David Norris (Independent)

I welcome the Minister of State. I also welcome Senator Butler's contribution because he showed a flexible approach and said although the Bill was very welcome in general, there were certain details which might need to be tweaked. The Minister of State is amenable and I hope he will allow this House to exercise its proper function in assisting him by tweaking the Bill and making some of the alterations to it which many of us feel should be made. The general context is interesting.

Yesterday I took part in a filmed interview with a remarkable Irish artist, Mr. Tom Dunne, about the impact of the Constitution on children and the question of the final ratification of the United Nations Convention on the Rights of the Child which, I understand, we have not yet done. It is very important that we do so, if we have not already. Among the issues which arose was the question of the 1916 Proclamation which refers to cherishing all the children of the nation equally. Many people think that statement is in the Constitution, but it is not and we have very little which actually protects the rights of the child.

There were an extraordinary series of reports in The Irish Times today about the abuse of people with intellectual disabilities and the children in that situation, and the extraordinary parallels to which attention was drawn, perhaps inadvertently, by Senator Mullen when he asked "Where have we heard this before?" in reference to moving people around and covering them up. The case study in The Irish Times gives a very fine report on Brendan, who said:

He did dirty things to me. He stuck his private parts up my bum. It was very sore. He did it to the others as well, in the spudhouse. If I wouldn't do it with him, he said he'd throw me in with the pigs.

This was going on quite recently. It has an extraordinary parallel with the moving, passionate testimony of a former mayor of Clonmel, Michael O'Brien. That is the context. We do not have the greatest record, in terms of the care of our children, in this House and this Bill will go some way towards rectifying that.

I received an extensive and useful brief from Barnardos. It was very helpful in alerting the Oireachtas in 1991 to the need to introduce the guardian ad litem principle in the aftermath of the Maria Colwell case. Like all Senators here, it gave a general welcome to the Bill but it feels, as I do, that it lacks an overarching vision. It is amending legislation, so perhaps one should not be too strict in looking for it. Barnardos welcomes sections 6, 7 and 8 because of the strengthening of efficiency in the protection of children but it says, as I felt, that rather than moving things on in a dramatic way, the Bill cements existing practice and does not build on existing structures to look forward.

I put this in the context of a report in The Irish Times some time ago which examined the impact of the Lisbon treaty and its provisions for fundamental rights and so on. It includes certain provisions concerning children, including their right to secure placement and to have their voices represented and heard. In this area, this Bill needs considerable strengthening. Dr. Ursula Kilkelly of UCC discussed the Charter of Fundamental Rights and said it guarantees children the right to protection and care, the right to express their views freely, the right to have them taken into account in proceedings concerning them and the right to have direct contact with their parents, unless it was contrary to their interests.

With regard to the rights to representation and the voice of the child, one of the most glaring gaps in the Bill is the failure to address the point made by Dr. Kilkelly, namely, the right of a child to be heard in regard to the making of a special care order. The Bill is not clear regarding the child's right to representation and fails to give the child an automatic right to representation, either through the child having party status in the proceedings or the appointment of a guardian ad litem. If it was a criminal case the child would have direct and clear rights to representation. Dr. Kilkelly, in a paper "Children's Rights in Ireland: Law, Policy and Practice", says the legislative provision is so riddled with caveats and discretion that it falls significantly short of an effective duty to ensure the child's views are heard, as required by Article 12 of the Convention on the Rights of the Child, and also fails to guide the courts in the exercise of their extensive direction to hear children in such cases and, if so, by what method. I hope the Minister of State will accept an amendment to clarify that important matter.

There is also the question of the guardian ad litem. Section 26 of the Childcare Act 1991 authorises the court to appoint a guardian ad litem, something of which I am aware because an amendment to the Act was proposed by me and seconded by Senator Brendan Ryan in 1991. I was well briefed by Barnardos at the time. A learned judge, Mr. Justice Conal M. Gibbons, in an article "Childcare in the District Court" quotes a Department of Health and Children manual. It states the crucial importance of the guardian's role is that it stands at the interface between the conflicting rights and powers of courts, local authorities and the natural and substitute parents of the child; that the guardian has to safeguard the child's interests to ensure the most positive outcome possible for the child; and that the guardian has to make a judgment between the potentially conflicting demands of the child's rights, children's rescue, the autonomy of the family and the duty of the State.

