Seanad debates
Wednesday, 11 November 2015
Child Care (Amendment) Bill 2015: Committee Stage
10:30 am
Paddy Burke (Fine Gael)
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Amendment No. 1 in the name of Senator David Cullinane is ruled out of order as it involves a potential charge on the Exchequer.
Jillian van Turnhout (Independent)
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I move amendment No. 2:
In page 5, between lines 26 and 27, to insert the following:“Amendment of section 29 of Principal Act5. Section 29 of the Principal Act is amended by the insertion of the following new subsection after subsection (4):“(4A) In subsection (5), ‘relevant court documents’, in relation to any proceedings referred to in that subsection--
(a) subject to paragraph (b), means--(i) any notice of application or other originating document in the proceedings,(b) does not include any document the contents of which are expressed to be without prejudice or in terms having a like effect.”.”.
(ii) any pleading, report and other document (including the terms of settlement, if any) produced to or lodged with the court, or included in any book of pleadings or reports, in the course of the proceedings, and
(iii) any order made or judgment delivered by the court in the proceedings,
I welcome the Minister for Children and Youth Affairs, Deputy James Reilly, to the House. I have tabled this amendment which is, admittedly, extraneous to the specific purposes of the Bill but this is an ideal opportunity to address a legal anomaly in cases of child care proceedings brought to my attention by the child care law reporting project and by FLAC. The child care law reporting project, under the direction of Dr. Carol Coulter, has a statutory remit under section 3 of the Child Care (Amendment) Act 2007 and in accordance with the 2012 regulations made under the Act to promote transparency and accountability in child care proceedings in the courts, to publish reports and to provide information to the public on the operation of the child care system. In the past hour, the Taoiseach acknowledged in the Dáil the significant work of the child care law reporting project and that it has shown us the significant need for prevention and intervention. This is very much to the heart of the amendment I am proposing.
There has long been a sense, particularly among parties to such proceedings, of a lack of certainty and consistency around the administration of child care proceedings. As such, the reform of the in camerarule that enabled the child care law reporting project to attend proceedings and carry out its reporting function was widely welcomed. It has lifted the veil of secrecy around how child care law is administered, it has promoted the public confidence in our child care system and it has assisted in shaping law reform and policy-making into the future. The shift from a blanket in camera rule to protect the privacy of the children and parties relevant to the proceedings to allowing for a reasonable public scrutiny and reporting, subject to strict conditions to protect identities, is very much in line with the direction taken by courts in the UK and the jurisprudence of the European Court of Human Rights.
As it stands, section 29 of the Child Care Act 1991, as amended by section 3 of the Child Care (Amendment) Act 2007, inserted a statutory framework for reporting on child care proceedings.It creates a presumption that members of the child care law reporting project may attend child care proceedings and access relevant court documents. However, the court can limit this right in individual cases, for example, to prevent the identification of children. In this regard, I must further note that the child care law reporting project operates a strict protocol to ensure the anonymity of any children, parent, guardian or foster parent who is the subject of or party to the proceedings being reported.
The anomaly my amendment seeks to remedy has come to the fore in the recent decision of District Court President, Judge Rosemary Horgan, not to provide the child care law reporting project with a copy of a social work report submitted in evidence as part of a child care case. It is standard practice for social workers, guardians ad litemand other expert witnesses to swear their reports at the beginning of their evidence. In many cases, these reports will have already been read by the judge and the parties to the proceedings, so frequently such witnesses will not be taken through these reports in any detail. This is particularly true when applications are not being actively opposed. Without the content of the report being read aloud or sight of these reports parallel to the proceedings, it is difficult to fully understand the issues arising and at play in a case. It can, therefore, also be difficult to report accurately and holistically on the case. As such, the current legislative arrangement frustrates the child care law reporting project from carrying out its reasonable public scrutiny function.
