Thursday, 6 May 2010
Child Care (Amendment) Bill 2009: Report and Final Stages
I welcome the Minister of State at the Department of Health and Children, Deputy Barry Andrews. I remind Members that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment, and that each amendment must be seconded.
I move amendment No. 1:
In page 6, between lines 6 and 7, to insert the following:
"3.—The Minister shall within three months of the commencement of this Act, publish a report on the provision of secure care under this Act which shall include consideration of how such provision compares with best practice internationally.".
I welcome the Minister of State. This amendment has been submitted by Fine Gael because it believes the Bill gives us, as a nation, an opportunity to address meaningfully the shortcomings of our child care system. If the amendment is accepted, it will represent a strong signal from the Government of its intent to ensure the highest standards of care are achieved in all care facilities, particularly the secure care facilities to which this legislation pertains. My colleague, Senator Fitzgerald, pointed out during the Committee Stage debate that a stay in a secure unit should be a positive and therapeutic experience for a child, but, unfortunately, the opposite seems to be the case for many children. When I listened to a recent radio interview with Ms Louise Rafter, I was deeply saddened by her account of her experience in a secure unit. She described how, as a ten year old girl, she had been incarcerated in a bare-walled room that had a bed glued to the floor. She was left there for two weeks in pain and distress.
The amendment would require the Minister to give a commitment that within three months he or she would "publish a report on the provision of secure care under this Act". The Minister of State may consider the relevant period should be extended to six or 12 months. This proposal would ensure the experience of Ms Rafter and many others like her was never repeated.
A recently published HSE report, Inspiring Confidence in Children and Family Services: Putting Children First and Meaning It, concluded that when children were taken into care, factors such as the age of entry into care and the speed with which action was taken to rehabilitate or find long-term alternatives were critical. It was chilling to learn in the report that a child over the age of ten years who had been in care for more than one year was likely to remain in care for the rest of his or her childhood.
I welcome the Minister of State's response on Committee Stage when he indicated that he wanted to adhere to or surpass the very best international child care practice. The amendment proposes that he should commission a report to establish how our services stand up to scrutiny and compare with best international practice. If the Minister of State seeks to reject the amendment, I will wonder why that is the case. I look forward to hearing his response.
I will address the specific issues raised by Senator Cannon. He is right in saying a stay in special care should be a positive and therapeutic intervention on behalf of a child. In the Health Information and Quality Authority's report on special care produced at the end of last year the authority broadly agreed that such outcomes were being achieved.
When one is having a debate of this nature, there is a danger that one will confuse special care orders and other care orders. In this legislation we are dealing with secure detention for a specific period of time, as ordered by the High Court. That should be distinguished from foster care, residential care and other forms of high support care.
The Senator mentioned the case of Ms Louise Rafter who, at the age of ten years, would have been too young for a special care order for secure care. I have met Ms Rafter who is a very eloquent spokesperson for children in care. There has been a shortage of young people who are willing to stand up for and on behalf of children. Ordinary kids have their parents or their schools to advocate on their behalf. We need to listen to what young children who are or have been in care have to say. Ms Rafter is a credit to others who had to avail of these services.
The Senator also mentioned the PA Consulting report which was commissioned by the HSE. It provides an honest appraisal of what is wrong and what needs to be done. It is part of the reform process, in which I have been involved since my appointment. I hope it will deliver results.
On amendment No. 1, last year the Children Acts Advisory Board commissioned an independent report on special care. The report will give us the information the amendment intends to elicit. Further research is being undertaken by Social Information Systems Limited, in addition to that of the steering group of the Children Acts Advisory Board. The HSE and the Office of the Minister for Children and Youth Affairs are represented in these endeavours. It is hoped a comprehensive report will be finalised and published in the coming weeks.
Section 8 of the Child Care Act 1991 requires the HSE to produce an annual review of the adequacy of all its services under the legislation. Such reviews are now published much more contemporaneously than they were before the last couple of years. I chair monthly meetings with the HSE, at which the issue of special care is reviewed. A specialist with responsibility for this area is in place and introducing changes. I do not believe, therefore, that the amendment is necessary, for the reasons I have outlined. I ask the Deputy to withdraw it.
