Tuesday, 3 December 2013
Child and Family Agency Bill 2013: Committee Stage
I move amendment No. 1:
Amendment No. 1 corresponds to an amendment that was discussed in the Dáil and, as such, I do not propose to talk at length about it.
In page 12, line 16, after "the" to insert "educational welfare".
I studied the Official Report carefully as the Bill went through all Stages in the Dáil and remain convinced of the need to include a reference to "educational welfare". Under these proposals, three source agencies will come together under the new child and family agency, namely, the Family Support Agency, the relevant components of the Health Service Executive, and the National Educational Welfare Board. I accept that the provisions encompass a broad focus, but they do not adequately cover the scope of educational welfare. An explicit reference is required. We are all aware of the link between non-attendance at school and child welfare concerns. In fact, educational welfare services are a route for identifying other underlying child protection issues. An explicit focus on the issue of educational welfare would also ensure that all the source agencies have a clear understanding of their voice and their place within the new agency.
I have brought forward this amendment in the knowledge that it was not accepted in the Dáil. I maintain, however, that educational welfare should be specifically included within the remit and functions of the new agency.
I agree that educational welfare is an important aspect of the work of the new agency. In this regard, I refer the Senator to section 72(2) of the Bill which states:
Regarding the functions of the National Educational Welfare Board, section 10(1) of the 2000 Act states: "The general function of the Board shall be to ensure that each child attends a recognised school or otherwise receives a certain minimum education..." Section 8(1)(a) of the Bill before us today specifies that a function of the new agency will be to perform the functions transferred to it under section 72. There cannot be, therefore, the slightest doubt that educational welfare is entirely captured within the functions and role of the agency by virtue of its assumption of the remit of the National Educational Welfare Board as set out in the relevant legislation.
The functions vested in the National Educational Welfare Board by or under section 10(1) of the Education (Welfare) Act 2000 shall, on the establishment day, stand transferred to the Agency.
Moreover, the inclusion of the words "development" and welfare" in section 8(1)(b) effectively encompasses the issue of educational welfare. In fact, if we were to narrow the provision down by specifying "educational welfare", we might end up restricting the broad focus of the section, which is about the development, welfare and protection of children. That broad formulation is in line with the child care legislation. I made the point in the Dáil that educational welfare is also a function for teachers, schools, the National Educational Psychological Service and so on. In giving careful consideration to this amendment I was wary of any suggestion that educational welfare would be solely the remit of the new agency, because that is not the case. The provisions and functions set out in the Bill will not diminish in any way the role previously carried out by the National Educational Welfare Board, in conjunction with schools, under the Education (Welfare) Act 2000. All of those functions are being transferred to the new agency.
I refer the Deputy to the following definition in section 2:
It is a broad definition that encompasses a wide group of people who might have concerns about a child. The same applies to the definition of "couple" in the same section:
"family" means spouse, parent, grandparent, step-parent, child (including a step-child), grandchild, brother, sister, half-brother, half-sister, and any other person who, in the opinion of the Agency, has a bona fide interest in the child;"
"couple" means—The definitions are designed to be broad, and accepting the amendment would detract from that.(a) a married couple,
(b) civil partners within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,
(c) a man and woman who are not married to each other but are cohabiting as husband and wife, or
(d) two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and woman who are not married to each other but are cohabiting as husband and wife;
The provision in section 41 for a performance framework will capture this concept of consistency. The important words "perform", "transparency" and "accountability" are written into the legislation. Consistency in regard to standards, which is absolutely essential, will be captured on an ongoing basis via the performance framework.
I put forward amendment No. 4 in error. What I had intended to propose, and which I may do on Report Stage, relates to subsection 8(4)(a). This subsection states that among the services not included within the provisions of the Bill are "psychological services associated with the provision of specialist mental health services to children". I spoke on Second Stage of my regret that the child and adolescent mental health services, CAMHS, are not being transferred during phase one. I understand why that is the case, but I have a major difficulty with the Bill explicitly ruling out psychological services associated with the provision of specialist mental health services to children. Why is this explicit exclusion contained in the Bill? Social workers - who, like CAMHS, come under the remit of the HSE - tell me that they are already experiencing huge difficulty in accessing these services. That difficulty will only be exacerbated when the social worker function and CAMHS are operating under the remit of different agencies.
Section 8 deals with the services the agency shall directly provide. While it will have psychologists working within it, the agency will not in itself provide specialist mental health services, which will remain under CAMHS. The establishment of the new agency is a major task of public sector reform, involving the bringing together of three existing agencies and the transfer of 4,000 staff. The task force did recommend that specialist mental health services be included in the remit of the new agency, but we have to start at a particular point. It has been a wide-ranging and demanding job to bring together the three agencies. I have already expressed my thanks to the unions, employers and everybody else involved in those negotiations. For such an enormous job, we have had a huge level of co-operation.
In terms of transferring other services, the same discussion and negotiation will have to be undertaken, involving other Ministries.
Certainly, I wish to have discussions about effective links between the CAM services and the services in the agency, but at this point it is not intended to transfer specialist mental health. It is not within the remit of the agency's direct provision. It is a separate service at present, but we have agreement on the transfer of certain numbers of psychologists who will provide basic psychological services.
However, I could not agree with the Senator more about the links to CAM services. I will have further discussions with the Minister of State, Deputy Kathleen Lynch, regarding the accessibility of those services, particularly in respect of 16 to 18 year olds. There is a huge need for really strong inter-agency work between CAMS and the services that will be provided by the agency. It is absolutely critical. Every day I see the need for that type of collaboration, particularly regarding the area of sexual abuse. Some of the CAM services say it does not come under their remit, but I do not accept that. There is a need for further discussion and I intend to have that.
I appreciate the Minister's reply. My difficulty is that it is being specifically excluded. I understand that this outlines the functions of the agency, but my difficulty is that we are excluding it. I raise it now because I might table an amendment on Report Stage.
