Mick Wallace (Wexford, Independent)
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16. To ask the Minister for Children and Youth Affairs the role played by the Health Service Executive in the decision to remove Roma children from their families; and if she will make a statement on the matter. [47833/13]

Mick Wallace (Wexford, Independent)
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I understand, from the Minister's comment in answer to Question No. 2, that the Ombudsman for Children, Ms Logan, has initiated her investigation and has started her independent report, but I was of the opinion that a ministerial order, under section 42 of the Garda Síochána Act 2005, was required. I inquired on a couple of occasions from the Department about the terms of reference and I am told that they are still not sorted. I wonder if the Minister would agree that the terms of reference should be broad rather than narrow.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes, and I believe that they will be. It is one of the reasons that the Minister for Justice and Equality, Deputy Shatter, was waiting to get the initial report before finalising the terms of reference. For example, much comment has been made about the media coverage of these cases. That may well form part of a range of issues which need to be considered. On any necessary matters which should come within the scope, it is up to the Ombudsman to decide, under the terms of reference of the Act under which she operates, how broad her investigation can be. Under the terms of reference she already has by virtue of that Act, she has a great deal of leeway.

Equally, the area where the terms of reference, as Deputy Wallace correctly states, must be drawn up is in relation to the Garda Síochána because it does not come under her remit at present and must be provided for specially by section 42 of the Garda Síochána Act 2005, as amended by section 42 of the Criminal Justice Act 2007, to conduct an inquiry.

Michael Kitt (Galway East, Fianna Fail)
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If we are going to have supplementaries, we must be brief because we are against the clock.

Mick Wallace (Wexford, Independent)
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Given that the HSE reports seem to indicate that both actions were probably Garda led, and in the Athlone case involving probably solely Garda action, why is the Ombudsman for Children investigating what seems to be principally Garda actions? Her remit, under statute, is only to look at HSE powers and if it was otherwise, we would not have to introduce legislation to give her extra powers.

We already have the Garda Síochána Ombudsman Commission, GSOC, set up as a statutory body to investigate Garda misconduct, but yet the Minister for Justice and Equality seems to be ignoring and bypassing the specific statutory role and remits already set up under law. Surely, the Garda Síochána Ombudsman Commission is in a better place to deal with issues relating to gardaí. It is structured in that manner. There is the statute in place to deal with it. Why are we asking the children's ombudsman to deal with something that is more fit for GSOC?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Ombudsman for Children is the appropriate person to investigate this. At its core, this investigation is about the removal of children into care and then going before the courts system, which must happen as soon as a section 12 action is taken and the HSE gets involved. It involves the relationship or involvement of two agencies - the Garda Síochána and the HSE social workers and services - but in relation to children. Children are at the centre.

Considering the detail of the events that happened, I believe it is the right decision to refer it to the Ombudsman for Children, Ms Logan. She has undertaken many reports into the involvement of State agencies with children. In a number of previous reports, she has examined the kind of services that children get. She is well placed to examine this precise situation. I believe her report will be comprehensive and thorough because that is the way she does her work.

Mick Wallace (Wexford, Independent)
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It is difficult to comprehend.

I do not doubt Emily Logan's ability to investigate matters relating to the HSE. Perhaps the final report will prove me wrong but it appears that the Garda played a stronger role than the HSE in the removal of the two children. Given there was no risk of flight as the families had been here for seven years and were not nomadic - and even if they were nomadic, the authorities should not discriminate on grounds of nomadic culture - could the Garda not have taken a DNA sample? Could they not have guarded the place if they were really worried about flight rather than remove the children from the family? Surely the Minister would agree that this was a clumsy effort. It is not as though the children and the families will forget about this next week. This will stay with them. Would the Minister not agree that this was a very heavy-handed and clumsy effort?

Michael Kitt (Galway East, Fianna Fail)
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I will take questions from Deputy Clare Daly and Deputy Boyd Barrett. We are very short of time.

