard to children. The wording of section 9(2), which states that the agency shall "regard the best interests of the child as the paramount consideration" is very strong. I would be prepared to have further discussion on this on Report Stage if the Deputy withdraws his amendment. I believe it is a critical issue. As I have stated, I have very clear legal advice that the formulation I have arrived at is the appropriate one for the range of functions and services to be provided by the agency and the competing rights of the family, parents and other service users that may come into play.
I feel that we have the strongest legal formulation for the rights of the child at the core of the agency. I am prepared to examine this again and come back on Report Stage for a further discussion.
May I respond to the Minister's points, please?
I welcome what the Minister has just said. This is not about trying to create engagement. My sincere belief was that all of us - not just Deputy Troy and myself - had reached this point. I proudly applauded time after time the evidence of shared intent across all political views in these Houses to arrive at the best position in the interests of children. That is the reason I welcome and will support the passage of the Bill. I want it to reflect what I believe we have all embraced over a considerable period. Having checked with Deputy Troy, I know we are both agreeable to withdrawing the amendment in our names at this point, and we reserve the opportunity to resubmit an amendment on Report Stage. If the Minister wishes to engage with us in the interim to explain her position, we can re-evaluate whether we need to do that.
I do not believe that my proposed section 9(1) will be in conflict with section 9(2), which affirms that the interest of the child shall be the paramount consideration. I do not believe the two are mutually exclusive. That would not be my understanding of it. I commend the wording to the Minister, but on behalf of Deputy Troy, I will withdraw it.
I move amendment No. 16:
What this would mean is that section 9(2) would read:
In page 13, subsection (2), line 31, after "2010," to insert the following:"whether in proceedings before a court or otherwise".
Notwithstanding the generality of subsection (1), the Agency shall, in performing its functions in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010, whether in proceedings before a court or otherwise regard the best interests of the child as the paramount consideration.This is to ensure the widest application and understanding of the "paramount consideration" of the child's interest. I believe that is important. We are making it clear there are a number of scenarios that would and could present in which the legislation would be a central focus of consideration of the child's interest, whether that be in a court setting or otherwise, and we would expect nothing less than paramount consideration of the best interests of the child. I think it is self-evident. Deputy Troy might like to add to my contribution.
I think the section should be more explicit in ensuring it does not relate purely to proceedings before a court. It must be recognised in the Bill that the agency will be working with children and families in a wide range of settings under the legal framework of the Child Care Act 1991. In that context, the wording in our amendment, "whether in proceedings before a court or otherwise", would give a very explicit meaning. If the Minister cannot accept the amendment today, I hope she may consider it in conjunction with the previous amendment and introduce an amendment on Report Stage.
The Child Care Act 1991 and the Adoption Act 2010 already require the best interest principle to be upheld by the agency. Section 3 of the Child Care Act 1991 is explicit in this regard with respect to the application of best interest and covers any action of the agency in the context of fulfilling its functions under the Act. This includes arrangements in respect of the adoption of a child in section 6. The consideration of best interest in court-related proceedings is a matter for the relevant court or relevant decision-making body. Section 24 of the Child Care Act states:
while section 19 of the Adoption Act 2010 states:
In any proceedings before a court under this Act with regard to the care and protection of a child, the court, having 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
In any matter, application or proceedings before(a) the Authority, orI am satisfied the provision I have made has intended effect in section 9 of creating a child-centred approach to decision making, while restating the specific requirements for paramountcy in certain specified processes. I do not see a reason to restate the provision relating to proceedings before a court or the adoption authority in the current Bill. Therefore, I am not accepting the amendment.
(b) any court,relating to the question of the arrangements for the adoption of a child, for the making of an adoption order or for the recognition of an inter-country adoption outside the State, the Authority or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.
I am scheduled to be at Private Members' business in the Dáil Chamber at 7.50 p.m. but I cannot get anyone to substitute for me at this committee meeting. I would appreciate if the committee could agree to finish a bit earlier than 8 p.m. in order to facilitate my need to go to the Dáil Chamber.
A number of Deputies are affected by the same matter and we did not know he had an earlier slot. I did not even know my own time slot, but I have since established that I am okay until after 8 p.m.
