Seanad debates

Thursday, 5 December 2013

Child and Family Agency Bill 2013: Report Stage

 

11:25 am

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I welcome the Minister for Children and Youth Affairs, Deputy Fitzgerald, to the House.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 1:


In page 12, line 16, after “the” to insert “educational welfare”.
I welcome the Minister back to the House and assure her that Members have tabled amendments to try to improve the Bill but that they are anxious to see the Bill enacted quickly. This amendment proposes the inclusion of the term "educational welfare" on page 12, line 16, before the word "development". Its purpose is to support and promote the educational welfare, development and protection of children by ensuring all services engage in prevention and early intervention practice. The rationale of the Children Rights Alliance for this amendment is that the provisions on family support and the role of educational welfare should also be expanded upon. It states:
Section 72 of the Bill provides for the transfer of the functions of the National Educational Welfare Board to the Agency, and this Agency function is referred to in Section 8(1). Section 8(1)(b) and (c) further elaborate on the functions of the Agency in relation to family support and the “development, welfare and protection of children”. Educational welfare may be implicitly included in the latter phrase. However, we believe that the Bill would benefit from a more explicit acknowledgment of the importance of educational welfare. The link between school non-attendance and child welfare concerns is well known. It is also critically important to recognise educational welfare services as a route for identifying other underlying child protection issues in a child’s life. We believe the greater visibility of the issue of educational welfare would also help ensure buy-in from staff within the National Education Welfare Board.
This certainly constitutes a large improvement from a time when a garda would be given responsibility, without backup, for school attendance issues. This created major difficulties because the backup was not in place, which is the reason I believe it to be important. The Minister should consider this matter and respond accordingly.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I second the amendment and support Senator Leyden's remarks. I do not wish to delay the House on this amendment, which I consider to be straightforward. I agree with the Senator on the need for greater visibility regarding the issue of educational welfare, which would help in ensuring buy-in from staff from the National Educational Welfare Board, and this amendment should be supported. In general, as Members progress through all the amendments that have been tabled, the Minister will be aware that my party supports the Bill. I believe it has the support of all parties and Independent Members in the House and in this context, all the amendments tabled are to improve the Bill and to help and assist the Government. Consequently, it is to be hoped that in the spirit of political reform, the Minister will engage with Members and will accept some of the amendments tabled. Other Senators may make a similar point as the debate continues because to do otherwise does a disservice to both the House and the Government, when genuine engagement takes place on a Bill for which there is support but on which there are views on how it can be improved. I wish to signal this point to the Minister before progressing further on Report Stage.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I will begin by noting that I have taken a collaborative approach to the development of this legislation with both non-governmental organisations, NGOs, and Members of both Houses. I tabled quite a number of amendments on Committee Stage at an earlier point in the Bill's development and took on board the vast majority of the recommendations made from the NGO sector, for example, which were supported by colleagues in both Houses. I have introduced some highly significant amendments with regard to the family support area in particular, as well as to other aspects of the Bill.

As for the question of highlighting educational welfare, one reason the educational welfare service is being brought into the agency is precisely because of the point made by Senator Leyden, namely, the importance of educational welfare. I recognise this and was delighted when the educational welfare service was brought in under the umbrella, as well as with the co-operation I received from the Minister, Deputy Quinn, in that regard. This is really important because as the Senator pointed out, educational welfare clearly is a key issue. One of the first places in which it will be noticed that children are having difficulties is often in non-attendance at school. I refer to section 72(2), as I did on Committee Stage, in which it is absolutely clear that all functions being undertaken by the National Educational Welfare Board at present are being transferred in full to the new agency. On Committee Stage, I read those functions into the record of this House and as Senator Leyden is aware, they are well-detailed in that legislation. Consequently, all of this will come under the remit of the new agency. It is all captured in the provisions of section 72(2) that all the current functions of the aforementioned agency will transfer automatically to the new agency.

It might be helpful to add further that the welfare of a child encompasses many aspects and in this regard, the term "development and welfare" encompasses any functions transferring from the National Educational Welfare Board. I do not wish to replace the broad focus of the section. In its broadest sense, educational welfare also comprises part of the work and function of teachers, the National Educational Psychological Service and the National Council for Special Education. Consequently, I do not wish to include a suggestion in the Bill that educational welfare is solely the remit of the agency and I believe the broad-based approach I have taken in drafting the legislation captures what both Senators Leyden and Cullinane seek. The concept of educational attainment is captured clearly by any commonsense understanding in respect of development and welfare. Moreover, added to this is the transfer of all the functions of the National Educational Welfare Board to the agency. This is greatly to be welcomed because the work being undertaken by educational welfare officers is highly significant and all of this will be transferred.

That work includes the school completion programme and the home-school liaison programme. Those initiatives are very important in terms of prioritising that group of young people who might leave school early. For these reasons, I cannot accept the amendment.

11:35 am

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I accept the Minister's explanation that these matters are encompassed within the relevant provision. My own experience is that advice from senior officials is generally good. As such, I do not propose to press the amendment.

Amendment, by leave, withdrawn.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 2:


In page 12, line 17, to delete "families" and substitute the following:
"all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above".
This amendment was recommended by Barnardos, which argues that the current drafting of the Bill merely transfers the functions of the Family Support Agency, as listed in the Family Support Agency Act 2001, to the new child and family agency. The provision is considered too narrow and not sufficiently reflective of the range of appropriate and proportionate supports that will be on offer to families as per the constitutional amendment and as outlined in section 3 of the Child Care Act 1991. Family support plays a crucial role in preventing situations from escalating, but it is only one of a range of available options. Other options must be included in the suite of supports open to families in order to ensure they can address their own difficulties.

Barnardos also makes the case that the Bill implies that parents will play a passive role in these matters, being merely the recipients of services, as opposed to recognising the active role they actually play in improving their children's lives. The legislation should explicitly outline how the State will support families in order for them to be effective. The 2001 Act is heavily biased, according to Barnardos, towards supporting families based on marriage. Given the diversity of family formations in Ireland, the Bill should be reflective of all situations. I presume the Minister and her officials have had discussions with Barnardos on these points. I respect that organisation's views as coming from its experience in the field. We have agreed to put forward those views in the House as the organisation itself is not in a position to do so. I look forward to the Minister's response.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I have included a very strong provision in the Bill regarding family support and early intervention. We have already dealt with that issue.