To clarify, they are not ruled out, but the Bill must be clear about which services will transfer. This is the only way there can be that clarity in terms of accountability.
I move amendment No. 6:
This is my most substantive amendment. The "best interests of the child in all matters" versus "the best interests of the child as the primary consideration" is what we are discussing here. The enumeration of the best interests of the child requirement in respect of the new agency's decision making processes and in the performance of its various functions is a major and welcome development in implementing a children's rights approach to public sector reform. However, I believe the current manifestation of the best interests of the child principle, in section 9(1), as "the best interests of the child in all matters" falls short of the standards set in Article 3.1 of the UN Convention on the Rights of the Child which states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
In page 13, to delete lines 30 to 32 and substitute the following:
“9. (1) The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), in respect of an individual child or family, regard the best interests of the child as a primary consideration.”.
I was interested in the Minister's response when this amendment was tabled by Deputy Ó Caoláin on Committee Stage in the Dáil. I understand the point she made about scenarios where a specific child might not be the subject of a service provided or where the work of the agency is not directly child related, despite there being a child involved. She gave the examples of domestic or sexual violence and marriage guidance counselling. I would be inclined to agree with the Minister's interpretation were the disputed wording "the best interests of the child shall be the paramount consideration", which is, correctly, the standard applied in Irish legislation governing adoption, custody, access and guardianship, section 9(2) of this Bill and Article 21 of the UN Convention on the Rights of the Child, since children are at the centre of these cases. That is why it is the paramount consideration.
The formulation I have put forward is "a primary consideration". I respectfully disagree with the Minister's interpretation that it could narrow the breadth or scope of the provision. I believe it fully captures the scenarios she outlined to Deputy Ó Caoláin and the essence of the best interests of the child principle, as intended by the UN Convention on the Rights of the Child in Article 3. The best interests of the child principle is interpretative in character, but we are not without guidance. In 2013, prompted by a considerable degree of inconsistency in the interpretation and application of the best interests of the child principle by the state parties to the convention, the UN Committee on the Rights of the Child issued general comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. The committee elaborated a threefold meaning which I ask the Minister to consider in the context of the scenarios and examples which she outlined to Deputy Ó Caoláin.
The best interests principle, and I thank the Children's Rights Alliance for synopsising the general comment for me so adeptly, is, first, a substantive right. It is the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake and guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3.1 creates an intrinsic obligation for states and is directly applicable, self executing and can be invoked before a court.
Second, it is a fundamental interpretative legal principle. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child's best interests should be chosen. The rights enshrined in the convention and its protocols provide this framework for interpretation. Third, it is a rule of procedure. Whenever a decision is to be made that will affect a specific child, an individual child, an individual group of children or children in general, the decision making process must include an evaluation of the possible impact, positive or negative, of the decision on the child or children concerned. Assessing and determining the best interests of the child requires procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, state parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child's best interests, what criteria it is based on and how the child's interests have been weighed against other considerations, be they broad issues of policy or individual cases.
In conclusion, there is the same intention in the respective wording of the proposals put forward here. In both cases, the obligation is that the best interests of the child must explicitly be taken into account, considered and balanced, in as far as the child is affected and impacted by the situation in question. However, the advantage of my proposal is that the language is consistent with our obligations as a state party to the UN Convention on the Rights of the Child. As it has had the benefit of interpretative guidance by the UN Committee on the Rights of the Child, it would offer greater clarity to agency staff on how the principle should be interpreted in practice, thus leading to better outcomes for children. That is the reason I propose that we use the words "a primary consideration".
I welcome the Minister and wish her well in the excellent work she is doing in the Department. I am speaking on behalf of my colleague, Senator Leyden, who is unfortunately obliged to attend another meeting and cannot be present. I support Senator van Turnhout's amendment. We welcome the explicit inclusion of the best interests of the child principle in the Bill, but, as Senator van Turnhout said, it could be strengthened by including the wording of the UN Convention on the Rights of the Child.
In section 9(2) the issue of paramountcy is acknowledged and restated. It provides that in the performance of its functions in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010 the agency shall regard the best interests of the child as the paramount consideration. It takes what is already in the Child Care Act, builds on it and includes it in this legislation. The Senators will agree that the provision could not be stronger. It reiterates the child-centred approach in matters of welfare and protection where there is a distinction to be made. Those provisions are appropriate, proportional and can be given real effect in the agency. It is important to include them here.
The Senator picked up on the point about where there might be almost a conflict of interest or if there was a situation where children were not involved but somehow the agency was involved in delivering services to a family where there were no children. We are anxious to keep a very broad scope for the best interests principle, but in terms of the breadth of scope of services, the Senator has given one approach on the legal interpretation but my understanding of the likely legal interpretation of "primary" is a heavy weighting in favour of the best interests of an individual child. I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation, without guidance in statute law, as to what other primary interests there might be and how they might be balanced.
I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation without guidance in statute law as to what other primary interests there might be and how they might be balanced. Such interpretations are within the scope of judicial function and could not reasonably be expected to be balanced and assessed by every front-line worker. They might be particularly fraught in specific areas where parental rights and other fundamental rights contained in the Constitution might be relevant.
When we were discussing the wording of the children's rights referendum, I pointed out that when new section becomes fully legal, it will be interpreted in the context of the Constitution as a whole. In other words, the rights of the child will have to be balanced with other rights provided for in the Constitution, such as the rights of families and parents. In the same way, this legislation provides that the agency must "have regard to the best interests of the child". I refer the Senator to sections 9(1), 9(2) and 9(4) of the Bill. Section 9(4) is about hearing the views of the child "where that child is capable of forming and expressing his or her own view". I suggest that sections 9(1), 9(2) and 9(4) give a statutory underpinning to the belief that a very strong weight should apply to ascertaining the best interests and views of the child. This section is quite strongly worded. It will protect the best interests of the child. I accept the Senator's point about a particular formulation. As she knows, the UN guarantee concerns the best interests of the child as a primary consideration. I think I am right to say that relates primarily to legal proceedings. Perhaps it is broader than that.