Although Judge Horgan's decision has yet to be published on the courts.iewebsite for verification, her rationale was not necessarily that social work, guardian ad litemand expert reports should not be regarded as relevant court documents in child care proceedings but rather that the court is precluded from doing so since the legislation to amend the statutory regime for reporting on family law proceedings, conferring a presumptive right to access relevant documents, was not actively extended to child care proceedings. My amendment seeks to do this through a similar amendment as made by section 31 of the Civil Law (Miscellaneous Provisions) Act 2008 to section 40 of the Civil Liability and Courts Act 2004. The important and stringently adhered to safeguard whereby the child or parties to the proceedings must not be identified is not affected or undermined in any way by my amendment. Nor is the safeguard whereby the court directs that relevant court documents be restricted due to the specific circumstances of a particular case.
The child care law reporting project does not seek to copy any relevant court documents, does not seek to remove them from court buildings and should return them to such person as may have provided them without delay once inspected. These practices can be incorporated into court directions, further to section 29(5), whenever necessary. The child care law reporting project has provided us with invaluable insights. As access to social work reports is allowed in other cases, will there be consistency in the law regarding these specific reports? It will ensure when we are legislating and making policy decisions that they are based on facts, not on partial information coming from cases.
James Reilly (Dublin North, Fine Gael)
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The child care law reporting project, an important project, does not have a statutory remit. It is permitted to report on child care proceedings under section 29 of the Child Care Act 1991. The amendment would provide for a definition of relevant court documents for the purposes of section 29 of the Child Care Act 1991. The section in question provides for the powers to report on child care proceedings before the courts, where it is likely that such reporting may assist in the better operation of the Act. Under regulations made under this section, the child care law reporting project has been examining cases before the courts over the recent past. All such reporting must be anonymised, as Senator van Turnhout pointed out.
Her proposed amendment would provide access to all documents lodged with the courts in child care proceedings. Such an amendment would not only apply to the child care law reporting project but to any future body given access to report on court proceedings in a similar fashion. In many child care cases before the courts, information of an extremely personal and sensitive nature is submitted. This may encompass everything from financial to psychological reports, reports on addiction issues and alleged cases of physical and/or sexual abuse which relate not only to the child but to their parents and wider family. The balance in providing access to such information must be carefully weighed. The potential for a positive impact in what an examination of such reports might yield for policy or operational gain must be considered against the right to privacy of the individual. This must be examined from a constitutional perspective, as well as under obligations under international treaties to which Ireland is a signatory. I remain to be convinced that the intrusion would be appropriate or proportional to intended potential gain.
I will keep an open mind on the matter and have sought, as a preliminary step, the views of Tusla, the Child and Family Agency, on the matter. An in-depth legal and policy examination of the issues associated with any such amendment would also be required. Were it deemed possible and desirable, and given the nature of the documents in question, a consultation with the stakeholders would also be required. With this in mind, I do not intend to accept this amendment.
Jillian van Turnhout (Independent)
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I appreciate this amendment is not necessarily in the Bill’s scope. Accordingly, I will not press it today but will withdraw it to re-examine its formulation for Report Stage.
I am cognisant of the right to privacy. Equally, however, I am also cognisant of the importance of public transparency, scrutiny and reporting of what is happening in these cases. Part of that is we actually understand what is happening. The invaluable work done by the child care law reporting project, for me, individually, as a legislator and for all of us, has given an understanding of the nature and types of cases going through the courts and the situations families are facing. It will help us in formulating the early intervention and prevention strategy that is so needed. It is important that we tackle the real and not the perceived issues.
I will be in contact with the Minister’s office to provide any further relevant information which might make it easier to make a decision on this amendment on Report Stage. It is an issue on which we need to move. Otherwise, to get part of that picture is just not acceptable and does not live up to our international obligations, as I pointed out, within the European Court of Human Rights.
Paddy Burke (Fine Gael)
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Amendments Nos. 3 to 7, inclusive, have been ruled out of order.