I will withdraw it on the basis of the significant improvements in reporting mentioned by the Minister of State. I appreciate that he places great value on the experiences and suggestions of Ms Rafter and others on the issue of how we can improve child care. I refer, in particular, to the issues of secure care placements and special care. In that context, I wonder if it is possible for us to learn from the experiences of the representatives of those who have availed of these facilities. Perhaps we could take on board some of the suggestions they might make. Has provision been made for such representation, for example, during the annual review process mentioned by the Minister of State? Would it be possible for such a provision to be made?
It is interesting that the Senator should ask that question. My office has an obligation to fulfil its responsibilities under the national children's strategy in so far as the voice of the child is concerned. That is why we organise Dáil na nÓg, the Children and Young People's Forum and the advisory group. This year, for the first time, we have tried to ensure we consult children in care. We have established a forum within which children in care can give us information. That process has revealed interesting information, with which I was not up to speed. It is a useful process in so far as it is informing policy in areas such as aftercare, an issue we might discuss later in the debate. We have started to do this work for the first time and I hope it will produce results and inform policy in due course.
According to my brief, it has been ruled out of order by the Bills Office. I can only proceed on that basis. Perhaps it has been tabled in a different form, but it is deemed to be out of order, as it involves a potential charge on Revenue. Therefore, we cannot have a debate on it.
Section 3 of the Children Act 2001 defines a "children detention order" as having the meaning assigned to it under section 142 which provides that an order may be imposed on a child for a period of detention in a children's detention school. Thus the amendment appears to seek a change in the definition of a "children detention order", but to do so one would be confusing in terms of legal concept and interpretation. Our legal advice on the use of the word "detention" is that it is appropriate in the circumstances of the Bill. The Act must be clear that special care involves the detention of a child. The use of any other word would be likely to mislead and make the position uncertain for the courts, the HSE, children, parents and guardians and the public as to the fact that special care involves the detention of the child. Currently, High Court orders that provide for special care for children are called detention orders. Successive court judgments have used the term "detention" and been clear in their distinction between detention in a special care facility and detention under criminal statute. With regard to special care judicial review proceedings, its use has not connoted criminality on the part of children. The Bill provides that under the Act, orders made by the High Court will be called special care orders. Nevertheless, the use of the word "detention" makes it clear that a child is detained under a special care order in a secure unit.
I appreciate the Minister of State's comments. We had hoped that on Report Stage he would consider using the word "placement". A suggestion to that effect seemed to be made on Committee Stage. We would prefer the word "rehabilitation" because "detention" is unduly harsh and used in the Bill 70 times. We are disappointed the Minister of State has failed to accept the amendment, but I will not press it.
The American author, Ralph Ellison, once remarked, "If the word has the potency to revive and make us free, it has also the power to blind, imprison, and destroy." There was much discussion on this issue on Committee Stage, yet after a long and tortuous debate on both Second and Committee Stages, the Minister of State will still use the word "detained" in the legislation, even though it has many negative connotations. It implies criminal wrongdoing on the part of a child taken into special care. I recall the Minister of State agreeing on Second Stage to examine an alternative wording. I am disappointed, therefore, that the word "detained" continues to be used. Barnardos, the Irish Association of Young People in Care and the Irish Foster Care Association have all expressed concern about the use of the word in the legislation. Even though the section relates to secure facilities, clearly with the focus on children in secure units, it is a hope their placement and housing will lead to rehabilitation and a better future for them. The horrific stories of many children who were detained in the past are fresh in our minds. Retaining the word "detained" in modern and forward looking legislation implies we have learned little from past experiences. On Committee Stage Senator O'Malley was supportive of the alternative wording, but the Minister of State, perhaps on the basis of legal advice, has made up his mind. I am surprised, given the expertise, knowledge and experience available to him and his officials, that an alternative wording without negative connotations has not been inserted.
I agree with my colleagues. For example, I refer to the phrase "community service" in the context of someone who does not pay a fine. A friend of mine, a Traveller, did not pay a fine and while she is doing community service, she is waiting for a proper house. She is getting on brilliantly, but the term "community service" has a pleasant sound to it. The lady in question is thriving and subject to intellectual stimulation on the course which is part of the service provided. She meets people every day and is in a proper social environment. It would be a good idea to examine the wording again, if possible. I agree that the word "detention" has cruel connotations and reminds one of reformatory schools. I agree with my two colleagues.
