Brian Lenihan Jnr (Dublin West, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to address Dáil Éireann on Second Stage of the Child Care (Amendment) Bill 2006, which provides that a foster parent or a relative who has had a child in his or her care for a period of five years, the child having been placed with him or her by the Health Service Executive, may apply for a court order for increased autonomy in respect of the care of the child.

I am pleased to note that this legislation has been passed by Seanad Éireann, subject to a small number of amendments. I thank Senators for their contribution to the Bill and for the worthwhile debate on the issues involved.

Child welfare and protection policy is grounded in the principle that children who cannot, for whatever reason, live with their own families are provided with an appropriate alternative. As Deputies are aware, studies have shown that the development of a child is best achieved in a loving family environment, which foster care can provide.

Foster care is the main form of alternative care provided by the Health Service Executive for children in need of care and protection. Our latest statistics, as of December 2004, establish that over 5,000 children and young people are currently in the care of the Health Service Executive. Almost 4,250, or 84%, of these children are in foster care. This represents an increase of 4% on the previous year's figures. This increase in foster care is welcome and is in line with Government policy. The number of children in residential care declined by almost 2%, from 527 to 442, between 2003 and 2004.

These figures show the critical importance of the foster care services in our child protection and welfare service. Families and family life are very important to all children and the opportunity to experience the qualities of family life is one of the main objectives of the national children's strategy. For those children who cannot be looked after in their own families and who need to be provided with alternative care, foster care provides the best way for them to experience family life. The challenge is to provide an appropriate response to this vulnerable group of children. This response must respect their rights to a childhood in a secure family environment so that they may fulfil their potential in adulthood.

In 2003 I launched a study undertaken by the former Eastern Region Health Authority entitled Counting on Foster Care — a comprehensive and detailed census of alternative family placement providers in the eastern region. The study outlined the varied routes taken by foster carers into the provision of such care. It is an in-depth examination of their views on the service they provide and the assistance they are given in providing that service.

One of the main features of this study was the broad range of information and statistics it had collated on foster carers. For example, the study indicated that in February 2001 up to 40% of foster care placements in the three area health boards were with relatives. This was considerably higher than the percentage of relative placement providers in England, at 12%, or Scotland, at 10%. This is a welcome finding as research has shown consistently positive outcomes for children fostered with relatives. The study showed that the range of motives of foster carers encompassed altruism and personal aspirations. Another point of interest was the range of individuals involved in foster care from all branches of society.

I was pleased to note that most carers found the experience of fostering enjoyable and that any concerns they had prior to fostering had been alleviated. The indications are that there are significant benefits to be derived from the fostering experience, for both the children and foster carer families. This provides us with valuable information for the recruitment of foster carers, with fostering being promoted as having something to offer not only to the children in care but to the foster families themselves.

The foster care allowance has been substantially increased from €90.85 per week for children under 12 years of age in August 2001 to €305 per week currently and from €108.88 per week for children aged 12 years and over to €334 per week currently. This increase has alleviated the need for foster parents to apply to the Health Service Executive for every extra financial need of their foster child or children.

Children in foster care are in the care of the State under the Child Care Act 1991 and foster carers undertake to care for these children on the State's behalf. As such they are a unique group in unique circumstances. The allowance is paid to foster carers for the benefit of the foster child and cannot therefore be considered an income or an income support. The allowance is paid in recognition of the obligations placed on foster carers to meet the standards set out in the care plan and to meet the standards set out in the national foster care standards.

Using all of these arguments, last year I sought to have the allowance included in the list of payments which are specified in the Finance Act as being exempt from income tax. I am pleased to say that I was successful and that these payments, as outlined in the Finance Act 2005, are exempt from income tax and shall not be taken into account in computing total income for the purpose of income tax legislation.

As a result of this Bill foster parents and relatives who have had a child in their care for a period of five years will no longer have to seek the permission of the Health Service Executive when certain decisions have to be made relating to the child. For example, they will not have to obtain permission to seek medical or dental treatment for a child or permission for a child to receive an immunisation or go on a school tour. The proposals outlined in the Bill will help to avoid the possible stigmatisation of these children in school contexts where they currently have to wait for longer than their peers or classmates for such permissions.