In regard to the issue of different family formations, the definition of "family" in section 2 is probably one of the most inclusive definitions used in any legislation. It was included precisely to address the points raised by Barnardos and is as follows: ""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;". As the Senator can see, this definition is, in fact, broader and more inclusive than the formulation set out in his proposal. The amendment is not necessary because its intent is already captured in the definitions. The definition of "couple", also set out in section 2, is likewise very inclusive. Separating out the role of parents and guardians would detract from the broad definitions contained in the Bill. I hope the Senator will understand why I am not accepting his amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I accept the rationale behind the Minister's response and do not propose to press the amendment.

Amendment, by leave, withdrawn.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendment No. 3 in the names of Senators David Cullinane and Trevor Ó Clochartaigh has been ruled out of order.

Amendment No. 3 not moved.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I move amendment No. 4:


In page 13, to delete lines 2 and 3.
I raised this issue on Committee Stage. The amendment proposes to delete the provision in subsection 8(4)(a) whereby "psychological services associated with the provision of specialist mental health services to children" are excluded from the range of services provided by the new child and family agency. I accept the need to outline what the agency will do, but I have a major difficulty with a provision which serves to rule out the inclusion of these particular services. I listened carefully to what the Minister said on this point on Tuesday, but I still do not understand why they must be explicitly excluded. I accept that special mental health services are not, at this stage, included within the remit of the agency, but there is no such explicit exclusion in the case, for example, of public health nurses, who are not transferring over.

The child death reports published by the Health Service Executive indicate that in 75% of cases, there was evidence of a need to engage with the child and adolescent mental health services, CAMHS. In her response to Senator Leyden's amendment No. 1, the Minister argued that a reference to "educational welfare" could not be included in the Bill because other bodies such as the National Educational Psychological Service have a role in carrying out those functions. There is a contradiction, in light of that argument, in specifically excluding specialist mental health services from the Bill. It is an exclusion that imposes a straitjacket in terms of our ability to develop essential links in the provision of services for children. Subsection 8(3) outlines what the agency will include, but why is there a need specifically to exclude these particular services? It seems to me the Minister is double-bolting the door and preventing them from ever being included within the remit of the agency. As I said, the child death reports show that at least 75% of cases involved mental health issues which would require access to CAMHS. I have a huge difficulty with a provision that explicitly excludes those services from the remit of the new agency.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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Senator van Turnhout's analysis is incorrect. Certain services are transferring to the new agency on the establishment day, which we hope will be 1 January 2014. What we are doing in section 8 is clarifying the services that will transfer. The task force recommended that specialist mental health services be considered for inclusion within the remit of the agency. At this stage of the transfer of functions, we are not bringing in public health nurses. The latter are not mentioned specifically in the Bill because they are not coming in as a group. In the case of psychologists, on the other hand, some are transferring over to the agency, where they will have the general function of providing psychological services for children in the community. The specialist services under CAMHS, however, are not transferring on 1 January. It is because some psychologists are transferring that it is necessary to be clear that specialist mental health services, specifically, are not transferring.

The reason they are not transferring is that in the first stage of the development of the agency, we are bringing three agencies together, namely, the National Educational Welfare Board, the Family Support Agency, and the child protection components of the HSE. The vision of the task force was of a broader remit, which would include bringing in public health nurses. We already have 4,000 people transferring, which amounts to the single largest public sector reform we have initiated in terms of transfer of personnel and agency. If we were to transfer all public health nurses who work with children and all of the mental health services, there would be a deal of work to be done in terms of the discussion of that concept, negotiating with other Departments, working out all of the human resources issues and so on. We have taken what we consider the right approach by specifying very clearly in the Bill the functions that are transferring. It is about providing clarity.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I brought forward a larger number of amendments on Committee Stage. Of the six I have tabled on Report Stage, this is not one of the three I consider to be most critical.

In that spirit, I will not press the amendment.

Amendment, by leave, withdrawn.

11:45 am

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Before proceeding, I welcome Bernie and Sean Shea from New Inn, Ballinasloe, in the Visitors Gallery. I hope you enjoy your visit to Leinster House today.

Amendments Nos. 5 and 6 are out of order.

Amendments Nos. 5 and 6 not moved.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendment No. 8 is an alternative to amendment No. 7, therefore, amendments Nos. 7 and 8 may be discussed together. Is that agreed? Agreed.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 7:


In page 13, lines 30 to 32, to delete all words from and including “when” in line 30 down to and including “matters” in line 32 and substitute the following:“in performing 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 the primary consideration”.
This is the Child and Family Agency Bill, so the child must have primary consideration. That is the reason we have tabled this amendment. It might not be obviously meaningful, but it puts the child at the centre of the Bill.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I second the amendment. Section 9(1) of the Bill specifies that the agency when making decisions in performing its functions under sections 8(1)(a), (b) or (c) shall "have regard to the best interests of the child in all matters". In practice, this means that when the Agency is performing its functions, which are being transferred from the Family Support Agency, the Education Welfare Board and the Health Service Executive, it will have to pay due regard to the best interests of the child. The principle also applies to its functions in supporting and promoting the development, welfare and protection of children and supporting and encouraging the effective functioning of families.

This is a very welcome development and represents a major evolution in adopting a children's rights approach in public sector reform. However, questions arise as to how this principle will operate in practice, as there is nothing specific in the legislation on this. The best interests principle is interpretative in character and decision-makers need guidance on how to interpret it in practice. The provision falls short of 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."

The Committee on the Rights of the Child, CRC, issued a general comment to clarify the meaning of this principle in 2013. It stated that it has a three-fold meaning. First, the best interests principle is a substantive right, 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 the 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, is directly applicable 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 optional protocols provide the framework for interpretation.

Third, it is a rule of procedure. Whenever a decision is to be made that will affect a specific child, an identified 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 require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, states 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 and the criteria on which it is based.

