Charles Flanagan (Laois-Offaly, Fine Gael)

I am pleased to make a contribution on the Bill. On behalf of the Fine Gael Party, I welcome its entry into this House for debate. It will have the support of Fine Gael on Second Stage, as it had in the Upper House. I wish to flag that there will a number of amendments on Committee Stage which we can debate. I stress that this is a complex and technical Bill. We will have an opportunity to deal at some length with the detail on Committee Stage.

The Bill is very much court-oriented in content. It is somewhat difficult to grasp a sense from this legislation of the overarching direction the Government is taking in respect of child protection. It is the first amendment to the Child Care Act 1991 since the publication of the Ryan report. There is no doubt but that the grave problems in the State's child care services require both a strong and clear vision and a formidable commitment to driving through the reform which is necessary to address the deficiencies and dysfunction, given the extremely serious consequences for vulnerable children in society.

There is something of a contradiction I have found difficult to grasp, particularly in recent times when dealing in some detail with the Minister's portfolio and the departmental portfolio. I have noticed in the House in recent years that, on the one hand, we have, for example, the justified outrage and horror expressed by the Government in respect of historic child neglect and abuse, and, on the other, this is coupled with a certain unwillingness to make the necessary changes to ensure the vulnerable children of today are all properly cared for by the State. There is some level of doublethink which is not morally, logically or legally sustainable. While the appointment by this House and by the Government of a Minister of State with responsibility for children was a positive step in the right direction, given the importance of the issues involved, I believe the position should constitute a full Cabinet post. The scale of the challenge is too great for this post to be a subdivision of another Department - the Department of Health and Children, which is itself beset by myriad complex difficulties and massive deficiencies.

It is not easy to get a sense of the extent of the Government's commitment to child protection. On the one hand, an Oireachtas committee was established with the specific remit of drafting a wording for a proposed amendment to the Constitution to grant children specific rights under the Constitution but, on the other, since that wording was published earlier this year, little action has taken place and a host of obstacles have been cited when we on this side of the House question what the delay might be. On the one hand, reports such as the Ryan report are commissioned and then published while, on the other, facilities such as Ballydowd special care unit continue to be used on a day-to-day basis despite HIQA having declared the unit unsuitable, inadequate and unsafe. On the one hand, the Minister of State, Deputy Andrews, has committed to addressing the lack of social workers but, on the other, a recent HSE report reveals that up to 800 children in the care of the State do not have an allocated social worker. The figure was placed higher, at 912, by the child advocacy group Barnardos last April.

Moreover, the failure to provide for social workers outside office hours is nothing short of an ongoing scandal and a matter that must be addressed as one of great urgency. For some time, the Garda has been warning that the absence of social worker provision outside office hours has created a dangerous situation in which children in need of the greatest care must sometimes spend nights in police station cells, as there is nowhere else for them to go because the Government has consistently refused to provide the vital social worker service and backup that are necessary.

The Minister of State may argue that he is not a magician and cannot solve all of the problems overnight. The fundamental problems that must be addressed are not being addressed. Unsafe special care units cannot remain operational. Children in State care cannot be left without social workers. The neglect of those who require a social worker in the middle of the night cannot continue. The Government cannot continue to stonewall calls for the referendum on children's rights eight months after the draft wording was not only published, but agreed on an all-party basis.

The Bill allows the HSE to enter into an arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit, that is, with a service provider from the private or voluntary sector. Such units are subject to the Health Act 2007 and would be under the supervision and monitoring of the HSE. Given the bleak findings of the recent and many HIQA reports on standards of many care units, however, the provisions of the Bill may be meaningless. At the end of August, HIQA's report into the special care unit at Ballydowd in west County Dublin declared the unit unsuitable, unsafe and inadequate. That report came almost a year after the same body warned that Ballydowd was "no longer fit for purpose". The HSE promised to close the unit, yet it remained open and, to the best of my knowledge, is still operational. How can we be sure the Bill's guarantees that care units will be subjected to agreed standards is anything but meaningless given what is occurring in the State care sector?

When the Minister of State is making his closing comments, will he outline why HIQA was ignored last year in respect of Ballydowd? How can we be sure that any of its warnings will be heeded? What action has he taken since the two HIQA reports on Ballydowd were published to ensure that care units around the country are safe, appropriate and fit for purpose? What are the standards his Department employs in respect of the private care operators? I am given to understand it is relatively easy for anyone to set up as a child care operator in the private sector. One can stick up a plate and advertise one's services. What is the position regarding standards, vetting, suitability and appropriateness? There are certainly deficiencies, to use the Minister of State's own word.

I commend statutory agencies like HIQA and the Office of the Ombudsman for Children for their important work in this area. Furthermore, I pay tribute to the child advocacy groups and their ongoing campaigns to improve State care for children who require such intervention. In particular, I commend them on the essential work they all carry out at the coal face. Their experience and advice are of great assistance to us as legislators when draft legislation such as the Bill before the House is being examined, discussed and amended.