Two new sections, 43A and 43B, will be inserted into Part VI of the Child Care Act 1991. Section 43A(1) provides that a foster parent or relative may apply for a court order whether the child is in care on a voluntary basis under section 4 of the principal Act or is the subject of a care order under section 18 of that Act.

Section 43A(2) sets out the conditions on which the court must be satisfied before granting such an order. The child must have been in the care of the foster parent or relative for a period of five years; the granting of the order must be in the best interests of the child; and the Health Service Executive must consent. The parents having custody or the person acting in loco parentis must have consented if the child is in voluntary care and must be informed if the child is the subject of a care order. If the child is in voluntary care the parents who have surrendered the child into care have the right to veto any further step involving the transfer of rights. A court will have to take the decision on a person taken into the care of the HSE. The child's wishes must also be taken into account in so far as is practicable.

Section 43A(3) provides that any interruption of the placement during that period of five years should be disregarded unless that interruption exceeds 30 days.

Section 43A(4) provides that the conditions relating to the notification or consent of the parent having custody or the person acting in loco parentis do not apply if the parent or the person acting in loco parentis is missing or cannot be found by the Health Service Executive, or the court so directs having regard to the child's best interests.

Section 43A(5) provides that, subject to any conditions imposed by the court, an order granted authorises the foster parent or relative to whom it is granted, on behalf of the Health Service Executive, to have like control over the child as if it were the child's parent and to do what is reasonable to safeguard and promote the child's health, welfare and development. In addition the foster parent or relative is authorised under the order to give consent to any medical or psychiatric examination, treatment or assessment and to the issue of a passport or passport facilities for the child. The court may impose such conditions or restrictions as it thinks fit as to the extent of the authority granted. Consent given by a foster parent or relative to whom such an order has been granted will be sufficient authority for the carrying out of the medical or psychiatric examination, assessment or treatment or for the provision of a passport or passport facilities.

Section 43A(8) provides that where a foster parent or relative refuses to give consent in accordance with an order made under this Part, the Health Service Executive will have authority to give consent in accordance with section 18(3) of the principal Act. That is an essential safeguard in legislation of this type.

Section 43A(9) provides that any consent permissible under section 23 of the Non-Fatal Offences against the Person Act 1997 will continue to be an effective consent. Section 23 of that Act provides that a minor who has reached the age of 16 years may consent to any surgical, medical or dental treatment. That is the age of consent for medical purposes in our general legislation and it is important to translate and preserve that principle in the context of this legislation.

Section 43A(10) provides that any access arrangements in place before the granting of an order under this section will continue unless the court orders otherwise in accordance with section 37 of the principal Act. Section 43A(11) provides that, notwithstanding subsection (10), a court can at any time vary or discharge an access order, including an order which was continued or varied under subsection (10).

Section 43A(12) provides that any other functions of the Health Service Executive relating to the interest of a child, for example care planning, in accordance with any other provisions of the Child Care Act 1991 or regulations made under the Act will continue in force.

Section 43A(13) provides a definition of relevant time as being the time, in the case of a child in voluntary care, immediately before the child is taken into care and in the case of a child in care under a care order, immediately before the order is made.

Section 43B(1) provides that the court may vary or discharge an order made under this section on the application of the Health Service Executive, the person to whom the order was granted, a parent having custody at the time the child came into care or a person acting in loco parentis.

Section 43B(2) sets out the circumstances where an order granted under this section may cease to have effect. These include where a child in voluntary care returns to their parents or another person, where a care order is discharged, a child is adopted, a child is removed from the custody of the foster parent or relative by the Health Service Executive, the foster parent or relative requests that the child be removed by the Health Service Executive or the child concerned reaches 18 years of age or marries.

Part V of the Child Care Act 1991, which deals with jurisdictional proceedings, applies to proceedings taken under part VI and the new provisions will be in Part VI.

The importance the Government attaches to foster care was underlined by the publication in 2001 of the report of the working group on foster care, Foster Care: A Child-Centred Partnership. The report pointed the way forward to strengthening and developing the service and provided the guidelines to improve standards in foster care. Building on this work, national standards for foster care were published in 2003.

