Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Apologies have been received from Senator O'Sullivan, and Deputy Whitmore is substituting for Deputy Cairns today.

The agenda item for consideration is pre-legislative scrutiny of the general scheme of the child care (amendment) Bill 2023. For this session, we are joined by representatives from the Department of Children, Equality, Disability, Integration and Youth, namely, Ms Lara Hynes, acting assistant secretary, child policy and Tusla governance division and Mr. Toby Wolfe, principal officer, early years quality unit, who are joining us in person, as well as Ms Marie Kennedy, principal officer, alternative care policy unit; and Ms Gill Barwise, assistant principal officer, child protection policy and legislation unit, who are joining us remotely. From Tusla, we are joined by Ms Kate Duggan, interim CEO and Mr. Cormac Quinlan, assistant national director practice reform, who are here in person, as well as Ms Pamela Benson, head of legal services and Ms Fiona McDonnell, national service director, who are joining us remotely. From the Ombudsman for Children's Office, we are joined in person by Dr. Karen McAuley, head of policy and Ms Nuala Ward, director of investigations and by Ms Ciara Gill, policy officer, who is joining us remotely. Finally, from Barnardos, we are joined by Ms Suzanne Connolly, CEO; and Ms Freda McKittrick, head of guardian ad litem service. The witnesses are all very welcome to the meeting.

Before we begin, I will go through some housekeeping matters. As a number of people are joining us on Microsoft Teams, I remind everyone that the chat function on Teams should only be used to make us aware of any technical issues or urgent matters and should not be used to make general comments or statements. I also remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any member who is participating via Microsoft Teams to confirm that he or she is on the grounds of the Leinster House complex before making his or her contribution to the meeting.

With regard to parliamentary privilege, in advance of inviting the witnesses who are here today to deliver their opening statements, I advise them of the following in relation to parliamentary privilege. Witnesses who are participating from the committee room are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. Witnesses appearing before the committee virtually are reminded that there is uncertainty around whether parliamentary privilege will apply to their evidence given from a location outside of the parliamentary precincts of Leinster House. Therefore, if they are directed by me to cease giving evidence in relation to a particular matter, it is imperative that they comply with any such direction.

Each group has been allocated five minutes' speaking time. The opening statements will be followed by questions and answers. The running order of the opening statements is as follows: Ms Hynes, Ms Duggan, Dr. McAuley and Ms Connolly. I will then go through the speaking rota for members. I note that some stakeholders have raised concerns in relation to the limited time available to complete the pre-legislative scrutiny process on the Bill. I inform our witnesses that the Department has agreed to a two-week extension to the deadline for publication of our pre-legislative scrutiny report. This additional time has been incorporated into our schedule for the completion of that process.

With the housekeeping matters out of the way, I invite Ms Hynes to make her opening remarks.

Ms Lara Hynes:

I am the acting assistant secretary of the child policy and Tusla governance division in the Department for Children, Equality, Disability, Integration and Youth. I am joined here today in person by my colleague from the early years division, Mr. Toby Wolfe, who has responsibility for the areas of the scheme as they relate to early years provision. I am also joined online by my colleagues, Ms Gill Barwise and Ms Marie Kennedy. I thank the committee and its Cathaoirleach, Deputy Funchion, for providing the Department with the opportunity to brief members on the general scheme of the child care (amendment) Bill 2023. I welcome the committee’s engagement and interest in this matter.

The Child Care Act 1991 was a transformative piece of legislation, helping to promote the protection of children. It deals with some of the most important issues that children in our society can face, and the powers contained within it can, and do, change children’s lives for the better. Despite having served children well since 1991, it is widely acknowledged that the child protection and welfare landscape in Ireland has changed greatly since the Act’s full commencement. In Better Outcomes Brighter Futures: The National Policy Framework for Children and Young People 2014-2020, the Government of the day committed to "review and reform as necessary, the Child Care Act 1991". The proposals being brought forward in this general scheme have been informed by significant engagement and consultation with stakeholders to collect their views on the legislation. There has also been consultation with children and young people. The scheme builds on the positive elements of the Act, making the Act more child-centred, and taking account of the many societal and legislative changes since 1991, including the establishment of the Child and Family Agency, Children First legislation and the children’s referendum. It also seeks to enhance the enforcement powers of the Tusla early years inspectorate to enable it to address instances of serious regulatory non-compliance, and to ensure parents have access to information in relation to the quality of services. In doing so, the intention is not to increase enforcement action, but instead to streamline it and address some of the limitations of the current legislation, making it more effective and so improve overall compliance within the sector.

Some of the most significant areas of change proposed include the introduction of a guiding principles section to the Act, with the best interests of the child as the overriding principle; and provision for the preparation of a guidance document by the Department, in an effort to facilitate a shared understanding of the provisions of the Child Care Act. This will be similar to Children First: National Guidance for the Protection and Welfare of Children, which supports the implementation of the Children First Act 2015. We propose to make changes to section 3, which currently underpins Tusla’s statutory duty to protect children following an allegation of harm. We are proposing to reorient this section towards the duty of Tusla to support and promote the development, welfare and protection of children, which largely reflects the original intent of this section. Related amendments are proposed to the Children First Act 2015. The general scheme inserts a new section to this Act, which is intended to clarify the authority of Tusla to receive and assess reports of harm. These proposals will be augmented by forthcoming recommendations from an interdepartmental group, chaired by the Department of Justice, undertaking a review of vetting arrangements and legislation, and any changes to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 that arise from that review. There are also proposals to enshrine interagency co-operation in law. These are intended to provide a framework for greater and more consistent co-operation from other State agencies to allow them and Tusla, to fulfil their mandates.

The introduction of a duty to co-operate between relevant bodies, such as Tusla, Departments, the Health Service Executive and An Garda Síochána will include the sharing of information between relevant bodies and Tusla, and with one another, in accordance with the law and as necessary and proportionate. This is intended to address long-standing concerns about the ability of organisations to share information with Tusla, and promote interagency co-operation.

The voice of the child is to be strengthened both in court proceedings, and decisions taken outside the court setting, by introducing a guiding principle that children should be able to participate in the decision-making process, and by modifying section 25 to facilitate more children being made party to proceedings. This builds on related amendments introduced in the Child Care (Amendment) Act 2022.

Regarding local and national co-ordination, the general scheme proposes placing children and young people services committees, CYPSCs, on a statutory footing in order to recognise and enhance their local co-ordination role. A dedicated national oversight group is to be established, which will have representatives from relevant Departments, An Garda Síochána, Tusla, HSE and others, as appropriate. A role for the Ombudsman for Children to review the committee's recommendations is also provided for.

The general scheme proposes some changes to court orders that can be made in respect of children. The changes to supervision orders are intended to, for example, ensure that a child under a supervision order can be visited in a variety of settings by his or her social worker, with or without the presence of a parent, and that the social worker can consult with other relevant people in the child’s life. Changes to interim care orders are intended to reduce repeated court appearances by permitting the court to extend an interim care order up to 90 days in specific circumstances. To address drift, Tusla will have new obligations to report on its progress regarding the application for a full care order.

On voluntary care, the general scheme clarifies that this is intended to be used in circumstances where the parents will be able to resume care of the child within a reasonable period. Tusla must produce a written document about the arrangement and obtain explicit consent from the parent or guardian for such an arrangement. It also places a requirement on Tusla to review the operation of a voluntary care arrangement at least every six months.

Amendments to Part VIIA will allow Tusla's early years inspectorate to: immediately close unregistered services; temporarily suspend registered services where there are concerns about significant risk to children; share information on enforcement action with parents; and assess the suitability of a person to be a registered provider of a service through the introduction of a "fit person" regulation.

The scheme also provides for the removal of the exemptions relating to childminders to facilitate the future extension of regulation to all paid, non-relative childminders.

Our engagement with stakeholders has been very positive and useful. Where they have raised concerns that we believe can be addressed in legislation, we have tried to do that, whether by introducing enabling provisions, such as those for interagency co-operation or by amending existing provisions, such as those related to different care orders, to ensure that they remain as useful and fit for purpose as possible. However, we are conscious that there may be issues raised by stakeholders that are not addressed here. In many cases, legislation is not the right approach, and where needed we can explore whether operational or policy changes are a more appropriate response. We also continue to work with the Department of Justice on family court reform, which will greatly improve the experience of family courts for both parents and children.

Once again, I thank members for the opportunity to brief the joint committee. I am happy to address any questions that the members may have or provide any clarifications that may be required.

Ms Kate Duggan:

I am the interim chief executive officer in Tusla. I thank the Chair and committee members for the invitation to attend to discuss the pre-legislative scrutiny of the child care (amendment) Bill 2023. I am joined by my colleague, Mr. Cormac Quinlan, assistant national director of practice reform. I am joined online by my colleagues, Ms Pamela Benson, head of legal services, and Ms Fiona McDonnell, national service director, children’s services regulation. We welcome the opportunity to contribute to this important legislation with many other key stakeholders in this area.

The Child Care Act 1991 has supported regional health boards, the Health Service Executive, and Tusla, the Child and Family Agency, on its establishment in 2014 to support and promote the development, welfare and protection of children and families. Its strength in promoting the welfare of children and placing their interests as paramount in all matters has been a critical cornerstone of the child protection and welfare system in Ireland.

There are many proposed changes in this Bill that we welcome, including: the guiding principles; the increased focus on children’s rights; the changes which relate to care orders; the clarity on section 3; and the enhanced enforcement powers of the early years Inspectorate and its ability to share information with parents.

I will address specific observations in the following key areas: child protection and alternative care; interagency working; and children's services regulation. I will also reference areas which will need further discussion and, indeed, may need to be addressed by further legislation in different areas.

On child protection and alternative care, we welcome the changes to voluntary care which will support joint work with parents when they require us to assist them in the care of their children. This will be done while recognising the need to ensure that the rights of children and parent are protected and that such arrangements are time-limited and subject to review.

The extension periods associated with the different types of care orders will provide for the court's consideration of facilitating greater time to develop care and support plans for children. It will also provide the necessary time to support parents and their family network to address concern of possible harm, increase the need for future safety and, importantly, support children to successfully return home. The further enhancements to supervision orders and the increased clarity for section 20 reports will support the court to facilitate greater assistance for other State bodies in the context of care or special care proceedings.

The reorientation of section 3 out of the 1991 Act and into Children First is a welcome provision, as it clearly sets out the right to assess reports, other than mandated reports. The reorientation will also strengthen Tusla’s position in promoting the welfare of the child while setting out in more detail the process for those parties affected by the assessment.

We very much welcome the requirement for Tusla to publish general information on our role and responsibilities regarding care proceedings, and to provide an information booklet to parents. We also welcome the amendment of section 25 as it strengthens the voice of the child in care proceedings, recognising that some children should actively participate in the care proceedings in their best interests.

