Jan O'Sullivan (Limerick East, Labour)

I, too, welcome the Bill, but I have a number of issues I want to raise today with the Minister of State. I also have a number of amendments to table, when we get to Committee Stage. The main purpose of the legislation is to provide for a statutory scheme, whereby the High Court will have exclusive jurisdiction in special care cases. This is sensible in so far as it involves amending the original Act while providing a more coherent framework in which to deal with these very difficult cases.

My first point is that it would have been better if we had the bulwark of the constitutional referendum behind us in the context of this legislation. In some ways it is to put the cart before the horse, although we will be introducing a referendum at some stage in the near future, which will put the rights of children into the Constitution, assuming that is what the people decide to do. This is the backdrop from where we should be discussing this legislation, and indeed we can discuss it in that context, knowing what the agreed wording of the all-party committee is. Again, I call on the Minister of State and the Government to inform the public as to when we can expect that the referendum will be put before the people. We need a date as a matter of priority.

The Minister of State came before the Joint Committee on Health and Children recently, where this issue was raised. Deputy Charles Flanagan was in attendance as well. The Minister of State informed the committee that there is ongoing consultation among a number of Departments on how the proposed wording might affect the delivery of responsibilities in their remit, whether education, health or whatever. At that time I expressed some concern, as I do now, as regards my belief that in some cases Departments might be quite conservative when it comes to protecting the status quo. In some ways the representatives of the people across all parties might be more progressive in terms of strongly guaranteeing the rights of children in the Constitution. Again, I wanted to express that view here today. The Minister of State, to some extent, is the guardian of the public representatives in this regard, to ensure that we get a wording which is as strong as possible and reflects all-party agreement as regards amending the Constitution.

The Bill also has to fulfil our obligations under the UN Convention on the Rights of the Child and the European Convention on Human Rights. Indeed, there are number of recommendations from the Ryan report, and others as well, indicating that they are focusing on the issues we are discussing in this legislation. Obviously we are talking about the most vulnerable of children as well as some of the most difficult and chaotic young people in the country. I well understand that it is not an easy area. On the one hand we have to balance the rights of these young people, while providing, too, that the State has an obligation to ensure they are appropriately protected, while others must be protected as well in the context of their detention. I say this because I am aware of the type of chaotic behaviour that sometimes is characteristic of such young people. We therefore have to ensure that the places of detention are appropriately staffed and properly run both in the interests of the young people and the staff, because it is a very difficult area in which to work.

Deputy Charles Flanagan referred to the submission of the Ombudsman for Children, as well as others that we have received from bodies such as Barnardos, Focus Ireland etc., which represent the interests of children in care, specifically. I shall just quote from the submission of the Ombudsman for Children, which I presume the Minister of State has taken into account. I would also ask whether he has met Ms Emily Logan in her office, in the context of the legislation. She said in her submission:

Depriving young people of their liberty for their own protection constitutes one of the most serious interventions the State can make in a young person's life. The making of a special care order is appropriate in only the most difficult cases, where a young person's life, health, safety, development or welfare is at risk.

That comes from the advice of the Ombudsman for Children on that particular Bill. In depriving young people of their liberty in this way, it is essential to ensure the care they receive is appropriate to their needs. Again, I share the concern around the HIQA report on Ballydowd, in particular, and its conclusion that it was unsuitable, unsafe and not fit for purpose. I understand it is still open, but that considerable work has been done in relation to the physical building. Perhaps the Minister of State might clarify the situation. I also understand that, literally, there is nowhere else at the moment that is appropriate for these young people. There must be somewhere, but in the event, it must be appropriate to their needs.

The other two places where they can be detained are Gleann Álainn and Coovagh House. I have some knowledge of the latter because it is in my constituency.

I understand a number of cases have been taken or at least initiated by staff with regard to the behaviour of young people in that place of detention. The facility does not house the numbers for which it is designed - it is about half full generally - and does not appear to be good value for money. I know that such places are extremely expensive to run as they require large numbers of staff as well as experts. However, it is important that we provide for the maximum number of young people based on what was intended and that there is no waste of money. I understand there is quite a high turnover of staff in Coovagh, although I am not sure about the other two centres. My concern is that these are difficult places in which to work. We must ensure that the people working there are appropriately trained, but also that they have the appropriate level of experience to work in those challenging conditions.

In the Seanad, there was some discussion about what exactly happens in these places of detention. In particular, it was felt that there should be a strong therapeutic element to the care provided. On Committee Stage there was a long debate on the language used in the Bill, particularly with regard to whether such children should be referred to as being in detention or in placement, and the Minister of State was somewhat positively disposed towards using the word "placement" rather than "detention", which is used many times in the Bill. I accept that language will not be the determining factor in what happens in these places and in how these children are treated, but it is important. I ask the Minister of State to consider this, because he did have some sympathy for the points that were made by Senators.

I also have concerns about whether the number of social workers is adequate. This is something I have raised many times with the Minister of State, and I know there is a commitment to employ more social workers. The Minister has expressed a strong wish to establish more early intervention facilities for families, and this requires more social workers. If we are to have meaningful early intervention for families, we must have an adequate number of social care workers who can intervene at those early stages. Barnardos is doing good work in this regard in my own constituency, particularly in the regeneration areas. It is tedious and time-consuming work, but the results can be life-changing for young children who are growing up in dysfunctional and difficult families. There is no alternative to early intervention; intervening at a later stage cannot undo damage that is done when children are young.

