Barry Andrews (Dún Laoghaire, Fianna Fail)

As the Senators indicated, this matter has, as a result, in part, of a campaign run by Focus Ireland and other organisations, given rise to a great deal of debate and analysis. Section 45 of the Child Care Act states the HSE may assist a person for as long as it is satisfied that there is a need for such assistance. The discussion in which we are engaged focuses on whether an obligation to provide aftercare is created in circumstances where the HSE forms the view that there is a need for assistance. As stated on previous occasions, where a view is formed that assistance is required, there is an obligation to provide aftercare. Therefore, it is not merely facilitative, it is mandatory where a need is identified. It is clear that not every child in care will require aftercare but there are those who do.

We are trying to grapple with how the section should be interpreted and whether legislative change will be required. That is why Senator Alex White's proposed amendment was accepted. If it is an obligation that arises on foot of an assessment to the effect that there is a need, it is clear that nothing will be changed by using the word "shall" instead of "may". We show a distinct lack of faith in the staff of the Bills Office by suggesting they might not have noticed this or are simply asleep at the wheel. We have had a discussion with them about whether, depending on the interpretation of the existing section, substituting "shall" for "may" might result in a charge on the Exchequer. In many senses, the word "may" implies an obligation.

As stated previously, under the Housing (Traveller Accommodation) Act 1998, local authorities were obliged to provide adequate accommodation for Travellers, even though the word "may" was used in the relevant section which was challenged in the High Court on a number of occasions. Various items of jurisprudence will show that the relevant section was interpreted by the High Court as meaning that local authorities were obliged to provide accommodation in circumstances where none was available.

The legislation before us is at the cutting edge with regard to how we mind children in care. Those who require some help after they leave care are the most vulnerable and they are not in the majority. Most children who leave foster care do not require aftercare. However, those who leave residential care do. Bearing in mind that there are approximately 5,500 children in care, only a small number will require aftercare. Even if additional resources are required, from a policy point of view, we must tackle this issue.

The lesson we learned from the Ryan and Murphy reports is that children who were in care went on to have difficulties relating to addiction, the criminal justice system, family breakdown and many other issues. There are still children in care who continue to emerge from it without proper provision being made in respect of them. That is not good enough. The HSE has indicated that it wants to expand its aftercare facilities. We carried out an audit of such facilities throughout the country and it emerged that the provision of aftercare was remarkably inconsistent. A post code lottery more or less obtains in respect of whether people will obtain services.

I am determined that we will fashion some change. The Bill is the only mechanism by which such a change might be introduced in the near future. Unfortunately, it deals with special care. It is slightly untidy to introduce amendments relating to all children in care to legislation designed to deal with those in special care. However, this is the only opportunity we will have to alter the position.

I am giving the matter serious consideration. I am not in a position to accept amendments today, particularly in view of the fact that we are involved in ongoing discussions. A change in policy will be required which will require consideration on the part of the Government. It is crucial that we respond to the amendments tabled by Senators Alex White, Fitzgerald and Norris. I do not know what our response will be but we will be returning to the matter.