In respect of emergency care orders, we would have welcomed the introduction of a once-off emergency care order for a period of 15 days, which could then proceed to an interim care order.

There are other key areas of necessary discussion and reform to complement this Bill, and support a more effective child protection and welfare system. These include the regulation of the guardian ad litem, GAL, service and the comprehensive governance and oversight this would bring, the proposed reform of the family law court and the effective support and implementation of a new Government policy framework.

We believe that there is greater consideration needed to potentially widen the support to young people in aftercare up to the age of 25. Also, given the emergence of work within the international context, Tusla's legislative role and remit in how we care for separated children who seek international protection or unaccompanied minors needs greater consideration within Ireland's core child care legislation.

On interagency working, in recent years the demand for our services, and the more complex needs of the children, young people and families who require our services has significantly increased. Many reports by a range of stakeholders, including HIQA, the national review panel, the Ombudsman for Children, the Child Care Law Reporting Project, and our own internal reports have identified the need for greater and more effective collaboration in meeting children's needs, which often cross a variety of services.

While there is often good collaboration, and the development of protocols have improved joint planning and shared governance, sometimes the needs of children and young people can be so complex as to require greater and active collaboration from a range of specialist services across a range of agencies. In situations such as these, the powers used proportionally, and only in the child's best interests, will ensure that the State can maximise all efforts to meet those children's needs. However, further engagement is required on this proposed duty to co-operate, and how Tusla can ensure that children's rights and best interests are protected when co-operation is absent or not forthcoming.

On children's services regulation, we welcome the proposed new early years powers that will enable Tusla's early years inspectorate to have a more proportionate intervention where it identifies concerns and significant risk to children. These measures will ultimately increase our ability to protect children, and empower parents, who will now be advised where there are significant concerns found on inspection.

This will support engagement with their provider and inform their decisions. These changes require increased responsiveness from providers where high risk is identified and from any service that operates without registration. We will support the Department's plans in the regulation of childminders and believe that the phased introduction of these regulations, and the transitional period of three years will be helpful in supporting childminders towards a pathway to registration.

Regarding our residential registration and inspection functions for the non-statutory sector, there is an intention to move these functions from the agency to HIQA. In the interim, we would welcome consideration of additional powers being expanded under Part VIII of the Child Care Act 1991. This would permit third party organisations to provide residential care interventions with children on behalf of the State without having to first meet the registration requirement currently prescribed under sections 59 and 60. Instead the provider would have to retrospectively register once operational. This would expand the number of providers that could provide appropriate care intervention with young people at risk of having no placement available to them during a crisis and mitigate against further risk of homelessness in some instances.

Overall, there are many positive proposed changes, some of which I have outlined here. There are also some areas that will require further discussion and solutions. Ultimately, however, this represents another positive step forward in how we support children and families in Ireland today.

I will conclude by thanking the committee for giving us the opportunity to be part of this important conversation. We are happy to elaborate further on any of the points raised and answer any questions members may have.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I invite Dr. McAuley to make her opening statement.

Dr. Karen McAuley:

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

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

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

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

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

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

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

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

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

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

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

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I now invite Ms Connolly to make her opening statement.

Ms Suzanne Connolly:

Barnardos thanks the committee for the opportunity to appear before it today. Barnardos's contribution is informed by our work with children and parents, much of which is commissioned by and delivered in partnership with Tusla. We have also been providing our guardian ad litem, GAL, service for over 25 years. I am joined today by Ms Freda McKittrick, who heads that service. More recently, we have been commissioned to provide a pilot national advocacy and information service for parents of children in care. We are active participants in children and young people's service committees, CYPSCs, across Dublin, the midlands, the south and south east.

We welcome the new guiding principles with their focus on the best interests of children being paramount; the recognition that where appropriate, being brought up in his or her own family is in a child’s best interests; the provision of family support services to assist the effective functioning of families; and the importance of giving due weight to the child’s wishes

On head 4, we recommend the inclusion of the provision and support of contact between children and their parents. Continued contact between children and parents is a key element of maintaining relationships and supporting successful reunification.

On head 7, we welcome the proposed provision of information to parents and children about the purpose, duration, consent processes and obligations of the Child and Family Agency. It is essential that information is provided in accessible language and that it clearly outlines the conditions that must be met for family reunification to take place.

We welcome the proposed use of voluntary care arrangements as a temporary measure until a parent can resume the care of his or her child. We recommend that a maximum term be applied to voluntary arrangements after which a legal order is required for a child to continue in care. The review of a child in voluntary care include formal consideration of how reunification plans are progressing and should identify and provide the services that are needed to successfully return children to their parents' care. We recommend that issues relating to kinship care be included in this head.

On head 9, we welcome the outlined process for consultation with children and young people to inform the CYPSC area plan. We recommend that parents and carers are consulted and that community and voluntary partners continue to be active members of CYPSCs. Lack of community and voluntary sector involvement will result in gaps in expertise on the needs and potential responses to children and their families. There is a risk that the voice of marginalised families will not be sufficiently considered and understood in the plan.

On head 17, where there is an extension of an interim care order, we recommend that the child's social worker should be required to visit the child at least once per month, as opposed to periodically, as is currently outlined.

On head 18, where a decision is made about a care order, we recommend that the court's decision should be given in a child-friendly manner directly to the child or to the child's representative.

On head 19, we recommend that when under a supervision order, it is essential, rather than desirable, for a child to be visited by or on behalf of the Child and Family Agency. We also recommend the inclusion of early years centres alongside schools in (4)(b) as an essential intervention that could be listed as part of a supervision order.

On head 23, we recommend that all legal representatives advising or acting for children shall be Garda vetted and have appropriate training and accreditation. We have concerns about the level of responsibility and potential impact on children of being made party to proceedings. There is an associated endnote to this submission.

On head 25, we welcome the reduction of the period for foster care applications for enhanced rights. We recommend that provision is made for children's views to be taken into consideration in this application and that where a GAL is already appointed to the child, there is a mechanism in place for the GAL to outline the child's views and best interests. Where an application is being contested, consideration should be given to the appointment of a GAL.

It is in children's best interests, where possible, to remain with their families. It is crucial in implementing the proposed reforms set out under the general scheme that an emphasis is placed on the timely delivery of services by the State and the community and voluntary sectors, which support children to remain at home or if children are in care, to return as it is safe to do so. Where this is not possible, care arrangements must provide children with the stability and security they require. Multiple moves within the care system are damaging to children and affect all areas of their well-being. Continued effort needs to be placed on the delivery of stable foster care and residential placements.

The Department, Tusla and the committee are aware of the significant challenges in the recruitment and retention of front-line social workers. These have impacted and will continue to impact upon successful implementation. Adequate resourcing of the community and voluntary sector partner agencies is required to ensure prevention or intervention measures are in place to reduce the likelihood of children needing care and protection from the State, and also to support reunification, where possible, and to minimise the likelihood of children returning to care.

Barnardos welcomes the provisions outlined in this Bill. If it is well resourced and well implemented, it has the potential to positively impact the lives of children and parents in need.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank Ms Connolly. There was a considerable amount of information in all of the opening statements, which is helpful for us as we engage in this process.

Seán Sherlock (Cork East, Labour)
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It looks like we are off to races on this proposed legislation. I thank our guests for their submissions. They are beginning to provide some clarity for us. I perceive that a lot of tidying up remains to be done, which is a normal part of the process. That said, these submissions are certainly very helpful as we begin to get into the weeds of the issues into which we need to get.

I will start with the opening statement made by the OCO. Dr. McAuley stated:

As committee members may have noted, the proposals under head 11 ... the Department and the OCO discussed the Department’s proposal to establish this new statutory duty for the Ombudsman for Children at a meeting at the end of February 2023. In this regard, the Ombudsman for Children has indicated to the Department that while he is open in principle to this proposed new statutory duty, his support for it is contingent on a number of matters being further discussed and agreed.

I may be paraphrasing Dr. McAuley when I say that she also indicated that there are some other issues which are not contained within the submission but which she is happy to discuss. She suggested that she may have some concerns that she wishes to see addressed. I would be grateful for further clarity in that regard in the first instance. Are there any other issues? That is my first question. Will I parcel up all my questions?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Please do.

Seán Sherlock (Cork East, Labour)
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I will do so in order to be helpful. My next question relates to the early years inspectorate within Tusla. I do not have the wisdom of Solomon on these matters, but I have always had a bit of an issue with the funder of an entity that also provides its own inspectorate. That has been the subject of some public discourse in the past but it seems to me that within this legislation, the intention is now that Tusla will also be the inspectorate. Perhaps that was always going to be the case but there have been some public interventions to question that ethos. Do I take it that Tusla will operate as the inspectorate for the early years regime? Is that the unambiguous intention or am I misinterpreting matters? Our guests can come back in. I will parcel together all my questions. I am only seeking clarity at this juncture.

The OCO's submission also touches on a prohibition on "the placement of children in unregulated accommodation and to establish a statutory duty for Tusla to ensure that there are sufficient appropriate placements within each administrative area, including for children in need of emergency accommodation ..." I have a concern based on anecdotal evidence about the lack of regulation in respect of what I would no longer call houses or homes. A number of entities are providing accommodation. I have referred this point to Tusla. I am seeking assurance as to whether or not this legislation will provide any solace to those of us who are concerned about unregulated accommodation. Will it ensure the presence of an inspectorate regime that is robust and fit for purpose, and in line with what I perceive to be the concerns that have been raised by the OCO?

The general scheme introduces a duty to co-operate which requires named Government agencies and bodies to co-operate with Tusla, and with each other, on matters relating to the development, welfare and protection of a child or the delivery of services for an eligible adult in respect of whom there is an aftercare plan. I would like a broader understanding of what that means in practical terms.

Dr. Karen McAuley:

I thank the Deputy for his questions. I will take the question relating to the proposal to provide for a new statutory duty for the Ombudsman for Children under this general scheme. As I noted, the Ombudsman for Children met officials from the Department at the end of February on that point. Our position is that we are, in principle, open to taking on this new statutory duty. We have no principled objection to it and if we had, we would have made it known before today. We are, however, interested in how that will be operationalised in practice, as well as the potential impact it is going to have. Among the things we feel we need to discuss further - and we have communicated this to the Department - is the mechanism through which it is proposed to operationalise this role for the office and the interaction between the Department and our office in respect of that role. We also need to further discuss the additional resources the office will need in order to discharge this new duty. There are also other factors that I will not go into in detail. Broadly speaking, it is about making sure that this new duty and its implementation are aligned with the Ombudsman for Children Act, our statutory independence, our function under section 7 of the Act to promote the rights and welfare of children and so on.

It is about making sure there is alignment there and it is all complementary. I will hand over to my colleague, Ms Ward, to address the Deputy’s other questions.

