Please click below to access my final Newsletter and find out more about the contributions I’ve been making and events I’ve been attended, both inside and outside the Oireachtas:
Children’s Rights Alliance lecture marking the work of Jillian van Turnhout
Senator in Seanad Éireann from 2011 to 2016
in The Ark, A Cultural Centre for Children
13 April 2016
Speech by Jillian van Turnhout
Thank you Children’s Rights Alliance for this wonderful opportunity to reflect on my path to children’s rights advocacy and my term of office in Seanad Éireann.
So, what can you expect from this evening? I plan to start by sharing a bit about myself and my journey. I will use some of the legislation we dealt with in the Seanad to offer insights into both success and failure and how best to avoid the latter. I hope you will find it interesting and to the NGOs in the room, I hope it will help you both understand life inside the bubble and how best to shape it.
As I look around the room I see so many friends and supporters. I know I couldn’t do what I do without you. On this note I want to begin by giving a very special thank you to my husband Michael who is my rock. A huge thanks to my Mum, Jenny Hassett and my late Dad Michael Hassett for always believing in me and nurturing the eternal optimist in me who believes she can make the world a better place. To my brothers John and Gerry for the reality checks and keeping me grounded. And to my sisters-in-laws Philo and Gina for always cheering me on. My Researcher and Assistant in the Seanad over the last 5 years, Amy McArdle, is also here tonight and I want to pay her a special thanks for all her support and expertise as our time working together comes to an end. Amy, I wish you good fortune as you move to your exciting new challenge.
My Dad lost his Mum at the age of 8 and lost his Dad less than 3 months later following a bicycle accident. Unbeknownst to him, my Mum, living only a short distance away, would soon be grieving the loss of her Dad. So much tragedy in their early years and both tell of how narrowly they escaped a fate in one of the children’s institutions we are only too aware of today. They were lucky you see. They both had strong, determined adults who believed in them. So, while they grew up in hardship, they grew up knowing they were loved. This is the gift they gave to me and my brothers, the gift of growing up wrapped in love. When asked what one thing I would want for every child? My answer is always “to have an adult who believes in them fully and strives with them to realise their dreams”. It has taken me until now to realise that their experience, and the experience they gave to us their children, was a key factor drawing me to children’s rights.
For the first 12 years of my career I worked in the private sector but throughout this time I was working with children and young people in a voluntary capacity not least through my involvement with the Irish Girl Guides. Anyone who knows me knows I’m a Girl Guide! I have endeavoured in every role and position I have held to date to live by my Guide Promise and Law to ensure that “I think of others before myself”.
Just over 20 years ago I was elected as Secretary General to one of the then three European youth platforms – it brought together all the International Youth Organisations at a Council of Europe level. Over three years I worked in Brussels with the leadership of the other two youth platforms to successfully merge into the European Youth Forum – a sole platform for youth organisations across Europe.
On returning to Ireland I was honoured to be elected as President of the National Youth Council of Ireland. Now, I know I’m showing my age here but I remember getting my first mobile phone in this role and the excitement of waiting for it to ring. I also remember doing my first radio interview and my Mum, who remains my dedicated media consultant to this day, giving me her first piece of advice “I hope you are not going to be one of those moaners who is always complaining. If you want to be a game changer then you need to focus on how to solve the problems”.
I went on to be a member of the European Economic and Social Committee which is an advisory body of the EU and was honoured to be elected to the position of Vice President. As part of my work on the EESC I was a member of the EU-China Round Table, which took me back and forth to China over several years. In this role I was the rapporteur on its Children’s Rights Report.
I still remember my job interview in the Central Hotel for the Children’s Rights Alliance in May 2005. I remember thinking it was a long shot since my professional experience until then was primarily in the private sector, albeit with the advantage of significant performance driven results expertise, but still it was only my voluntary work that was directly relevant to the work of the Alliance. Perhaps I needed to think more like a man and focus on all the things I could offer.
In accepting the role I met every metaphor going-baptisms of fire, roads hit running, and deep ends plunged. Within my first year in the Alliance we produced a Shadow Report and had appeared before the UN Committee on the Rights of the Child, we also produced a children’s report to the Committee and had agreed a Social Partnership deal entitled, somewhat optimistically, “Towards 2016”.
In my time in the Alliance I worked with many wonderful and talented people and I would like to take this opportunity to wish one of them, Maria Corbett, every success with her exciting new venture. Maria recently announced she is going to take up a full time PhD with NUIG to examine the process of how we decide to take children into care. I can’t think of a better person for the job. During this time, I also developed a great relationship with Prof Geoffrey Shannon whose legal expertise I have always appreciated. Thank you both for your firm and lasting friendship.