Following the passage of this Bill through the Seanad, Barnardos, the Irish Association of Young People in Care, IAYPIC, and the Irish Foster Care Association, IFCA, continued to express concerns about certain aspects of the proposed legislation. Particular concern has been expressed in respect of section 23ND. The three organisations have sought clarification as to whether the provisions of section 23NF, as they relate to section 23ND, require the HSE to obtain a High Court order before removing the child from this jurisdiction. They believe this is a basic requirement to protect the best interests of any child in special care, subject to removal from the State for the purposes of medical and psychiatric assessment or treatment.

Concerns have been expressed by many experts regarding the Bill's guardian ad litem provisions. The Government promised deliberations on the regulation and expansion of the guardian ad litem services. Progress in this area is moving too slowly, given that provisions for the guardians ad litem were introduced almost 20 years ago in the Child Care Act 1991. The childrens ombudsman's office and the Children Acts Advisory Board have identified the need for the guardian ad litem to be regulated and for funding and management issues to be addressed. In her submission on this legislation, the ombudsman stated: "Indeed, in the absence of a regulatory structure, it is unclear how the requirements of the guidance with respect to the selection and approval of guardians ad litem, the maintenance and updating of panels of approved guardians and the continuing professional development and training of guardians can be addressed." Moreover, the ombudsman and a number of expert groups have recommended that the Minister of State remove payment of guardians ad litem from the HSE. Her statement in this respect is worth noting:

In so far as it is possible that there may be a conflict between what is sought by the HSE in the course of care proceedings and what is recommendation by a guardian ad litem, the independence of the guardian could potentially be undermined by the fact that his or her costs are also paid by the HSE. A guardian ad litem's costs should, therefore, be paid from an independent governmental source with no potential conflict of interest in the case.

The Office of the Ombudsman for Children makes a cogent argument of which I am supportive. I would be anxious to hear any rebuttal by the Minister of State that might be able to persuade me otherwise.

Barnardos and the other groups have sought clarification on whether the proposed changes to section 26 of the Child Care Act 1991 change the current status of guardians involved in special care order proceedings and care proceedings in the District Court. Whether the guardian is considered a party or a notice party to proceedings, Barnardos, the IAYPIC and the IFCA believe the guardian rather than the court should have responsibility for instructing the lawyer to avoid possible interference with the independence of the guardian as a representative of the child. Barnardos and the other groups further recommend that the provision of a guardian ad litem be guaranteed in all cases affecting children subject to special care orders to vindicate the best interests of the child. Will the Minister of State address this recommendation and is he willing to accept it? If not, what are the grounds for rejection?

In the Seanad, concerns were raised regarding what "reasonable expenses" constituted in respect of guardians ad litem. The Minister of State pointed out the need to keep legal costs down, a principle we all support, but such cost savings must be rational rather than blunt. Given his stated desire to keep legal costs down and having regard to the highly court-oriented nature of the Bill, will he outline the extent of the in-house legal expertise available to the HSE? Does the HSE have in-house lawyers to handle cases or is there always a need to hire external lawyers? In this regard, it should be noted that, between 2007 and 2009, the HSE spent €2.4 million on child care cases in Dublin and surrounding areas. The Minister of State must address this matter. On the basis of public expenditure, senior counsel must be approved by the court before they can get an audience. This is State money. Some €300,000 was spent in the Dublin District Court on senior counsel, which I find extraordinary. At the outset I stated that the legislation being piloted through by the Minister of State is highly court oriented so it is timely to consider the management of legal fees within the HSE. What is the position regarding the HSE's in-house legal advice? Why does it always appear ready to hire external lawyers? There is little point in paying lip service to the concept of keeping down legal costs if they are not being properly managed by agencies, in this case by the Health Service Executive.

In respect of the future development of the court structures an interesting point was made by the Ombudsman for Children who recommended the creation of "a more unified court process at a regional level, with specially trained and properly resourced judicial personnel, looking at the full spectrum of children's care needs". That is a most interesting suggestion. It is not one I believe can be resolved by the intervention of, or even by the recommendation of, the Minister of State with responsibility for children. None the less I ask the Minister of State, Deputy Andrews, to indicate whether he is open to discussing such a proposal with his colleague, the Minister for Justice and Law Reform because it could make a great deal of sense, especially in the context of the technical and complex nature of the sections of the Bill before the House. This proposal or recommendation is worthy of further investigation on the part of the current Minister.

The Ombudsman for Children also recommended to the Minister of State that the Bill be strengthened to guarantee that the voice of the child is heard. The current language of the Bill states that the wishes of the child will be taken into account "in so far as practicable". The Ombudsman for Children has pointed out that the approach being taken is somewhat out of sync with Article 12 of the UN Convention on the Rights of the Child and could be in conflict with said convention. Many of the complaints the Ombudsman for Children receives arise from a failure to take children's wishes into account when major decisions affecting their welfare are being taken. I would like to hear the Minister of State's views on this.