Ms Nuala Ward:

As regards what is coming down the line in terms of new legislation that may be required, we engage with the Department. For us, it is specifically about kinship care. Our understanding is that the Department is trying to figure out its policy position in that regard and the outcome of that, in turn, may be what is required under legislation to organise and figure out these very insecure placements for children. It is very important for this to be resolved for the many children who have contacted us, as well as the grandparents, uncles and aunties who seeking reassurances regarding the children whom they are looking after. As our colleagues from the Department referenced, the interdepartmental group chaired by the Department of Justice will address issues relating to vetting. That is of key relevance to this legislation. Those are the two main areas we are flagging. It is important that it is not allowed to drift. There is a need for timelines and expectations. Anything that needs to be included in the legislation should be included.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Does Ms Duggan wish to deal with the question on Tusla?

Ms Lara Hynes:

If we may, we will first address the question on the early years inspectorate. Mr. Wolfe will take that question.

Mr. Toby Wolfe:

For clarity, since 2016, Tusla has been inspecting under the Act and the early years regulations and will continue to do so. That involves Tusla inspecting early learning and care, but also school-age childcare services. One of the changes the proposed legislation would bring in is to create the potential for childminders, too, to be regulated. That will fall under the same arrangements-----

Seán Sherlock (Cork East, Labour)
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On that point, is it the intention to set in primary legislation the regulation of all childminders other than nanas and grandads?

Mr. Toby Wolfe:

It is in line with the national action plan for childminding. The change we are proposing is to remove the exemption of childminders from the potential to be regulated. That means the Minister will be able to introduce regulations. Work on the development of regulations has begun under the national action plan but their introduction is still some way down the line.

There is another inspectorate that inspects early years services, namely, the Department of Education inspectorate. It carries out inspections and will continue to do so. The basis for its inspections does not fall within the Act but, rather, derives from a memorandum of understanding between the two Departments.

Ms Lara Hynes:

We are currently considering the issue of kinship care. In a way, the area we are considering is that of all children who are not in the care of their parents. There is a wide variety of different situations that fall into that category. We are trying to look at it in the round because it has implications for other Departments, such as the Department of Social Protection in the context of guardianship payments and so on. We are considering it from a child-centred point of view in terms of the support required from the State for that variety of arrangements. We are aiming to have that done by the end of quarter 2 of this year.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Did the Deputy ask a question of Tusla as well?

Seán Sherlock (Cork East, Labour)
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I asked the officials about emergency placements. On the point made by Mr. Wolfe, there are thousands of childminders. I am not trying to couch my language. I note the remarks of Mr. Wolfe in respect of the process and ask him to, please, allay my fears in this regard. If a regulatory regime for childminding is put in place by way of secondary legislation once the proposed Bill is enacted, will there be an inspectorate-type of regime for childminding, including for people who care for children in their own homes, that will involve compliance with hazard analysis and critical control points, HACCP, systems and health and safety legislation? If I am interpreting Mr. Wolfe correctly, there is a process under way in that regard.

Mr. Toby Wolfe:

Yes.

Seán Sherlock (Cork East, Labour)
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The Department is not going to be sending inspectors into childminders’ homes any time soon is what he is telling me.

Mr. Toby Wolfe:

We will not be doing so immediately but the intention is that childminders will be able to register with Tusla and the parents who use those childminders will be able, therefore, to avail of subsidies under the national childcare scheme. The public funding through that scheme is conditional on registration with Tusla.

In addition to removing the exemption, the other proposed element specific to childminders is to put into the primary legislation a transitional arrangement of three years during which period childminders will be able to register but will not be required to do so. During the transitional arrangement, childminders who wish to register will be able to do so and the parents will then be able to avail of the subsidies under the national childcare scheme, but childminders will not be required to register. At the end of the transitional period, however, the intention is that, in line with the national action plan for childminding, childminding will become subject to regulation in the same way as other aspects of early learning and care and school-age childcare. The Deputy alluded to the concerns or fears of many childminders in respect of whether the regulations will be proportionate and appropriate to childminders in the home. The national action plan is clear that the intention is to introduce childminder-specific regulations and that are proportionate and appropriate to the home environment. Under the action plan, an advisory group is in place and currently working to develop ideas for those regulations. Childminders are represented on that advisory group, as is Childminding Ireland, and they are working with us to ensure the regulations are proportionate and appropriate. The regulations will not be the same as those that apply to centre-based services.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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We need to move on. There was a question for Tusla but we might come back to it later. Deputy Brady is next.

John Brady (Wicklow, Sinn Fein)
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The proposed Bill is important legislation and represents a significant attempt to upgrade the existing Child Care Act 1991. I acknowledge that and welcome many aspects of it.

I will pick up on a point made by Dr. McAuley in her opening statement. She stated: “Overall, however, the general scheme appears to us to be lacking in sufficient vision and ambition.” I ask her to elaborate on that important point. Although the proposed Bill is a significant attempt to upgrade the legislation, the ombudsman is stating that it lacks ambition and sufficient vision.

The office of the ombudsman noted significant concerns in respect of several of the heads of Bill. The first such concern is in respect of head 7, which relates to voluntary care. I note that although the ombudsman has serious or significant concerns in that regard, Ms Connolly of Barnardos welcomed it in her statement. Why is Barnardos welcoming that head? Why does Dr. McAuley believe there are significant concerns in respect of it? Similarly, I ask her to elaborate on her concerns in respect of head 8, relating to children who are temporarily out of the home. She expressed significant concerns in respect of head 10, which relates to the duty of relevant bodies to co-operate. I ask her to touch on that. These are important points on which to get clarity from the ombudsman.

In relation to head 44, as regards Tusla's duty to receive and assess reports concerning alleged harm or risk of harm to a child, I wish to get some feedback on those concerns.

There is also a concern here in relation to proposals set out in the Department's 2020 consultation paper that have not been carried over into the general scheme. The ombudsman states that of particular concern in this regard is that the Department has not followed through on its proposal that the revised 1991 Act would strengthen the visibility of, and provision for, unaccompanied children seeking asylum and taken into care. That is noted as a serious concern by the ombudsman. I ask Ms Hynes why that was omitted from the general scheme because it is highlighted as an important issue that has been omitted.

The ombudsman last week produced a significant report. They gave us the results of a survey of more than 2,000 children aged between 12 and 17. The content of it is stark and harrowing. However, I commend what is an excellent piece of work.

One of the figures is staggering, which is that 78% of children rate their mental health as not good or sometimes low, stressed and anxious. The reason I raise that is the ombudsman states there are other areas that should be looked at given mobilisations within the scheme. One is to expressly require Tusla to have a system in place to identify and support teenagers at risk of being sexually or criminally exploited. Given what we now have in terms of the evidence that 78% of young people rate their mental health as not good, we know that opens them up to vulnerability and the potential to be exploited, either sexually or criminally. I ask Tusla whether a system such as that is required. Would the Department be willing to consider an amendment to include something around what has been identified as an issue within the general scheme?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank the Deputy. We will start with the ombudsman's office, and then hear from Barnardos, the Department and Tusla. I call Dr. McAuley.

Dr. Karen McAuley:

I will start and I will hand over to my colleague, Ms Ward, in due course.

When we say that we feel the general scheme is lacking in sufficient vision and ambition, we came to this review process as an organisation with high aspirations for what it might achieve on the basis that it was the first time in 30 years that the Child Care Act was being subject to review, albeit that amendments had been made in the interim, on the basis that the child and families the Act engages and interacts with or provides for are among the most vulnerable in the State, in some cases, and that what the Act provides for in some circumstances is a high level of intervention by the State in children and families' lives up to and including taking children into its care. With all of that in mind, our hope was and is that the revised Act will provide a long-term view and will not be in any way unduly couched in the present tense but also that it demonstrates a confidence in the State's capacity to succeed with and for children and families because we think that is crucial.

I will give one example, if I may. I appreciate time is tight. One of the heads of Bill that we feel is illustrative of a lack of ambition and a lack of vision is the duty of relevant bodies to co-operate under head 10. This was an issue that we raised from the beginning of the review process in our first written submission to the Department. It is on the basis of some very serious cases that we have dealt with - some of the committee members will be familiar with Molly's case - that amplified and highlighted the very serious adverse consequences that a failure of different State bodies to co-operate and work together in the interests of the child can have on that child. Our feeling here is that what is provided for is timid and that it needs to go much further. We welcome that there is a proposal to establish a duty to co-operate and we appreciate that there may be merit in clarifying that the relevant bodies may co-operate; in other words, they are permitted to work together given the concerns that might be there among some bodies about doing so, particularly around information sharing, but we feel the duty needs to be strengthened. It is an issue that we raised from the beginning as a major concern, and others have done so as well. It is also one that the Department acknowledged in its 2020 consultation paper as one of the biggest challenges to securing good outcomes for children. We feel it needs to be stronger, that the duty should be they "shall" co-operate, that the discretion is taken out of it and that it reaches beyond information sharing. There is reference to assistance I think, but it is not clear what that assistance is.

The committee will be doing its own research. It would be worth looking in the Irish context at the Policing, Security and Community Safety Bill 2023. There is a duty to co-operate there, which we believe demonstrates more confidence than the provisions here. It is also worth looking at the general scheme of the health information Bill as well because it takes a different approach. Crucially, what it does is say that we will legislate for bodies to share information - in a different context and the specifics are different - because we believe a legislative framework needs to underpin the required change process otherwise the suboptimal outcomes that are occurring will continue whereas this general scheme strikes us as taking a different tack, which is waiting for a culture, organisational attitudes and practises to change before bringing forward legislation. We do not believe that children can wait for that change to occur. We feel it needs to be much stronger.

By way of one additional example of lack of ambition or lack of vision, we are really disappointed that unaccompanied minors are not provided for explicitly in this general scheme and we think that needs to be revisited. There is a view that a child is a child, unaccompanied minors are children, we treat them as children and, therefore, their needs and circumstances will be captured, but unaccompanied minors are in a very vulnerable position and in very particular circumstances. Something the 2020 consultation paper proposed when it was thought unaccompanied minors would be included was that the status of a child as an unaccompanied minor itself would be enough to enable him or her to go into care and that is not addressed through this general scheme.

I apologies; I appreciate that was a little long. I will hand over to my colleague, Ms Ward, on some of the other issues.

Ms Nuala Ward:

With regard to voluntary care, while we welcome this provision, we do not feel it goes far enough. As the committee will be aware, we presume this provision was brought in because a lot of the research shows that children in voluntary care drift.

We welcome the idea that parents must be fully informed. There is no question there is a power imbalance in that relationship and it is of the utmost importance that parents are fully informed of what they are signing up to. However, it is not time limited in this current proposal. On the proposal for it to be reviewed, Tusla is being asked to review itself whereas an independent person should examine these voluntary care agreements because at every stage, it must be asked: can this child return home? It is not strong enough at present.