No. The UN makes a clear distinction. In Ireland, we use the term "paramount consideration" in our legislation on adoption, custody, access and guardianship. Nobody has any dispute about that. As I have said, Article 3 of the UN Convention on the Rights of the Child articulates that "the best interests of the child shall be a primary consideration" in other types of areas and issues that are encountered when one is dealing with a child. It is right that the issues listed in section 9(2) of this Bill are said to be "the paramount consideration". I am trying to bring the language used in section 9(1) into line with the language used in section 9(2). I suggest that the phrase "as a primary consideration", rather than "as the primary consideration", should be used in order to ensure the child does not get lost in this equation.
While I am not going to press this amendment today, I would like the Minister to examine general comment No. 14, which was issued by the United Nations Committee on the Rights of the Child earlier this year. It is really interesting. The UN committee is trying to ensure there is consistency of application in each of the state parties and, specifically, that there is a clear distinction between "the paramount consideration" and "a primary consideration". I am trying to ensure the language used in this Bill, which will be absolutely fantastic for Ireland, is consistent with the UN Convention on the Rights of the Child. As I have said, I do not intend to press the amendment I have tabled along with my group colleagues today. I ask the Minister to look at general comment No. 14.
I will certainly have a look at that and see quite how it fits with the formulation we have used in this legislation. I repeat that the phraseology used in sections 9(1) of the Bill, which refers to having "regard to the best interests of the child in all matters", is quite strong. I will examine the comment mentioned by the Senator to see what it says and come back to her on the matter on Report Stage.
I am satisfied that the provision I have made in section 9 has the intended effect, which is to create a child-centred approach to decision-making while restating the specific requirements for paramountcy in certain specific processes. I do not think there is a need to restate in this Bill the existing provisions relating to proceedings before a court or the Adoption Authority. Those provisions are in place already. The Child Care Acts and the Adoption Act 2010 already require the best interest principle to be upheld by the agency. I remind the House that section 3 of the Child Care Act 1991 is explicit with regard to the application of best interests. It covers any action of the agency in the context of fulfilling its functions under that Act. Arrangements in respect of the adoption of a child are covered in section 6 of that Act. The consideration of best interests in court-related proceedings is obviously a matter for the relevant court or the relevant decision-making body.
I move amendment No. 9:
In page 13, lines 38 and 39, to delete "section 8(1)(a), (b) or (c), ensure that consideration is given to the views of children" and substitute the following:"section 8(1) ensure that due consideration is given to the views of children as part of any consultation processes undertaken".
I fully endorse the Minister's decision not to take a prescriptive approach to the appointment of board members. Such an approach is not articulated in this Bill. I did not have a chance to make this point on Second Stage in the time available to me. It is important that the Minister has taken the right approach. I hope we can consider the seven principles of public life, which are often referred to as the Nolan principles, in this country at some stage. The principles in question, which office-holders should have, are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. When we are creating agencies in future legislation, I hope we will provide for a system whereby a panel can be proposed to the Minister. I am not suggesting that this should be done in this Bill. An examination of how boards are appointed in Ireland is needed. There is a better way to decide on the membership of the boards of agencies of this nature. I support the Minister's decision not to take a such prescriptive approach in this instance. It would have been too easy to say there should be one member from a certain body and another member from another body, etc. As we all know, the essential governance skills that are needed by boards can be lost when efforts are made to fill places in such circumstances.
I would like to make a brief comment on the remuneration and expenses of the members of the boards and committees. Can the Minister advise us whether there are any current payments to board members? If there will be payments to board members in the case of the new agency, will details of those payments be published? If the Minister cannot answer that question today, perhaps she will come back to the matter on Report Stage. Given that we have been talking about transparency, it would be good for us to know whether payments are to be made. This section of the Bill sets out how payments will be handled, but it does not say whether they will be published in a way that will enable the public to know about them.
It will be possible for that to be done by means of ministerial direction. Given that the Bill contains many good governance provisions, I expect that there will be transparency in this regard as well. As the Senator knows, the board is currently constituted as the board of the Family Support Agency. A certain level of remuneration is paid in the usual way in that context. I will provide the details sought by the Senator on Report Stage.
I understand that the code of conduct for semi-State and State agencies requires the publication of an annual report in which details of the remuneration, expenses or other payments received by all board members in the course of their membership of the board must be set out.
I move amendment No. 11:
Section 39 states that the agency shall not accept a gift if the trusts or conditions attaching to it would be inconsistent with the functions or the obligations of the agency under this Act or any other enactment. However, there is no provision to cover the ethos or those type of issues. For example, if a drinks company decided it was willing to sponsor a certain component part of the agency, what provision ensures the board will have oversight of such a proposal? My colleagues and I did not wish our amendment to be too onerous. The limit for officials is €127 so I tried to include a limit. I have included the provision that the agency must advise the board every year of gifts accepted above the value of €500. In my view there needs to be some form of accountability for any gifts accepted by the agency. There needs to be some way of collating information and informing the board that these gifts have been accepted. I had this idea before the events of the past week but the past week has probably heightened my concern.
In page 31, between lines 4 and 5, to insert the following:
“(3) The Agency must advise the Board, on an annual basis, of gifts accepted that are above the value of €500.”.
As the Minister said, this Bill tries to ensure good governance but there is a need to insert a provision about transparent information about the acceptance of gifts. I am not fixed on the value of the gifts. I was trying to find a figure that would not be too onerous and I thought that €500 was a fair figure.
Section 39 deals with this matter to a certain degree. Part 5 provides for matters relating to standards of integrity, codes of conduct and gifts. Section 36 provides that persons, including board members, shall maintain proper standards of integrity, conduct and concern for the public interest.