When we debated this issue on Committee Stage, I pointed out that the word "placement" was not appropriate because every child who was the subject of a care order was placed somewhere and that special care had to be distinguished from ordinary State intervention on behalf of a child. Fine Gael suggested the word "housed" which also does not have pleasant connotations. HIQA conducted a study of special care facilities in the State and identified shortcomings, particularly at the Ballydowd facility, which had a great deal to do with the built environment, health and safety issues and so on. There was no suggestion the phraseology undermined the care provided or the general atmosphere of care. I remain to be convinced, but I am open to suggestions. The suggestions that have been put by way of amendment do not distinguish it sufficiently from other types of care to underline the fact that special care is a form of civil detention where one is in a secure unit. That distinction must be made. It has been pointed out on many occasions in judgments that this is a form of detention and the reason it is so limited in its ambit and is used as a last resort is that it is considered a nuclear option to be used when everything else has failed. One uses secure detention when other types of intervention have not been successful and a child is presenting a danger to themselves. I am open to workable suggestions but none of those proposed is workable. I suggest to Senators that they discuss the matter with their colleagues in the Dáil and if they wish to propose further suggestions through their parties, they will be considered at that time. I do not accept the amendments.
The purpose of these amendments is to provide specifically that there is nothing to prevent the Health Service Executive from applying for an extension to a special care order or an interim special care order or providing care under any such extension to a special care order or interim special care order. The amendments are to ensure there is no doubt in this regard.
The purpose of the amendments is to ensure the Health Service Executive informs any court hearing of a criminal charge that the child is the subject of an application for a special care order or interim special care order or if an order has been made and the duration of that order.
"and without prejudice to the generality of the foregoing nothing in this Act shall be construed as preventing the Health Service Executive from applying for a special care order or an interim special care order and, where the order is made in respect of such child, from applying for an extension under section 23J or 23N in respect of such child, or as preventing the High Court from hearing and determining such application.".
and the Health Service Executive shall, as soon as practicable, inform the Court which imposed the suspended custodial sentence, deferred making the children detention order, suspended the period of detention or made the Children Act order that the child is the subject of a special care order or an interim special care order and the period for which such order has effect.".
Amendment No. 19 is a consequential amendment following the amendment of section 19. In other words, the amendments will result in there being only one subsection in section 19 and amendments Nos. 23 and 42 are for the correction of the numbering.
I move amendment No. 25:
In page 24, to delete lines 40 to 47 and in page 25, to delete lines 1 to 3.
This amendment seeks to achieve a balance between the substantial powers vested in the Health Service Executive, HSE, by the legislation and the rights and needs of children in care. It is necessary to mention the subtitle of the recent HSE report, Putting Children First, and meaning it. If this section is left unchanged then serious questions arise about the lack of consultation with a child in special care or his or her parents and-or guardians. This section allows the HSE to bypass consultation with the child, the child's parents and-or guardian and a person acting in loco parentis. It can do that if it is satisfied there is reasonable cause to believe it is not in the best interests of a child to consult those people. Placing children in care is a serious matter and, where possible, one should seek at all times to consult parents, guardians and the children concerned.
The recent HSE report concluded that there is an urgent requirement to set and communicate direction for child care services. It asks the question of what the HSE is fundamentally trying to achieve for children and their families and what child protection means, whether it is about managing risk and investigating alleged abuse or more about providing the supports needed for children and their families. I argue it is about the latter. Any legislation that allows the HSE the option of completely excluding the child, a parent, guardian or person acting in loco parentis from proceedings is leading us completely down the wrong path. This provision could be open to abuse and the lack of consistency in approach nationally, as highlighted in the recent HSE report, only compounds my fears. I seek to delete the provision for that reason. It is important to keep communications with all the parties involved open as much as possible rather than simply bypassing them.
There are situations where it might not be in the best interests of the child to consult one of those categories which the Senator seeks to delete. I cannot argue with any of the points that he is making, but if Senator Cannon will look at subsection (8) on the following page, page 25, it says: "Where the Health Service Executive applies for a special care order and, in accordance with subsection (4), it did not carry out the consultation referred to in subsection (3), it shall inform the High Court that the consultation was not carried out and of the grounds for not carrying out that consultation." Therefore, it is a saver which ensures the High Court is aware this obligation has been bypassed, and that the High Court is satisfied it was done in the overall best interest of the child, which is the overarching principle of the legislation.