We have the Child Care (Placement of Children in Foster Care) Regulations for the placement of children in relative care, foster care and residential care and these set out care planning. This primary legislation is slightly weaker because a child's placement should be reviewed as soon as possible once he or she is taken into care, and then six months later. Six months is too long. Going back to the ambition of this legislation, we feel it is such a serious and important area that more attention should be given to it.

Children who are temporarily out of home is an important area. These are not always very vulnerable children. Sometimes it is that there can be a row in the family home and Tusla is coming in as a mediator to help these children return home. However, we also know from our own investigations that sometimes these children are in State care and who, unfortunately, as the committee will see in the national review panel, are the ones who drop through the system, drop through multiple placements and end up in this light-touch accommodation. This has to be much better and much stronger for these vulnerable children.

On head 44 and the risk of harm, Professor Conor O'Mahony, the special rapporteur, he did an excellent job in his 2022 report of setting out the technical and legal requirements that Tusla needs to do this complex and difficult area of work. As we understand it, the judicial reviews that have been taken against Tusla in this area are by the person about whom the allegation has been made.

Our understanding is that very few have been taken by people who have made allegations. Therefore, we have a skewed system of case law that does not fully represent victims' experience. A lot more needs to be done in this area. We urge the committee to look at the report. For once, the homework has been done for us. It is very clear what is required in legislation and that the process should not be dictated by case law. I have no doubt the representatives from Tusla also have strong opinions on this issue.

Going back to the question of ambition, it is really important that we are reviewing this legislation. The system we have is built on a history of institutional abuse in Ireland. We must remember that. It is one of the reasons there must be an emphasis on the importance of placing children near their homes, schools and with their siblings. We all saw what happened when children were moved apart from their brothers and sisters and grew up never knowing who they were. When it comes to ambition, we need a statutory requirement to do better for the children taken into care in this country today.

Ms Suzanne Connolly:

It is important to say that while we welcome the proposed legislation, we are very specific on what we want included and added. A key point is the proposed use of voluntary care as a temporary measure. We must not have a situation in which children can drift. Also key is the assumption that children will return to their parents. We are making the point that children cannot be left long term in voluntary care. There must be a maximum period within which the State will have to provide evidence for why a child should continue in care, which will be done by way of a legal system that must be gone through. Otherwise, the child should be returning home.

As a social worker who has worked with families, a key point is that parents need to be supported and given the services they require to have their children returned to their care. Also key, as we said in our submission, is ensuring from the outset that there is contact between children and their parents. That relationship must be maintained. It will require effort and work to ensure that happens. The closer children are placed to their community the better, because it ensures they can maintain the relationships they need within their community, stay in the same school, etc.

Ms Freda McKittrick:

We get referrals from the guardian ad litemservice from time to time. We often discover a child has been in voluntary care for seven, eight or nine years, has set down roots in that location and is part of the community. Then the legislative process begins. We would like that process to be moved further up the child's life. Children need to know where they are going to be and every effort must be made in that regard. I welcome the proposed legislative reform to allow services, particularly the health services, to come to the table. Parents will need addiction and mental health services, and they will need those services in order to address their parenting. It is not just about services for the addiction or for mental health; it is about having access to a mental health and addiction service that will support parents to resume managing the care of their children.

At the same time, there must be access to services to help children recover from whatever experiences they have been through that led to them coming into care and whatever damage has been done by the inevitable separation and loss from their family life, their family home and the breakdown of the family. The process should be time limited and focused and a lot of effort should go in at the early stages. We want these children home with their families, but it must be safe and sustainable to return them. We do not want to see children bouncing in and out of care and then coming back into the system much later, with much more difficult problems that are much more of a challenge for the care system to manage.

Ms Lara Hynes:

The question of whether we need to make specific provision for unaccompanied minors was given an enormous amount of consideration. In the end, we did not make specific provision because we wanted to protect the equity of care principle, whereby unaccompanied minors get exactly the same level of care and are taken into care under the same thresholds as Irish-resident children. Ireland is very much considered a leader in Europe in our care of unaccompanied minors because, in effect, we take most of them into care and provide the same level of service to them as we do to Irish-resident children. That was fundamentally the consideration that led to our not putting in a specific provision for unaccompanied minors.

Some of the challenges that exist currently in this regard are more appropriately dealt with at a policy and operational level. We engage regularly with our colleagues in Tusla on the specific issues that arise for unaccompanied minors. It is becoming a larger issue at the moment in terms of scale. I have outlined the fundamental reason we did not put in a specific provision. It is not that we were not looking to provide a very high level of service and standard of care to those children. In fact, it was the opposite.

Ms Kate Duggan:

My colleague, Mr. McQuinlan, will give more details on voluntary consent.

One of the shared threads of the discussion today concerns the part of the proposed legislation that deals with the duty to co-operate. When we talk about some of the complex operational issues we face and, more importantly, the very complex situations children and families find themselves in, which include special emergency arrangements, the risk of child sexual exploitation or criminal exploitation, as well as the concerns we have regarding the delay in reunification and not being able to provide the level of support we want within the voluntary care context, it really comes down to the duty to co-operate and the need for the wider support of all State services and agencies. We have referenced this as something that needs more thought in terms of the language around it and the legislative basis. It is critical to what we are trying to do as a State agency in fulfilling our statutory obligations to care for children and take children into care. When we are faced with situations in which we have children and young people in our care and we are not able to access the appropriate services for them, that creates a bigger challenge. The outcomes of that include some of the issues we have raised today, including exploitation, delays in reunification, and children and young people going into special emergency arrangements.

Mr. Cormac Quinlan:

I support fully what my colleagues said regarding voluntary care. We do not disagree at all. The proposals are right and proportionate in terms of limits. Even in advance of this legislation, we were already looking at and reviewing our approach to care planning. We recognise that other legislation now requires us to look much more rigorously at permanency for children. That is legal permanency, physical permanency in terms of where they live and relational permanency in respect of the people caring for them. That is something we are advancing, irrespective of the proposed amendments we are discussing.

I agree with my colleagues that voluntary care should really only be used in the context of reunification. Where we are focused on reunification, it is something we can use. As a social worker who was 20 years in practice, I saw it was really important for parents and carers to be able to utilise voluntary care. We work in collaboration and co-operation with parents. It is good that they can choose to place their children in care for a period because of difficulties they are experiencing and that we can support them in so doing. If we are moving to long-term care for children, however, it is important to put that on a much more structured and firm footing, which, we hope, will be done collaboratively with parents.

If we are proposing a maximum time limit on voluntary care, we need to give the issue due consideration. Reunification planning and safety planning can take time. We need to be careful in putting firm limits on that. As my colleagues said, we want to maximise our approach in addressing, through safety planning, some of the complicating factors families deal with, including drug misuse and mental health issues. That can take time. We must be very mindful of that time from a child's rights perspective, but we do not want to put a limit on it that is too short and does not facilitate us in working to maximise the option of the child returning home. That is always the first thing we consider.

Jennifer Whitmore (Wicklow, Social Democrats)
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I thank the witnesses for their presentations. They have put a huge amount of work into them, which will be very useful as we go through this process.

My first question relates to proposals for taking greater account of the voice of the child. It is really welcome that this provision is to be strengthened. What protections and supports will need to be put in place in this regard? We are talking about very vulnerable children for whom court settings will be foreign.

Do the witnesses have any suggestions or ideas about that?

I want to get the situation regarding childminding straight in my head. This legislation will just remove the exemption and will enable the Minister to make regulations subsequently. Will any further changes that are being made to put childminding onto a statutory footing be done through regulations? Is it correct that there will be no Dáil scrutiny, input or oversight of what goes into the regulations?

Mr. Toby Wolfe:

As with the regulations for centre-based services, the Child Care Act provides the overall framework that gives the power to the Minister to write the regulations. The Child Care Act sets some constraints on the sort of objectives that must be met. In the same way, there will be specific regulations developed under the provisions of the primary legislation, but there will be secondary regulations. It is a clear commitment that the Minister set out in the national action plan for childminding that the specific regulations for childminders will be different, and appropriate to the home and family setting that childminders work in.

Jennifer Whitmore (Wicklow, Social Democrats)
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I am just substituting for today's meeting. It seems that this has been a major conversation anyway.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I think part of it is to potentially be able to bring childminders into some of the schemes which they do not currently qualify for.

Mr. Toby Wolfe:

That is exactly it. The intention is partly to provide those quality supports and quality assurance for what childminders are doing, but it is also then to allow parents to avail of the subsidies under the national childcare scheme.

As I mentioned earlier, one difference proposed here between the childminding and centre-based provisions that are set out in the primary legislation is the arrangement for a three-year transitional period during which childminders will be able to register but will not be required to so do. That is in line with the phased incremental approach that is proposed in the national action plan.

Jennifer Whitmore (Wicklow, Social Democrats)
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Will there also be a transitional inspectorate facility or does the transitional arrangement only relate to obtaining funding under the schemes? Once a childminder signs up to the scheme, does that also mean there is a potential that they will be inspected?

Mr. Toby Wolfe:

The regulations on the inspection and subsidies all go hand in hand. Childminders will have a choice during that transitional period as to whether or not they want to opt in to regulation. With regulation comes inspection, but also comes the ability to participate in all the public funding schemes. That will be optional for the three-year period.

Jennifer Whitmore (Wicklow, Social Democrats)
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I thank Mr. Wolfe.

Ms Freda McKittrick:

We mentioned in our submission that we really support the increased use of children being made a party, but only with safeguards. The court is not a child-friendly environment. Even with the family justice reform that is coming, it will never be a child-friendly environment. It is not that kind of process. Child-friendly information in child-friendly material must be available so that children are aware of the options for them for their rights. Fortunately, the Child Care (Amendment) Act 2022 allows for a child to have a guardian ad litem and to be a party as well. We will be encouraging the use of that process and that the child is not left alone to try to run a legal case other than in very exceptional circumstances.

Ms Suzanne Connolly:

It all depends on the age of the child and their level of development, and whether the parents are contesting it. Everyone who is involved in that process needs to be very informed and perhaps be aware of their own limitations. Not everyone is trained in how to work closely with children, how to listen to children appropriately or how to make them feel comfortable. That is why what Ms McKittrick says is really important in the context of the child also being able to have a guardian ad litem.

Dr. Karen McAuley:

We have not had a chance to look at the proposals in detail. To be frank, we are not quite sure what the rationale is behind looking to lower the threshold for a child being made party to proceedings. It is not that we do not agree with it in principle, but we do not know what the background to that is. To reiterate what colleagues from Barnardos said, what is really key is to acknowledge that the current proceedings under section 25 are not designed in a child-centred way. They are not intended for children to be participants in that way in proceedings, so an awful lot of work will be needed to put safeguards in place to ensure what is provided for, in terms of the environment, the information, and the supports for children do support them to act as a party.

