Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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1432. To ask the Minister for Children and Youth Affairs her plans to introduce a legislative framework; and the powers that social workers have to investigate allegations of abuse outside the home as recommended in the Ferns, Murphy and Cloyne Reports. [35201/17]

Katherine Zappone (Dublin South West, Independent)
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As the Deputy will be aware, the primary legislation regulating child care policy is the Child Care Act 1991. Under the 1991 Act, as amended by the Child and Family Agency Act 2013, Tusla - the Child and Family Agency has a statutory duty to promote the welfare of children who are not receiving adequate care and protection. The Child Care Act 1991 is the key piece of legislation whereby the State, as a last resort and in the common good, may intervene to supply the place of parents.

Better Outcomes, Brighter Futures: The National Policy Framework for Children and Young People contains a specific commitment - under the outcome of children being safe and protected from harm - to ‘review and reform, as necessary, the Child Care Act, 1991'. This includes an examination of possible amendments of existing provisions in some instances, and also the addition of new developments in other areas.

My Department is undertaking a review of the Child Care Act 1991 and is embarking on a consultation process. This will include an open policy debate in September. My Department is seeking to ensure that this review results in a child-centred structure and is working closely with Tusla to help identify key themes and areas for reform and development. Wider consultation with stakeholders will also inform the review.

The Child and Family Agency's powers to investigate allegations of abuse derive from section 3 of the Child Care Act, 1991. Section 3 states as follows:

“(3) (1) It shall be a function of the Child and Family Agency to promote the welfare of children who are not receiving adequate care and protection.

(2) In the performance of this function, the Child and Family Agency shall:

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise:

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family."

This statutory framework provides Tusla with the authority and obligation to investigate allegations of concern. This position is reflected in case law. For example, the High Court judgement of Mr. Justice Barr in MQ v Gleeson accepted that there was a duty on the health board [now Tusla] to investigate allegations of child abuse and the judgement effectively set out the parameters of that statutory duty. Judge Barr also found that the duty imposed on the Health Board [now Tusla] related not just to ‘at risk’ children who were identified or identifiable but also to children who may be subject to a specific potential future risk.

In assessing allegations of abuse, Tusla is required to take full account of natural justice and the constitutional rights of the accused. In this context, and in order to assist staff in fulfilling the Agency's obligations under section 3, I am advised that a Tusla internal protocol, which sets out the policy and procedures for staff to follow when responding to allegations of child abuse and neglect, is currently being updated and will be launched later this year.