Tuesday, 1 May 2007
Child Care (Amendment) Bill 2006 [Seanad Bill amended by the Dáil]: Report and Final Stages
This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation to them of those amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed groupings in the House. Senators may contribute once on each grouping. I remind Senators that the only matters which may be discussed are the amendments made by the Dáil.
The first group consists of amendments Nos. 1 to 3, inclusive, 16, 24 and 26. These are technical amendments arising from changes made to the Child Care Act 1991 and the Children Act 2001 in the Bill as passed by the Dáil.
Amendment No. 1 provides for a new section 1 in the Bill. This sets out the Short Title of the Bill in subsection 1(2), the commencement provisions and a revised collective citation. Amendment No. 2 deletes the original section 1, as required on foot of the other changes. Amendment No. 3 inserts a new definition of the principal Act, for the purposes of Part 2 inserted in the Bill, to mean the Child Care Act 1991. Amendment No. 16 inserts a new section defining the Act of 2001, for the purposes of Part 3 inserted in the Bill, to mean the Children Act 2001. Amendment No. 24 deletes the original section 3 from the Bill which set out the Short Title, collective citations and commencement provisions now dealt with in the new section 1 inserted by amendment No. 1. Amendment No. 26 changes the Long Title to encompass the changes to the Child Care Act 1991 and the Children Act 2001 in the Bill as passed by the Dáil. In short, all the amendments in this group are technical drafting amendments necessitated by the substance of the amendments we will discuss in the subsequent groups.
The second group contains amendment No. 4 which was inserted in the Dáil and is an amendment to the Child Care Act 1991. The purpose of amendment No. 4 is to modify the in camera rule in child care proceedings, set out in section 29 of the Child Care Act 1991. Section 29 of the Child Care Act 1991 is the section which creates the jurisdiction to take children into care and the in camera rule applies to the exercise of jurisdiction under that section. The purpose of the amendment is to allow for the attendance at and reporting of child care proceedings in specified circumstances and by specified classes of persons. Given the need to use an evidence-based approach to policy making and in the context of keeping the workings of the 1991 Act under review and the important role of the courts in the child care system, there is a need to open up these proceedings to scrutiny in a balanced way.
Senators will recall section 40 of the Civil Liability and Courts Act 2004 which modified the in camera rule in family law proceedings. There is a concern that when a rule provides for an absolute in camera ban on proceedings, bona fide research cannot take place into the operations of the courts in certain jurisdictions. In 2004, the rule was modified in the context of family law proceedings by section 40 of the Civil Liability and Courts Act. The recent publication of the first report on foot of that was a detailed investigation into matrimonial proceedings compiled by Carol Coulter, the legal affairs correspondent of The Irish Times, who was contracted to do this report which shed light on the exercise by the court of its jurisdiction in this area. It would be very valuable to have a similar report on the operation of child care proceedings.
Senators will recall that when I prepared and published the amendment to the Constitution Bill relating to children, one of the matters which was raised was the danger that children were being removed from their parents in an unwarranted and unjustified manner. That concern was entirely groundless, but it throws into relief the importance of having proper focused research into the operation of the courts in this area. What would be of great concern to me is the suggestion of inconsistencies in the approach of the courts in taking children into care. For all these reasons I recommend this amendment.
The precise details of the amendment are that persons falling into certain specified categories may attend proceedings and have access to relevant documents and prepare a report for publication of child care cases under the 1991 Act, subject to rules of court, the directions of the court hearing the case and the very important proviso that no information would be used which would enable a child who was the subject matter of the proceedings or any party to the proceedings to be identified. The amendment provides that decisions of the court hearing proceedings may be published but subject to the same stipulations.
The court has discretion, or if special circumstances apply in a particular case, to direct for stated reasons that the person may not attend and report on a particular case. The specified categories include barristers, solicitors, those representing and authorised in writing by the Children Act advisory board which will be set up in another group of amendments before the House today following consultation with the Minister for Health and Children, and those specified in regulations made by the same Minister after consultation with the Minister for Justice, Equality and Law Reform.
The third group comprises amendments Nos. 5 and 6. Amendment No. 5 is a technical amendment and amendment No. 6 amends section 43B to provide that an additional category of person may apply to the court to have an order under section 43A of the principal Act or any condition or restriction attaching to such an order varied or discharged. This amendment relates to the Bill that was passed by Seanad Éireann where we extended the concept of foster parents or foster carers applying for greater rights and more autonomy in respect of children who have been fostered by them for more than five years. That requires a court application.
Concern was expressed in Seanad Éireann that all the persons who might have an interest in the welfare of the child might not have the necessary standing to be present in court. I undertook to examine the matter and have done so. The original section 43 provided that the HSE, foster parent or relative to whom the order was granted, or a parent or person acting in loco parentis, could apply. I have extended the standing to include a person who, in the opinion of the court, has a bona fide interest in the child concerned.