Without wanting to reopen the Child Care (Amendment) Act from last year, there is also the question around the circumstances in which it is appropriate or necessary for a child to be made a party to the proceedings, other than whether they may wish to. What we would like to see is that where a GAL is appointed to a child, they should enjoy the same procedural rights, etc., as a child who is made a party. We do have questions around when it is necessary for a child to be made a party, and if that equity is ostensibly provided for through the 2022 Act.

Jennifer Whitmore (Wicklow, Social Democrats)
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I thank the witnesses. I have another brief question for Ms Connolly. She mentioned that the maximum term for a voluntary arrangement should be applied. What would she consider the term to be?

Ms Suzanne Connolly:

It should be reviewed seriously after six months. There should be a review after three months of a child being in voluntary care. The key thing is that there is contact between the children and their parents to maintain that relationship. The children should also be kept informed of the plan in relation to them. It is very clear: the parents know what they need to do to have the child returned to their care. The support services must be provided.

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank all the witnesses for their opening statements today. I also thank Deputy Whitmore for asking my questions, which is fine. They were about the voice of the child and childminders. That is important.

Information is going to be crucial here, and how we communicate it. I will just go back to the Department. The witnesses spoke about proposals to enshrine interagency co-operation in law. These are intended to provide a framework for greater and more consistent co-operation from other State agencies such as Tusla, the HSE or the Garda, which is welcome, but we have challenges within the system as we speak. What is the Department's view on resourcing and staff? There are huge challenges. How does the Department feel we can overcome the challenges? That is my first question.

I will move on to Barnardos. If it is okay, I will keep going and then the witnesses can come back with the replies. I read the opening statement from Barnardos. While it welcomes the new guidelines and principles, it is important to note that Barnardos focused on heads 4, 7 and 9, and it has concerns in regard to them. We must make sure we listen to Barnardos. I very much welcome hearing about its concerns. It was stated:

In conclusion, Barnardos welcomes the provisions outlined in the Bill, if well-resourced and well implemented, it has the potential to positively impact on the lives of children and parents in need.

Perhaps Barnardos could also see the challenges there. To me, they are the biggest challenges. I believe that it will not work unless we have enough staff and enough people within the system.

My other question is for the Ombudsman for Children. In its submission it is stated:

As noted, the OCO broadly welcomes several proposals set out in the 2023 General Scheme. Overall, however, the General Scheme appears to us to be lacking in sufficient vision and ambition.

Could Dr. McAuley please clarify that for me?

I welcome all the statements. A point in the Tusla statement is that:

We very much welcome the requirement for Tusla to publish general information on our role and responsibilities regarding care proceedings, and to provide an information booklet to parents, and the amendment to section 25 to strengthen the voice of the child.

Perhaps the witnesses could give us more information on the booklet and what they envisage as being so important in that regard. This is about the voice of the child, children, and what we can do for services and to work with parents and everybody else. I welcome the focus, which is very important, but I firmly believe that we have a lot of challenges here going forward.

Ms Lara Hynes:

Interagency working is a huge challenge. To be honest, that is the case in other countries aside from Ireland. It is a very tricky issue.

The Department recognises there are a number of provisions in the Act to promote interagency working. However, that is only the first step. Implementation is going to be absolutely crucial. It is important to point out that we have a number of interacting provisions that are meant to support each other. We have a duty to co-operate but we also have the assistance to be provided to the court. The court can look for other agencies to be brought into childcare proceedings if the child, for example, has significant mental health difficulties or perhaps the parents may have difficulties. That is significant.

In regard to how we make this real, we are looking to put the children and young people services committees providing for better local co-ordination on a statutory basis. There is a regulation-making power there for the Minister to direct how those operate. We will mandate that certain organisations have representatives at those on the children and young people services committees, CYPSCs. We are also setting up a national oversight group, the national advisory committee, which is going to have an annual programme of work given to it by our Minister. It will be an interdepartmental group. The intent is that this will be a problem-solving committee and that the Minister will effectively ask it to provide solutions for interagency collaboration problems within that timeframe of a year. For example, the Ombudsman for Children set up a round table of a number of different agencies and Departments to look into the issue of teenagers at risk. Tusla is looking after a large number of them. We have a growing number of teenagers who have these very complex problems, mental health problems, disability, criminality and cases such as the grooming we spoke about.

We propose to do something in the immediate term with that in that we plan to bring that work forward with the Ombudsman for Children to look at what we can do before the Bill is enacted. However, once the Bill is enacted, we would very much see the national childcare advisory committee as the forum for that type of problem to be tabled. It will be tabled with this interdepartmental group with senior level representation. The committee will be asked to come up with recommendations on how to tackle those problems. The Ombudsman for Children will examine and test those recommendations to see whether they are robust enough. Then they will be set out in an annual report. There is no easy way to tackle interagency collaboration co-ordination problems. They exist in many different places in respect of many different problems facing children and young people. We have to create a programme of work where we work through all the different problems together. We see those different parts and provisions in the Act as providing the structure and framework to allow us to do that going forward.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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That is important. I call Barnardos.

Ms Suzanne Connolly:

As members will be aware, children need consistency of social workers. Ideally they need to have the same social worker if they are going into the care system. Indeed, parents who are applying for reunification need to have the same social worker. That is a real challenge at the moment because of turnover and issues to do with recruitment and retention. The other important issue is that across each area there are sufficient resources to keep children at home so that we can avoid children coming into care if possible whatever that might mean. It could be early years services, after-school services, practical support in the home or it could be addiction services or mental health services. The system really focuses on keeping children in their communities and then, if children really need to come into care, that the system supports their being in care for as short a time as possible. However, that needs to be resourced. Both State agencies and the community and voluntary sectors support it.

The last issue is that if children are in the care system, how we support their returning home as quickly as possible. If that is not possible, we must retain the relationship with their families and communities. Going back to what Mr. Quinlan said, this is about permanency planning. However, it is about resourcing. There are three social workers here; we are all social workers so we all feel passionate about this. However, there is nothing like consistency of service. That is important.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Did Deputy Murnane O'Connor have a question for the Ombudsman for Children?

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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While I welcome the scheme, there appears to be a lack of sufficient vision and ambition. It is important that we hear these concerns.

Dr. Karen McAuley:

I will give some examples briefly on what we meant by that, then I will hand over to my colleague to comment further on this. On the duty to co-operate, I wish to put on record a further example the committee might want to look at. The Department has decided not to go with the concept of corporate parenting and legislating for corporate parenting at this stage. That is regrettable but it is a decision that has been made. It would be worth looking at the Children and Young People (Scotland) Act 2014 in regard to corporate parenting. There is under that a duty to collaborate. One aspect worth looking at is that you must collaborate, not “you may” collaborate but “you must” collaborate. It also provides an indicative list that is quite detailed as to what parties must collaborate on. This goes beyond sharing of information. Interestingly, it includes funding activities jointly. They were thinking about how funding works. The system is organised into sectoral silos and so on. It is worth looking at these examples. There is scope here and there is material we can draw on. However, I will hand over to my colleague, Ms Ward, for further examples.

Ms Nuala Ward:

This legislation is 30 years old. Now is our time to make it much better for future children. That is what we meant by "to be ambitious". During that 30 years, there have been so many tragic cases. We had so many national review panels and cases we should all learn from to see what can do better. We know children are being exploited by criminal gangs in this country. What are we doing about it? We believe that we need underpinning legislation to make it better. I am not going to go on. The key message about interagency is incredibly strong. Tusla cannot fix everything. It is not within its gift, so all parts of the Department’s other services need to step up to help these children. That is why we talk about making sure that no children should be placed in unregulated settings. We believe that anyone who is out of home should be in good places for the shortest time possible, for a minimum age group. All these things that we have learned must be included in this legislation. This is our chance. It could be 30 years again until it is reviewed. That is what we believe about being ambitious.

Mr. Cormac Quinlan:

To add to the duty to co-operate piece, I have heard of something that was funded by the Department. The university in Galway recently produced a report, in 2021, examining the whole issue. It looked at the duty to co-operate across multiple jurisdictions. Some of its key findings are important. It saw that duty to co-operate as a fundamental building block in interagency co-operation. It recognised that but there are a number of other factors. It highlighted the need to support any legislative requirement of that. As the Department highlighted, it will require very clear statutory guidance that will support how people work together and significant awareness building about what people’s responsibilities are in that context. We may have to look at local and national structures that can support that; we may have to review existing protocols to strengthen them in that context; resources have been mentioned by colleagues; leadership and culture change within organisations as well, we have heard that already in terms of some of the challenges of that collective responsibility and the whole-of-government, all-agencies approach to children is going to be really important; joint training and learning to support people in working together because you can put people in the same room and ask them to work together but they do not always achieve that so they have to be supported in that. Then a key aspect is monitoring and evaluation that it is working.

Ms Kate Duggan:

I will send the data the Senator requested on the number of children in voluntary care or who had been in voluntary care and progressed to fuller care orders to her. We also have data on the number of children who have been reunified from care. I do not have it to hand.

My colleague Mr. Quinlan will deal with some of the themes of the threshold for harm, the safety planning and the interim care order piece, but I want to reassure the Senator that, in operational terms, we are focused on trying to promote the rights and support we provide to birth parents of children in care. Last year we provided almost €500,000 in funding to Barnardos and the Children's Rights Alliance to independently commission a project to support the advocacy and information needs of birth parents.

We are also significantly investing in what we call a wraparound, early support service which is a part of safety planning and Mr. Quinlan will reference that. Outside an emergency or section 12 situation, we try to support children to remain in their family and in the networks they have built up around them. That is linked to cultural awareness, not only regarding some of the key issues the Senator flagged, but also for the new communities. There are cultural differences in parenting styles and family dynamics. We want to build awareness of that and ensure our decision-making is underpinned by awareness of staff on the ground. Mr. Quinlan might talk a little about safety planning and the threshold for harm.

Mr. Cormac Quinlan:

As Ms Duggan mentioned, I do not have data on the reunification but I do have some basic data on voluntary care. In 2022, we had 5,863 children in care, of whom 21% were in voluntary care and 79% were on orders. That is a reduction. This figure is down to 21% from a rate of 26% in 2019. The use of voluntary care is decreasing.

In response to the other point the Senator made at the start of her opening piece, she is correct and I could not agree with her more, that experiences of inequity in society by families and children definitely impacts on whether they are likely to become known to Tusla. Ms Duggan mentioned the importance of that in her opening statement.

Better Outcomes, Brighter Futures, BOBF, and the whole-of-government approach to addressing those inequalities in society are important. If we can address poverty and homelessness and those things we will see fewer children coming to the attention of child protection and welfare services. I could not agree with her more.

On child sexual exploitation, it is developing practice as it is a complex area of practice. We have a strong notification process to An Garda Síochána because it is a serious crime. We are adopting a much more trauma-informed approach to it. It is not about blaming the child for involvement in it. It is about exploring what has happened to them. We recognise they are victims of abuse by adults in powerful positions.