It was on taxi ride through Shanghai’s equivalent of Temple Bar in 2011 that I received the fateful phone call from the Taoiseach, Enda Kenny, inviting me to accept his nomination to the Seanad. I hope you will appreciate just how surreal a moment that was for me! To this day I remember clearly him stressing that he wanted me to be truly independent and keep my own voice.
So this evening, in the spirit of ‘keeping my own voice’ I intend to peel away some of the layers of legislative mystery. While the Seanad transcripts will give you the “record” of how various Bills pass through the House, I will give you a behind the scenes look at what really influenced and shaped some of the legislation I worked on.
Finance (Local Property Tax) Act 2012
In preparing for the Local Property Tax Bill in 2012 I knew that many children and youth organisations owned residential venues and was concerned they would face paying significant Property Tax bills. I rang the Department of Finance to explain my concerns. As it happened, the Official I spoke to had had a daughter in the Girl Guides and got exactly what I was talking about. In December 2012 I tabled an amendment to the Bill to exempt venues owned by children and youth organisations from the Property Tax. The Minister for Finance, Michael Noonan TD, did not accept my amendment but did commit to come back with an amendment to achieve the same aim in a few months. I took him at his word and in March 2013 he came back and granted the exemption and specifically cited Guiding and Scouting as an examples of why he was doing so.
As we all know, there is often a disconnect between law making and the practical reality on the ground. There is no better feeling in the world than knowing you have bridged that disconnect and won a victory for civil society.
Protection of Children’s Health (Tobacco Smoke in Mechanically propelled Vehicles) Bill 2012
On New Year’s Day 2016, the Protection of Children’s Health (Tobacco Smoke in Mechanically Propelled Vehicles) Act of 2014 came into effect in Ireland. This legislation extends the workplace ban on smoking to all vehicles where children are present. The impetus for this important legislative change was in fact the Protection of Children’s Health from Tobacco Smoke Bill 2012, which I initiated with Senators John Crown and Mark Daly with the support of John’s assistant Shane Conneely. We started the process optimistically in spring 2012 with a view to its passage before the summer recess. Instead what ensued was months of tedious meetings and games of tag with John Crown stressing the urgency of the Bill, Mark working the political aspects and me bringing the children’s rights expertise but also the diplomacy necessary to calm the waters and steady the ship. Each of us played to our strengths. In the end, some three years later, even though only a handful of words from our original Bill remained due to amendments but we got it over the line.
Adoption (Identity and Information) Bill 2014
Tens of thousands of Irish adoptees don’t know their original names, who their parents are or their medical history. In November 2014 I co-sponsored legislation with Senators Averil Power and Fidelma Healy Eames to recognise the right to identity of adopted children.
As an adopted child, an adoptive parent and a children’s rights advocate, we each brought our own unique perspectives to the table. Thanks to cross party support in the Seanad we persuaded Government to allow the Bill pass through Second Stage (no mean feat!!).
For those who are not au fait with the legislative process, there are 5 Stages in the passage of a Bill but it is the middle 3 that are the most substantive. In short:
- First Stage initiates the Bill and gets it on the agenda of the first House (Dáil or Seanad);
- Second Stage is the general debate on the purpose, intention and scope of the Bill;
- Third Stage (aka Committee) goes through the Bill section by section and considers individual amendments;
- Fourth Stage (aka Report) allows you to review issues raised at Committee and table additional amendments; and
- Fifth Stage (Final) sees a vote on entire Bill.
A successful Bill then goes to the other House, and follows stages two to five and then hopefully it is enacted into Law. Many Bills, particularly those not initiated by Government, fall or stall at one hurdle or another…and some reappear as a Government Bill down the line!!
Back to our Adoption Bill and we are now at Committee Stage the third stage of the Seanad process. Unusually, since we were the authors of the Bill, we had tabled a considerable number of amendments to address issues raised by the Minister for Children and Youth Affairs, James Reilly, at Second Stage. Averil and I worked as a tag team and it was the one and only time I occupied the Fianna Fáil front bench seats in the Seanad. It became clear as we were working through the amendments that the Minister and his officials had decided to neither engage nor oppose our amendments.
While this was allowing us to whiz through the changes we proposed it was all very bizarre. It was at this point I got a text message from an Official in the House kindly pointing out that the schedule did not limit us from pushing the Bill through all stages. So, following a speedy consultation with Averil, we agreed to give it a go but not before giving the Minister his opportunity. I took to my feet and asked the Minister if he would be willing to engage with us on our Bill before Report Stages, which we were willing to take another day otherwise we would progress all Stages.
At the end of Committee Stage we asked again and there was still no comment. So we pressed ahead to Report Stage and then with thanks to the Government Senators jumped the final hurdle and took the fifth and final stage. These last two stages took all of 30 seconds maximum.