I hope that reassures the Senator that the concerns he has expressed are protected against by that subsection.
Early in the Minister of State's contribution he said this section allowed the HSE not to consult with one of the persons mentioned in the list. It specifically says that all those people are excluded. It can seek not to consult with any of the people involved. If one is to take an holistic whole-child approach to rehabilitation, above all when a child is in secure care, should one not seek to communicate with as many people as possible who have interacted with that child in the previous years? I would argue that one should. I am not heartened or encouraged by the fact that in doing so, the HSE must seek to inform the High Court. What blocking mechanism is available to the High Court if the HSE makes such a report to it? Can it then reassess the HSE's actions in this area and require the executive to seek the advice or consult with the people as aforementioned?
Subsection (3), prior to the subsection the Senator proposes to delete, expresses a positive obligation on the HSE to consult with the categories of people we are talking about, namely, the child, parent, guardian and, where appropriate, the relatives of the child. Therefore, if this decision is taken by the HSE for the protection of life, health and safety, not to consult with one of those, and it is reasonable to believe this is not in the best interests of the child, then it must explain to the High Court why it is has not done this. The High Court can tell the HSE that it has an obligation under subsection (3) and must discharge that. That is the safety provision which ensures the High Court can tell the HSE, in the event, that it has not established reasonable cause for the best interests of the child or that there is an issue in relation to the protection of life, health, safety, development or welfare of the child. Those are the barriers the HSE has to overcome to satisfy the High Court that it is properly avoiding consultation under subsection (4).
"(5) The Health Service Executive shall, subject to subsection (6), convene a family welfare conference in accordance with section 7 (as amended by the Child Care (Amendment) Act 2010) of the Act of 2001 if it is satisfied that there is reasonable cause to believe that the child requires special care, after having carried out the consultations in accordance with subsection (3) or not carried them out in accordance with subsection (4).
(6) Notwithstanding subsection (5), where the Health Service Executive is satisfied that, having regard to the protection of the life, health, safety, development or welfare of the child, there is reasonable cause to believe that it is not in the best interests of the child to convene the family welfare conference referred to in subsection (5), it may decide not to convene that conference.".
Amendment No. 26 is concerned with the re-formatting of section 23F relating to family welfare conferences for the purpose of clarity, precision and ease of reading. The remaining amendments are concerned with renumbering and cross-referencing consequential on amendment No. 26.
Amendment No. 37 is in the names of Senators Alex White, McCarthy, Ryan, Prendergast, Bacik and Hannigan and arises out of committee proceedings. Amendment No. 38 is related, so amendments Nos. 37 and 38 will be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 37:
In page 45, between lines 11 and 12, to insert the following:
"(2) Regard shall be had to the views of the child, having regard to the child's age and understanding. Prior to taking steps under this section, the court shall give such directions as are appropriate where the Health Service Executive proposes to take steps to which the child does not consent.".
We had a debate on this on Committee Stage, as colleagues will be aware. I do not propose to rehearse all the arguments again in favour of this particular amendment that we have tabled. We have altered it slightly to take into account what the Minister of State said on Committee Stage in relation to the parents' view. The Minister of State had made the point on the last occasion that this was already satisfactorily dealt with elsewhere in the Bill. I understood that the Minister of State was inclined to accept some part of what we were proposing in relation to the view of the child. There was some discussion, perhaps, on an amendment tabled by Senator Cannon a few minutes ago. I apologise for missing that particular discussion and perhaps it anticipated this one, on my amendment. I am certainly moving it again. I believe the issue as regards the objective principle in relation to having regard to the views of the child is qualified by stating that having regard to the child's age and understanding would seem to be the basis for a very appropriate provision to be included in the new Act.
I understood the Minister of State to be in agreement with at least some part of the thrust of what we wanted to achieve. I shall be interested to hear what he has to say.
I second the amendment. Again, this amendment is about striving to achieve that very difficult balance and most importantly, putting children first, at the very heart of the legislation.