Mr. Cormac Quinlan:

I just wanted to frame that.

I will start with referrals that comes to us of a child protection or welfare concern. The first thing we do is to intervene with the family to assess the level of concern. We talk to the family in a collaborative way to find out about the past harm, what we know has happened to the child and, most importantly, about the impact on the child. There are many complicating factors in families which we explore, such as parental drug misuse. Some of those factors may be impacting on the child to a greater or lesser degree, some may not. We do not assume there is an automatic impact, that because someone is using drugs it will definitely impact on the ability to parent, but we explore the impact with parents. We always balance that with the strengths the family has and safety. Even when danger has been present for the child, have there been examples of situation where the parents were able to keep the child safe even in the context of any complicating factors that might be present? We work in a collaborative way.

Then we try to agree with the families on the shared concern we have for these children into the future, the likelihood that something else will happen, based on what has already happened to the child. The likelihood is a future-focused statement of what we think. That is often based on what we know from research or otherwise, that if this has impacted on the child and it continues, it is likely to have a negative impact on the child in the future.

Then we try to set goals with the family that target us towards building a safety plan and a clear trajectory towards achieving safety for those children, keeping them at home. We recognise that, even in contexts where danger is present, other services play a critical role in addressing some of those complicating factors. We also recognise that addressing alcohol or drug misuse can take a long time, so we are trying to build safety around children that recognises that we can still create safety for a child and keep the child safely at home while those challenges are still there for a parent. Critically, how we do that is to involve a network of support, such as the extended family and friends network, which is an informal network and a formal network of professionals who support us in that. We work in a clear way.

There is an escalation process. We may start at a lower level of safety planning. We may then reach the threshold where a child is at significant risk of harm when we hold a child protection conference that involves multiple agency stakeholders with the family where we talk about additional risk and putting in place a child protection safety plan. It is only then we may decide if safety cannot be assured, to apply to the court. Court thresholds are high. When we go to court, the court is not keen to give us an order. We must absolutely show and prove to the court that we have exhausted all efforts.

Mr. Cormac Quinlan:

I cannot speak to the specific case. Unless there is an emergency – an imminent risk – we would not apply to court directly for an order. The expected practice of the organisation is to work collaboratively with families to try to achieve safety before bringing a case to court. If we did so, I am sure the court and everyone else would expect us to do as I have described. Even when children come into care, our first focus is on trying to reunite them with their families and maximising the opportunity to get them back home.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Does a representative from the Department want to add to that?

Ms Lara Hynes:

I will first address the larger point as to whether every avenue is exhausted before Tusla seeks an application to take a child into care. Through this Bill, we hope to revive the supervision order. The supervision order is not being used as much as it was, for various reasons, including various challenges related to the way it operated. We are strengthening what Tusla can do under a supervision order. In this regard, it can go to see the child in school or without the parents present. Also, the parents can be required to do certain things for the children, such as bringing them to medical appointments. The reason behind this is to make the option a real one in terms of the care of children at risk of going into care. Potentially, the supervision order might be used when there is a worry that the child might have to be taken into care, or it could be at the other end, when the child is being reunited with parents, as a way that allows Tusla to proportionately keep an eye on what is going on. The measure has been introduced to try to make what I have described a genuine option.

On the other queries, I will address the one on the interim care order because it is more straightforward. Basically, the intention of the provisions is to put a limit on how many interim care orders are granted. At the moment, people can be back in court month after month, and it can go on for years. The intention is to ensure it cannot go on for any longer than 12 months. That is not ideal either, obviously, but it is a question of having an absolute cap.

Ms Lara Hynes:

It is a cap. Basically, the period is usually about a month but we are putting in a provision such that it can be for three months if, for example, the child needs to be assessed. That is not going to happen within a month. That is included as another option so everybody does not have to keep going back to court.

Mr. Wolfe might address the question on the healthcare assistants and then I might speak to a couple of other points.

Mr. Toby Wolfe:

To clarify, the focus of Part VIIA of the Child Care Act is on early learning and care, in addition to school-age child care. With regard to early learning and care, I am referring to preschool services, for example, rather than healthcare assistance, which is a matter for the HSE and health system more broadly. That said, we do know that early learning and care can be very beneficial to children with disabilities or additional needs. The access and inclusion model, AIM, programme has helped a large number of children with disabilities to get into the early childhood care and education scheme, ECCE, the universal preschool programme. There is a pilot under way with the HSE involving the extension of some of the HSE's home care or healthcare assistance arrangements to support children in attending preschool services, but that is separate from the proposals on childminding. The definition of childminding proposed to be introduced in the Child Care Act is specifically related to childminders working in childminders' homes rather than parents' homes.

Ms Lara Hynes:

We considered that a lot. Ultimately, we did not include a provision because of concerns about how workable it would be in practice in terms of who would organise the legal advice. Obviously, if it were to be provided by Tusla, there might be a conflict. We know the Legal Aid Board prioritises court proceedings, so we were not quite sure how to include the measure in a way that it could be implemented effectively. That was a concern.

On the provision overall, there are safeguards in that it is required for the first time that there be explicit parental consent and that the parents be given an information booklet by Tusla setting out the purpose of the voluntary care arrangement, the proposed duration, and the obligations of the agency to monitor and review the arrangement. It is a matter of not letting it drift and reviewing it regularly.

Parents are also told about the procedure for withdrawing their consent. With a voluntary care arrangement, the parents can withdraw the consent at any time. The provision introduces a three-day waiting period so that if the parents withdraw the consent, Tusla has three days before the child has to be returned to their care. This is where Tusla has a very clear concern about the ability of the parent to care for the child. It may want to seek a full care order. The measure is in place purely in case there is a serious risk.

Ms Lara Hynes:

The foster parent can apply only if there is a full care order. This will not apply to interim care order circumstances or voluntary care. Foster parents will have to apply for the facility; it will not be given automatically. A hearing will determine whether it is to be granted by the court. It is not automatic.

The Senator asked about disability. This is something we are considering in terms of the interagency element, the children and young people's services committees and the national childcare advisory committee. Disability is such an enormous issue that we would certainly keep that in mind.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Next up is Deputy Costello. Will he confirm that he is on the grounds of Leinster House?

Patrick Costello (Dublin South Central, Green Party)
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Yes, I am. I thank the witnesses for attending. I assume everyone can hear me.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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We can, yes.

Patrick Costello (Dublin South Central, Green Party)
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I want to start with a couple of general observations. Dr. McAuley said-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Now we cannot hear the Deputy. I spoke too soon.

Patrick Costello (Dublin South Central, Green Party)
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Is it better if I put the microphone a little closer?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Yes.

Patrick Costello (Dublin South Central, Green Party)
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Dr. McAuley referred at the beginning to Tusla's responsibility for ensuring there are enough placements. This is very important because it ties in with the need for-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am sorry, Deputy, but we cannot hear you. Have you got a headset?

Patrick Costello (Dublin South Central, Green Party)
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I will come down to the committee room in a minute. I do not know whether there is someone else who wishes to contribute.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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The Deputy might make his way down to the committee room. Since Senator McGreehan is not present, we will proceed to the members with a second set of questions, starting with Deputy Sherlock.

Seán Sherlock (Cork East, Labour)
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I want to return to the issue of unaccompanied minors, which I asked about in my first set of questions. I am really looking for Tusla's response to the submission of the Office of the Ombudsman for Children. It referred to prohibiting the placement of children in unregulated accommodation and establishing a statutory duty on Tusla to ensure there are sufficient appropriate placements within each administrative area, including for children in need of emergency accommodation. Given the situation with Ukraine and international protection, we now have circumstances in this country in which people like me are fielding calls from people about whether children are being protected properly in certain centres providing accommodation and whether there is a robust, formal inspection regime. I have referred these concerns to Tusla and, to be fair to it, interventions have been made.

With respect to the point made by the OCO, however, we are talking about two different things here. I will take up the point about the protection of unaccompanied minors and unregulated accommodation. The two key words for me are "unregulated" and "accommodation". There is a challenge for Tusla to pick up where the accommodation is in the first instance, because things are moving rapidly. There is a need to get an understanding of where Tusla sits in respect of the regulation of accommodation that is being provided and identify how we bolt onto this proposed legislation a mechanism to ensure that we pick up unaccompanied minors and-or any child who is in unregulated accommodation. I want to leave the room with a better understanding of where Tusla stands in that regard.

On the early years sector, this is not to be critical but I wanted to drill down into parts of the Department’s submission, such as the formal information sharing with parents in relation to the review of part 7(a) of the Act, the introduction of a fit person regulation, namely, the regulation to empower Tusla “to assess the suitability of a person to become a registered provider”. How will that operate? I am a constituency Deputy. We deal with the gamut of humanity and the early-years sector is part of what we deal with. Parents come to us with complaints about individual providers and we refer them to Tusla, the Child and Family Agency but once it is gone one trusts that the inspectorate regime does its work. Very often, parents tell me that they are left somewhat in the dark on a legitimate complaint they might have made against a provider in respect of the care of their child, for instance. Will this proposed legislation tighten that up? If so, how will it do that so that the parent has some transparency on what is happening in respect of a complaint that they might have made about the care of their child?

Ms Kate Duggan:

I might set the scene on unregulated accommodation and unaccompanied minors, and the Deputy might then have some further questions. On separated children and unaccompanied minors seeking international protection, according to the data we have as of 5 May, there has been an increase of almost 500% in the number of referrals to our service. This year to date, there have been 144 new referrals. As of 5 May, Tusla was caring for 223 unaccompanied minors or separated children, of whom 72 are from Ukraine.

The Deputy is talking about two things in the context of unregulated placement. We share his concern about both. Tusla has approximately 5,500 children in care. We are very proud that around 90% of those children are in foster care and some 7% are in residential care but we have a cohort of young people, 58 this week, who are in what we describe as special emergency arrangements. They are young people in unregulated placements where we have been unable to find a suitable placement for them. In about half of those cases, there has been a breakdown in an existing arrangement either in foster care or residential care. About one third of them have significant complex needs. When we talk about our concerns around the duty to co-operate, when we work with the OCO around teenagers at risk, it is that cohort that we are talking about.

That group of children is not homogenous. We have one young person in Cork today who is accessing education for the first time in their arrangement and for the first time is connected back into a network. This gives rise to two things. There is a concern and challenge in relation to the regulation of those placements but it also raises the very real conversation we need to have about the continuum of alternative care-type of residential arrangements. This is something we are engaging on with the Department in the context of having different models of residential services that meet the needs of those young people. We have received many representations from the Deputy or colleagues around the country on the accommodation either of the 3,000 children who are in homeless accommodation or homeless-type services or the almost 4,000 children who are in direct provision or International Protection Accommodation Services, IPAS, accommodation. Tusla does not have a role in respect of the inspection or regulation of those placements. There is a resource issue related to the scale of numbers of children we have seen in homeless services and in emergency accommodation but we do have a dedicated point of contact and dedicated resources available to support those families. These are children who are usually with their parents. Their parents love them and are caring for them and we are not concerned about any harm to those children but there is certainly concern about the environment in which they are living and the impact that environment has on their ability to thrive. We provide the level of family support we can. We do not have enough resources for the scale of referrals coming to us in that space. But we do not have a role in inspection or the regulation of those.