I hope the Minister will take on board the views of organisations that have lobbied Members on this issue, if not the concerns of the Opposition. NGOs and other organisations have concerns and they believe the wording in the amendment would add value to the Bill.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I have tabled amendment No. 8 which is quite similar. The points I raise refer to both amendments. On Committee Stage last Tuesday, I outlined to the Minister why I consider this amendment important and I explained general comment No. 14. from the CRC. I will not repeat what I said then. The general comment was by the Committee on the Rights of the Child on the right of the child to have his or her best interests taken as a primary consideration. The UN has sought to ascertain how state parties who have signed and ratified the convention can uphold exactly what is meant by the best interests of the child as a primary consideration. In that context, the main objective of the general comment is to strengthen the understanding and application of the right of children to have their best interests assessed and taken as a primary consideration or in some cases the paramount consideration. I believe we have dealt appropriately with the paramount consideration within the Bill, but today we are dealing with "a primary consideration". The general comment goes on to state that each state party must respect and implement the right of the child to have his or her best interests assessed and taken as a primary consideration, and is under the obligation to take all necessary, deliberate and concrete measures for the full implementation of this right.

I hope the Minister accepts one of the two amendments. In 1998, when the UN Committee on the Rights of the Child had its concluding observations on Ireland's hearing in respect of its upholding of the UN Convention on the Rights of the Child, recommendation No. 25 stated:

In view of the fact that the Convention can only be referred to before the courts as a means of interpretation of national legislation, the Committee recommends that the State party take further steps to ensure that the Convention is fully incorporated as part of the domestic law, taking due account of its general principles as defined in article 2 (non-discrimination), article 3 (best interests of the child), article 6 (right to life, survival and development) and article 12 (respect for the views of the child).
In the committee's second hearing in 2006, and I was there for it, it made further recommendations with regard to the best interests of the child. I remind Members that these are the concluding observations after reviewing the Irish State and its upholding of the UN Convention on the Rights of the Child. In point No. 22 of its concluding observations the committee said: "The Committee notes that steps have been taken in some areas to ensure respect for the best interests of the child, yet remains concerned that the principle is still insufficiently addressed". In point No. 23 it said:
The Committee recommends that the State party: (a) Ensure that the general principle of the best interests of the child is a primary consideration without any distinction and is fully integrated into all legislation relevant to children; and (b) Ensure that this principle is also applied in all political, judicial and administrative decisions, as well as projects, programmes and services that have an impact on children.
I believe the Minister's and my intentions are the same. What we are seeking to do here is provide the opportunity to adopt the convention's language. I believe establishing the child and family agency is ground-breaking. We can be world leaders. Why not use the language of the UN Convention on the Rights of the Child to bring us absolutely into line? It is not only appropriate but also our obligation. Ireland has ratified the UN Convention on the Rights of the Child and we ask that the convention's language be used, that is, the best interests of the child as a primary consideration. When Ireland is next before the committee it will be highlighted by the committee if we do not take this opportunity to incorporate this language. As I said, it does not change the intention of the Bill, but the UN committee has twice advised us on this issue and earlier this year it issued a general comment which deals extensively with the best interests of the child as a primary consideration. I hope the amendment is accepted by the Minister.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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When the UN committee reports on the next occasion it will also cite the referendum on children, the Adoption Act 2010 which included the paramountcy principle and a number of other initiatives, including this Bill. This Bill contains, for the first time, a novel and wide-ranging commitment, which is not featured in any other way in Irish statute law, regarding the best interests of the child in the way it is formulated here.

The paramountcy principle is also articulated in the Bill.

I will now turn to the detail of the Bill. Section 9(1) provides: "The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), have regard to the best interests of the child in all matters." The use of the term "the best interests of the child in all matters" is ground-breaking and I shall explain why in terms of the Irish situation and the Constitution. Many of these issues arose when we debated the children's rights referendum last year. There must be a balance, as in the Constitution, between the rights of the individual child and the rights of the family and parents. Both rights are held in the Constitution so both must be balanced and the Bill has been drafted to reflect the situation. There are good constitutional reasons for drafting the best interest principle in the way that we have in the legislation. I shall explain how Irish law took account of the UN convention and the particular issues that must be dealt with due to the Constitution and its various wording.

Section 9(1), as worded, is a broad encompassing provision that will ensure that the best interests of the child are key to the agency's decision-making processes when the agency is exercising functions related to the following: the Education (Welfare) Act 2000; child and family services under specific enactments as set out in Schedule 1; supporting and promoting the development, welfare and protection of children; and supporting and encouraging the effective functioning of families.

Section 9(1) is an overarching provision in terms of the delivery of services by the agency. It imposes a duty on the agency, when making decisions on the delivery of its services under section 8(1)(a), (b) and (c), to have regard to the best interests of the child in all matters.

Reference has been made to general comment No. 14, issued by the Committee on the Rights of the Child, on the right of the child to have his or her best interests taken as a primary consideration. Senators van Turnhout and Leyden commented on No. 14 so let me also comment on the matter. The CRC's general comment also stated that "since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application". That means that the UN accepts that every country must have a degree of flexibility in the application of its principles which includes taking account of a constitution in a country. The CRC continued: "The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.)." When we considers individual cases, it is often possible to harmonise individual rights but if that is not possible the rights of the child must be taken as a primary consideration and we allow for that in the drafting of this legislation.

The convention entered into force in Ireland in 1992. Similar to many other common law countries, Ireland has a dualist system under which international agreements to which Ireland becomes a party are not automatically incorporated into domestic law. The challenge is providing a legislative commitment to best interests as a primary consideration which must be considered in the context of the Irish constitutional and statutory framework.

I am satisfied that in the great majority of situations the best interests of the child will be the primary consideration. As we saw during the debate on the children's referendum last year, there may be a small number of situations where there is a need to balance other constitutional considerations. The approach adopted has been considered carefully by the Office of the Attorney General and my Department's legal personnel and the way it is captured in the Bill is the best approach to the legal framework.