We now had a powerful tool in our armoury on the Right to Identity for all adoptees. We had a Bill that had passed unopposed through all stages in the Seanad. Surely the Dáil could pick it up and amend it if and where necessary.
Our efforts pushed the Minister and the Department to publish its own Heads of Bill on Adoption (Information and Tracing). The Heads had come a long way from formerly stated positions. There are still obstacles, which were highlighted during the excellent hearings by the Health and Children Committee and detailed in its subsequent report. There are over 50,000 adult children whose right to their identity could soon be realised. This issue is a ticking clock as many are aging and many not see the legislation published let alone enacted. It is urgent.
Immigration (Reform) (Regularisation of Residency Status) Bill 2014
Passing legislation is never easy and unfortunately things don’t always go to plan! Case in point, a Bill proposed by Senator David Norris and myself to provide a pathway to residency for asylum seekers who have been awaiting a decision on their protection application for 4 years or more. We had worked on the substance and intention of the Bill with a number of individuals and organisations working with refugees and migrants. We knew the Bill we initiated wasn’t technically perfect but we hoped for the support of the House to move the Bill to Committee Stage where the necessary changes could be made. However, Senator Norris and I were blindsided by Sinn Fein. They had been approached by another NGO working in the area who did not agree with the use of the term ‘amnesty’ and so lobbied to block its passage. Sinn Fein voted with Government against the Bill and we lost the passing of Second Stage by 1 vote. We never expected our Bill to pass into law rather we saw it as an important opportunity to highlight the appalling reality of Direct Provision and to put pressure on the Department of Justice and Equality to act.
I appreciate the motivation of the NGO concerned but I still think it was a short sighted step that showed scarce respect for their fellow NGOs and more importantly removed an important lever to effect change.
Children and Family Relationships Bill 2015
The Children and Family Relationships Bill really illustrates the importance of collaboration and I wish to commend the Children’s Rights Alliance not only for their work on this Bill but for their unstinting support and expertise during my tenure. Tanya Ward, Chief Executive, has proven her leadership, vision and acumen in spades since taking over the reins in 2011.
The Children and Family Relationships Bill was tabled and debated against the backdrop of the impending Marriage Equality Referendum. This coloured much of the debate on the Bill but this legislation was so much more. It represented the most significant reform of child and family law for a generation and finally put children at the heart of family law.
I watched in admiration as the Alliance united voices by forming a working group of members with diverse views to analysis and co-ordinate advocacy action. They provided briefings and strategic communications at every level needed to effect changes to the Bill. The Alliance built consensus amongst their membership, generated media and organised events. Indirectly their work built consensus and support for the recognition of LGBT people as parents. At this point, I also commend Minister Frances Fitzgerald TD, Minister for Justice and Equality who personally steered this legislation through both houses. It took 30 hours in Seanad Éireann alone.
As I talk about the Marriage Equality Referendum one of my greatest regrets in office is that we could not embody the same level of public engagement when it came to the Children’s Referendum. The closest I got to tapping into mass public sentiment was when I took on Child Beauty Pageants. I was inundated with support from parents and the public. It showed me there is a strong public appetite to protect childhood but we haven’t been able to able make the link in the public mind with children’s rights.
Not everything must be done through legislation. Tabling Motions under group speaking time can be equally effective. In May 2014, we had a Seanad debate on the abducted schoolgirls in Nigeria that Boko Haram had threatened to sell into forced child marriage. I took this opportunity to voice my concern that exemptions to the marriage age in Ireland mean that, strictly speaking, child marriage is not prohibited here.
In June 2014, Senator Ivana Bacik brought forward a Motion calling on the Government to remove the court ordered exception to the legal age for marriage of 18. Aware of my own interest in this children’s rights anomaly, Ivana invited me to second the motion and I detailed how in 2012 28 child marriages were permitted to take place in Ireland. Just before Christmas the Government committed to setting the marriage age to 18 without exceptions. I hope this is brought into law soon.
On a side note, I must take this opportunity to thank Ivana and wish her every success in her Seanad campaign. I have grown in respect and admiration for Ivana – she is a great person to collaborate with. She’s whip smart and has an expert legal eye for legislative scrutiny.
My lowest moment
If you had asked me a few days before the Protection of Life during Pregnancy Bill I would have said that this would be my most tense vote. The debate was fractious, bigoted and filled with misinformation. Little did I know my toughest vote would be within hours of that vote.