Paschal Mooney (Fianna Fail)
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My earlier concerns, as expressed on Second Stage, have come to fruition. I am grateful to the Oireachtas Library and Research Service for preparing a detailed analysis of the Bill. In section 5, the Minister is changing the principal Act significantly. We had put down an amendment - it was ruled out of order - concerning those over the age of 23 who were previously in care and who are now pursuing full-time education. That is not at all unusual. There are many young people over the age of 23 pursuing education. Take, for example, the Minister’s profession of medicine. It involves six to seven-year course and it would most definitely engage young people over 23 years.
The Library and Research Service digest states, in the context of the Child Care Act 1991:
Where a child leaves the care of a health board, the HSE can assist him for so long as the board is satisfied as to his need for assistance up to the age of 21 years (or later if continuing in education). There is an option rather than an obligation to provide aftercare.
However, on the Minister’s proposal with this Bill, the digest states:
Tusla must prepare an aftercare plan for an eligible child or an eligible adult following an assessment of needs. There is no statutory obligation to implement the plan. There is a statutory obligation to take Tusla resources into account when drawing up the plan.
On the upper age limit for provision of aftercare, which was the core of our amendment, the Child Care Act 1991 provides for support:
Up to the age of 21 but if the person is in education then until the completion of the course of education in which she or he is engaged. No statutory upper age limit.
That is the wording of the Oireachtas Library and Research Service digest of the Bill. However, the Minister has changed it in the current Bill, which reads:
Up to the age of 21 but if the person is in education when Tusla can continue to provide assistance up to:
(a) the completion of the course of education in which he or she is engaged, or
(b) the end of the academic year during which the person turns 23, whichever is the earlier
Can the Minister explain why he has changed the provision? I appreciate he has to obtain advice on this. The provisions already in existence in the Child Care Act 1991 seem to have worked reasonably well. The Minister is now denying those who are in the middle of full-time education. Once they are past 23, that is the end of it. I am raising the matter for clarification, not to be scoring points. I am reading the analysis of the Oireachtas Library and Research Service. If the Minister could just deal with that specific issue for the moment, please.
Jillian van Turnhout (Independent)
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On section 5, although I appreciate that the amendments I tabled were ruled out of order, they actually get to the very heart of the issues and they also support what Senator Mooney is saying. I wished for the word "may" to be changed to "shall". The whole purpose behind the Bill - the heart of the Bill - is to ensure that the safety net is there every day for children who are aging out by turning 18. The safety net should not be at the discretion of anybody else. It should not be that it may be there but rather that it shall be there. There are too many caveats in the Bill and too much discretion on the agency side.
The amendments being ruled out of order just proves the point. The ruling was because of a potential charge on the Exchequer. The Minster is telling me it will be there - well then there will be no charge on the Exchequer. This what the safety net is about, which is the purpose of the Bill. We do need to ensure that when children are blowing out those candles on their 18th birthday, they are absolutely assured. We talked about this on Second Stage in the Seanad.
Yes, the large cohort is absolutely assured at present and this Bill will not make a difference to them. The system is working for those children who are in foster care. I am talking about the children who are not in safe accommodation, who have fallen out of the system and who have not been appropriately placed. We will continue to fail those children and that is why I tried to put down two simple amendments to strengthen this aspect of the Bill.
Marie Moloney (Labour)
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On what Senator Mooney said about people pursuing long courses beyond the age of 23, it does not even have to be medicine because if they fall out of the system for a number of years, return and re-engage and then do a three or four-year course, it could take them well beyond the age of 23. It would be nice to know that the supports were still in place for them because they do need it when they are in education - they need the back-up supports. If the Minister is telling us that they may be there and will be there and that there is no problem, then I fail to see why we cannot change the wording from "may" to "shall". I just cannot see the reasoning behind it. Perhaps the Minister would provide clarity on why it cannot be changed.
James Reilly (Dublin North, Fine Gael)
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We covered this earlier and I do not propose to accept either part of this amendment. It has been ruled out of order in any event as it would involve a charge on the Exchequer, which is not allowed under the rules of the House. The amendment seeks to provide Tusla with the ability to extend - at its discretion - the duration of aftercare support to a young person who has attained the age of 23 years by up to one year. It also seeks to establish an appeals mechanism through which a young person in receipt of aftercare would be entitled to submit an appeal to request an extension of their aftercare support and resources for up to a year.