Today's debate should focus on a commitment to ensuring, as a general procedure in the performance of its duties, that the State body must evaluate the possible impact of any decision it makes on a child or children. This is a novel and wide-ranging commitment that has not featured in Irish statute law. It is in addition to the paramountcy principle that is strongly reiterated in respect of specific situations where decisions are taken on an individual child.

Section 9, subsections (2) and (4) imposes certain obligations on the agency where the agency is performing its functions in respect of individual children. I am satisfied with section 9 in terms of the balance it establishes in cases where the agency exercises its functions in respect of children generally or individual children. It is reasonable and possible to ensure the best interests are considered and that the agency's decision-making is clearly underpinned statutorily to ensure that they are child-centred.

During the Committee Stage debate I made a point about the agency's work and confirmed that it would be a judicial interpretation but to expect, in the normal course of events, front-line staff to be involved in a broad range of the agency's functions would not be the best way to go forward. I told Senator van Turnhout, and other Senators who raised the matter, that I would examine the UN commitment and its interpretation in Irish law. I hope that I have explained that the balance in section 9 deals very effectively with the situation that where individual children's issues are concerned there is the paramountcy principle and that in the broader terms of functions that the language is worded to reflect the balance. It also reflects our approach to the children's referendum and it is the de factoposition once the referendum is fully incorporated. We have achieve a balance between a child's rights and other constitutional provisions that must be considered. That is the best legal advice that I have and I hope that I have clarified the matter.

11:55 am

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I thank the Minister.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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No. The only person who can speak is the person who tabled the amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I was very impressed by the point made by Senator van Turnhout and I have decided, in the circumstances, that it would be worthwhile to put the issue to a vote. Her well-made argument is fundamental to the issue.

Question put: "That the words proposed to be deleted stand."

The Seanad divided: Tá, 23; Níl, 12.

Tellers: Tá, Senators Aideen Hayden and Michael Mullins; Níl, Senators Thomas Byrne and Terry Leyden.

Question declared carried.

Amendment declared lost.

12:05 pm

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Amendment No. 8 in the name of Senator van Turnhout cannot be moved.

Amendment No. 8 not moved.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 9:


In page 13, line 35, after “2010,” to insert “whether in proceedings before a court or otherwise,”.

This will amend section 9(2) to state as follows: "Notwithstanding the generality of subsection (1), the Agency shall, in performing its functions in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010, whether in proceedings before a court or otherwise, regard the best interests of the child as the paramount consideration." Barnardos has made this recommendation. I accept that Barnardos has long experience of child care. This amendment is based on the best interests principle. Section 9(2) should be more explicit to ensure that it does not relate purely to proceedings before a court. The Bill must recognise that the agency will be working with children and families in a wide range of settings under the legal framework of the 1991 Act.

12:10 pm

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I second the amendment, which is somewhat related to the previous two amendments that we have discussed and the broader issue of the best interests principle. It can be taken as a given that we all welcome the explicit inclusion of the best interests principle in the Bill. Barnardos and those who tabled this amendment agree that the Bill could be strengthened to ensure that Ireland was compliant with the UN Convention on the Rights of the Child. The Minister responded to Senator van Turnhout's point, but it relates to sections 9(1) and 9(2). The language in the former, "have regard to the best interests of the child", is considered to be too weak by Barnardos when situations have competing or conflicting interests, for example, family members or external agencies. Professionals in the agency must be instructed to give a high priority to a child's best interests in these situations.

We have seen from a number of recent reports that there can be competing and conflicting interests. The amendment would strengthen the Bill. Section 9(2) should be more explicit and the Bill must recognise that the agency will be working with children and families in a wide range of settings under the legal framework of the 1991 Act. This issue has been highlighted to us by Barnardos. I ask the Minister to respond to these concerns. Does she believe that the amendment would strengthen the Bill?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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Where any individual proceeding is being taken under the Child Care Act or the Adoption Act, the agency is already required to uphold the best interests principle. Section 23 of the Child Care Act is explicit in this regard and covers any action of the agency in the context of fulfilling its function under the Act, for example, arrangements in respect of the adoption of a child under section 6. As the Senators appreciate, the consideration of best interests in court-related proceedings is a matter for the relevant court or decision making body.

Under section 24 of the Child Care Act, where a proceeding is before a court in respect of the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall have regard to the welfare of the child as the first and paramount consideration. Where there is a conflict of interest such as those to which Deputy Cullinane referred, the best interests principle is in place and is repeated in this legislation.

Section 19 of the Adoption Act states:

In any matter, application or proceedings before--(a) the Authority, or
(b) any court,relating to the question of the arrangements for the adoption of a child ... or for the recognition of an intercountry adoption ... shall regard the welfare of the child as the first and paramount consideration.
This legislative provision also covers the agency's provisions. Where difficult decisions are being made on balancing rights, the first and paramount consideration is captured in legislation. The agency must abide by this.

I am satisfied that section 9 of the Bill has the intended effect of creating a child-centred approach to decision making while restating the specific requirements for paramountcy in certain specified processes, those being, cases in which decisions are made under child care legislation about interim or emergency care orders, adoptions, etc. The principles in last year's referendum have also been captured. I see no reason to restate provisions relating to proceedings before a court or the Adoption Authority of Ireland in the Bill. As such, I cannot accept the amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I accept the Minister's detailed response.

Amendment, by leave, withdrawn.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendment No. 11 is an alternative to amendment No. 10. Although they may be discussed together by agreement, my notes tell me that amendment No. 11 cannot be moved.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 10:


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

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

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

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

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

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

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

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

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

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

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

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

12:20 pm

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I wish to second Senator Cullinane's amendment. He has comprehensively expressed his concerns about the importance of hearing the voice of the child. Barnados feels that this aspect should be strengthened in line with best practice and in recognition that the agency will be working in a number of settings. As users of the agency's services, children's views must be sought in planning and reviewing all the agency's functions and not just restricted to sections 8(1)(a),(b) and (c). I accept that this is a difficult area because it depends on the age of the child.