To set the scene, we were now operating in a Seanad where the Government was in the minority and needed Independents or opposition to support them. In the short period of 3 hours leading up to my toughest vote I was shouted at in the corridor, grabbed, cornered and at one stage even pinned up against a wall – all by opposition parties and independent members– who felt they could ‘bully’ me into voting a particular way. On a side note we are all friends again. The vote in question was on a motion to delay the passage of the Referendum Bill proposing the abolition of the Seanad. If I voted with the opposition, we would delay the passage of the Bill for 90 days. However, in my head all I could think was that only six months previously we were one vote short of delaying the passage of the Social Welfare Bill that brought in the cuts to the Respite Care grant. If we couldn’t get our acts together to frustrate this utterly unfair cut, how in good conscience could we justify delaying the passage of a Bill that was about keeping our own jobs!!
No one from Government approached me about my vote. On pressing the button I voted with my gut. Along with my colleagues Senators Marie Louise O’Donnell and Fiach MacConghail we made the difference and ensured the vote for the Referendum would be put to the people. The footage of the day will show how I was jeered and shouted at by opposition for being a ‘traitor’. Funny how they changed their view when the people of Ireland gave the Seanad a mandate.
Being independent should not mean you are automatically in opposition. As a Taoiseach’s nominee I had to work out what independence meant for me? From the outset I believed it meant dealing with issues on merit. I voted with the Government where possible and clearly articulating my position where not. In the end we were operating in a minority Seanad and so each time I voted it counted – a power I had to use wisely.
Following my low point in the Seanad I was feeling increasingly isolated from both the Government Senators and Opposition Senators. Some Government Senators felt I should automatically vote with them as I was a ‘Taoiseach’s nominee’. Coupled with this I felt an increased sense of responsibility as the people of Ireland had voted to keep the Seanad.
So, I sought a meeting with the Taoiseach and despite everyone thinking we were in regular contact this took a few months to set up. In fact, prior to this meeting the only advice I received from him was during my first days in office to pick a few key issues and stay on them if you want to effect change. Sound advice that I endeavoured to follow.
I met the Taoiseach and he listened. I explained my frustration with the system, with trying to put forward amendments and feeling I was working in an echo chamber. He repeated the advice he gave me when he first appointed me “I want you to be yourself and be Independent”. It was only when I reached out that he leaned in to help and provide support to me.
Following this meeting he set up a weekly meeting for me with an advisor from his Department. The only thing he asked was where possible I would give advance notice when I was not in a position to support the Government. The payback for doing this was access to influence and in particular securing wins on a number of policy fronts. At no stage during my time as a Senator has the Taoiseach ever tried to influence my vote.
There is much debate and talk about Reform. I find most Members are very happy to discuss any aspect of reform that won’t directly affect their lives. I believe that reform begins with the individual. I decided when I started to take a new approach to politics and so used my social media – twitter primarily – to account for my work and I also publish each year a statement of my salary and allowances to ensure maximum transparency. Indeed, each year I return the unspent portion of my allowance and as there was no procedure up until last year I had to ‘gift’ it back to the Department of Finance.
An example of some of the reform introduced in my time is pre-legislative scrutiny to a significant number of proposed laws. This allowed for Committees to bring in experts, civil society groups, public officials and the Minister responsible to provide testimony.
Health and Children Committee
My experience is on the Health and Children Committee. In reality only five or six members keep each committee going. If you attend for one minute or three hours your attendance is recorded in the same way. I was fortunate that my Committee was under the excellent chairmanship of Jerry Buttimer who ensured we worked collaboratively and respectfully. I am very proud of our work, much of it in areas I have already highlighted, but additionally our hearings on End of Life Care. I hope the report we published will come to fruition.
Many NGOs supported my work at the Committee. A particular thanks to Chris Macey of the Irish Heart Foundation and Angela Edghill of the Irish Hospice Foundation. Their advocacy expertise was so helpful especially in my early days as was Chris’s sage advice when I was faced with a legal threat from tobacco industry stooges.
In a similar vein, I was happy to draw on my European experience in challenging the alcohol industry and its attempts to frustrate and stymie legislative efforts to address alcohol related harm. The drinks industry has a role – to make profits for its shareholders. They have no role, whatever guise they choose to wear, in the formulation of health policy. I think my views are clearly known.
Senators shouldn’t have constituencies. Certainly not geographical ones. As an independent Taoiseach’s nominee I definitely didn’t have one but I did endeavour to use the platform I was given to continue working with NG0s, civil society organisations, community and voluntary sector organisations and interested members of the public to help achieve our shared objectives. I want to thank each and every one of you who has helped and supported Amy and I throughout the past five years across a broad range of issues. Your insight and expertise has been essential to the quality of our input and in helping us to convey the reality on the ground.
One thing I would stress to you is the importance of collaboration. It is the missed opportunity I see all too often in Leinster House. An organisation will come to meet me in my Seanad office and say “A is critically important” and then the next day another group within the same sector will come to me and say “B is the most important”. These groups need to work together to determine and agree the priorities, not offer a choice for politicians to decide.
