Child Care Bill a case study on failures in public policy
The Child Care (Amendment) Bill 2009 was discussed in the Seanad this week. The Bill provides a statutory scheme for the High Court to have exclusive jurisdiction to hear special care cases, abolishes the Children Act Advisory Board (CAAB), and makes a number of changes to the 1991 Child Care Act.
A number of other bodies took the trouble to brief Members on the Child Care (Amendment) Bill 2009. The information they provided has proven extremely useful to Members as they consider the Bill. It is always of assistance when interested bodies take the time to prepare briefings, meet Members and share with them their experiences and also the difficulties they perceive in respect of the practical, day-to-day operation of agencies, services of the State, etc. relating to children and also the problems they believe may arise in the context of legislation being brought forward.
Focus Ireland took the trouble to provide briefing information. To some extent, that organisation’s document provides an answer to the question posed by others in respect of the possible or potential cost to the State if aftercare services were to be placed on a statutory footing. It is not possible to make a direct analogy with Northern Ireland in this regard. However, the example of Northern Ireland was the best Focus Ireland could provide in estimating the ultimate cost. Focus Ireland indicates that the equivalent cost of providing the range of aftercare services available in Northern Ireland in the Republic of Ireland would be just under €11 million per annum. That figure is based on a total of 411 care leavers per annum. If it is possible for Focus Ireland to quantify the cost, it should also be possible for the Minister of State to do so. I agree with those who stated that it would be important to place aftercare services on a statutory footing in order that there might be some expectation among people of their being available. It is also important that proper controls, guidelines and supervision be put in place in respect of such services.
The Bill is welcome. However, it provides a curious case study in respect of failures in public policy. I do not lay all the blame for such failures at the door of the Minister for Children. These failures date back many years, perhaps even a number of decades. The Minister may wish to reflect on this and refer to it in his reply.
It is obvious that a regime by means of which special care orders may be obtained is required. As I understand it, the first attempt to place such orders on a statutory footing occurred in the 1991 Act. However, nothing ever seems to have actually happened. I accept that such orders are made, particularly as applications relating to them are made to the High Court. The attempt to rectify the position, which was made in 2001, does not appear to have worked. We appear, as with other areas of public policy, to have fallen back on the mechanism that exists in respect of State institutions or others applying to the High Court to invite it to exercise its inherent jurisdiction to intervene in crisis situations.
There was a period when crisis intervention in respect of children appeared to be almost managed by the High Court. Many of these cases came before a meticulous and extremely public-spirited member of the High Court at the time and that individual essentially managed the operation of this vital area of public policy. It was neither acceptable nor correct that this should have been the case and the court often made the point. I am sure the Minister of State would agree with that assertion.
The Bill appears to be an attempt to finally place on a statutory footing the basis on which special care orders should be granted by the High Court. It appears we have been obliged, for a number reasons, to move away from having the District Court deal with matters of this nature. The issuing of special care orders will now be dealt with by the High Court, but not by means of its inherent jurisdiction or discretion. A statutory regime is going to be put in place. To that extent, I must welcome what is proposed in the Bill.
The various protections and rules, details relating to how special care orders will come into effect, the basis upon which an application for such orders may be made, who may apply for these orders and how they may subsequently be set aside will now be set out in legislation. That is the way it should be in order that professionals such as social workers, psychologists, teachers and others involved in the field will be in a position to know what is required under the statutory regime and to orient their activities towards this.
I am sure colleagues will agree that in the area of child care and crisis intervention, where children are taken into care and where they are a major risk to themselves and others, we are extremely well served by a cohort of marvellous professionals. These individuals are not anywhere near the highest paid of public servants. Nevertheless, they are extremely dedicated and do an enormously difficult and trying job. It is important to make that point in the context of the Bill before the House.
I agree with much of what has been said in respect of aftercare services. A strong argument exists in the context of reviewing some of the language used in the Bill. In legislation, there must be clarity with regard to the words used. Everyone must be in a position to understand what various phrases and words mean. There is sometimes a temptation to soften language in order that it appears more palatable. Ultimately, however, this is of no assistance because clarity is required in order that the provisions of legislation might be implemented in their entirety.
It is worth asking whether a term such as “detention” should be used in the Bill. I refer to references to the civil detention or special detention of children. I understand the objective behind using the word “detention” and I know why it is included in the legislation. However, perhaps the Minister of State will consider, prior to Committee Stage, whether some of the language in this regard might be reconsidered. We are discussing the provision of a service, the welfare of children and the need to make interventions or remove children from certain situations and place them in care. The latter denotes an element of detention because children placed in care no longer retain their liberty in the strictest sense.
I am not seeking that the legislation should be politically correct. However, I am of the view that we should perhaps try to make the language used in the Bill and the nature of the overall regime speak more to the welfare and service provision approach rather than to something harsher.
Another matter worthy of further consideration, although not necessarily in the context of the legislation before us, is that relating to the best practice which applies in other jurisdictions, especially in the context of the types of units to be put in place, etc. Does the Minister of State have a view on how we should consider which units might be appropriate and the nature of the management relating thereto? Would he be willing to draw on international experience in that regard? I am of the view that it would be important to draw on such experience.
I have no difficulty with the overall thrust of the Bill. However, I wish to put to the Minister of State questions relating to a number of issues.
The issue of the Children Acts Advisory Board was addressed with some degree of dispatch in the Minister of State’s speech as it also is in the Bill. While I accept we are in an era of abolition of State agencies and very few are safe from either abolition or absorption into Departments or wherever, the question one must always ask when a State agency is being absorbed or abolished is why it existed in the first place. There must have been a good and compelling reason to set up Children Acts Advisory Board in the first place. It was open to the then Minister of State not to set up a separate board at the time but to have those matters dealt with in his office. Somebody must have made a decision on compelling policy grounds to have established this body independent of the Department.
The Minister of State said “There will be virtually no loss of functions resulting from the disestablishment of the Children Acts Advisory Board”. However, there seems to be some loss of functions arising from the abolition of the board. He seems to suggest that the impact of that loss is lessened by the fact that these orders will be sought in the High Court and there would not be the same necessity to have criteria in place for the admission to and discharge from special care units or that a body would not be needed to give views on any proposal of the Health Service Executive to apply to detain children for the purposes of providing special care. I do not understand why those advices and criteria would no longer be necessary. I did not find it particularly convincing that we could manage without that kind of specialist assistance to the system. I ask the Minister of State to comment on that. I hope the board is not being abolished purely for financial reasons and being hit on in the same way that so many other bodies are being hit on with the explanation coming afterwards. It may be that it was always possible to deal with these issues without having a separate board. If so, that is what should be said.
We look forward to reviewing the legislation closer between now and Committee Stage, which I hope will not be as soon as next week as often happens with important legislation such as this. While I know it was published in September, with the best will in the world the Minister of State will appreciate that most of us only tend to get going on a Bill when we see it on the Order Paper for the following week. While it is an amending Bill and there is a principal Act, around which we can quickly get our heads, I ask for the forbearance of the Leader and the Minister of State that we might be given more than a week to consider amendments for Committee Stage.