Barry Andrews (Dún Laoghaire, Fianna Fail)

I thank all the Deputies who contributed to the debate yesterday and today, following the discussions in the Seanad in the previous term. I preface my comments on special care and foster care generally by pointing out as mentioned by other Deputies that the vast majority of children in foster care and special care do extremely well. They have great outcomes. They are all achieving educationally and socially and are preparing for life in a very good way. Foster care is often described as ordinary people doing extraordinary things for some of the most vulnerable children and while it is natural that a great deal of negative publicity surrounds this area, we must remind ourselves constantly that, for the thousands of children, care provided via the Health Service Executive and foster parents is of the first order in this country and children do extremely well.

The main objective of the Bill is to safeguard the best interests of children, and specific issues have been raised in that regard during the course of the debate. Deputy Flanagan raised an issue specifically in regard to section 23ND, which deals with the functions of the HSE providing special care and section 23NF, which deals with the release of a child from special care for medical purposes outside the State. Among other things, it provides that the High Court may vary the special care order accordingly, and section 23NF(15) states that the High Court is required to satisfy itself of all factors related to the welfare of the child before it varies a special care order.

The question of guardians ad litim was raised by a number of Deputies. The Bill provides that the court may provide a guardian ad litim to the child if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so. In practice, guardians ad litim are appointed in all special care cases. Deputy Flanagan raised that issue. It is true to say that guardians ad litim are not appointed in all care applications but they are appointed in all special care cases.

Last year, I launched the Children Act Advisory Board's guidance on the subject of guardians ad litim, and I continue to have discussions about the way those recommendations can be acted upon. I said we would see how that guidance worked in practice before we would move to act on other commitments in this area.

The Bill also provides that the HSE may enter into an agreement or arrangement with a person under section 38 of the Health Act 2004 for the provision of a special care unit by a service provider from the private or voluntary sector. Some Deputies spoke about that with concern. I have met some of the private providers and far from the characterisation of them being fly by night in any sense, they are very committed and thorough. I can confirm that such an arrangement, if it is made by the HSE, for a special care unit to be provided will be subject to the same standards and regulations made under the Health Act 2007 for the inspection by HIQA. In addition, the HSE is required to supervise and monitor the special care unit under such an arrangement, and a child placed in a unit provided under such an arrangement will remain in the custody of the HSE.

Other issues were raised in the debate. Deputy Flanagan asked the reason the Ballydowd unit remains open considering that the Health Information and Quality Authority, HIQA, recommended that it be closed. The reason is that it is very difficult to provide alternative accommodation at this time. I visited Ballydowd last month. There were three young boys there and I had a chat with them. They were quite happy that they were being well looked after. All of the reviews of Ballydowd that pointed out the problems regarding the build environment of that unit have stated also that the children are well aware of their rights, they get a very good education, at all times their detention is supervised by the High Court and they are provided with social workers and interventions, as appropriate. However, the HSE remains determined that Ballydowd be closed. In the meantime, refurbishment works are going on; I saw them when I visited last month. However, there will probably be an increase in demand for special care in the coming years and, therefore, it provides the HSE with a challenge to meet the increased capacity and requirement that will exist. The HSE has also met and consulted with HIQA on this matter regarding the closure of Ballydowd.

The issue of aftercare was raised by a number of Deputies, including Deputies Upton and Ó Caoláin among others. I made mention of that in the Seanad previously and it concerns the issue of section 45 of the Child Care Act. It departs as an issue from what we are discussing in this legislation because we are dealing with special care specifically. Aftercare applies to all care situations where a child is in foster care, residential care or some other form of care. Nevertheless, it is a live issue. I often say that if we are to learn anything from the Ryan report we must recognise that many children who come from care backgrounds can have difficulties later in life and unless we provide for a strong, statutory transition period between childhood and adulthood we will be turning a deaf ear to the obvious testimonies that are detailed in the Ryan report.

For that reason, I have obtained legal advice to the effect that the requirement to have aftercare is a mandatory one where it is determined that the need is present. In other words, an assessment is done before the child leaves care and if there is a requirement for aftercare it must be provided. It has a mandatory element to it, therefore. That legal advice is being disseminated to the HSE by my office. The HSE is currently working on an aftercare protocol for the entire country to ensure we can avoid the point made by Deputy Upton that we have a postcode lottery in terms of where one lives and whether one gets aftercare.