I understand the attention as the Senator has described it but references to the agency in this context are to the board of the agency. To accept this amendment would mean that the board is advising itself of gifts accepted which exceed €500 in value. I suggest the Minister could give a direction in this regard which would be published in the annual report and in Iris Oifigiúil. I will take the spirit of the Senator's amendment and address it in that manner. This relates to the general issue of board membership which may be more appropriately addressed under the standards in public office legislation.
I ask the Minister to clarify a point. I found the Bill somewhat confusing in that this section 39 refers to the board of the agency but the preamble to the Bill defines the agency and the board of the agency. The agency means the child and family agency established under section 7 of the Bill. The board is also defined. I ask why the definitions are not more precise. In a future argument, there could be a difference of opinion as to whether advice was given by the board or by the agency. I am slightly confused on this point.
The board is the governing body of the agency with the authority, in the name of the agency, to perform the functions of the agency. When we refer to "agency", it is a reference to the board of the agency under section 21(1). When we refer to it in the section relating to gifts, it is a reference to the board of the agency.
I move amendment No. 13:
I refer to the word "judgment" in this section. This spelling of the word without the "e" very often means a court interpretation. I think it is very important that the word is spelled with the "e" because the Minister could take professional direction from more than one source. I believe this is a typographical error in the Bill but I ask the Minister to enlighten me otherwise. I think the "e" should be included in the spelling of the word.
In page 35, lines 8 and 9, to delete “judgment in a particular case in the performance by the Agency of its functions” and substitute the following:
“judgement in a particular case in the performance by the Agency of its functions and must be in accordance with section 8 and section 9".
I also wish to add "and must be in accordance with section 8 and section 9". I do not doubt the Minister's credentials to ensure the agency will act within its functions but it is very important that this is stressed. I have not pressed this type of amendment in other areas as did colleagues from other parties who are Members of the other House. However, it is critical that it be included.
I am informed that the word "judgment" can be spelled either way and that in legal terms it is generally spelled with the "e" . That is the information I have been given. I think the Senator disagrees. In my view this is an unnecessary amendment as it would not be possible for the Minister to give a direction that is not consistent with the agency's function. The agency can only act within the parameters set out in section 8. It is also inconceivable that the Minister of the day would issue a direction that goes against the best interest principle.
The word "judgment" in a court ruling is normally spelled without the "e" whereas when spelled with the "e" it can mean other types of professional direction. I have asked different legal people and they have advised me about the interpretation. I will bring this amendment back on Report Stage and perhaps the Minister can seek advice. If a professional judgment were given, somebody could say that because it was not a court ruling, the Minister would not be bound to accept it. I have been caught before in other areas because of this elusive "e".
I will give a final clarification on Report Stage. I am advised that legal judgments tend to use the spelling of the word with an "e" but that the spellings are interchangeable.
I move amendment No. 14:
This amendment relates to consultants and to advisers in particular. I have a concern about the appointment of advisers. This may be another area where the Minister will say that the agency means the board. My difficulty is that the definitions in the preamble to the Bill state the definitions of "agency" and "board". I am worried about how people will interpret this Bill. My difficulty is this triangle, as I kept imagining it, of the board, the agency and the Minister or Department. It is a case of where the different responsibilities fall.
In page 39, line 39, after “of” where it firstly occurs to insert “the Board and”.
I was seeking to ensure that we would not cut out the board where it plays an important role. For example, advisers should not be appointed to the new agency without consulting the board. I appreciate that the Ministers for Public Expenditure and Reform and Children and Youth Affairs need to be consulted. Who tables the proposal? Having read the Bill, I believed the chief executive would do so on behalf of the agency. Would the board be clearly informed of what was happening? This relates to my point on gifts. The Minister stated that this provision meant the board, but it actually mentions the agency, not the board.
Section 21(1) reads: "The Board shall be the governing body of the Agency with authority, in the name of the Agency, to perform the functions of the Agency." This is clear and unequivocal. I am satisfied that references to the agency in this context are to its board. Therefore, it is not necessary to insert a reference to the board where there is already a reference to the agency. When this subsection is read with the rest of section 21, it is clear that the board has the power, in the name of the agency, to perform the agency's functions.
I am reading section 21. It contains nothing that makes it absolute that the board must be informed about gifts or appointments of consultants and advisers. It refers to overseeing the development of a corporate strategy in respect of major plans of action, risk policy, annual budgets, business plans, setting performance objectives, monitoring corporate performance, overseeing major capital expenditure, ensuring high standards of governance, establishing arrangements for the management and performance of the chief executive and ensuring expenditure limits. I am concerned that the specific issues that I have raised might be hidden within a massive budget handed to the board. The board should be explicitly informed. Section 21 does not assure me in that regard, given the fact that the issues of gifts and appointments of consultants and advisers have been clearly articulated in the Bill. There is a role for the board, but it is not contained within section 21.
I refer the Senator to subsection (f), which reads: "ensure, having regard to net expenditure limits determined under section 45, the integrity of the Agency's accounting and financial reporting systems [surely this includes the reporting of key decisions taken in the course of the agency's work], including the independent audit, and that appropriate systems of control are in place, in particular, systems for risk management, financial and operational control, and compliance with the law and relevant standards." This subsection encompasses the Senator's points. The board can delegate to the CEO any of the agency's functions with the exception of the functions of the board under subsection (2).
I also refer the Senator to subsection (d), which reads: "promote high standards of corporate governance with particular regard to a code of conduct issued under section 37." I refer the Senator to the direction that the Minister can give to the board if particular issues arise. The matters could then be referred to the CEO.
The board is the governing body of the agency. This Bill goes further than a great deal of legislation in terms of governance, performance management and reporting arrangements to the Minister. The system is clearly spelled out in a way that has not been seen in other legislation. It is strong from a governance point of view. The issues raised by the Senator are covered by the provisions on the board's role, which can be supplemented by directions from the Minister where necessary.