Clare Daly (Dublin North, Socialist Party)
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From we have read, the role of the HSE and social workers was quite limited in both these cases - non-existent in one and hardly evident in the other. The Ombudsman for Children obviously has expertise in dealing with State agencies and children are the very clear victims in this scenario. The Garda Síochána is a particular State agency that is difficult to investigate. The body statutorily set up to do that is the Garda Síochána Ombudsman Commission. We must make changes to allow the Ombudsman for Children to investigate the Gardaí in a field in which she does not have that capacity currently, which seems a bit remiss to me. Could the Minister confirm whether the role of the HSE and social workers was minuscule and whether the media, which played a huge role in respect of why the Garda intervened in the first place, will be covered?

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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On a point of order, I have a question that is almost the same word-for-word as those tabled by Deputies Wallace and Troy. Why was it not grouped? The Department makes the decision. Why were these questions not grouped together? It is exactly the same question.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I did not make that decision.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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The Minister's Department makes that decision.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I have no problem taking it.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I would like an explanation from the Minister. If she cannot give it here, could I get an explanation as to why they were not grouped? They should have been grouped.

For a child to be taken from their parents, which is the most extreme course of action, the child must be assessed by qualified professionals such as social workers or psychiatrists as being at imminent risk of harm. The Minister, as Minister for Children and Youth Affairs, should take this seriously because there is no evidence and I do not believe any evidence will be brought forward that there was any assessment that this child was at imminent risk of harm. Since when did gardaí act as social workers and make those assessments? The only thing we have in the public domain as evidence of why they acted as they did was the fact that a child had different colour hair and eyes from their parents. The last time I looked, that was not a crime and, therefore, the Garda had no role in this whatsoever, or is it acceptable for gardaí to make an assessment on whether a child is at imminent risk of harm? Qualified psychiatrists often wait six months after they have given an assessment that a child is in danger and they cannot get the State to act, yet here the State police acted to seize a child - to kidnap a child, in effect - when no qualified professionals had made an assessment that this child was in danger.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is all very well for the Deputy to make those points but I want to point out that for many years people in this country turned a blind eye to child abuse and did not take action. That is not for a moment to say that inappropriate action should be taken but I want to make that point because I have report after report on my desk where action was not taken by the relevant people. It is important to remember that. Regardless of whether one is talking about Monageer or the report of the independent child death review group, people repeatedly did not intervene.

In respect of the Ombudsman for Children, we have asked for an independent report and I do not believe it is appropriate to predict its outcome based on media reports to date. Deputies should support having an independent report by the Ombudsman for Children who is getting the initial reports from the HSE and the Garda and will then make her findings.

She will provide a completely independent report. It is commendable that she has the powers to investigate the Garda Síochána as the independent Ombudsman for Children. I believe that is a very important step, and it is the right thing to do. However, we should not pre-empt the findings of the independent report.

The reason we set up the independent report is to answer precisely the questions the Deputies have raised today. We will receive that report. The Ombudsman for Children has not given a timeframe for it, but as soon as she has the report, we will make it public. Let us wait and see what precise details led to the actions that were taken by the Garda and the HSE.

Emergency section 12 orders must be taken when a child is at immediate risk. It is an important part of our child protection service that the Garda has those powers. The Garda must protect children who are at risk.

Michael Kitt (Galway East, Fianna Fail)
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There is only time for one more question. I call Deputy McLellan.

Robert Troy (Longford-Westmeath, Fianna Fail)
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My question was not grouped with that question but it is the same question.

Michael Kitt (Galway East, Fianna Fail)
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There is no grouping.

Robert Troy (Longford-Westmeath, Fianna Fail)
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Can I ask a supplementary question of the Minister?

Michael Kitt (Galway East, Fianna Fail)
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No, I have called Deputy McLellan.

Robert Troy (Longford-Westmeath, Fianna Fail)
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Will the Minister allocate time in the Dáil to discuss those reports?

Michael Kitt (Galway East, Fianna Fail)
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I have called Deputy McLellan.