The current provision in the Bill takes account of the fact that most young people complete third level education in their early 20s. It also has regard to possible delays in commencing third level education for young care leavers. It is considered, therefore, that the existing provision gives ample flexibility to assist young people leaving care in the pursuit of their educational goals.
Additionally, to accept this amendment would place an undue focus on those care leavers who are in education. Consequently it could reduce the focus on those who are not in education and who may be in need of other supports. Furthermore the amendment would extend the period over which an eligible young person would receive support while in full-time education, which would carry additional costs for the agency. On the establishment of an appeals mechanism, currently under Part 9 of the Child and Family Agency Act 2013, a person may make a complaint in respect of a service by the agency. Moreover the Child Care (Amendment) Bill before us, under section 9, provides that Tusla shall conduct a review of the operation of an aftercare plan on request by a young person or someone acting on their behalf where there has been a significant change in the circumstances of the young person; or where the assistance being provided under the aftercare plan does not meet the need identified; or where additional support requirements for the young person have arisen. Such reviews are to be conducted within three months of receipt of a request. They may subsequently result in alterations to an aftercare plan, having due regard to the resources available to the agency to implement the updated plan. To amend the Bill to insert an additional appeals mechanism would amount to a duplication of resources and I cannot accept the proposed amendment.
The aftercare plan provided for in the Bill is a huge improvement and movement forward. In respect of Senator Mooney's contention that this is a change, the 1991 Act - I do not have the note in front of me and am speaking from memory - referred to there being an entitlement. However, the operational policy was always that it ceased at 23. The Bill under discussion today provides that, where the circumstances dictate, the agency has the authority to prolong support for somebody in a longer course in college, or if someone lost a year, if there was an illness or other extenuating circumstances. I think it is a fair and appropriate approach to take.
Paschal Mooney (Fianna Fail)
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I thank the Minister. It is rather interesting that earlier he seemed to suggest that those who pursue further education are somehow creating a financial difficulty in the context of Tusla's resources because their continuing in full-time education is taking away resources from those who are not doing so. It seems a rather strange definition of care if somebody wishes to pursue education and is under the care of Tusla. The Minister might also clarify his statement that there was a statutory obligation. My understanding is that there was no statutory obligation under the Child Care Act. According to the wording contained in the analysis, "where a child leaves the care of a health board, the HSE can assist.". However, it does not say that the executive must do so. The Minister said the practicalities were that it did not assist, yet he is changing the legislation. He has also indicated - he should please correct me if I am wrong in my interpretation - that Tusla will be flexible in its approach to those over the age of 23 who are in full-time education. The Bill, however, refers to the end of the academic year during which the person turns 23, whichever is the earlier. Which is it? Is age 23 written in stone or is there flexibility in the system to allow those in full-time education to pursue it with the help and assistance of Tusla?
James Reilly (Dublin North, Fine Gael)
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I will give the Senator a very straight answer to that question. Absolutely. Tusla may - that is what it says - support them. So it has the authority to do so. There is no question about that. As for the Senator's interpretation of my previous comments, we are talking about limited resources as is always the case. In such circumstances, there always has to be a balancing of what is available to those who may be in further education and those who need other supports. Of course, we are very strongly supportive and very proud of the fact that many of the children in care are in education when they leave and that they remain in education. We know that people who go to third level or complete secondary education have better employability and better prospects. There is no doubt that we want to support people in this regard. I revert to the fact that, as it would create an additional charge, inserting the word "shall" is not a step that would be taken without having regard to the Department of Finance and Government generally.