I echo one of the Minister's points, in that this legislation goes further than any other legislation I have seen in setting out prescriptive procedures for an agency's operation, right down to requiring it to put in place performance frameworks and corporate plans and to publish the approved plans and annual performance statements. It also provides for a determination by the Minister of net expenditure limits for the agency, a business plan, etc. These measures are not usual in any legislation that I have seen for a Government or semi-State agency.
A number of the Bill's components other than those mentioned by the Minister would require the kind of information in question to be given to and approved by the board, assuming that everything was in line with the expenditure limits set for the agency by the Minister. Even the board would not have the right to recruit consultants whenever it saw fit. It requires the Minister to consent to the engagement of consultants.
I agree with almost 90% of everything Senator van Turnhout says, but the agency is a corporate entity that operates through its board of directors. In accordance with ministerial consents, corporate plans, business plans and so forth, the board devolves powers to the organisation's CEO and employees. The agency is well protected by the structures set out in the Bill.
The Bill sets out excellent governance but my difficulty about the consultants and advisers is that the expenditure controls only take effect after the event. The board will hear after a consultant or adviser has been appointed. The board will not consider an appointment prior to it being made. I am trying to insert a control whereby the board would be informed of a proposal to the Minister to appoint a consultant or adviser.
I will re-examine the amendments, but I am concerned that there be clarity. Even this debate adds clarity.
Something that the agency must do as soon as it is appointed is devise a code of governance. The Minister of the day also has the power to issue guidelines, not just directions. There is no reason that the issues raised cannot be addressed within a code of governance or ministerial guidelines. The mechanisms mentioned by Senator Hayden are in place to deal with such issues.
The appointment of outside consultants is something that a CEO would recommend to a board for the board's decision. This specific issue would never be mentioned in legislation.
This section concerns arrangements with service providers. We have unfortunately heard a lot in recent days about the importance of having good governance of service providers. What is outlined in the Bill in this respect is really good. The agency will have a budget of approximately €545 million, some €100 million of which will go to outsourcing, so we are talking about a considerable revenue. I am talking in broad figures because there are no clear plans or procedures for how this will be outsourced. What outcomes and services are we seeking to put in place? I am concerned that I have not seen any plans, even though I have spoken with organisations that are providing such services.
At the briefing provided by the Minister and her officials before the Bill came to the House, I raised the issue of having a commitment. We often get into the accounting and auditing aspects of Bills, which people rightly have to fulfil, yet we do not state the basics about Children First guidance. As we cannot insert it into the legislation, I am asking the Minister to give a commitment that in any of the contracts we provide, we will ask outsourcing organisations to abide by the Children First guidance, as all the agency's staff will be doing.
At the briefing I was advised that it was not possible to have multi-annual State funding. In fact, however, the Department of the Environment, Community and Local Government has a multi-annual funding scheme. That is part of the White Paper on a framework for supporting voluntary activity and for developing the relationship between the State and the community and voluntary sector. Chapter 5 refers to a multi-annual approach being taken to fund the community and voluntary sector. It states that multi-annual funding allows for a more rational approach to planning service delivery and processing funding applications. Adopting this approach does not of itself involve any increase in expenditure. The Government has decided that multi-annual funding commitments should, in appropriate cases, be made available by all funding agencies to organisations providing services or undertaking development activities that are agreed priorities, with the budget for each specific year to which the agreement applies to be reviewed in light of available resources, and taking into account the legal position that the Dáil votes public moneys on a annual basis.
As we know, the Dáil determines the level of taxation and expenditure in any particular year. This may involve decisions to reduce expenditure in particular areas. Multi-annual funding commitments in specific areas will be complemented by explicit understandings on service standards, performance indicators, evaluation and review. For example, in the design of the scheme for national organisations, multi-annual funding has been provided as a provisional commitment. The contracts with organisations only specify the amount in year one, with the remainder based on the financial situation pertaining at a particular time. Such an arrangement would free up the agency to enter a multi-annual contract with organisations so that service level agreements would not have to be re-negotiated each year.
Other Government Departments have found a way to do multi-annual funding. We must hold organisations to account for service standards, performance indicators, evaluations and reviews. That is why I am extremely concerned that no plan has been published on what the new agency will outsource, what needs it will try to meet, and the gaps it cannot provide itself. What provisions will be outsourced? All too often, we build up relationships with such organisations rather than stating what services the State will provide. I believe the State should provide the majority of services but where it cannot do so, it should state which services it requires. In addition, it should publish them and put them out to tender. We should have some system of multi-annual funding once people meet the performance indicators and evaluations, and other safeguards are put in place. That would be a better way of doing it.
I will take the last point first concerning which services get outsourced and which will be delivered by the agency itself. That is precisely the benefit of having an agency that is pulling together all the services for children, as well as bringing together the relevant agencies dealing with family support, education and welfare, child and family services, and child protection services. The benefit is that one now has a dedicated management and leadership examining what services are under their umbrella. They will examine it through a national rather than a local lens because we have not had such a perspective before. For example, there was no national approach to inspection of pre-schools and no national standards were set to the necessary degree. That also applies to many other areas. This is the big advantage of taking a national approach, albeit with some local variation in service delivery depending on whatever is needed.
There will now be an agency with a dedicated management examining this area. One of the first tasks that Mr. Gordon Jeyes has been involved in is to examine the relationship between providers. Some €100 million of the €500 million plus goes to other providers who complement State services. The Senator is right to say that the system requires ongoing review because one cannot continue giving money to the same providers. As we have seen in recent times, such a system needs ongoing audit and assessment, which is exactly what Mr. Jeyes has done. It also needs an alignment between the money the State provides to voluntary organisations, including NGOs, and the State's priorities.
The State may be dealing with 20,000 child protection referrals but some of those will need to be referred to family support services. The State must ensure that the agencies it is funding are willing to provide such family support if the child protection workers themselves are in a position to do so. I take the Senator's point concerning the review of the relationship with providers. I can assure her that is part and parcel of what is happening at the moment. There are also governance issues, as we have seen across many sectors and not just concerning services for children.