Seán Sherlock (Cork East, Labour)
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It is a deficit and a weakness in the system. It is not a critique of any one agency but it is something that we as a committee might look at further. There was the other question also.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Was that for the Department?

Mr. Toby Wolfe:

I will take the question on information sharing with parents on early-years services. A main focus of the measures being proposed is to ensure that parents have more information about the quality of provision in early years services and, in particular, where enforcement actions are being taken by Tusla, the inspectorate, where there are significant concerns about quality, the parents should have information about that. The information for parents provides assurance for them of the quality of the care their children are receiving. It is also to empower parents so that they are in a position to have open conversations with providers about the quality of care.

The hallmark of a high-quality early-years service is one where there is open and ongoing discussion between the provider and parents. There are two types of provision in the general scheme. One is to create a general power for Tusla to disclose information about the quality of service to parents. That is something Tusla already does. It already publishes inspection reports in every case and has done for some years - it regularly reviews what they look like and ensures they are accessible - but that has been on an administrative basis and it has never had a legal basis. We want to make it very clear that Tusla has a legal power to disclose appropriate information about the quality of services. We are also proposing that in the various stages in the enforcement process where there are significant concerns around non-compliance with regulations that Tusla should have the ability to inform parents about what is going on. There was a consultation process that underpinned this last year with providers and parents and we heard concerns from providers about the importance of their relationship with parents. The legislation provides that in the first instance, Tusla may instruct a service provider that the provider gives the information to parents about the enforcement action. It is only if the provider does not do so that Tusla will have the power to get the parental contact details and provide the information itself. We are trying to support that relationship between the provider and the parents.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am conscious that Deputy Costello has not had the opportunity to come in. I am going to let him in now.

Patrick Costello (Dublin South Central, Green Party)
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Apologies about the mic. I am on two committees meetings at once. I was trying to sit in on the proceedings of the Select Committee on Justice as well as listen this committee's proceedings. Dr. McAuley spoke of how there should be a responsibility on Tusla to ensure adequate placements. Ms Connolly said something similar. This speaks to the need for better demand anticipation work. I saw this happen in local authorities in the UK. It is really important because not only does it help in planning for adequate recruitment and placement, it can also help with workforce planning. I do not see that happening here. Maybe it is but it does not seem to be done to the same level and at the same granular level as happens with the local authorities in the UK.

I have a comment on the guiding principles. It is welcome to have them here and we can expand on it, to be honest. Things like trying to improve consistency across the country in order that every child gets the same service and has the same threshold of risk applied to them, and that some children are not left at risk whereas other children might be or some child is taken into care whereas another child might not be. It would be useful and in line with social work values in terms of the guiding principles to put in something about contact and access with family members. While it talks about relationships, the contact and naming it explicitly is really important. It is also important that we name independent advocacy for both young people and parents. Again, a key social work value that is talked about a lot is empowerment and developing agency, and it can be very difficult to do that also when one has a role as the State's enforcer. The committee has talked a great deal over the years about the need for independent advocacy. It is very important to put that in and it should be reflected in head 16 in terms of the information that will be provided in order that parents and young people will know who their independent advocate is if they need help.

On voluntary care, I am conscious that we are not talking about private family arrangements at all. This is a very grey area. In some ways, perhaps, it is very deliberately outside of the law. These are not care orders or voluntary care agreements, but we look the other way to a certain degree. How we can capture them? How we can ensure that they are minimised or that the carer is given supports and the young person is allocated a social worker? I would also like to hear from the Department about the 12-month limit. If we look at section 16 of the existing Act in the context of some of these private family arrangements, we can see that there is a moment where it is necessary to make a decision. We need to put that clearly in this proposed legislation. There is a question regarding the 12-month time limit.

There is no proposed reform of aftercare. Ms Duggan spoke about expanding aftercare and increasing the age ranges. I ask the Department why we are not trying to expand aftercare, particularly when many witnesses who have come before this committee have talked about expanding it. Equally, there are no reforms relating to special care. Special care orders were inserted into the Child Care Act by a previous amendment. We spoke about the continuum of risk, teenagers at risk and extreme cases. Special care is the most extreme case. Admittedly, it relates to very small numbers, but we are doing nothing to reform it. I ask the experts here, namely, the representatives from Barnardos and the OCO, if special care is working. Are we right to say we should not reform it, or is there a huge lacuna that we should address in the same way as aftercare?

I have a question for the Department on interagency working. What is in the general scheme mostly relates to information and information-sharing. That is obviously important in terms of a complete assessment, understanding risk, and Tusla doing its job. Equally, it is important that Tusla can share that information outwards. However, information is only one part of interagency working. I know there are plenty social workers who have been banging their heads against their keyboards, regarding child and adolescent mental health services, CAMHS, for example. Where is the obligation to not just provide information but to provide services? Where is the obligation to work together or to show up at a case conference or a meitheal meeting, because it is there that interagency working becomes real and concrete. Why is interagency working solely limited to information in the legislation and can we expand that?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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We will start with the Department and then move to Tusla. There were questions for Barnardos and the OCO also.

Ms Lara Hynes:

I might work backwards, if that is okay, and start with interagency working. It is not limited to information sharing by any means. That is a key piece in allowing agencies to work more effectively together. We took a significant amount of legal advice on this and it is always important to keep in mind that these agencies, for example CAMHS and the HSE, have their own statutory obligations under their own legislation, which is to provide services to children independent of any obligations under the Child Care Act. Some of the wording around it is because we are talking about co-operation and co-ordination in a very broad way and not being very specific. When we are not being very specific it is quite difficult to say legally that somebody shall do something when we can not be more specific about what that might be. In a sense, the provisions are informed by the existing statutory obligations of those agencies and by what is possible and workable in terms of how we can provide for greater interagency working.

Regarding aftercare and special care, the Act was changed in 2017. Additional provisions were put into the Act in respect of both. We are considering the adequacy of those areas but we felt it was too soon and that we did not have sufficient information about the current operation of the provisions that had only been introduced in 2017, some of them at the end of 2017. However, we are conscious that those areas require further consideration and we are looking at those.

On private family arrangements, we are developing an overall policy approach to that and, more broadly, for children who are not in the care of their parents, so not just private family arrangements. We have to look at the supports for children who are not in the care of their parents more broadly.

Patrick Costello (Dublin South Central, Green Party)
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Apologies I have to be at another meeting.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Is it a meeting of the Joint Committee on Justice?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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That is grand. I wanted to make sure that Senator Ruane did not miss a meeting. Ms Hynes can continue.

Ms Lara Hynes:

We are looking in the round at the different types of arrangements where children are not being for by their parents and what supports we would ideally have in place for those children and their parents. The point is there is a different range of those and they are not all the same and guardianship payments and guardianship arrangements in general would apply to some of those situations so we want to look at the entire variety of arrangements to figure out the best array of service provision that could be put in place to support those children and families.

The other issue Deputy Costello asked about was whether there should be a 12-month limit on voluntary care. We considered this and the reason we were loath to put in a hard cap was because the variety of different situations in which voluntary care might be utilised. We were conscious of a situation where, for example, mental health issues or serious health issues of a parent that meant a child was going into voluntary care for an extended period, but maybe not all of the time. We were conscious of providing flexibility for Tusla in a framework where it is viewing that arrangement as inherently temporary and to be phased out as soon as possible so the child can be reunified with their family. That was the consideration that lead to the lack of a hard cap regarding voluntary care.

That would have been the consideration that led to the lack of a hard cap in respect of voluntary care.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I think there were questions for Barnardos and the ombudsman. Do they wish to come in those points?

Dr. Karen McAuley:

Sure. I will hand over to my colleague, Ms Ward, on special care.

Ms Nuala Ward:

The question that was posed as to whether or not special care is working is a very good one and one that Tusla will have to answer. Obviously, placing a child in a special care unit is an incredibly serious act. It involves deprivation of liberty for non-criminal reasons, so it is really important that we know that it works and why it works. Our greatest concern about special care is how it fits back into the wider community, what happens when a child leaves special care and how fit for purpose the community is in taking the child back. That is a very serious concern for us within the wider context of what we have just spoken about. It is back to Deputy Costello's original question. It is about demand anticipation. We have 58 children right now, tonight, in emergency special placements. How many of those children are there because we do not have enough special care placements or because the special care placement they were in did not work? We also have children who go through multiple special care placements. It is a really important question, and until we have the answer to the question about special care we will not know what legislative requirements are needed in order to improve it. That is our view.

I will hand back to my colleague on guiding principles because that is of equal importance.

Dr. Karen McAuley:

If I may make a number of brief observations on foot of Deputy Costello's references to the guiding principles, we mentioned earlier that we broadly welcome the principles. Without getting into the weeds of amendments, we would like to see just two brief points.

First, we agree with the idea that independent advocacy for children should be provided for under the guiding principles. However, to raise another matter - and it goes back to the issue of unaccompanied minors not being visible in the general scheme and no particular provision being made for them - there are four general principles of the Convention on the Rights of the Child. The best interests of the child and respect for the views of the child are two of those principles. We made our initial submission to the Department in 2018. Subsequently, we asked it to consider all four general principles under the convention, including the principle of non-discrimination. We would like consideration to be given to the inclusion of that principle. We understand that no attention has been given to that to date.

This ties in with the concept of equity of care. As everybody here knows, the right to non-discrimination is not the right to be treated the same as everybody else. It allows that, while we are all different, children in certain circumstances require special measures. The idea of equity of care, treating unaccompanied minors under that principle, the same thresholds being used, etc., for us, is not aligned with the principle of non-discrimination. The whole point is that certain children, including unaccompanied minors, have special vulnerabilities and are in different circumstances so they cannot be treated the same within a framework. They have to be looked at differently. That is the consideration we want given in the general scheme around this.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Does Ms Connolly or Ms McKittrick wish to comment?