While the concept is vague, naturally the child's view should be taken into consideration, particularly when a child is in a position to give his or her view. We should also consider whether a guardian or parent could influence a child's point of view to the detriment of some other party involved. This is a complex area, so I accept the advice of the Minister and her departmental advisers, as well as the experience of social workers in this regard.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Before calling the Minister to reply, I wish to welcome Councillor Paul Cuddihy and a group from Kilkenny College to the Visitors Gallery. I wish them a happy day here.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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As regards the proposed amendment, Senators will realise that any well-functioning organisation will take decisions based on available evidence. Much evidence in respect of service provision will emerge from client feedback, participation in respect of reviewing how services are impacting on people, quality reviews and audits, of which we have a lot now. For example, when HIQA does its current reviews, individual children and families are interviewed, as well as foster families. HIQA talks directly to children and provides an up-to-date report on the experience of children in care. We are seeing more and more of that. Mr. Gordon Jeyes is working with children in care and those who have been in care in order to obtain continuous feedback about their experiences in the care system. All of that is welcome.

I take Senator Cullinane's point about the report of the Ombudsman for Children. There is still a big cultural job to be done in the broadest sense in our schools. We need to have more sensitivity concerning a range of services for children, including housing policy. We should carefully examine the impact of issues, events and policies on children. That general challenge should be increasingly met as the country becomes more child-centred.

We now have the guardian ad litem or GAL system in court more frequently, which involves a central approach to what children and adolescents think, including their views on courts, access, custody and adoption. That practice needs more development and judges themselves have spoken at legal seminars about how the judicial system needs to respond better to children's needs. All of that is happening in parallel to what we are trying to do with this Bill.

One section of the Bill states that in planning the provision of services in connection with the performance of functions a, b and c, the views of children must be considered. That provision is very important.

There is a problem about unintended consequences concerning this proposition. On Committee Stage in the Dáil, I changed the way this was formulated. In the original draft of the Bill, and following feedback from NGOs, Members of the Oireachtas and others, it stated that the views of children would be listened to as part of any consultation. I have taken that out now and have broadened it, so that it gives a broader direction to the agency. I agreed on reflection that the original term as drafted was too limiting.

To avoid the problem of unintended consequences, we are suggesting that any organisation would be required by law to consult on all aspects of planning and reviewing the provision of services. It could have an unintended effect of paralysing management decisions, diffusing responsibility for decisions taken, and delaying necessary change when responsiveness is critical. I am working towards achieving the broad principle, but as I have outlined, that is one concern we have as regards the proposed amendment.

The reference to consideration being given to the views of the child will ensure that the agency does so in carrying out its mandate. That will also apply to each of the agencies involved, including the Family Support Agency, education welfare boards and child protection services. In order to achieve a high quality of service, they must have a keen eye to the users of the service, namely, the children themselves. Improvements in service provision have been contributed to and led by children.

I expect this will continue in the new agency. I am satisfied the section as drafted makes the child's voice more central to the proofing of decision-making and in that sense breaks new ground. We are providing that the views of children should be taken into account but do not want to do so in a manner that could have unintended consequences. There is an obligation on everybody working in the provision of these services, including in the Child and Family Support Agency and the National Educational Welfare Board, to do this. There is a cultural issue here. Every agency working with children needs to develop ways and means of listening to children. For example, the involvement of Comhairle na nÓg with county managers in terms of putting ideas to them and other decision makers at a local level also forms part of this.

12:30 pm

Photo of Aideen HaydenAideen Hayden (Labour)
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I support the Minister's view that adoption of this amendment could have unintended consequences. For example, there is no definition in the Bill of what constitutes a consultation process. A planning and review of services could take place without any consultation process. The section as drafted puts a strong onus on consideration being given to the views of children. If the amendment were accepted, due consideration would be given to the views of children only as part of any consultation process undertaken, which would limit the instances where the views of the child would have to be taken into account.

Amendment, by leave, withdrawn.

Amendment No. 11 not moved.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendments Nos. 12 and 13 will be taken together by agreement. Is that agreed? Agreed.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 12:


In page 14, to delete lines 1 to 4 and substitute the following:"section 8(1)(a), (b), or (c), whether in proceedings before a court or otherwise ensure that the views of that individual child, where that child is capable of forming and expressing his or her own views, be ascertained and given due weight in accordance to the age and maturity of the child".

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I second the amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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As the Minister has explained that this is provided for and I am satisfied with that explanation, I do not propose to press this amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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Lest there is any doubt on this matter, section 9(4) was expanded on Committee Stage to include functions under the Education (Welfare) Act and other specified functions. Concern was expressed that in the school situation the views of the child might not be taken into account. In so far as I have authority in relation to educational functions under the Education (Welfare) Act, I have expanded the section to include that.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendment No. 14 has been ruled out of order as it does not arise out of Committee proceedings.

Amendment No. 14 not moved.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendments Nos. 15 and 17 form a composite proposal and will be discussed together by agreement. Is that agreed? Agreed.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I move amendment No. 15:


In page 15, after line 37, to insert the following:"(g) the report required by section 39,".
As this is not one of the key amendments for me in that it probably applies to most legislation that comes before us, I do not propose to spend too long on it. When we discussed this matter on Committee Stage on Tuesday, the Minister outlined that Part 5 deals with standards. All those standards relate to individuals. My difficulty is with the body corporate accepting gifts. There is need for a mechanism under which there would be disclosure of and accountability for such gifts. I am always concerned that a gift from a drinks or other inappropriate company could be accepted by the agency and that we, namely, the board, Minister or other appropriate authority, have no way of knowing this. The amendment seeks to ensure such gifts are declared in the annual report of the agency. Given the discussion we had on this issue on Committee Stage, we need to look more generally at disclosure obligations for body corporates. We have done quite a lot of work in this regard on individual members and officeholders.

As this is a matter related to legislation in general, I do not propose to press the amendment. I just wanted to avail of the opportunity today to make that point. Perhaps the Minister will ensure the agency takes it on board as a good governance principle.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Is the amendment seconded?