The Senator also mentioned service providers' adherence to legislative standards, including the Children First guidelines. She is correct to say that if one is providing a residential service one must guarantee that it adheres to Children First principles. Yesterday, I attended the launch of a report by Dr. Helen Buckley on the five abuse inquiries that have taken place. She examined how best we should respond to this matter and her report is a very useful piece of work. As well as Dr. Buckley's work, we can see from HIQA reports that there are inconsistencies. Better internal mechanisms are required to manage such matters. If HIQA examines what is happening, one is more likely to get that kind of consistency from providers as well, including HSE providers. As we know, HIQA will now examine the HSE's child protection services. A combination of objective outside services going in, plus better internal controls and management by the HSE is required. One must demand that providers adhere to those standards in conformance with current legislation, and that has to be checked on an ongoing basis. I agree with the Senator that that can be done.
Wherever multi-annual funding is feasible, I have no doubt the agency will try to do it. It makes more sense but, given our current budgetary arrangements, it is not always the easiest thing to do. We must give some certainty to NGOs, however, which goes beyond a year where possible.
I thank the Minister for her reply. My main point concerned the Children First guidance standards. Section 56(13)(b) states that the Minister may prescribe requirements in respect of the provision of those services by service providers. Having looked at several such contracts, we seem to be obsessed with accounts, financial requirements and indicators, although I can understand why.
We sometimes forget to lay down the standards of the State. I ask that in laying down these standards we remind service providers that they must uphold standards and not only where they are in place by way of legislation.
I raised the issue of special care on Second Stage. I have read the Bill and can find nothing therein in this regard that can be changed per se. However, I am extremely concerned about special care placements. The Minister kindly responded to my concerns in this regard on Second Stage. I would like to read into the record the following for the benefit of my colleagues. Under the special care order of the Child Care (Amendment) Act 2011, only children and young people aged from 11 to 17 with serious emotional and behavioural difficulties that put them “at a real and substantive risk to his or her health, safety, development or welfare” and who are unlikely to receive special care or protection “unless the court makes such an order” can access these facilities. An example of this may be a child who is self-harming, suicidal, abusing drugs and-or alcohol, where all other attempts by the Health Service Executive have not stabilised the current, serious situation.
I previously advised, and the Minister confirmed, that there are 16 children on a waiting list. An article in yesterday's edition of The Irish Times by Carl O'Brien states that the waiting list in this regard is 65 days, on average. The case in respect of these children is the subject of a High Court order. The lead-in period in terms of reaching High Court order stage is quite lengthy. I do not know what the longest or shortest waiting time on that list is but for these 16 children it is on average 65 days. These are the children that everything else has failed. These are desperate situations. I cannot understand or accept that we have a waiting list in this area.
We are all aware of the recent Health Information and Quality Authority's report into Rath na nÓg in which serious concerns were raised. The response by the HSE was to close the facility, which made me believe at that time that there was a demand for places. I know, having spoken with social workers, that if there was not a blockage in the system in terms of accessing services, there would be 40 children on the waiting list. Rightly, one has to go to the High Court to obtain an order to ensure safeguards are put in place. As well as placing children on a waiting list, we outsource. The figures in this regard were reported in yesterday's The Irish Times. Could we not develop a home grown solution that would be in the bests interests of the children?
The Minister stated on Second Stage that by 2016, 35 places would be available. As I said, there are currently 16 children on a waiting list. If there is one thing that this agency should ensure it is that there will be no waiting list for these special care placements. By the time these cases get to the High Court they have been through a lengthy process. Since the Second Stage debate I have spoken to many social workers who told me of the number of different hoops through which they have to jump before getting to the High Court stage. It is really serious that children are on waiting lists for, on average, 65 days.
There has been much talk about Ireland's past failings, in respect of which some 30 reports have been published. For me this is not about the past rather it is about the present. That there are 16 children and young people whose health, safety, development or welfare is at substantive risk are on a waiting list for on average 65 days is unacceptable. I accept that the Minister cannot give assurances in the Bill. However, I am extremely concerned. This issue is not going away. It should be the driving factor for the new agency. We need to change this practise. There should not be a waiting list for special care placements. I do not doubt the Minister's integrity and compassion in this regard. However, the more I talk to social workers about these particular children and they explain these cases about which we are talking the more concerned I am. I do not want to read about these children in a child death report. I want us to do something about this issue now. I do not want to be talking in the future about how desperate this situation was. That would make headlines in the papers. The real headline for me is that we cannot provide these places for these children today.
Everybody is working to ensure that we put in place the best services in terms of special care. Clearly, there are many challenges in relation to the development of the type and level of child protection services that we all want to see provided. This will not happen overnight. As I said on the last occasion we discussed this legislation, there is a national plan in place to increase the number of placements. I note Senator van Turnhout's concern and want to assure her that this issue is a priority for Gordon Jeyes. For the first time since I took office, we will have a national director of special care and the focus will be on the needs of these children. Placements have been and continue to be increased. A huge amount of attention and service is being directed at these children while awaiting placements. They are not on their own. Many of them are in high secure places or specialist foster placements. I take the Senator's point in regard to the High Court's statement that they require special care.
An assessment, consultation and therapy service, ACTS, team has been appointed to work with these children and to provide them with psychological support when in and on leaving the special care placement. The members of this team, which includes among others a psychologist and social worker, were appointed in the past few months. This service has not heretofore been available. There are many challenges in working with this group of children in terms of their high levels of need. Some of them end up requiring placements abroad. It is not feasible right now for us to provide in this country the range of services these children need. However, our goal must be to ensure we have in place those services in this country. In this regard, I am exploring a North-South dimension. We could seek to provide these facilities, which are specialist in terms of the needs of these children who often have behavioural and sexual problems and serious addictions to alcohol and drugs, on a North-South basis. We do use placements abroad. The number in this regard has varied considerably. Every effort is made to ensure that the services required are available in this country because, clearly, this is preferable. However, just as children with medical complications often need to go abroad to get a specialist service if not available here, for which the HSE pays, so, too, do these children in terms of treatment for emotional and sexual problems. The facilities they attend abroad are usually very specialist and experienced in working with young adolescents. Some of the outcomes from the work done by these services with these children have been very good. Families have been very satisfied and the young people have gone on to do well.