Since the publication of the standards the social services inspectorate has carried out a national audit and a pilot inspection of foster care services. The pilot inspection considered three of the standards of practice. Three community care areas nominated by the former health boards were inspected against these standards. These were located in the Health Service Executive eastern, southern and western regions. The sample group covered both urban and rural areas. The case files of a total of 56 children and young persons were considered during the inspection, representing approximately one third of the total number of children in foster care in the three areas.

On the basis of the information yielded by the pilot study, inspectors found that each of the community care areas provided a good foster care service. The inspectors found that the foster care service provided stability and continuity of care for the children and young people, with the majority of children having spent on average three quarters of their time in care in their current placement.

The inspection found that the services provided children and young people in foster care with an opportunity to maintain links with their families of origin. It was noted that over one third of the children and young people were placed with relative carers and two thirds of the children were living with at least one sibling at the time of the inspection. These figures were viewed as a demonstration of the former health boards' clear commitment to maintaining the connection between children and young people in the foster care system and their families of origin.

Each of the 56 children and young people had an allocated social worker and the inspectors found that the social workers provided a good service to the children. They visited them regularly and often helped them come to terms with the reasons that they came into care. They also maintained a high level of contact with the foster carers to provide them with support.

This was a pilot inspection. When the social services inspectorate is established on a statutory basis, it will be in a position to broaden the range of inspections undertaken against the national standards for foster care so we can ensure that services of the highest standard are provided throughout the country. I mention all of this to alleviate any concerns Members may have about the proposals outlined in the Bill. The proposals very sensibly give the foster parents greater autonomy in regard to the practical day-to-day care of the children entrusted to them. However, the children remain in the care of the HSE, which is responsible for their overall well-being and protection.

To be effective service providers we must have a long-term vision for the children in our care. We must empower these young persons while they are in foster care so they can be happy, secure and successful adults in society. The proposals in the Bill will help to give them a greater sense of belonging in a family where their foster parents are responsible for many of the practical decisions affecting their lives.

On a related matter, the adoption (Hague Convention, adoption authority and miscellaneous provisions) Bill. which is currently being drafted, will ratify the Hague Convention, bringing it into force under Irish law. The legislation will also establish the Adoption Board as an independent statutory body known as the Adoption Authority. The issue of the adoption of a person who is 18 years or more by the person's long-term foster carers is one of the issues I have under consideration in the context of the Bill. I am anxious to make legal provision in this regard. It can be done within our constitutional framework and would be of considerable assistance to foster parents and their children who wish to take that course of action.

I wish to inform the House of other matters which I hope to address on Committee Stage. All of these matters are within the scope and purpose of the child care legislation and the primary Act of 1991. The Government attaches a very high priority to the report of the Ferns Inquiry and to following up on the report's recommendations in the context of ensuring that effective child protection and welfare systems are in place to protect children. Before the publication of the Ferns Report, I sought the advice of the Attorney General on the report, including the issue of the Health Service Executive's powers in regard to third party abuse, which was raised in it. The advice was that the executive had general powers under the Child Care Act 1991 regarding third party abuse.

In line with the recommendations, however, it was considered that the Department of Health and Children, in conjunction with the Office of the Attorney General, should undertake an in-depth study of the HSE's powers in regard to third party abuse and that this would be followed by legislative proposals as required. Following further detailed discussions between my office and the Attorney General on the question of conducting the in-depth examination of these issues, my office and the Health Service Executive are examining in detail the various issues involved. I hope to conclude this process in the near future. The advice of the Attorney General will be sought on the outcome of these deliberations. Subject to Government approval, I will then publish legislative proposals relating to outstanding recommendations of the Ferns Report, in so far as they relate to legislative change and the Office of the Minister for Children, for inclusion on Committee Stage.

I also wish to introduce further legislative proposals which would provide for school age child care to come within the requirements of the Child Care Act 1991 in the same way as the pre-school services. I am also examining the guardian ad litem service, which is provided under the Child Care Act 1991, as to whether it is possible to secure a greater uniformity of provision in this service. I will revert to the House on Committee Stage about these matters.

I am happy to commend this Bill to the House. I believe it provides for progressive social change in our foster care system. Over the decades, the number of children in secure long-term care has increased. There is a definite cohort of children in long-term foster care and it is important that their foster parents have a measure of stability regarding decisions they make on their behalf. It is also important that we lay the foundation for the further change of permitting the adoption of these children in appropriate circumstances and in their best interests.

See this speech in context