Paschal Mooney (Fianna Fail)
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On Second Stage, the Minister referred to the pre-legislative process and the recommendations of the Oireachtas Joint Committee on Health and Children. Interestingly, the analysis by the Oireachtas Library and Research Service provides the full list of joint committee recommendations. I want to put on the record that a number of them were not part of the Bill. One recommendation was that consideration could be given to broadening the eligibility criteria to include young persons deemed to have exceptional needs. I would take that as meaning that exceptional needs could be seen in educational terms. That is not part of the Bill. The Minister has already dealt with the question of replacing the word "may" with "shall", which would impose an obligation on Tusla, the HSE and any other State bodies identified by way of regulation to co-operate in planning for the needs of children and young persons leaving care. That is addressed in part.
Something else that is not part of the Bill is a recommendation that consideration could be given to ring-fencing a budget for the provision of aftercare services. They are not part of the Bill either. I acknowledge and commend the Minister for managing to get an increase in his budget. I think it is €36 million this year. The overall cost in his Department for Tusla is almost €700 million so we are not talking about small money here. I fully acknowledge that. I do not wish to in any way diminish the difficulty the Department has, particularly as a spending Department, in trying to get more money out of the Exchequer but there seems to be a very genuine concern that has been expressed by Senator van Turnhout about "may" and "shall". If one looks at the response of the relevant agencies involved in this area, one can see that time and again, they make reference to resources. The wording of section 45 has given rise to debate with stakeholders, including Focus Ireland, maintaining that there is currently no statutory obligation on Tusla to provide the services. In essence, this means that once a child reaches the age of 18, he or she is no longer deemed to be in care. While the legislation does empower Tusla to make continuing provision for young people formerly in its care, it is a purely discretionary power. One can understand why there is concern among those engaged in the area of child protection. Time and again, it comes up that the Bill only guarantees a plan, not its implementation. Barnardos has said that. It is rather interesting that it makes the distinction. It said that it is a crucial difference in that it guarantees a plan but not its implementation.
Again, I am sure this affords the Minister an opportunity to reassure all those organisations and individuals involved in child care that insofar as is possible given permissible resources, he will have a totality of approach to this and that he will ensure that where possible, funding and resources will not inhibit the work of Tusla in ensuring that children in care are provided for. I was very concerned about those over 23 continuing full-time education. Despite the fact that I was of the opinion that care and the financial resources of Tusla would stop after the age of 23, if I am correct the Minister has stated that this would not be the case and that flexibility is built into the system. In other words, it is reassurance. Could the Minister confirm this view?
James Reilly (Dublin North, Fine Gael)
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I am very happy to confirm that and this is why those words are there. They indicate very clearly that there will be circumstances where the agency will feel the need to continue support. I do not intend to rehearse all we have gone through.
Paschal Mooney (Fianna Fail)
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I understand where the Minister is coming from.
James Reilly (Dublin North, Fine Gael)
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I take on board the Senator's comments. We must remember where this Bill comes from and where we have come from. I am not trying to score any political points but I think we were all horrified by the number of children who having left care fell off the cliff and ended up dead - sometimes by their own hand and sometimes by accident. Clearly, the supports were not there and that was a very big concern for everybody involved in this area. This is a serious step forward in addressing that situation. There will be ongoing support and a clear plan and they can know that if support is required, it will be available to them. This is an entirely different country compared to where we were five years ago.
David Cullinane (Sinn Fein)
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I move amendment No. 8:
In page 7, line 31, to delete "6 months" and substitute "12 months".
I did not want to come in on the last number of amendments or the section because the Senators who spoke made the points I would have made, so I did not feel the need to prolong the debate. However, I do want to pick up on something the Minister said in the last part of his contribution. There is no doubt that this Bill is a huge step forward. Regardless of the amendments that have been tabled, which have sought to strengthen the Bill, the Minister has given a very clear explanation as to why he could not amend some of them. Even if we are not entirely happy, there is no doubt it comes from the right position. We will certainly be in a much stronger position to make sure that all children in State control will get the proper and adequate supports regardless of whether they are in State care or leave. This Bill definitely goes in the right direction.