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second it.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I refer Senator van Turnhout to section 39(1) which deals not with gifts to individuals but to the agency. A gift to the agency could, for example, be a property in which to run a service or one from a philanthropic organisation. The Bill clearly states that any such gift should not be inconsistent with the functions of the agency or its obligations under the legislation. It also sets out clear guidelines regarding the behaviour of individual members. It would be good practice that gifts be declared, although I would not limit declarations in this regard to the annual report. It should be information which the Minister can request. While such declarations should be made in the annual report, acceptance of the amendment would limit them to being made only in the annual report. The Bill provides the Minister with the power to give directions and, as such, he or she has the authority to request a full report where any concern arises.

Taking the spirit in which the Senator has put forward this amendment, I will give a direction that gifts be disclosed on an ongoing basis and captured in the annual report, while retaining the power that where concern arises, the Minister may request a report.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I appreciate that. I do not propose to press the amendment.

Amendment, by leave, withdrawn.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 16:


In page 18, between lines 22 and 23, to insert the following:"(5) The Board shall always include three individuals with experience or knowledge of the legal environment as it pertains to children and families; the disciplines of child protection, psychology, family support and therapeutic services.".
Section 19 deals with composition and membership of the board of the agency, which will comprise a chairperson, deputy chairperson and seven ordinary members, each appointed by the Minister. Section 19(2) reads that the Minister will appoint persons who have experience of and expertise in matters connected to the functions of the agency or matters connected to organisational governance, management or public administration. The Bill does not specify the type of experience or expertise referred to in section 19(2). Sinn Féin believes the inclusion of specified professional backgrounds would be beneficial to guard against inappropriate appointments. In saying this, I am not suggesting that is what the Minister will do. That said, I am sure she is conscious that political appointments to boards has been an issue in the past.

The inclusion of specified experience in the areas set out in the amendment would provide the board with a valuable understanding of how its services are delivered and how professionals interact with each other. For example, section 98(3) of the Adoption Act 2010 specifies the inclusion on the board of the Adoption Authority of Ireland of a social worker with experience in adoption practice and a barrister or solicitor with experience in child welfare, child protection, or both. It is acknowledged that if the categories set out in the Bill are too specific this could lead to difficulties in filling board posts. The logic of this amendment is to broaden the knowledge and expertise that members of the board should have. It makes sense that membership of the board would comprise not only people with legal expertise but also people who have expertise in the areas of child protection, psychology, family supports and therapeutic services.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Is the amendment seconded?

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second it.

12:40 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I am of the view this amendment is too prescriptive and could create inflexibilities. The Senator will see that in respect of the membership of the board of the agency, in section 19(2)(b), I have stated that members of the board should have experience in matters connected to organisational governance, management or public administration. The function of the board is to oversee the activities of the agency and, as such, the suggestion that the composition of the board should reflect each function of the agency is unnecessary and restrictive. It would be important, for example, to have on the board experience in management, as well as expertise in human resources and communications. I already have announced the membership of the Family Support Agency board that will oversee the transition to the Child and Family Agency and this will become the new board. The calibre of its membership is very high and as the Senator is aware, it brings together highly qualified and experienced members with a range of high-level skills in the areas of child protection, family support and education, and critical areas such as public sector reform, corporate governance, financial management, communications and change management.

I acknowledge the Senator is not questioning the calibre of the current board membership or indeed my approach to the nominations but I refer to my own experience of other boards and the prescription of particular professions thereon. Depending on how a board changes over time and the kind of balances that are needed, I certainly believe a more general prescription, such as that which I have chosen here is better. Some boards in the past have been highly representative but have become quite rigid and have been heavily criticised for that. Rather than looking at the overall goals of an agency, they have become reflective of particular interests as opposed to the overall challenge of the governance and running of the board. This is the reason I do not accept this amendment.

Amendment put and declared lost.

Amendment No. 17 not moved.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Amendment No. 18 has been ruled out of order.

Amendment No. 18 not moved.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 19:


In page 34, line 34, after “to” to insert “the Board of”.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I have already clarified on Committee Stage that the Bill provides that the board is the governing body of the agency. Senator van Turnhout made a number of points in this regard and I hope it has been clarified that it refers to the agency. The Bill provides that the board is the governing body of the agency with authority in the name of the agency to perform the functions of the agency. I wish to clarify the Minister's relationship to the agency will be to the board and obviously will link in particular with the chairperson, Norah Gibbons, who already has been appointed.

Amendment, by leave, withdrawn.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I move amendment No. 20:


In page 35, line 8, to delete “judgment” and substitute “judgement”.
While it may seem as though I am being pedantic by tabling an amendment that seeks to change one letter in the text from "judgment" to "judgement", all too often one hears about the letter of the law rather than its spirit. I am trying to ensure there is absolute clarity that the Minister will get professional judgment from whatever profession that judgment should come. According to R. M. Ritter, who I believe to be the authoritative source and is the author of The Oxford Guide to Style, published by Oxford University Press in 2002, in British English the spelling "judgment" is correct when referring to the formal ruling of a court or a judge, whereas the spelling "judgement" is used for other meanings. I put it to the Minister that "judgment" is used exclusively for legal judgments handed down by the law and the correct spelling in this context requires an “E”.

I acknowledge the Minister can examine other legislation to ascertain whether this was done but I believe an opportunity exists to ensure absolute clarity and to prevent anyone from claiming subsequently that one can only look at a judge's formal ruling when considering the advice to be given to the Minister. This amendment and amendment No. 31 will ensure clarity and I hope it is accepted by the Minister because Members facilitated the holding of Report Stage this week rather than next week as had been planned, to allow the Bill to revert to the Dáil, if necessary. I acknowledge it is quite a small issue but there is a chance to get it absolutely perfect. Members have a chance to ensure absolute and utter clarity. As I stated on Committee Stage, I have spoken to several legal people in this regard. Normally, the error is the other way around but in this instance, the letter "E" has been omitted and as I believe the word should be spelled "judgement", I ask the Minister to accept the amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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Senator van Turnhout should allow me to give her the benefit of my research on this matter. I am advised that these two spellings are used interchangeably throughout the Statute Book. I understand, and have taken the advice of the Attorney General in this regard, that it is more usual to use the spelling "judgment". This spelling occurs more than 900 times throughout the Statute Book, while "judgement" occurs just over 300 times. The spelling "judgment" has been used in this Bill. This is the spelling used, for example, in the definition of "clinical judgment" in the Health Act 2004. The spelling "judgment" also is employed in the Children Act 2001 and in the Ombudsman for Children Act 2002. It is in this context that the spelling has been used.