Section 23ND confers considerable and wide-ranging powers upon the HSE once a child is in special care and gives it, as section 23ND(a) says, "control over the child as if it were a parent of that child". Those of us who are parents would readily acknowledge that as one's children get older, one begins to take their views and opinions more seriously. Having regard to the views and opinions of a child in care and taking them into consideration, I would argue, is central to the successful treatment and care of that child. Again, we need to put children first and we really need to mean it. For many years children in care were not listened to.
The second part of our amendment is again concerned with trying to achieve balance in proceedings so the rights of the child remain paramount. If a child in care is vehemently opposed to steps proposed by the HSE, then surely he or she would find himself or herself in an isolated and vulnerable position with no one to turn to for support or adjudication. How many times have we seen such scenarios described in child care reports? This amendment deals with that issue by allowing the courts to give direction to the HSE, and it allows the child some rights in deciding his or her future on reaching the age of maturity to do so.
As I stated previously, I am in agreement as regards the views of the child being regarded prior to the HSE taking steps under this section. However, section 3 of the Child Care Act 1991, as amended, provides that in the performance by the HSE of its functions to promote the welfare of children, it shall, in so far as is practicable, give due consideration, having regard to the child's age and understanding to his or her wishes. Therefore, it is unnecessary to put this into section 23, as section 3 is an overarching provision.
In relation to involving the courts when the child is not consenting to the steps being taken by the HSE, the executive is charged with promoting the welfare of the child. Under section 23ND(b) of this Bill, the HSE "shall do what is reasonable subject to this Part, to promote his or her health, development or welfare and protect his or her life, health, safety, development or welfare, having regard to all the circumstances of the child".
With regard to the question of involving the courts when a child does not consent to the steps being taken by the HSE, the HSE is charged with promoting the welfare of the child. Under section 23ND of the principal Act inserted by this Bill, the HSE "shall do what is reasonable, subject to this Part, to promote his or her health, development or welfare and protect his or her life, health, safety, development or welfare, having regard to all the circumstances of the child". While I agree the child should be consulted, to include a statutory provision to involve the courts every time there was a disagreement could very well defeat the purpose of providing for special care. It must be remembered that children who are the subject of special care orders require care which addresses their behaviour and the risk of harm it poses to their lives, health, safety, development or welfare. For these reasons, I do not accept the amendments.
It is necessary to remind the Minister of State of precisely what he said on Committee Stage:
I am inclined to accept the first part of that amendment, which states that "Regard shall be had to the views of the child, having regard to the child's age and understanding, prior to taking steps under this section". I think it is worth inserting that in the Bill. I will therefore accept that proposal, but I would like to examine the phraseology, as well as detaching it from the second part of the amendment, which I tried to refer to in my original comments.
That is the statement the Minister of State made after a long, useful and productive debate on the issue. There may be an overarching provision elsewhere which is not quite in the same terms, but I cannot find it in front of me, although I heard the Minister of State read it out. It includes such phrases as "as far as practicable", "due consideration" and so forth. We can always accept the modification of provisions in particular ways because provisions cannot be absolute, but from what the Minister of State read out, it seems the overarching provision, as he called it, is not so robust. Senator Cannon mentioned the importance of taking into account the views of the child in the context of this part of the Bill. It is a pity the view the Minister of State expressed on the last occasion has not been followed through. It makes it difficult for us to make progress with him.
I am certainly open to the principle, but there is no point in inserting an additional safeguard where the existing safeguard is, in my view, if not in Senator White's, sufficiently robust. If this had not been provided for in the 1991 Act, it would be a vital addition to improve the legislation.
In all special care orders the child is represented by a guardian ad litem, the obligation of whom is to provide information for the court on what is in the best interests of the child and what are the view of the child which may not necessarily be the same. In addition, the Bill provides that the parent or guardian of the child or a person acting in loco parentis may write and ask for an appraisal of the special care provided. That is a statutory safeguard. After the order is made, the original section 3 of the Child Care Act provides a general safeguard. As I said today and the last day, I am sympathetic to the principle, but it is not necessary to add a further safeguard where there is already a robust legal principle that is observed.
As I said before Senator White came into the Chamber, the HIQA report on special care orders of a general nature was positive about the experience of young people in special care. As I also mentioned, it described in negative terms the built environment of Ballydowd, but the facility has been almost completely closed. There have been positive outcomes. The young people who were consulted at Ballydowd had had a positive experience and felt their views had been accepted and listened to. It strikes me, on the basis of the HIQA report, that there is no deficit in this area such as the Senator is seeking to correct with the amendment.