Furthermore, as mentioned in my original contribution, in last year's budget the Minister, Deputy Brian Lenihan, committed a sum of €15 million to ensure the implementation of the recommendations in the Ryan report and included in that €15 million was €1 million specifically for aftercare. In the national service plan of the HSE for 2010 that expenditure is to include the recruitment of ten aftercare workers and non-pay associated costs; a financial support package for young people moving into aftercare from foster care, residential care and supported lodgings; the maintenance and refurbishment of existing aftercare premises; and the funding of the Irish Association of Young People in Care to develop a national advocacy and support service for young people in care, leaving care and aftercare, to include the recruitment of six staff and associated non-pay costs. Between those three initiatives - the protocol, the new legal understanding of section 45 of the Child Care Act and the funding which will provide extra staff and better premises - I believe we will have better outcomes and a better transition between those children who have left care and them achieving adulthood.

Deputy Flanagan inquired as to whether there was consultation with stakeholders. I assure him that I have ongoing consultation with the stakeholders at all times. I do not believe I could be accused of having a closed door policy towards anybody who wishes to raise issues with me.

A number of additional issues arose in this debate. Deputy O'Rourke raised the issue of the referendum. As I said last week in a separate situation, the position is that we have gone through a very detailed process with each of the Departments looking at the substance of the recommendations from the committee. It is my determination to respect the wording as set out by the committee but it is important that we must be determined that we will not have any unintended consequences. We have seen where that went wrong in the early 1980s where something can be put into the Constitution that has consequences that can come back to haunt us subsequently. We need to get that right but we are making substantial progress in this area. Deputy O'Sullivan raised that issue as well.

Regarding social workers, Deputy Flanagan made the point that they do exceptionally difficult work. There was an excellent programme on the BBC this week which I would recommend to anybody who wishes to get a good grounding in what happens in care situations, the tough backgrounds and difficult families that some children come from and the extraordinarily difficult choices social workers have to make. It was a one hour documentary called "Kids in Care", which was revealing and uplifting to a great extent. It highlighted how dedicated people are in trying to improve these children's lives.

On legal costs, Deputy Flanagan raised the question of why senior counsel are going into the District Court. It is required under the legislation that the jurisdiction of the District Court is used and if we change that to the Circuit Court or the High Court we would increase costs and not decrease them, which was his concern. I have been reassured by the HSE that it is tendering for this work for legal services in respect of care proceedings, which should have a dramatic impact.

I echo what Deputy O'Rourke and Deputy Connaughton had to say about the early childhood care and education, ECCE, scheme. It offers us a huge opportunity to develop early intervention methodologies for children who present with any kind of early difficulties, particularly in their more formative years, than has been possible. We also have a much smaller ratio of children to carers in this situation as opposed to in primary school. It is, therefore, a wonderful opportunity to identify problems early on.

Deputy Naughten raised the general issue of whether the HSE is fit for purpose with regard to children in family services. As I have said previously, the HSE is uniquely positioned, through its primary care strategy, to provide children in family services with a way of ensuring a link in to other services, such as psychologists, speech and language therapists and occupational therapists, that are needed to enhance children's lives and provide for proper early intervention.

I will conclude on the question of the purpose of the legislation, which many speakers have said is technical and complicated. It clarifies some of the issues up to now. In particular, it gives a statutory basis for what the High Court has been doing for the past few years on the basis of its inherent jurisdiction. It gives much greater clarity as to the basis upon which special care orders can be made and allows for much longer special care or detention than has been the case up to now. In my discussions with some of the managers of these units around the country, they have said that if we could provide a more stable placement or period of detention and for better interventions. It is not just about a place of safety or warehousing a child. One must be able to do something and intervene in some way. It will be good if a longer period of detention, with all the safeguards of constant High Court observation of the detention, can result in better outcomes.

Up to now the situation has been that if a child is subject to any kind of criminal proceedings, a special care order cannot be sought or continued with. This sometimes allowed the HSE to wash its hands of a difficult case, simply because a criminal proceeding had commenced. This will no longer be the case. Even if a child has been convicted and given a sentence short of detention, a special care order or an application for one can continue. This means the criminal justice system and the care system are not separated. From now on the service must wrap around the child and we will no longer have the situation where the child's circumstances must suit the service. It is the other way around. This is a profound difference and it is very satisfying to see there is broad acceptance for this principle in both the criminal justice and care systems. This provision should be a model for how these two systems should operate together for the benefit of children. I commend the Bill to the House and look forward to Committee Stage.

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