David Cullinane (Sinn Fein) | Oireachtas source

I move amendment No. 10:

In page 13, lines 37 to 39, to delete all words from and including ", when" in line 37 down to and including "children" in line 39 and substitute the following:"consult when planning and reviewing the provision of services in connection with the performance of functions under section 8(1)(a), (b) or (c) where relevant, and ensure that due consideration is given to the views of children as part of any consultation processes undertaken".

This amendment is essentially about the views of the child.

The first external seminar that I attended after being elected to Seanad Éireann was on children's rights. It was addressed by the Ombudsman for Children, Ms Emily Logan. She spoke about the need to listen to children at all times, which this amendment is attempting to ensure. Section 9(3) of the agency Bill introduces a new provision requiring the agency "when planning and reviewing the provision of services in connection with the performance of functions" that are being transferred from the Family Support Agency, the National Educational Welfare Board, NEWB, and the HSE to "ensure that consideration is given to the views of children". This provision is welcome, in that it obliges the agency to take account of the views of children in its consultation exercises when planning and reviewing certain services. However, what happens when the agency does not plan any consultation? The provision does not put an onus on the agency to organise consultations per se. If the agency decides not to consult at all when planning and reviewing its services, it is possible that it will not be in contravention of this provision.

The amendment imposes an obligation on the agency to consult widely when planning and reviewing provision of services in connection with the functions being transferred from the Family Support Agency, the NEWB and the HSE.

Section 9(4) of the Bill provides that the Agency "shall, in performing its functions in respect of an individual child under the Child Care Act 1991 ... [or] the Adoption Act 2010 ... ensure that the views of that individual child, where that child is capable of forming and expressing his or her own views, be ascertained and given due weight having regard to the age and maturity of the child".

Currently, section 3(2)(ii) of the Child Care Act 1991 provides that when a health board is performing its functions to promote the welfare of children when they are not receiving adequate care and protection, it shall "in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child".

Section 24(b) of the Child Care Act 1991 also includes an explicit obligation on courts in care and protection cases to "in so far as is practicable give due consideration having regard to his age and understanding, to the wishes of the child".

Section 9(4) in the agency Bill is stronger than the existing obligations in the Child Care Act because it places an obligation on the agency to seek out the views of the individual child when performing its functions under the Child Care Act and the Adoption Act. This is important as a major failing uncovered in the child deaths report was the failure of social workers to properly consult with children in the care or in contact with the Health Service Executive.

It is disappointing, however, that this legal obligation pertains solely to the agency's functions under the Child Care Act and the Adoption Act. The agency will be taking up the functions of the Family Support Agency and the education welfare board and will also be working with individual children, yet the obligation does not extend to these areas.

A 2011 report on children's rights commissioned by the Ombudsman for Children, analysing ten cases which came before the office, found that "the individual children appeared to be largely invisible in the decision-making process". In her 2012 annual report, the Ombudsman for Children, Emily Logan, highlighted the lack of awareness among decision-makers of the detrimental impact that administrative decisions can have on children and their families. She criticised how these decisions were made with little or no regard for children's rights noting: "... in particular, the parameters of the child's best interests and the child's right to be heard were not used to guide administrative decision-making to any great extent, if at all". Ms Logan cited cases involving a lack of access to education, separating children from their parents, and cases where children could not access necessary therapeutic equipment recommended by health professionals, due to bureaucratic processes.

It is important to ensure the administrative decisions taken by all agency employees impacting on individual children's lives will be covered by section 9. As already stated, this should apply in all cases of very young children as well as non-verbal children. While we acknowledge that it may be difficult to obtain these views, there is an onus on the agency to be proactive in seeking the views of the children concerned.

Individual practitioners may, as a matter of good practice, hear the view of the child and consider what is in the child's best interest. However, under the Education (Welfare) Act 2000, the Family Support Act 2001 or the Health Act 2004, there is no duty on practitioners to do so. Examples of cases where the worker under the Bill has no legislative obligation to hear the views of the child, include an education welfare officer engaging with a lone parent in relation to her 13-year-old child's non-attendance at school, or a family support worker working with a homeless family who is faced with splitting up the family members in an effort to find them accommodation.

Those are some of the concerns that external organisations have concerning the Bill. I will be happy to listen to the Minister's response.