We are increasing placement numbers. Waiting times vary considerably. The waiting list can sometimes be cleared following referral to services by the courts, as in the case of the referrals to Oberstown, the reason for which were not quite clear. The waiting list then reduced and beds became available. The Senator will have seen how the publicity waxed and waned in relation to the demand for those beds. This is an area which Gordon Jeyes and his team are paying a lot of attention to and are treating seriously. As I stated, a national therapeutic team has been appointed and the waiting list, which as stated earlier varies from time to time, is being managed as well as possible. I am and will continue to monitor the situation to ensure that those children most in need of the service get it, although much is dependent on the placement they are already in. Where serious concern is expressed in regard to a particular child being required to be moved to special care, this is done as quickly as possible in all circumstances.
I thank the Minister for her response. I welcome what she said. The idea of the development of services on a North-South basis is to be commended. Perhaps that is the way forward. The difficulty is that these children still have to be supported. This will require the pulling together of essential resources and a skewing of those resources to ensure young people who are particularly vulnerable are supported.
As I stated, the difficulty is that while the official waiting list may be 16 children, people from right around the country who spoke to me told me the number actually was at least 40 children. In reality, there is not a push for places because unless places are available, no application will be made to the High Court. Surely, the driving factor as to whether a special care order is sought should be the best interest of the child. It should not be about whether a place is available. Consequently, I believe the problem may be larger than it appears at first glance. However, I take the Minister's commitment and obviously, it is an issue I will continue to pursue because for me, an average waiting time is 65 days. When a court order is made, there is quite a lead-in process involved and what really concerns me is that it takes 65 days from that point.
As Members are aware, the Health Information and Quality Authority, HIQA, is an independent organisation with the legal power under the Health Act 2007 and the responsibility to monitor and inspect a number of services provided by the Health Service Executive, HSE, to children and young people in Ireland. It does not have a role in respect of individual complaints.
I move amendment No. 16:
This amendment is essentially similar.
In page 48, between lines 35 and 36, to insert the following:“(3) The Health Information and Quality Authority shall have an oversight role in the performance of the Agency and its functions as set out in section 8 of this Act.”.
Yes, as I stated, the Health Information and Quality Authority has a monitoring role and function under the Health Act 2007. It also has the power to make recommendations in respect of how services are provided and to follow up on the implementation of its recommendations. HIQA's remit now also includes child welfare and protection services delivered by the HSE's children and family services. I took the decision last year that HIQA should monitor child protection services and a number of reports already have been produced that show improvements in some areas and gaps in others. However, I am pleased that HIQA is examining precisely how the services are being delivered across the country. Given that HIQA was established under health legislation, any expansion of its remit such as that proposed in this amendment would fall to my colleague, the Minister for Health. As time goes on, however, everyone will be watching how the role of HIQA develops and I have no doubt but that it will move into other areas. For the present, I am satisfied with the role it will play in respect of the child protection services because that was expanded last year. As I stated, that work has now started and at least six reports already have been produced.
I move amendment No. 17:
This is a technical amendment to include the Irish word, "naíonra" in the provision. A naíonra is an Irish-medium play group for preschool children and naíonraí follow the principle of total early immersion. A naíonra is a group of children coming together for two to three hours in a pleasant, cheerful and safe environment under the guidance and supervision of their leader. The staff structures the environment to ensure that all facets of the child's holistic development are catered for and to give the child the opportunity to acquire Irish naturally through the medium of play, which is this group's chief method of learning. In the same way that terms such as "play group", "day nursery" or "crèche" are included, I seek the insertion of "naíonra", because it is a highly specific type of early years placement and it would be important to include it here. It is not a direct translation into the Irish language but has a specific meaning, in the same way the word "crèche" has a specific meaning.
In page 55, line 10, after “day-care” to insert “, naíonra”.
On the purpose of the new Part VIIA of the Child Care Act 1991, the definition to be applied to a preschool service is as follows:
The key elements of this definition in respect of the amendment proposed are the inclusion of the phrases "any pre-school ... or other similar service". The naíonraí are preschools and consequently, fall clearly within the bounds of this definition. Even were it to be argued that this definition does not hold sway by virtue of the naíonraí conducting their service through the medium of Irish, there then can be no argument with the application of the term, "other similar service", given that the cohort of children served in the naíonraí are those aged from two to five, that is, before they reach school-going age. If methodologies such as language immersion are to be cited in the Act, then for completeness and consistency it would be necessary to list all such similar methodologies such as, for example, Montessori, Steiner or HighScope, to name but a few. It also would require that as best practice changes in the early years sector and as new thinking emerges, such new methodologies also would require listing. Primary legislation does not, in general, spell out the minute detail of every aspect required for a provision but rather the broad intent of the Legislature. In this instance, I believe it is quite clear that naíonraí are encompassed in the definition. I hope the Senator will accept this point.
‘pre-school service’ means any pre-school, play group, day nursery, crèche, day-care or other similar service which caters for pre-school children.
I move amendment No. 19:
The purpose of this amendment is to ensure this provision aligns with the proposed new section 58B, in which the regulations are outlined. This was amended at an earlier Stage of the Bill and I am trying to ensure consistency in the language between this provision and section 58B (1 ), in order that the regulations and the duty of the person providing the early years services are exactly aligned. I believe it is quite a technical amendment to ensure this, because I have a concern about Members differentiating between the regulations and the duty of the person providing the early years services. They should be clearly aligned.
In page 59, line 20, to delete “and welfare” and substitute “welfare and promote the development”.