Coin drop machine
One of the greatest privileges of being a Senator is the opportunity to meet and engage with a wide range of peoples who bear witness to their personal circumstances. We
have done so much damage in the past and the only way we can truly demonstrate we have learnt from our mistakes is through the actions we take now. I wish I had a magic wand or a do-over. Instead I feel I am operating one of those coin machines you see in arcades. You have to put a lot of coins in to hit the tipping point for change.
There are many issues where I feel I have put in a considerable amount of coins but we have yet to see progress. In particular, I highlight the situation for transgender, non-binary and intersex children. In 2015 Ireland passed ground breaking gender recognition legislation into law. However, it is silent when it comes to children under 16 –despite my efforts to introduce an interim gender recognition mechanism. Minister James Reilly has committed his Department to doing more research in the area in time for the review of the Gender Recognition Act in 2017. I am also sitting on a Working Group hosted by TENI and hope with several others to ensure children have a voice and a place in our laws.
I cannot leave today without mentioning the untenable homelessness crisis faced by children and their families, which is compounded by the shortage of social housing and the State’s failure to regulate the private rental sector. It is incumbent on us to ensure all children – homeless children, children from the Traveller community and children in Direct Provision – have secure and appropriate accommodation.
Corporal PunishmentI want to end on a high and the achievement of which I am most proud- havingchampioned and secured the effective ban on the physical punishment of children in Ireland. A few months before this win a high level official in the children’s area told me that it would be impossible. I succeeded by drawing on all in my armoury – all that I have amassed and using every ounce of social and political capital I had built up. I have documented the official story in the Irish Journal of Family Law but let me take you behind the scenes here.
As early as 2011 I had spoken in the Seanad on the need for Ireland to repeal the defence of reasonable chastisement and I continued to raise the issue throughout my tenure. Behind the scenes I researched the issue, drew on International experiences and identified the piece of Legislation I would use as my vehicle. The Children First Bill was perfect as it was about child protection and yet it contained no penalties or sanctions and so no one could say I was trying put parents in jail. I also knew the Government would work to ensure this Bill was brought into law as it was a key plank of its reform of child welfare and protection.
The Committee Stage of the Children First Bill was taking place on 23 September last. At 10am the previous day I met an Advisor and several officials from the Department of Children and Youth Affairs to discuss my amendments to the Bill. Over the summer recess I submitted several substantive amendments and I had been waiting for this moment. In our meeting I said I was willing to concede on the other amendments but that corporal punishment was my red line. They tried very hard to dissuade me but I did not see any other Oireachtas Member willing to put their head above the parapet on this issue and so I had to do it before my time was up. Even if I lost, I intended to force a vote and let the record show who in the Seanad was willing to be listed as saying it is acceptable to hit children. It was a tense meeting.
At 4pm that same day, I was invited to meet Minister Reilly and the Secretary General of the Department. My persistence on the issue meant he had spent the day trying to find a way forward through discussions with his officials and the AG. In that meeting he gave me a commitment he they would do the change but I needed to buy them some time to work out the how. We agreed that I would postpone a vote at Committee Stage but one way or the other we would be voting on an amendment at Report Stage.
I had been working with the NGOs and in particular the Children’s Rights Alliance, ISPCC and Mummy Pages who were all outstanding in playing a subtle but vital role in getting the ban on corporal punishment over the line. It worked, with thanks to my fellow Senators who all supported me; the NGOs and children’s rights advocates; and some really outstanding civil servants and advisors.
Through this action the Government has put children first and provided leadership that will hopefully give confidence to other countries across the globe, including our nearest neighbours, to protect children from violence.
There is so much more I could mention but let’s keep it for another day! It has been a roller-coaster ride that I feel so privileged to have been on. I learnt so much, not least how to hold my nerve and persevere with my eyes fixed firmly on the goal. I believe I made the most of the opportunity. I worked extremely hard to effect the most change I could. I don’t know what my future holds but as ever I am optimistic and confident that I will rise to my next challenge.
I would like to thank my fellow Senators from across the house for their collaboration and cooperation. It has been an immense honour. Most of all I wish to thank all of you for your input and support during my tenure. Thank you the Children’s Rights Alliance for giving me an opportunity to share my experiences and to the Ark for providing such a wonderful venue. Thank you ALL.
I move amendment No. 3:
In page 10, between lines 24 and 25, to insert the following:” “best interpretation” means the interpretation of the relevant person’s past and present communication (using all forms of communication, including, where relevant, total communication, augmented or alternative communication, and non-verbal communication, such as gestures and actions) that seems most reasonably justified in the circumstances;”.