The amendments in group 4 are Nos. 7 to 15, inclusive, and they relate to and restate Part VII of the Child Care Act 1991. At present, Part VII of the Act provides for the regulation of preschool child care but the regulation of child care for children of school age is outside the scope of the Act. Consequently providers of such services cannot avail of the VAT exemption currently available to providers of preschool care. I have therefore provided, in this group of amendments, for a regime of inspection for after-school child care services. Once the regime is established in the legislation, the necessary service is exempt from VAT.
The individual amendments set out the scheme of inspection. Amendment No. 7 defines school-age services and amendment No. 8 gives the Minister power to make regulations in respect thereof. Amendment No. 9 provides for the notification to the HSE of the provision of such a service and amendment No. 10 provides for an obligation to take reasonable measures to safeguard the health, safety and welfare of school-age children.
Amendment No. 11 provides for powers of inspection and amendment No. 12 affords power of entry, where required. Amendment No. 13 provides that the HSE may provide school-age services and that regulations may be made by the Minister in respect of them. Amendment No. 14 concerns offences. Amendment No. 15 provides for exemptions from the requirements of sections 50 to 57 for a person caring for children of relatives or a sibling group of children and provides for an exemption for a person caring for not more than five children of different families — of whom not more than three may be preschool children, excluding the person's own children — in that person's house.
Group five contains amendments Nos. 17, 18 and 19, which relate to the Children Act 2001. Amendments Nos. 18 and 19 provide for changes to section 76A(1)(c) and section 77(1), which relate to HSE-provided family welfare conferences that can take place in the context of youth justice court proceedings. These sections provide that a court hearing criminal proceedings against a child — a person under 18 years — may, where it considers a welfare issue arises in respect of that child, direct the involvement of the HSE in convening a family welfare conference in respect of the child. The purpose of these amendments is to provide that the use of family welfare conferences that arise in the context of juvenile justice cases is practicable.
Amendment No. 18 deletes certain words from section 76A(1)(c) that relate to court-directed family welfare conferences under section 77. The words proposed to be deleted are: "pending the outcome of the conference, make an emergency care order or a supervision order under the Act of 1991 in respect of the child." Amendment No. 19 amends section 77 and provides that where a court directs the HSE to hold a family welfare conference, the court must be satisfied that it is practicable for the executive to hold such a conference having regard to the age of the child and his or her family or other circumstances.
The amendments clarify that it will be for the HSE to apply for orders under the Child Care Act 1991 in respect of the child where this is appropriate following the family welfare conference. These amendments will allow for the early commencement of section 77 of the Children Act 2001, the last remaining section of the 2001 Act that requires commencement.
Group 6 contains amendments Nos. 20 to 22, inclusive. They change the name and functions of the Special Residential Services Board, which was established under Part 11 of the Children Act 2001. Amendments Nos. 20 and 21 insert a new section providing that the name of the board be changed to the Children Acts Advisory Board and amendment No. 22 sets out its functions.
As a result of the establishment of Youth Justice Service and the reorganisation of functions on the departmental side in the Office of the Minister for Children, there was a more precise allocation of responsibilities in regard to the residential care of children and the need for a specialised board to concentrate exclusively on that disappeared. For that reason, it was felt it was worthwhile to build on the good work the board had done in co-ordinating residential care by allowing it become involved in co-ordinating work on the operation of both the Children Act 2001 and the Child Care Act 1991.
Group 7 deals with amendments Nos. 23 and 25. These are technical consequential amendments arising from the change of the name of the Special Residential Services Board to the Children Acts Advisory Board. Senators can see that an extensive schedule of definitions and amendments is set out in amendment No. 25.
I thank Senators for their attention this afternoon. I note there were no contributions made and there was a broad welcome for these amendments in the other House.
I welcome the enactment of this legislation. It means the Children Act 2001 will have been concluded and implemented within the lifetime of the Government. It required some amendments. It required administrative changes such as the establishment of the Youth Justice Service. I am glad that not alone has there been legal commencement of the extensive 2001 Act — since 1 March last most of the legal provisions in that Act have been commenced — but with the enactment of this legislation the final outstanding provisions will be commenced.
The Government, by a decision a fortnight ago, has also allocated the necessary resources, in terms of the engagement of additional District Court judges and additional probation staff, to ensure the provisions of the Act are implemented.
I thank Senators for their attention to this and for their attention and interest in children issues during the life of this Seanad.
I thank the Minister of State and his officials for the work that has gone into this Bill. It was merely a question of listening to the Minister of State and I am sorry he had to speak without having a break. This Bill is welcome. It certainly strengthens the existing legislation. It should be worthwhile in the interests of protecting children.
I compliment the Minister of State. Since taking over the portfolio of Children he certainly has been a powering force in terms of amending legislation.
This legislation is particularly important. That neither I nor my colleague on the other side of the House commented infers that careful consideration was given to the formation of these amendments. The concise explanation of the amendments by the Minister of State was the main contributing factor to our silence. I welcome the legislation. It is a job well done.