The aim of this amendment, which is the only one that was not ruled out of order, is to compel Tusla to draw up a comprehensive aftercare plan at least 12 months before the young person reaches the age of 18 rather than six months. It means that it can start planning far earlier for the eventuality and make sure that the plan is comprehensive and tailored to suit the needs of that individual. We think 12 months would be more suitable than the six-month period.
James Reilly (Dublin North, Fine Gael)
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I know the Senator feels that what he is proposing is helpful but were it to be adopted, the amendment would require that aftercare plans would have to be prepared one year in advance of a child leaving the care of the State. A year in the life of a young person is an eternity from their point of view. As a parent, I know the difficulties that present in teenage years. Things that are important and of major significance one week are replaced by something else the following week. I am not being frivolous but we remember that advertisement where the teenage girl comes in, gives out about her friend and says that she is never going to speak to her again. The next day, she is talking to her dad and says she is going to the pictures with her. Her dad says, "I thought you were never talking to her again?" to which the girl replies, "Don't be stupid, that was yesterday". I am not being trite when I say that but we know that things, even very big things, change for children. Event occur that change their requirements and their circumstances change.
What is common to all young people in the care of the State or otherwise is the fact that issues that are of importance change and change frequently. This would include a young person's goals for an aftercare plan. Some children in the care of the State have a particularly chaotic and vulnerable history or come into care late. The idea of discussing options for when they leave care possibly just after a placement has been settled would be counter-productive in the extreme. In other words, it might be a case of them saying to themselves, "I am only in the place and they are already talking about getting rid of me". Even in placements that are settled, the commencement of aftercare planning too early can prove disruptive and unsettling. It must be handled with great sensitivity. For many children in long-term placements, having a discussion too early might give rise to fears that foster parents are looking for them to transition out and create worries and fears that are unfounded. Children may feel that they are only in the place and people are planning to get rid of them.
The provision as it stands was crafted in such a way as to enable best social work practice to decide when aftercare planning with the young person in question would take place. A "just in time" approach tailored to the individual with the safeguard of being no later than six months before the end of the care placement is seen as the appropriate response. For those who have been in care for some time, aftercare planning would form a natural extension of the care planning process. For those who have entered the care system late, the provision gives the flexibility to social work teams to determine the appropriate time to engage with the young person, albeit with the best interests of the young person to the fore.Accordingly, it was felt ensuring an aftercare plan was finalised six months before a young person left care was the best approach. While I understand what the Senator is seeking to achieve, nothing in the provision, as drafted, prevents the Child and Family Agency from agreeing an aftercare plan in advance of the deadline stipulated in the Bill, if that is the desire of the child. I see the potential for such arrangements in instances where the child is either in a long-term stable placement and anxious to have certainty about the possibility of remaining with the foster parents after he or she reaches 18 years of age or, alternatively, where it is clear that the child will not remain within a foster placement, for whatever reason, and may need assurance on what will happen next. However, we must have regard to that cohort of children in State care who, for whatever reason, are not yet in the frame of mind to discuss and contribute positively to the development of their aftercare plan. It is for these reasons that I do not propose to accept the amendment.
David Cullinane (Sinn Fein)
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I thank the Minister for his reply. To be fair, what he says makes sense. While I propose to withdraw the amendment, it does show up that a one-size-fits-all approach, whether in six or 12 months, is, possibly, not the way to go. The Minister has made the point that children have different needs and will come into the system at different times and so on, such that providing that a plan be drawn up in either six or 12 months is, possibly, not the way to go. The point at which a plan is drawn up should be based more on the needs of the individual and the best time from his or her perspective to start planning an aftercare plan. However, I accept the broad thrust of what the Minister said. It makes perfect sense. On that basis, I will withdraw the amendment.
James Reilly (Dublin North, Fine Gael)
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I reassure the Senator that aftercare planning in general starts at the age of 16 years, but the plan is not finalised until six months prior to the child leaving care.
Paddy Burke (Fine Gael)
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When is it proposed to take Report Stage?
Imelda HenryPaddy Burke (Fine Gael)
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Is that agreed? Agreed.