The Dail Divided:
For the motion: 24 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Ciarán Cannon, Paudie Coffey, Paul Coghlan, Maurice Cummins, Pearse Doherty, Paschal Donohoe, Frances Fitzgerald, Dominic Hannigan, Fidelma Healy Eames, Nicky McFadden, Rónán Mullen, Joe O'Reilly, Joe O'Toole, John Paul Phelan, Feargal Quinn, Eugene Regan, Shane Ross, Brendan Ryan, Liam Twomey, Alex White)
Against the motion: 28 (Dan Boyle, Martin Brady, Larry Butler, James Carroll, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Mark Dearey, John Ellis, Geraldine Feeney, Camillus Glynn, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Lisa McDonald, Paschal Mooney, Niall Ó Brolcháin, Brian Ó Domhnaill, Labhrás Ó Murchú, Francis O'Brien, Denis O'Donovan, Fiona O'Malley, Ann Ormonde, Kieran Phelan, Jim Walsh, Mary White, Diarmuid Wilson)
Tellers: Tá, Senators Ciaran Cannon and Alex White; Níl, Senators Niall Ó Brolcháin and Diarmuid Wilson
Amendment declared carried.
I move amendment No. 39:
In page 45, line 14, after "shall" to insert the following:
"with the consent of either the child's parent or guardian, a person acting in loco parentis or the child's Guardian Ad Litem,".
This is related to previous amendments. Section 23ND(2) allows the HSE to carry out a medical or psychiatric examination of or provide treatment for a child in special care without the consent of the child's parents, guardian or guardian ad litem. The amendment tries to strike a balance between the child's rights and the decision making powers of the HSE. It is important to include, as far as practicable, the child's parents or guardians in any decision about a medical assessment or treatment. Barnardos has pointed out that when a child is taken into care, we do not want to sever a connection with his or her parents or guardians. Even the most fragile relationship should be protected and nurtured. Deliberately excluding a child's parents or guardians from this process does not help. On Committee Stage the Minister of State noted that a guardian ad litem was appointed for every child taken into special care. If that is the case, why do we seek to exclude such a guardian from fundamental decisions on the child's medical needs and future?
Situations arise where parents, guardians or other persons acting in loco parentis are not available to give consent. Section 23ND(2) ensures that in such situations the HSE has the right to consent to a medical or psychiatric assessment, an examination and treatment. However, I brought forward an amendment to insert a new subsection (3) in section 23ND which ensures any consent given, had we not included the provision giving a right of consent to the HSE, remains valid. Therefore, the HSE's right to consent does not affect the validity of any decision on medical treatment lawfully made by any other person such as a parent, guardian or child. Contrary to the Senator's suggestion, it will not eliminate that right of consent. The guardian ad litem is not a relevant person in this context. For that reason, I am not accepting the amendment. The functions of the guardian ad litem are separate from issues of consent to medical treatment.
(c) without prejudice to the generality of paragraphs (a) and (b), vary the special care order or interim special care order for a specified period or a number of specified periods and may include terms and conditions as the High Court, having regard to all the circumstances of the child, considers necessary and in the best interests of the child,
and without prejudice to the generality of the foregoing where the release is for the purposes referred to in paragraph (a) or (b) of subsection (1) or for any other purpose for which the release of the child is required pursuant to section 23D, the variation shall be made in accordance with section 23D(3).".
I move amendment No. 53:
In page 66, to delete lines 20 to 26 and substitute the following:
"22.—Section 45 (as amended by the Act of 2004) of the Principal Act is amended by substituting the following section for section 45—
"45.—(1)(a) Where a child leaves the care of the Health Service Executive, the Executive shall, in accordance with subsection (2), assist him or her for so long as the Executive is satisfied as to his or her need for assistance and, subject to paragraph (b), he or she has not attained the age of 21 years.
(b) Where that person attains the age of 21 years, the Executive shall continue to provide such assistance until the completion of the course of education in which he or she is engaged.