The main point to stress in this regard is that both spellings of the word have the same meaning and that nothing turns on this in respect of statutory interpretation. Therefore, I will not accept the amendment and I hope this clarifies the legal advice.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I appreciate and understand the Minister's response but the difficulty for me is that in all the sources, it never has been tested and I do not want it to be tested in this case. Therefore, while I am disappointed that this opportunity will not be used to correct it, I will not press this amendment.

Amendment, by leave, withdrawn.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 21:


In page 35, line 9, after “functions” to insert “and must be in accordance with section 8 and section 9".
This amendment pertains to ministerial discretion or guidelines. Section 47, which concerns the power of the Minister to give direction to the agency, empowers the Minister to give direction to the agency concerning any matter relating to this Act or other enactment or any policy or objective of the Minister or the Government. It provides that the agency shall comply with such a direction. The chief executive is mandated to inform the Minister of the measures taken by the agency to comply with the ministerial direction. Section 48 empowers the Minister to issue guidelines to the agency at any time in respect of additional policy guidance or changes in policy, as well as changes in prioritisation of business plan commitments and provides that the agency shall have regard to these guidelines in performing its functions. Essentially, this amendment seeks the simple inclusion on line 9 of page 35, after the word "functions" to insert, "and must be in accordance with section 8 and section 9".

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I believe I went into some detail on this issue on Committee Stage. This amendment is unnecessary, as it would not be possible for the Minister to give a direction that is not consistent with the agency's functions. The agency can only act within the parameters set out in section 8. It also is inconceivable that the Minister would issue a direction that goes against the best interest principle. Therefore, I will not accept this amendment.

Amendment put and declared lost.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Amendment No. 22 has been ruled out of order.

Amendment No. 22 not moved.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Amendments Nos. 23 to 26, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 23:


In page 41, between lines 22 and 23, to insert the following:“(16) A service provider shall operate in compliance with section 9 where applicable.”.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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Under section 56(13), the Minister may prescribe requirements, which could include requiring service providers to take into account the best interest of the child where the service provider is engaged in relevant services. In addition to section 56(13), under section 56(15) a service provider is defined as a person providing child and family services "that are similar to activities carried out by the Agency and" - these are very important words which capture what the Senator is trying to do in this amendment - "consistent with its functions". The agency, in the performance of its functions, will be required to observe the best interest principle.

Therefore, it is entirely reasonable that any service provider engaged in the provision of child and family services on the agency's behalf must adhere to the same principle. The agency will have overall accountability for the delivery of services, whether directly provided or commissioned. Therefore, I do not believe the amendment is needed and I will not be accepting it.

Amendment put and declared lost.

12:50 pm

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 24:


In page 42, between lines 7 and 8, to insert the following:
“(7) A service provider shall operate in compliance with section 9 where applicable.”.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Amendment put and declared lost.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 25:


In page 43, between lines 2 and 3, to insert the following:
“(11) A service provider shall operate in compliance with section 9 where applicable.”.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Amendment put and declared lost.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 26:


In page 43, between lines 31 and 32, to insert the following:
“(9) A service provider shall operate in compliance with section 9 where applicable.”.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I second the amendment.

Amendment put and declared lost.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 27:


In page 48, line 31, after “Children” to insert “or the Health Information and Quality Authority”.
To ensure the attainment and maintenance of high standards throughout all services, Barnardo's has recommended that the remit of the Health Information and Quality Authority be extended to include all services offered by the HSE. At present, HIQA inspects many of the services to be delivered by the agency, including family support and services for children in care, but it does not inspect the work undertaken by the preschool inspectorate. The National Education Welfare Board and the psychological services have an independent watchdog. This change would instil public confidence and allow for regular scrutiny of standards and services. Furthermore, sanctions must be imposed for failure to implement HIQA recommendations.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I discussed the role of HIQA with Senator Leyden on Committee Stage and how the authority has already moved in and is dealing with issues relating to child protection. That is very welcome. I made the related order last year. The authority has already published several reports. The Health Information and Quality Authority is an independent organisation with the legal powers, under the Health Act, and the responsibility to monitor and inspect several services provided by the HSE to children and young people in Ireland. It does not have a role in respect of individual complaints. It tends to deal with the corporate issues and makes decisions on those.

What we have is appropriate. I have no doubt that at some point in future the role of HIQA will be extended, perhaps to inspect other specific services not currently provided. However, any such change would come under legislation for which the Minister for Health has responsibility and that is the appropriate place to deal with it.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I accept the response of the Minister.

Amendment, by leave, withdrawn.

Amendment No. 28 not moved.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Amendments Nos. 29 and 30 are related and may be discussed together by agreement.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 29:


In page 55, line 10, after “day-care” to insert “naíonra”.
For the purposes of clarity and completeness, the definition of preschool services should be amended to include naíonraí, Irish preschool services. I am unsure whether it is absolutely necessary or whether all preschool services would be included. Will the Minister offer some clarification?

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I second the amendment.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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For the purposes of the new part 7A of the Child Care Act 1991, the definition to be applied to preschool services is as follows: "any pre-school, play group, day nursery, crèche, day-care or other similar service which caters for pre-school children." The key element of this definition in respect of the proposed amendment is the inclusion of the phrase "any pre-school... or other similar service". The naíonraí are preschools and therefore clearly fall within the definition. I imagine the Senator will be satisfied that they are captured in the definition in place already. If we were to take into account methodologies such as language immersion, then, for consistency, we would reference issues including Montessori among others. However, they are all included in the definition. I assure Senator Leyden of that.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I accept fully the Minister's point of view. With different nationalities and religions coming into force, they would have different names for the various types of services. Therefore, we would have to define it and define it again. I accept that the general definition is clear. I am satisfied with it and I am not pressing the amendment.

Amendment, by leave, withdrawn.