Mr. Justice Conal M. Gibbons, in his gloss on this, said in the United Kingdom the concept of guardian ad litem arose after the Fisher report in the wake of the Maria Colwell case. He said he read some of the debates in the Oireachtas which revealed that there was no provision in the original Bill which became the Childcare Act, even though it had an incredibly long gestation, and that an amendment was proposed by Senators Ryan and Norris - he got the order wrong; my amendment was seconded by Senator Ryan - on Committee Stage in the Seanad, which was accepted by the Government. He said to his mind it was a most important contribution to the legislation and without it the work of the District Court in child care would be much more difficult and children's interests would not have been as well served as they should.

I am glad the work of the Seanad, my work and that of my colleagues was recognised by the learned judge. However, he also expresses concern about the continuing inadequacy in this matter. For example, although the guardian ad litem is recognised under section 2(c) various matters are left in the hands of the courts, such as the appointment of a solicitor. In addition, the court may direct a solicitor as to the performance of his or her duties, including directions for the appointment of counsel. If a guardian ad litem is appointed - I speak as the person who introduced this amendment - it should be clear that this guardian should be entitled to instruct and direct a solicitor free from any interference, as would any other parties to the proceedings. Restrictions to this would hamper seriously the solicitor's capacity to represent the best interests of the child.

The next item to be considered is costs, as "reasonably incurred". Why does the Minister use the word "reasonably"? The Children Acts Advisory Board, which is about to be absorbed into the Minister of State's Department, has said that legislation proposed by that office would reinforce many current flaws in the system. It stated that the new legislation could saddle guardians ad litem with massive legal bills.

I noted that when the Minister of State spoke about the operations of the court in the same area he did not use the term "reasonable". He said the expense will be discharged. I ask him to look again at the unnecessary inclusion of the word "reasonably". It is unnecessary because the 1991 Act already provides for this to be taxed and that, presumably, would eliminate any unreasonable factor. However, it raises doubts and may deter people from applying to be made guardians ad litem.

Section 27 of the 1991 Act is to be amended in respect of the power of the court to give directions to procure a report. The amendment states that any reference in section 27 to the "party" or "parties" will include the guardian ad litem. That reference suggests confinement to the section. The point I make strongly to the Minister of State is that the function of the guardian ad litem should be recognised properly as existing throughout the Bill and this person should be regarded as party to the procedure for the purpose of the Act in general.

Another issue to consider is the HSE and the powers given to that body. For example, there is no requirement that the HSE should apply to the court to dispense with parental consent. These powers appear to exclude a child's family or guardian ad litem in a way that might disadvantage the child in a serious way. Here again, we come up against what Professor Kilkelly suggested regarding our obligations under the Lisbon treaty. We are required to respect the family unless it is a disadvantage to the child to do so. This Bill, as amended by Government, does not appear to do that, which presents a considerable difficulty.

There is also the matter of language. I had a visit from people involved in the care of young people who are concerned about the word "detention". They suggested it might appear to criminalise all the children in question. Children themselves speak of securing their "placement".

Aftercare is an issue. It is clear that the sudden breach and separation of a child from those with whom he or she may have formed a strong psychological and social link can be damaging and it is necessary for them to have aftercare. Section 45 of the Child Care Act 1991 provides that where a child leaves the care of the HSE, that agency "may" provide aftercare. The word should be "shall". Very many times we have debated in this House the usage of "may" and "shall". This is a matter of expense but I call on the Minister of State to think of damage to the child and the positive benefits and outcomes that will come from providing aftercare, as repeated studies have shown. There is a necessity to change the terminology from "may" to "shall".

I urge the Government to accept amendments, or even to introduce its own, in the following areas. First, it should include a statutory right to representation for children to the appointment of a guardian ad litem or a solicitor where the child has competency for such. Second, it should reform the language used in regard to special care orders in order to focus on service provision rather than detention. Third, it should provide for the development of outcomes that focus on best practice models of service provision. Fourth, it should put the provision of aftercare on a statutory footing for all children in the care system.

With these proposed amendments, which I hope the Minister of State will be gracious enough to accept or introduce we will have not merely an amending statute without any overarching vision but will achieve that vision which will enable us to secure the future of the children of our nation in a way that is compatible with our ideals.