(2)(a) The Health Service Executive shall assist a person under this section in one or more of the following ways—
(i) by causing him or her to be visited or assisted;
(ii) by arranging for the completion of his or her education and by contributing towards his or her maintenance while he or she is completing his or her education;
(iii) by placing him or her in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(iv) by providing a residential aftercare programme for him or her;
(v) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years;
(vi) by arranging for any existing or emerging health care needs to be addressed by appropriate qualified persons;
(b) For the purposes of this section, the Minister shall prescribe the manner in which aftercare may be provided.
(4) In providing assistance under this section, the Executive shall comply with any general directions given by the Minister.
(5) For the purposes of this section, the reference in subsection (1)(a) to the care of the Health Service Executive includes special care provided under Part IVA (as amended by the Child Care (Amendment) Act 2010).".".
This issue was ventilated extensively on Committee Stage. There was wide agreement on the importance and the necessity of the provision of aftercare. There was residual disagreement on the extent to which it is necessary in every individual case, but, not to overstate matters, we reached a high level of agreement on the need to substantially improve the current position.
There is still controversy around the extent to which aftercare is necessary in every individual case. I understand the Minister of State's comment regarding the HSE that where aftercare is required, a programme and a plan is prepared and implemented. Other Members and I want that regime to be introduced on a statutory basis as that is the only way it can be guaranteed. We also want a means to monitor it and improve it if necessary in order that people may see the requirements and entitlements in black and white.
An article on the Bill, of which I am sure the Minister of State is aware, appeared in the February 2010 edition of the Bar Review. I recommend that all my colleagues read the piece by Diane Duggan. She makes a telling point on aftercare by comparing the situation in Ireland with that in England, Wales and Northern Ireland. She says that the relevant legislation in those jurisdictions contains provisions that aftercare must be provided in all cases. She makes the point, which many of us mentioned on the previous occasion we discussed the issue, that all the studies and the evidence point to the necessity for a robust and reliable system of aftercare to be made available.
Focus Ireland, Barnardos and others have been at the forefront in pressing for such a system. They point out that it is not academic as there is, unfortunately, a high level of homelessness among people who have been in care and they face many difficulties. I do not need to rehearse the starker and sadder cases that have been reported in recent times.
The debate on an important Bill such as this should not be an occasion for us to repeat rhetorically all of the awful things that have happened — terrible things have happened — but to see what we can do in the future to try to avoid some of these dreadful experiences. One practical thing the Minister of State could do is give effect to what I think he believes himself, that aftercare services should be available. This should be done by statute. I understood him to say this was the route he wished to take but that he considered this was not the Bill in which to do it. I am not sure where else we can do it. Is there another opportunity? This legislation provides the opportunity to do it and I do not see any amendments from the Government in this regard.
I again impress on the Minister of State the urgency attached to this measure. It is not just a small minority of children leaving the system who require aftercare services. It is a provision that must be strengthened considerably. I await the Minister of State's response.
I second the amendment and support everything Senator White said. The general thrust of the legislation is to allow the HSE in many instances to act in loco parentis for a child who is in such a vulnerable and weak position that he or she must be taken into special care. One hopes the same love and care one would give to one's own children would be given by the HSE to these children. No one would argue that a parent whose child reaches the age of 18 years somehow feels his or her life's work is done in caring for him or her and that he or she can now simply send him or her out into a difficult and often chaotic environment. However, that is exactly what happens to children in the care of the State.
I recall listening to an interview with one such child who is now a young adult. He recalled being in a special care centre and how at lunchtime on his 18th birthday a birthday cake had been produced for him. The others staying in the centre and the staff had gathered around and wished him well on his 18th birthday. That evening he was given his clothes and told he had to leave. No provision was made for what he should do the next day or in the following week or months. That treatment is simply unacceptable. I believe the Minister of State has good intentions. While I am not sure if we must address this issue in the context of this legislation or in the overarching general legislation, there is no question that we must address it and quickly.