That is okay. I move amendment No. 17:
My amendment seeks to substitute section 9(3), and the important language employed, which reads:
In page 13, lines 33 to 36, to delete subsection (3) and substitute the following:“(3) The Agency shall consult when planning and reviewing the provision of services in connection with the performance of functions under section 8(1)(a), (b) or (c) where relevant, and ensure that due consideration is given to the views of children as part of any consultation processes undertaken.”.
The Agency shall, when planning and reviewing the provision of services in connection with the performance of functions under 35 section 8(1)(a), (b) or (c), ensure that consideration is given to the views of children as part of any consultation processes undertaken.My view is that the word "consult" is critically important and also "due consideration", not just "consideration". The original subsection needs to be strengthened. The real intent of members here, across the board, is properly reflected in the language that the Bill employs. Therefore, if my amendment was accepted, the substitute subsection would read as follows:
(3) The Agency shall consult when planning and reviewing the provision of services in connection with the performance of functions under section 8(1)(a), (b) or (c) where relevant, and ensure that due consideration is given to the views of children as part of any consultation processes undertaken.The key point is the addition of the word "consult" after "The Agency shall", because that is what it needs to do. Consultation is not an absolute requirement under the existing wording. Part of the existing provision, as things stand, is the phrase "as part of any consultation processes undertaken." However, "shall consult" is a direction for what the agency should do.
At present subsection (3) states: "The Agency shall ... ensure that consideration is given." That is what is being asked of it. My amendment seeks that the first thing that the agency will do is to "consult when planning and reviewing the provision of services", and in addition, not only consideration but "due consideration" must be given. The addition of the word "due" emphasises the extent and depth of what we expect. I commend my amendment to the Minister and to the members of the committee.
I shall follow up on what Deputy Ó Caoláin has said and explain the rationale behind my amendment. The matter was brought to my attention by a Children's Rights Alliance submission, which stated the following:
A 2011 report on children's rights commissioned by the Ombudsman for Children, analysing ten cases which came before the Office, found that "the individual children appeared to be largely invisible in the decision-making process". In her 2012 Annual Report, the Ombudsman for Children, Emily Logan, highlighted the lack of awareness amongst decision-makers of the detrimental impact that administrative decisions can have on children and their families. She criticised how these decisions were made with little or no regard for children's rights noting: "[i]n particular, the parameters of the child's best interests and the child's right to be heard were not used to guide administrative decision making to any great extent, if at all". Logan cites cases involving a lack of access to education, separating children from their parents and cases where children could not access necessary therapeutic equipment recommended by health professionals, due to bureaucratic processes. It is important to ensure the administrative decisions taken by all Agency employees impacting on individual children's lives will be covered by Section 9. This should apply in all cases of very young children as well as non-verbal children.
I suggest that any organisation would be required by law to consult on all aspects of planning. Reviewing the provision of services could have the unintended effect of paralysing management decision-making, diffusing responsibility for decisions taken and delaying necessary change when responsiveness is critical. Obviously consultation is very important but I see this as bedded in performance management at both organisational and individual senior management level. I do not believe the amendments sought will have the desired effect. I wish to point out that my amendment No. 20 does have the effect of broadening the consultation that is done with children. Also, section 9(4) is very strong on the expression of the child's own views and such views being given due weight. My amendment No. 23 also covers the same issue.
With all respect to the Minister, I believe that the agency should consult. That is a very reasonable expectation and requirement. Using the word "consideration", not "due consideration", makes it too simple to dismiss and too easy for the agency to say it has met the criteria. The provision needs to stand up. We must deliver a clear message by using the words "due consideration", which is the best way I can strengthen what is intended and what is presented to us in section 9(3) as it stands. I regret that the Minister is unwilling to accept my amendment and therefore shall press my amendment.
It is imperative that organisations consult when planning and reviewing the provisions of services. Let us remember how we debated and discussed, in recent times, a review of our legislative processes and brought about a change in how we do our business here. For new legislation, the idea is that we consult with a much wider range of people whom it will affect. It is good enough for us to do so from a legislative point of view. Therefore, it is important that the agency should consult when bringing about the provision of services that directly affect people.