As section 58B of the Child Care Act 1991 will allow the Minister to make regulations to promote the development of children, it is not necessary to repeat this in section 58G. I therefore do not intend to accept the amendment. However, I will keep this under review in the context of amending the Child Care Act, which I intend to do. As the Síolta and Aistear programmes develop and when they are embedded across the sector, the question of how this can best be captured can be examined. I believe the review of the child care legislation, which will take place next year, is the appropriate place to so do.
I take on board the Senator's comments but I suggest that section 58B already deals with it and allows the Minister to make regulations to promote the development of children. If further legislation is needed to embed some of the best practice we are trying to drive in terms of the quality preschool agenda, we can examine how that might be done in terms of the changes to the Child Care Act.
The difficulty is we are speaking about four words that would align the regulations along with the person providing early years services. It is problematic that we are excluding four words "and promote the development". It could be seen to be a deliberate intention of the Bill to exclude that from the person who is providing the early years service in order that they are looking after the health, safety and welfare of children while not having responsibility for promoting the development. I believed that this was a technical amendment because it was seeking to outline that the regulations and the duty of the persons providing such are the same.
I thank my colleagues Senators Fiach MacConghail, Mary Ann O'Brien and Katherine Zappone for their support on these amendments. I have a concern in regard to section 92 because those exemptions are articulated in the Child Care Act 1991. I believe the belt and braces are in place. By reiterating the exemptions, we are putting on a straitjacket. I raised my concern in regard to vetting when the National Vetting Bureau (Children and Vulnerable Persons) Bill came before the House. We know that there are about 19,000 settings where 50,000 children are regularly minded on a paid basis by childminders who are not relatives. We are specifically exempting 50,000 children. They were exempted in the Child Care Act. I do not understand the reason we have to articulate the exemptions again in this legislation. I do not understand the ruling but I take it, because they are already exempted. The belt and braces were put on in the Child Care (Amendment) Act and we are putting them on again in this Bill. We are saying it again, just to be sure that everybody knows it is hands off in the case of any child who is being minded by somebody. For example, Childminding Ireland has said it would like to see regulations and supports similar to what is in place in Scotland, although they are slightly lesser regulations. These children are being minded on a contractual basis. The childminders are being paid and are not relatives. We are talking about 50,000 children and I have a huge concern that we are physically exempting them again. That is the reason I tabled the amendment and the reason I imagine Senator Terry Leyden tabled a similar amendment.
I have a certain amount of sympathy with what Senator Jillian van Turnhout has said. At the recent Labour Party conference in Killarney I tabled an amendment for a reconsideration of the Child Care Act 1991 on the specific ground that we do not have adequate regulation of children who are minded outside of preschool settings. The majority of children are minded in unsupervised settings which is entirely inappropriate. I accept it is not the function of this legislation but I want it placed on the record that it is Labour Party policy, following our conference at the weekend, and I hope the Minister will revisit the issue and the Child Care (Amendment) Act in early course.
As we had to repeal all of the section, that is the reason it has to be repeated in this Bill. What the legislation is doing is providing for the first time that if one runs a preschool service, of which there are 4,500, one must be registered. We are coming from a situation where there has been relatively little regulation of the sector and not even registration. All one had to do was notify the HSE that one was going to open a preschool service. Certainly that was not good enough. We are providing for registration and, as I have said many times, developing a broader preschool quality agenda, including the requirement that people must have a higher level of training before they can work in the sector. When that provision becomes effective from September of this year and next year, one will not be allowed work in the sector unless one has a certain level of training. That is the right thing to do because standards are linked to training and are also linked to inspection.
What is being done in the inspection area? We are putting the reports of inspections online. For the first time there are more than 1,600 reports online from every county in Ireland. People no longer have to go through freedom of information. Every time a service is inspected, a report is put online. Reports on inspections which have taken place in recent weeks are online. There is much greater transparency in the sector in terms of inspection. As Members will be aware, I got funding in the budget for more training, a mentoring programme to support the sector and the recruitment of new inspectors as we did not have an inspector in every county in Ireland and we need extra inspectors.
The question of childminders arose. Some countries have said that parents take private decisions about the care of their children. They employ a person and make a decision. Some parents seek references and take great care with that decision. Childminding has not been regulated in this country unless one is minding a certain number in one's home. It is viewed as a private decision taken by parents. It is an area some believe should be regulated in the same way as I have described the childminding early years services are being regulated, asked to reach certain standards and inspected to ensure they reach those standards. Given there are perhaps 50,000 childminders, how do we move towards a similar situation that would support parents' decisions? I think many parents would like to see that. Others may prefer to be allowed to take their own individual decision but most parents would want to see standards and support for those childminders.
It has been a very informal sector despite incentives to register and despite incentives to link with the local child care committee. Only a very small proportion of childminders have done so compared with the numbers who are looking after children. In terms of moving towards greater State involvement with childminders, that is an issue to be examined in the early years strategy which will be brought forward next year. I also asked the task force to examine it. This is all part of a greater focus on the early years. In some ways it is surprising this topic has not received greater attention up to now, but I certainly think it will be on agenda as we move forward. There is also a question of resources.
We are beginning work on the preschool quality agenda and moving to ensure greater transparency, higher standards and put some training in place. There had been a huge focus on buildings, not on the quality of the service. I believe the discussion on how to regulate and support childminders will be part of that discussion. It has to be incremental, building on the work being done with the preschool quality agenda and the early years school services.
I welcome the Minister's commitment and I agree that what is being done is a major step forward. That is very important. We need to look at the issue of childminders as we progress and develop. Childminding Ireland has approached me and said this is something it is seeking. As I said earlier, it has been done in Scotland which has different standards from the early child care settings so we are not comparing like with like. For example, parents have said that services the State provides, such as Garda vetting, cannot be accessed. If a parent wants to make a choice, perhaps the State could support the parent in making the choices as well as the reference checking. We need to look at how we move forward in this area, but that is not an issue for today's Bill.