Another issue which has been well aired but not addressed is after care services. This was a point of considerable deliberation in the Seanad where the Minister of State is on record as having stated that only a minority of children require after care. This assertion has been disputed robustly by many groups who work at the coalface who cite their own experience as well as international research supporting the assertion. The need for after care service is dependent on the assessment criteria used. Will the Minister of State be more open to what practitioners tell him about the need for such a service? Letting a vulnerable young person slip through the cracks because of a lack of after care service makes a mockery of all the effort put in while the child was in State care. Advocacy groups state that regardless of their best intentions, foster carers require an after care service for the young people who live with them regardless of how capable such a young person might be. The support may be financial until the young person starts employment or continues to third level education. It may be support in obtaining grants for education or in helping the young person achieve independent living. Many care leavers may not have a strong relationship with their carers and many have limited support from their family of origin. These young people will be dependent on the State. They are dependent on the HSE and social services to enable them make what is a vital transition to independent living. They require support over a number of years to make the gradual transition from dependence to independence. It is essential that these points, which were well made, are taken on board.

The advocacy groups seek amendments to the Bill to provide for appropriate level of after care for all children leaving the care system, depending on their level of need. They describe such a statutory provision as "the best way to ensure the provision of such services consistently across the State". Similarly, the recommendations of the Ombudsman for Children in respect of this Bill place a heavy emphasis on after care, pointing to the potential consequences of an absence of after care for vulnerable children, including basic matters such as homelessness. The ombudsman's submissions remind the Minister that the UN committee on the rights of the child recommended that this State strengthen its efforts to ensure and provide for follow up and after care to young persons leaving care and that attention has been drawn to this issue by the Ombudsman for Children in her most recent submission to the UN committee prior to its examination of Ireland's most recent periodic report.

There is a clear need, therefore, for this matter to be addressed, as there is an urgent need for professional longitudinal studies of children in care to address comprehensively issues, including after care. I am pleased and acknowledge that the Minister of State indicated he is open to commissioning such research. I hope he will. Ultimately, any effective policy is informed by such research which must be ongoing. Policies and practices must be sufficiently flexible to ensure new research-based recommendations can be put into practice efficiently and effectively. I accept that anecdotal evidence on a case by case basis is not sufficient but even if there is no research, that is no excuse for not moving on matters. I ask that the Minister of State undertake the research as he indicated he would so do. In this regard he might elaborate on what he has in mind when he referred to using the "research capacity" of his office for new studies in this area. He made this point on Second Stage in the Seanad but it is not one I saw revisited in the course of the debate. Will he specify exactly what he has in mind in that regard?

I mentioned and acknowledged the very positive and consistent contribution of the child care advocacy groups. In their regard I ask the Minister of State to clarify the level of consultation his Department carried out when this Bill was being drafted with agencies such as those I mentioned. Did his office liaise with the Ombudsman for Children, for example? What level of consultation with stakeholder organisations does the Department generally engage in when drafting a technical Bill with complex wording such as the one before the House? The Children's Act 2001 provides for the promotion of inter-agency co-operation, publishing criteria for the admission to and discharge from special care units as well as guidance on the qualifications and training of guardians ad litem, the organisation of seminars and conferences, conducting research, and providing views on any proposal of the HSE pursuant to section 23A(2)(b), Part IV A of the 1991 Act in respect of special care applications made by the HSE to the District Court for an order to detain a child to provide special care services for him or her.

I ask whether an audit of the board's effectiveness has been carried out. This, indeed, may well provide an opportunity to establish what the board did well, where there was room for improvement and where it failed, because we must learn from mistakes to deliver and provide a better service in the future. The Minister of State, Deputy Andrews, hinted when introducing this Bill in the Seanad that there was some duplication between his Department and the board. I remind him that he said, "My office promotes inter-agency co-operation and co-ordination in the delivery of services, engages in research and disseminates information on issues relating to children, functions also carried out by the Children's Acts Advisory Board".

Obviously, with resources being scarce, it is necessary to eradicate any form of duplication so as to ensure that resources are placed into the areas of greatest need and that funding is used effectively in those areas. I would hope the transfer of the functions of the Children's Acts Advisory Board is carried out professionally, with best practice identified and replicated for the future.

Finally, my Seanad colleague, Senator Cannon, stressed the importance of early intervention in respect of troubled children and families. I believe we are all of the view that early intervention in terms of support mechanisms is far preferable to taking a child into care when a dangerous threshold of neglect has been reached. The Minister of State has visited family resource centres in his constituency, as most Deputies will have done. We all agree that their work is very impressive, but there is a challenge for these centres in terms of reaching out to the families that might most need them. I would welcome the Minister of State's views on what can be done to promote awareness of facilities such as family resources centres, and what he envisages for them in the future, with particular reference to ongoing funding and budgetary endeavours.

In conclusion, I broadly welcome this legislation. I look forward to pursuing the detail on Committee Stage and I hope we have an opportunity to reach agreement on the matters of contention that have arisen. The Minister of State might indicate his target timeframe for when the Bill will ultimately be enacted, but there is every reason why this should be on the Statute Book by the end of this year.

See this speech in context