As Senators said, we have had a widespread debate on this issue which continues to be a subject of analysis on my part. As I said previously, it is at the cutting edge of developments in this area for all the reasons we have discussed. I have received legal advice which confirms the view that we expressed in the implementation plan arising from the Ryan report, that the section 45 obligation is in substance mandatory. We said in the implementation plan that the provision of aftercare should form an integral part of care delivery for children in the care of the State. It should not be seen as a discretionary service or as a once-off event that occurs on a young person's 18th birthday. As Senator Cannon said, one would not leave one's own child out on the street when he or she turned 18 years. Historically, 21 years was considered the definitive age when the keys were handed over to the young person coming of age. In some jurisdictions 21 years is the age at which care comes to an end, not 18 years. That is something we should consider in years to come. The legal advice is that it creates a statutory power and the HSE, as recipient of this power, must put itself in a position where it can exercise the power should the need arise. Section 45(4) of the Child Care Act allows me to write to the HSE and instruct it in this or in any other regard. I intend to do this.
I note the amendment is much more detailed which I welcome, although I am not prepared to accept it today. I want further time to consider what other options we may have. This does not just relate to special care but would apply to all forms of care. Everything else we have been discussing today relates to special care, but this is an amendment to the original Act and, therefore, would apply to foster care, residential care and other State interventions of that nature. I am not accepting it today, but I am inclined towards further discussion. I will consider the advice I have received and what the options are in terms of ensuring this service is provided for everybody who needs it in the State.
Without being unnecessarily critical, that is essentially what the Minister of State said on Committee Stage. I do not doubt his commitment to this and entirely accept his bona fides, but the wheels of change move very slowly. The Minister of State will certainly have the support of my party for anything he can bring forward in this regard. I do not regard this as a matter of controversy which should be politicised in any sense by political parties. I cannot speak for Fine Gael, but, as far as my party is concerned, the Minister of State will receive our support in bringing forward such a measure. I am disappointed that he does not feel he is able to do something more today than he was prepared to do on the last occasion. The last occasion was positive, but things have not become more positive today in terms of where we will go next. The Bill will be brought before the Lower House. Does the Minister of State consider he will have more to offer, announce or pledge when the Bill is taken in the Lower House? If that were the case, I would be pleased and welcome it.
I am concerned about the use of phrases such as "as the need arises" or "as the need is proven" which tend to creep into legislation. The extent to which it can be qualified and to which the entitlement or need is predicated on somebody making a decision as to whether it is needed means that, with the best will in the world, people will fall through the cracks. Assessments are made in good faith at the time by professionals, in which it is not possible for them to foresee things going wrong later. The whole point of aftercare is that it should be a system that kicks in at the age of 18 years and does not await the necessity for somebody to make a decision required in a particular case. I accept this is a big request for the service and in terms of funding, particularly in the current environment — I am aware I am pushing an open door with the Minister of State in terms of the argument — but based on what we have seen in recent months and years it is essential that this is brought forward. The only way to be sure in the provision of public services, particularly in an area such as this, that there will be delivery is to put it in legal form where people can see and understand it. By all means, have specific measures which the Minister of State might consider important not to qualify it but to manage it and determine how it should be provided. However, legislation is what is required and what the Minister of State is saying, while welcome, falls short of a commitment to bringing it forward. This is not an issue on which I wish to be divisive.
Things have moved on from when we started to debating the Bill in the Seanad. I have received advice from the Attorney General that it is in the nature of being mandatory. There are two stages. An assessment must be carried out of whether there is a need and once the need is established, the obligation is on the HSE to deliver a service. That is a long way from a simple discretionary service. It might fall short of the word "shall", which is mandatory, but where the HSE establishes that there is a need, there is an obligation on it to provide. That is the strong advice we have received from the Attorney General's office. It is an opinion we had ourselves in the Office of the Minister for Children and Youth Affairs, but on foot of requests from the Seanad for clarity, that is now the position. Therefore, it is actually much stronger. As well as this, we provided €1 million in financial support for aftercare in the 2010 budget.
It would be unfair to say nothing has changed since Committee Stage. We now have that in place as legal advice. It allows us to communicate with the HSE which is anxious to provide additional aftercare service. It also allows us to communicate with the HSE to clarify that position. All that remains for me is to ask a question I have. If it is the case that the interpretation of the section is as I have described it, why not take it out of the realm of interpretation and make it a literal obligation for the purpose of clarity? However, if one wants to come away from the legislative niceties, it seems we have moved on and we have a clarification of this discretionary power. It is like many discretionary powers. Once the need has arisen, the power given under the statute must be exercised by the HSE. That is significant progress. However, I repeat that I would consider looking at moving this out of the realm of interpretation into a more literal expression of the Oireachtas's intention in this area.