Ms Freda McKittrick:

If I may comment on special care, I appreciate this is very recent legislation, but what we see is a kind of misfit between what the legislation is designed to do and the experience of children in special care. First of all, it is extraordinarily difficult to get a child into special care and extraordinarily difficult to get a child out of special care. The legislation was designed around three-month periods that would be renewable up to three times, so they are designed to get the kids out as quickly as possible. What we find in practice is that that is not long enough for them. The average time is about nine months. There has been significant movement and an increase in the amount of therapeutic work being done with them in special care, and that is taking a lot longer than what the current legislation is actually delivering. I will let my colleagues in Tusla come in on this. The crisis in placements going in is a huge factor; the crisis in placements coming out is another huge factor. There are the community supports and the continuation of supports for young people coming out of special care. These are the children, along with the 58, who have those extraordinarily high needs. We are paying the price for previous recessions during which services were cut and families were not supported, and we now have a cohort of children with these very complex and very difficult needs. As Deputy Costello said, there is a question mark as to how the health services, in particular CAMHS, are supporting them as well. This really does need review, and I am glad to hear that the Department is reviewing it.

May I come back to one point Senator Ruane made, or is that out of turn?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I will bring the Senator back in anyway because I know she has a whole list of other questions, but I just want to bring Tusla in on this briefly. Then I will go to Senator Ruane.

Ms Kate Duggan:

I will not repeat all the concerns about special care that have just been referred to because we share them. This is very much around the capacity issue in terms of being able to have an adequate number of special care beds open at any one time. We are operating at about a 50% to 60% capacity at any one time in terms of the staff available to us, but this is very much around the complexities of the children and young people being referred to special care. When they are in that safe, secure environment, getting access to therapeutic supports, they make progress, but it is very difficult to identify a placement that offers the same level of therapeutic supports to transition them out. That is certainly something we are focusing on, and it links back into Deputy Costello's question about the planning or the anticipation work. Last year we developed our strategic plan for foster care and our strategic plan for residential care. At that point in time, in 2022, we identified the need for, at the very minimum, an additional 110 residential care beds over three years. We have already, since that period, purchased an additional nine properties to open as residential units. They are at various levels of coming on stream. We know that the most significant challenge for us will be to be able to resource those units and identify the staffing for them.

What we see within that is that we are also operating in a context and an environment where, because of the increased demand in respect of separated children and unaccompanied minors, we have also opened an additional four residential units to help care for the 233 young people who are in our care, in addition to supported lodgings and foster care. We now have a new perspective, even 12 months later, on the increased demand for our services in terms of the number of beds we will need available to us. We also know that over the past 12 months there has been a reduction of almost 40 residential beds. Thirty-six of those have been due to providers exiting the market, either in private provision or in the community and voluntary sector, due to staffing levels or due to a change in function and purpose in respect of those units. We also have at any one time five to ten beds that are not available to us because of court direction in respect of the needs of a specific young person to have either single or dual occupancy arrangements. We have a plan there and we know where we want to get to, but we are challenged by the property market and the ability to recruit to and resource those units. We are working very hard to do that. We have a social care graduate campaign ongoing. There are 220 social workers qualifying this year, and we have secured 163 of those as permanent posts. There is a lot of work taking place to increase our capacity.

We also very much support the right to advocacy and the need for advocacy. We support EPIC to provide advocacy for children in care services. We also fund legal representation through EPIC, which is very important to us. As part of our new guidelines in supporting separated children and unaccompanied minors referred to us, we have now contracted an advocacy service to support those young people and to ensure that they have advocacy services. Obviously, however, we remain challenged in terms of increasing that level of support that is available.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Senator Ruane, I know you had a few additional questions.

Ms Lara Hynes:

It is not currently mandatory-----

Ms Lara Hynes:

-----for children in care proceedings to have guardianad litem-----

Ms Lara Hynes:

I will start with the last point. The Department thinks independent advocacy is a good idea for parents and children. We do not think it necessarily needs to be put in the statute. Many issues are better approached from a policy or operational perspective rather than mandating them in legislation. On the Senator's first point about, "is likely to be assaulted", the overall provision states that when the Child and Family Agency applies for a court order, it must be satisfied regarding several categories, such as "has been" or "is being" assaulted or ill-treated. The new one is, "likely to be assaulted, ill-treated...". At the end of that provision, it states also "... that the child requires care or protection which he or she is unlikely to receive unless the court makes an order under this section".

Ms Lara Hynes:

No, but it is also and "the child requires care or protection".

Ms Lara Hynes:

It also must say that they are likely to have been assaulted-----

Ms Lara Hynes:

That is not, a "likely", it states, "the child requires care or protection which he or she is unlikely to receive". That was put in because there may be a situation in which a new partner moves into a family home who already has convictions of assault or sexual abuse of a child. It is intended to address particular situations.

Ms Lara Hynes:

That is already in the Act. The other criteria for taking-----

Ms Lara Hynes:

I can talk to Tusla but the reality is evidence will have to have been presented by Tusla, the Child and Family Agency, about why it believes something is likely.

Mr. Cormac Quinlan:

It is a fair question. Normally, the evidence Tusla brings before a court in a case of neglect has what I call "past harms". Something has happened, the child has been neglected and the impact of that neglect is well-known. We may have tried to address those issues with the family and the parents to resolve it and been unsuccessful.

Mr. Cormac Quinlan:

There is past harm. It is both past harm and the fact that if nothing else changes and nothing has changed, they are likely to be harmed in the future.

Mr. Cormac Quinlan:

I will not address the semantics of the legislation. I will try to explain that there is always the consideration of what has happened to the child and what is likely to happen to the child-----

Mr. Cormac Quinlan:

-----based on what has already happened and the ability of things to change around that child.

Mr. Cormac Quinlan:

It is in the current legislation. The provision is already there. It is not an addition, I think it is a restatement-----

Ms Lara Hynes:

It is already in the Act that if, "the child’s health, development or welfare has been or is being, or is likely to be avoidably impaired or neglected". "Is likely" was already in there for being avoidably impaired or neglected. This is just to put it in the same provision regarding assault, ill-treatment and neglect.

Mr. Cormac Quinlan:

They are very rare circumstances in which, for example, there is a newborn baby and factors we are aware of affecting the parents' ability to keep that child are so serious, even though the child may not have yet experienced harm, it is likely to experience harm, based on what we know and the parents are struggling at that point. We do not believe that safety planning at that juncture will be enough to keep that very vulnerable young child at home safely. The child may require care for a period of time with the purpose of working back to reunification once we are able to support and address the complicating factors with that parent.

Ms Lara Hynes:

It is interrogated by the court, in fairness. Tusla only makes the application, the court determines whether it believes the evidence presented.

Mr. Cormac Quinlan:

The language is one thing. In terms of practice, in the scenario Senator Ruane described, we would not be able to take a child into care on the basis of a parent with a criminal history. There would have to be evidence before the court that the criminal history or behaviour of that parent has impacted so significantly on the child to cause that child harm and it is likely to continue to cause that child harm. I could not use that as a basis.

Mr. Cormac Quinlan:

That is a wording piece, absolutely.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am not sure if we are going to fully resolve everything. I am conscious of time.

Ms Lara Hynes:

In terms of the enhanced rights after three as opposed to five years, that came up a lot in the consultation process. A lot of organisations that made submissions were looking for reductions in the period after which foster carers could apply for enhanced rights. The rationale behind that is about permanency planning for the child in terms of his or her right to have a stable placement and to be an integrated part of a family in a long-term care placement. The foster carer will then be in a position to sign consents to bring the child on holidays and have a place in his or her medical treatment, for example. It facilitates more seamless parenting by the foster parent.

Ms Lara Hynes:

That is subject to a hearing and is something that has to be considered on a case-by-case basis. It is independent in the sense that it does not have any impact on access arrangements.

Mr. Cormac Quinlan:

Even outside of the current review process all children in care, up to the age of 18 if they remain in foster care, are subject to ongoing review. That is meant to involve parents and others, including the foster carers. Even on a full care order, a child is subject to a review within the first two months of coming into care, then every six months thereafter for the first two years, and annually after that. We involve parents in decision-making. I agree this fundamentally relates to a child's rights perspective and supporting foster carers in their role, particularly where there is a full care order. This is a child who will most likely be remaining with this carer.

Mr. Cormac Quinlan:

When we have developed guidance around this, what we typically do is try to agree that. We try to agree that fundamentally with everyone. If we cannot get to an agreement with everyone, we may have to apply to court, for the court to make a final determination to balance everyone's rights in that context.

Mr. Cormac Quinlan:

This is giving the foster carer the power to make those decisions under defined areas.

Mr. Cormac Quinlan:

This is giving the foster parent the decision-making authority to make those decisions in defined areas because the child is now with them long term on a full care order. It is empowering the foster carer as that child's de facto current parent to be able to support effective decision-making around that child. Parents will of course be advised. They may not be consulted fully about the decision, because the authority sits with the foster carer at that stage. The decision around the child remaining in care until 18 has been made before a court. We will have gone through all the due process requirements, that are rightly there, in protecting the rights or parents, children and anyone else.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Those joining us on Teams can see there is a technical issue so they have been cut off. We are trying to get them back but there are only a few minutes left.

Ms Freda McKittrick:

I want to make a point about enhanced rights. As guardians, we do not have any say in it and children do not have any say in initiating the process. Their views will be taken into account when the foster carers make the application and social workers will make a report. We think the children's views and interests should have stronger representation in the process. I take on board a lot of the points that have been made. For us, when we are working for children and that is happening in the background, the children tell us that it normalises life more. They do not have to keep going to a social worker to ask consent for this, that or the other. This is particularly where there are children with extensive disabilities, and where there are a lot of medical interventions. It normalises life for those children in a way that does not happen otherwise. I want to make those points. We also think there should be a threshold and a mechanism for the child to have an independent view and an independent say.

Mr. Cormac Quinlan:

A full care order is in place, therefore a full care order would normally be indicated as up to the age of 18.

Mr. Cormac Quinlan:

The parent is still active in the review process, because we are still planning around access and contact with the parent. That is an ongoing review process, so we have structured review mechanisms in place. I remind the Senator that those review mechanisms are subject to HIQA inspections. HIQA inspects our care planning processes too, so there is independent oversight of care planning in that context. I will pick up on another point. Under section 47 provisions, the original Act gave, for any child in care, provisions for directions to be made in relation to that child, whether they are on a care order or in voluntary care. There were provisions for anybody to apply to the court to seek directions in relation to a child if he or she felt that was necessary. Obviously, that is depending on people being aware of that provision.

Mr. Cormac Quinlan:

I am aware of the changes brought in as a result of the Senator's intervention on that occasion. Currently, under the adoption amendment legislation there is still a requirement. A child has to be in care up to a period of three years before they are possibly eligible for adoption. That does not mean to say he or she will be adopted. That is just in terms of eligibility. They can be in voluntary care, on a care order or both. The adoption process will still go through a process of ensuring all of those steps are taken, including that due consideration has been given to reunification or otherwise. Up to recently, we have had court cases where that has been rigorously tested to make sure those mechanisms were assured before that child could be released for adoption.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank all of the witnesses and the committee members. I know it was a long session, but it was interesting. It was good to get the back and forth. It is proposed that the committee publish the presentation on the website. Is that agreed? Agreed.