The Minister of State is extremely welcome to the House. Before I speak to this amendment, I want to congratulate her on her work on the mental health (amendment) Bill which seeks to remove the use of coercion in the application of ECT. I acknowledge that a Bill was published by the former Senator, Dan Boyle, as she knows, and I would particularly like to pay tribute to my cousin John McCarthy, God rest him,I can almost hear him using wonderfully colourful language and including words “about time” but it is great that this Bill will be progressing and well done to the Minister of State for doing that.
In association with my colleague, Senator Katherine Zappone I want to acknowledge the support of NUIG Centre for Disability Law and Policy and Tallaght Trialogue. While most people simply require recognition of their legal capacity and support to express their will and preferences there will still be a small minority of individuals who are not expressing a will and preference in a manner that others can understand. The Bill must establish the lawful response to such circumstances. However, I do not believe that a functional assessment of a mental capacity, and a subsequent denial of legal capacity, is the correct response to these difficult situations. A person in a coma or in a minimally conscious state, for example, will not be communicating their will and preferences to others and may not have made their wishes known in advance through an advanced health care directive or granted a power of attorney to anyone in respect of their relevant decision.In these circumstances decision making assistants, co-decision makers, decision making representatives, attorneys or designated health care representatives may need to make a decision on the relevant person’s behalf in accordance with their best interpretation of his or her will and preferences. While the Bill does require all interveners to respect the person’s will and preferences as part of the guiding principles included in section 8, further reference to the concept of best interpretation of will and preferences is needed for the hard cases in which it is very difficult to tell what a person’s wishes are.
The term “best interpretation” needs to be defined in section 2 of the Bill to guide those in the supportive roles I have outlined. Best interpretation of a relevant person’s will and preferences means taking into account past express preferences, where known, and includes knowledge gained from family and friends and other evidence available. Best interpretation can also be arrived at in seeking to communicate with the person in every possible way, including by using, where appropriate, assisted and augmentative communication, facilitated communication, signs, gestures and total communication, all of which are noted in the regulations and code of practice.
The use of best interpretation will rarely be an easy task. However, the best interest determinations used currently are similarly difficult in these circumstances. The provisions of Article 12 of the UN Convention on the Rights of Persons with Disabilities are merely shifting these difficult decisions from focusing on judgments existing outside the individual to the individual’s own will and preferences. That is why I am trying to insert a definition of best interpretation. We do need to deal with the hard cases, too.
I move amendment No. 6:
In page 15, to delete lines 10 to 36 and substitute the following:“3. (1) Legal capacity may be exercised:
(a) by the relevant person with decision-making supports as needed (including a decision-making assistant) and/or reasonable accommodation; or
(b) by the relevant person and their co-decision maker, acting jointly; or
(c) in a situation of last resort, where all efforts to ascertain the relevant person’s will and preferences have been made and the relevant person’s will and preferences remain not known, legal capacity may be exercised by the person(s) selected to represent the relevant person in exercising the relevant person’s legal capacity (i.e. decision-making representative, attorney, or patient-designated healthcare representative in advance healthcare directive).
(2) Where legal capacity is exercised with the support of a decision-making assistant, codecision-maker, or is being made by a person selected to represent the relevant person (decision-making representative, attorney, or patient-designated healthcare representative), and where the relevant person’s will and preferences are not known, the decision shall be guided by the individual’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).
(3) In applying subsection (2), decision-making assistants, co-decision-makers and persons selected to represent the relevant person must be able to provide a reasonable account of how this interpretation was arrived at.”.
I propose this amendment to change the definition of “capacity” in the Bill and to move away from a functional test of mental capacity which is used in the current text of the Bill to deny the legal capacity both of adults with disabilities or mental health experiences and of older people. The amendment would replace the definition of “mental capacity” in the Bill with a recognition of the legal capacity which all adults enjoy.
This amendment is based on the explicit recognition of legal capacity and the principle set out by the UN Committee on the Rights of Persons with Disabilities that a functional assessment of mental capacity should never be used to restrict or deny a person’s legal capacity, even in respect of a single decision. The amendment draws on a proposal contained in A Statutory Framework for the Right to Legal Capacity and Supported Decision-Making by the Canadian Association for Community Living, CACL, which was published in 2012. The CACL was a key actor in the reform of Canadian adult guardianship law in the 1990s.It resulted in innovative statutory mechanisms such as co-decision-making and representative decision-making agreements, which influenced the Assisted Decision-Making (Capacity) Bill here.
Functional assessments of mental capacity are now understood to violate human rights. In the terms of the United Nations Committee on the Rights of Persons with Disabilities, functional assessments of mental capacity are “discriminatorily applied to people with disabilities”. In April 2014 the committee stated:
[The] functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity.
Instead of requiring a person who needs support with decision-making to undergo an assessment of his or her mental capacity, these supports should be provided for the person to avail of at his or her own discretion. The availability of supports should also be combined with a parallel process to explore the person’s will and preferences, something we have debated quite a lot on the floor of the House, so that the decision the person wishes to make becomes clear. This approach avoids any need for an assessment of mental capacity.