I have some sympathy with the difficulty experienced by Minister of State in trying to juggle the available resources for all the different elements of support these children need, but we should provide more resources for early intervention. It is not specific to this legislation, but the Bill is required partly because so many children are growing up in very difficult family situations, with older brothers and sisters whose behaviour is not the kind of example one would want to give any young child. I know of many small children in my own constituency who are living in dysfunctional families, and the only hope for those young people is strong early intervention, support for schools and preschools in their areas and, as Deputy Charles Flanagan has just said, support for community bodies such as family resource centres. There are many interventions, funded in a variety of ways - some voluntary, some statutory - but we need to ensure they are supported and they do not fall through the cracks due to the difficult budgetary decisions that will be made in the near future. It is important to have a safety net in the form of a floor below which the level of service is not allowed to fall.

I also have some concern about private providers of care and the need to ensure they are appropriately vetted and up to standard. We are more used to care being provided statutorily through the HSE and other bodies, and there is some suspicion that private providers might not be as effective. It is important that we are absolutely assured they are appropriately vetted.

Deputy Flanagan spoke about the possibility of establishing a separate senior ministry, which is something we brought up before. There is a case for it, at least on a temporary basis. I am thinking back to the time when Mervyn Taylor had the brief of equality and was able to make progress on that agenda over a specific period of time. That ministry no longer exists as a separate ministry, but it allowed for a focus on those issues and there were some fine achievements. The welfare of children is another area that requires a focus over a specific period of time, so that we can learn from the horrific acts that were perpetrated on children, many of whom were in the care of the State - perhaps in religious institutions, but placed there by the State - and many others who were not protected while in the care of their own families. We must focus on ensuring that changes we make to the Constitution, the legislation and other systems are strongly supported. A separate Minister for children would be a positive step in that regard.

A couple of other issues were raised in the Seanad and by some of the bodies that have contacted us, as well as in the House today. I refer in particular to the right of the child to be heard and represented, which was mentioned by the Ombudsman for Children and by Barnardos. The Ombudsman for Children refers to the fact that section 24 of the Bill qualifies the requirement to consider the wishes of the child by stating that such consideration shall be given "in so far as is practicable". The Oireachtas Joint Committee on the Constitutional Amendment on Children, in its proposed wording for the constitutional amendment, recommended the following:

The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including: [...]

(iii) the right of the child's voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child's age and maturity.

This is stronger in its wording than what is in the Bill. In addition, Article 12 of the UN Convention on the Rights of the Child provides that "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child". I will be proposing amendments in this regard. It is important that we strengthen the right of the child to be heard.

The UN Committee on the Rights of the Child expressed a concern that the right to be heard was not adequately protected in Irish law and called on the State to ensure that children are provided with the opportunity to be heard in any judicial and administrative proceedings affecting them and that due weight is given to those views in accordance with the age and maturity of the child, including the use of a guardian ad litem as provided for under the Child Care Act 1991. The Ombudsman for Children suggests that we would be more in harmony with the UN Human Rights Committee if we worded that the legislation in that way.

Barnardos has provided us with statistics that reveal a guardian ad litem is appointed in only 25% to 30% of care cases. The charity is in favour of a stronger commitment to the provision of guardians ad litem. I understand it is an assumption in Northern Ireland, England and Wales that such a provision will be made unless there is reason to do otherwise. I am aware that provision has been made for the courts to appoint a guardian but I ask the Minister of State to consider a form of wording that more strongly favours the assumption of such an appointment and ensures that the voice of the child is heard.

The provision on aftercare is very important and needs statutory support within the legislation. I am aware that guidelines are in place and understand the HSE is developing national standards on aftercare but while this is welcome, there is no commitment on putting in place a dedicated budget. Aftercare should be included in the legislation as a statutory right. Some 5,419 children are in care at present, or double the number of 20 years ago. Research by Focus Ireland suggests that two thirds of young people leaving State care experience homelessness in the subsequent two years. Focus Ireland has been campaigning strongly for the statutory right to aftercare. It has found that many young people pass through various homeless services after they leave the care setting and need the outreach support that aftercare can provide.

Homeless agencies in the Dublin area are undergoing an extensive reorganisation of services, including aftercare. Focus Ireland is involved in this reorganisation. A number of cases have been highlighted in this House involving individuals who have died or became dependent on drugs. Many other young people live despairing existences with little support from anybody. Aftercare is important to these individuals, who in many cases have moved from placement to placement and who lack confidence or a positive self-image as a result of being taken from their parents and put into care. When they leave care, they need certain supports that may not be required by an 18 year old who had the benefit of growing up in a happy family.

I will be tabling amendments to the Bill on behalf of the Labour Party, some of which arise from the debate in the Seanad. The Minister of State accepted one or two Seanad amendments and expressed his agreement with other proposals. I am concerned to ensure children's voices are appropriately heard in court proceedings. I am probably the only speaker thus far in this debate who does not have legal training and I realise the legislation is quite complex. However, it is a duty of the courts to ensure young people's voices are heard when their futures are being decided. The other issue concerns what happens to these young people in the care environment. We must be able to provide for their needs in a way that gives them a chance to live a normal and fulfilled life. In many cases, that involves proper aftercare. I will not be opposing the Bill on Second Stage but I will be proposing amendments.

See this speech in context