Amendment No. 30 not moved.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I move amendment No. 31:


In page 59, line 20, to delete “and welfare” and substitute “, welfare and promote the development”.
This amendment would ensure that the duties of persons providing an early years service are aligned with their duties under the regulations section, section 58B, ensuring that what can be regulated is mirrored with the duties of those providing the service.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I second the amendment. We spoke about this on Committee Stage. The text we are dealing with in sections 58B and 58G was not part of the original Bill. We are asking for the inclusion of four words, the omission of which, I believe, is a drafting oversight. I do not believe there was an intention to do this. We want to align the regulations of the early years services and the duty of the persons providing such services.

The difficulty relates to four words that would align the regulations to the persons providing early years services. It is problematic to exclude the four words "and promote the development". They are critical. It could be seen to be a deliberate intention of the Bill to exclude that proposition from the person who is providing the early years service in order that she would look after the health, safety and welfare of children while not having responsibility for promoting their development. I believe this was a drafting oversight. It is important to use the opportunity we have on Report Stage to insert these words.

We are all supportive of the Bill. We are keen to see the agency in place. However, if this is not accepted I will be disillusioned with the whole process of going through the Seanad. I believe this is a clear drafting oversight but it could have severe consequences. By deliberately excluding these words, the Minister is actually suggesting that the person who is providing an early years service is responsible for looking after the health, safety and welfare of children. However, one could believe the same people are not responsible for promoting their development. On Committee Stage the Minister stated she had no wish to be repetitive. At issue is four words. I believe the matter is critical. I have discussed the matter with many organisations dealing in this area and the four words in question are significant because they relate to the development of the child.

I see no reason that the amendment cannot be accepted. I hope it will be accepted and if it is not accepted, I will not be satisfied. I have constructively engaged in this process but I feel rather disillusioned at the moment about the process and the time I have put into the Bill. If nothing is accepted, why do we bother having the Seanad? The people voted for us to be here. I am trying to do my job but I feel we get nothing back.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I have done a good deal of work to respond to the various amendments put forward today. I believe I have given a good deal of detail on the amendments that have already been accepted and how they cover many of the issues that have been raised. I have explained the position in respect of several of the Senator's amendments and the precise reasons that they are already covered. In respect of the last amendment, we discussed how the absolute legal advice is that the word is spelt both ways and, therefore, to start changing it at this point would not make legislative sense.

I take the Senator's intentions in terms of the Bill. The discussion has been helpful. I have also indicated in respect of one amendment that I will give directions on the points the Senator has made. I believe I am responding comprehensively to the points the Senator is making.

There is no playing around with the drafting, I assure the Deputy of that. Section 58B(1) is clear and states: "The Minister shall, after consultation with the Minister for Education and Skills and the Minister for the Environment, Community and Local Government, make regulations for the purpose of securing the health, safety and welfare and promoting the development of children attending early years services."

That could not be clearer - promoting the development of children attending early years services. That is what the Senator and I want to see. The quality issues have been neglected in the past and need to get more attention. That is the reason we are taking action on the preschool quality agenda. Section 58B captures fully the health, safety, welfare and promoting the development of children attending early years services. For any providers who may have been speaking to Members who have any doubt - it is already set out in the regulations - we are making it even clearer here. If any providers have any doubt that is an obligation, we already have regulations that are statutorily based where the challenge to promote the development of children attending early years service, applies to everybody who is working in the service. This imperative is captured in the regulations in section 58B. The inspectors will go out and inspect. The regulations against which they will inspect are that the service has to be for the purpose of securing the health, safety, welfare and promoting the development of children attending early years services. I assure Members that section 58B(1) applies to everybody who is working in the service and that it has general applicability. It is laid out clearly that this is the standard that has to apply in terms of delivering those services and so it is already well-understood.

When discussing a previous Stage of the Bill, I was asked by, I think, Deputy Caoimhghín Ó Caoláin, to repeat the equality legislation in this Bill. There is no need to repeat the equality legislation because it is already in place by statute. In fact, one is raising the applicability of it by inserting it into another Bill. It is taken that it applies to all legislation and other legislation has to be tested against it. For that reason I did not accept that amendment. I want to assure the Senator that promoting the development of children attending the early years services is statutorily reinforced in section 58B(1) and it applies across the board and to those being referred to - the duty of every person to take all reasonable measures to safeguard. I understand the point the Senator is making but it is built in and named in the regulations and it has to be applied by all people working in the area.

1:00 pm

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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Senator van Turnhout made her point very well. I am the only Member here who has been a Minister of State. The Minister should not be concerned about going back to the Dáil if she has something worthwhile. That is not a reflection on her or her senior officials. I amended Bills regularly that came before this House. This House has been given a new endorsement and a new mandate to work on Bills. That is why, in the circumstances, there should have been some response to some very worthwhile amendments, whether they were gilding the lily or making sure to be sure, that would be fair enough. Senator van Turnhout has made a very good point and I concur with her in this regard.

I intend to press my amendment.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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The Senator may not speak again after the Minister has responded.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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To be helpful in this regard, I advise that it is my intention to carry out a review of the Child Care Act 1991 and to revisit the whole of the part in regard to inspections to ensure that the legislation and regulations that are made subsequently reflect those key national frameworks of Síolta and Aistear which we intend to ensure get implemented. They have been framed in principle but have not been implemented up to now. The wording of this and other sections will be comprehensively reviewed at that stage. It may be helpful for Senator van Turnhout to know that when I will review that legislation, the Síolta and Aistear and frameworks will be in place. I will certainly review it at that stage but I reiterate that promoting the development of children attending the early years services is set out in black and white and the regulations apply. I state clearly and unequivocally that it applies and the services will be judged against it. The section spells our vision for the early years services.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Is Senator Leyden pressing his amendment?

Question put: "That the words proposed to be deleted stand."

The Seanad divided: Tá, 22; Níl, 12.

Tellers: Tá, Senators Aideen Hayden and Michael Mullins; Níl, Senators Thomas Byrne and Jillian van Turnhout.

Question declared carried.

Amendment declared lost.

Amendments Nos. 32 and 33 not moved.

Bill received for final consideration.