Section 3 of the Bill makes a person’s ability to enter into different support arrangements contingent on the individual’s mental capacity. This is quite a high standard for an individual to reach and will mean that some people will not be found eligible to make assisted decision-making agreements and co-decision-making agreements, even where this is the form of support the individual and his or her supporters would most likely use.
Under the Bill in its current form, the term “presumption of capacity” is used to try to prevent discriminatory application of functional assessments of mental capacity. However, two international human rights scholars, Oliver Lewis and Michael Bach, stated at a meeting in Belfast in April 2014 that a presumption of mental capacity is meaningless as it does not help to protect the individual’s human rights. They argue that the right to equal recognition before the law, from which the right to legal capacity stems, is a guarantee, not a presumption. In contrast, a presumption can be rebutted if evidence is provided to demonstrate that a certain individual is not worthy of equal recognition before the law.
This amendment is required to ensure Ireland meets its obligations under international human rights law and will, upon ratification, comply with Article 12 of the UN Convention on the Rights of Persons with Disabilities, which we all wish to do. This is why I have tabled the amendment.
Full debate https://www.kildarestreet.com/sendebates/?id=2015-12-15a.222&s=speaker%3A393#g287
I welcome the Minister to the House on this, our penultimate day of term. I heartily welcomed the initiation of the Public Health (Alcohol) Bill. As did Senator Burke, I participated in the hearings of Oireachtas Joint Committee on Health and Children on the scrutiny of the heads of the Bill. We covered the aspects of the Bill and I thank the Minister for taking on many of the committee’s recommendations in what we see today. It does show pre-legislative scrutiny works. The Bill is about reducing alcohol-related harm, improving people’s health and, ultimately, saving children’s lives. From my reading, a children’s rights focus is evident throughout the Bill.
I acknowledge and thank the Alcohol Health Alliance Ireland, which is spearheaded by the Royal College of Physicians of Ireland and Alcohol Action Ireland, for its work and advice to me in this area. In all of our debates on alcohol, even those on reducing the alcohol-related harm which we all agree is extensive and needs tackling, we feel we need to clarify that we are not anti-alcohol. This is because our relationship with alcohol is so twisted into our culture and psyche we do not wish to be portrayed as judgmental and anti-fun. I have been rapporteur for two EU reports on the issue of alcohol-related harm. I have seen the drinks industry in action first-hand so I have no doubt of the pressure it must have put on the Minister. At EU level, I was on the European Economic and Social Committee, which was small, and the industry tried to silence me and discredit me and undermine the work of the NGO for which I worked. Thankfully, the majority of my colleagues on the committee were willing to stand with me and face down the vested interests and defend the public good. This is what we are trying to do with the Bill.
My entry point to the issue is the impact of alcohol-related harm on children. Four in ten children in Ireland are at risk of being adversely affected by alcohol misuse. Four in ten child protection cases are associated with alcohol misuse. It is a significant contributor to the neglect and abuse of children, to domestic and sexual violence and family breakdown. I welcome the support for the Bill and its harm reduction measures from several sectors of the industry in Ireland, including the vintners’ associations, the majority of publicans, the National Off-Licence Association and the C&C Group.
I use the term “drinks industry” but I speak more about the giants who see Ireland as a small pawn in the global drinks industry. The drinks industry speaks about responsible drinking, but the way we drink in Ireland is only responsible for the huge profits the industry makes here every year. As soon as the Minister launched the Bill I could almost hear the smoke machine of the drinks industry spluttering into action and, through its puppet drinkaware.ie, a soon to be launched rebranding of MEAS, talk about the importance of education. We see drinks industry initiatives all the time and the involvement of the drinks industry in public health campaigns despite clear and definitive statements from the World Health Organization that it should have no role in public health initiatives.
Drinkaware.ie is funded by Diageo, Heineken and Irish Distillers. Earlier this year we saw it advertise for an education programme manager to head up an education programme targeting young people, parents and teachers. This is completely inappropriate. If I put it this way, who would entertain the idea of an education programme about the dangers of smoking being designed and delivered by an organisation that is funded by tobacco companies? We cannot let the drinks industry in whatever guise it manifests itself to go into schools and purport to educate our children about the usage of a substance on which its entire profit is made. I hope the Department of Education and Skills takes a firm stance. I have tried to raise this issue several times in the Seanad. There is no safe level of alcohol consumption for children and this is the clear message we must send. We know education informs our behaviour, but it does not influence our behaviour. It is the actions contained in the Bill which will change and reduce alcohol consumption.
I have no doubt that, as has happened in Scotland, the industry will go to court if it feels it can delay or frustrate the implementation of the Bill. In my opinion, this tells us the Minister is on the right track. With regard to sponsorship and sport, the drinks industry spends £800 million a year in the UK on advertising, and research has shown that children there as young as ten are familiar with, and can readily identify, alcohol brands, logos and characters from television. In many instances, recognition was greater for alcohol brands than for non-alcoholic products targeted at children. This tells me a lot. The study also provided new evidence that many children are familiar with the link between alcohol brands and the sports teams and tournaments they sponsor. This is why I welcomed the initiatives the Minister is taking. He knows my position, which is I would love to see a full ban, but I welcome what he is doing in this area to try to reduce the impact on children.
It was very interesting that in the days after the Bill was launched we saw a headline stating it would undermine the rugby World Cup. I cannot see the evidence for this. We have seen the rugby World Cup successfully held in France, which has a ban, and it made a profit. It made me think of FIFA, because it has influenced legislation in Brazil. Brazil has a law whereby alcohol is not sold in stadia, but a change will be made to enshrine the right to sell beer. Surprise, surprise, Budweiser is a big sponsor of FIFA. When the ban on tobacco sponsorship of sport was introduced we were told it would be the end of golf championships, and we would never see again championships such as the Carrolls Irish open. This has been disproved. It can still happen.
With regard to minimum unit pricing, over the past several years the alcohol strength of drinks has increased greatly. The alcohol strength of beers and wine has increased. The pricing the Minister will introduce is within the power of the drinks industry. If it reduces the alcohol strength we will not see price increases. It is simple because it has the power. The introduction of minimum unit pricing will not have an impact on people who drink alcohol in pubs, clubs and restaurants. We are speaking about off sales. People who drink alcohol purchased in supermarkets and consume it within the safe limits will pay 30 cent a week more, which is €15.70 over a full year, with minimum unit pricing. The difficulty is that people drinking cheap high-strength alcohol purchased in supermarkets and other retailers will notice, but we know this is what causes the most deaths, injuries, accidents and incidents. I recommend as reading the University of Sheffield report, which the committee dealt with during its hearings. We know minimum unit pricing works because we have seen it work in Canada.
I welcome what the Minister is doing with labelling. We very much see the importance of people having information. After we discussed it at the committee, we started looking more at labelling on bottles and we can see the misinformation, deliberate or not. It is very difficult to make informed decisions. For the first time, labels on alcohol products will include information which will tell consumers what they are consuming and the impact on their health and weight. More than 90% of Irish adults do not know what is meant by a standard drink. I must look it up and I am involved in the area. A total of 95% of people have said they support the labelling initiatives. The Minister knows I have raised with him the issue of cancer, and we know that alcohol is associated with 900 new cancer cases every year and 500 cancer deaths.
There is an issue with regard to structural separation, which the committee considered and brought to the Minister. I have read the explanatory memorandum which comes with the Bill. The Minister is taking a very pragmatic and easily implemented approach and I commend him for it. We have seen seepage in supermarkets with meal deals which normalise drinking wine every day. I commend the Minister on the pragmatic approach being taken. We will get to tease out each aspect of the report on Committee Stage and I say “Well done” to the Minister in respect of the children’s clothing issue also. We see the seepage on that matter throughout department stores. The Minister has my full support.
Full debate https://www.kildarestreet.com/sendebates/?id=2015-12-17a.93&s=jillian+van+turnhout#g103
I move amendment No. 2:
In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material“.
These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Committee and Second Stage, I do not intend to be repetitive today. I appreciate that the amendments as drafted technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase “child pornography” is abhorrent, and we need to be using it for the term that it is. The word “pornography” in some way implies that there is some consent. In the English dictionary in the mid-nineteenth century, the word was associated with terms such as “taboo” and “secretive,” but it has now become common parlance. For me, the words “child” and “pornography” should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.
Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the UK, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the UK for both child prostitution and child pornography is “sexual exploitation of a child.” I want us to name this material for what it is. What I am seeking from the Minister today is a commitment that her Department will seek to rectify this balance.
As I said, I do not propose to reiterate the arguments I put forward on Committee and Second Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the UK and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the UK and hope we could have something similar here. The purpose of these amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term “child pornography,” because it in some way diminishes the act. I ask that the Minister consider my proposals.
I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
“(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.
(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.
(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) ‘relevant record relating to a child’ means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.
(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;
(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and
(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.
I wish to raise an issue on third-party disclosures and I want to be clear from the outset that I welcome section 34. In June 2013, I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At that time, I expressed my deep concern regarding the issue of the court ordered disclosure of complainants’ confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and I support the approach taken to provide standards and guidance to the courts in determining whether to grant an order for the disclosure of a record in dispute.
I agree that an adequate balance has been struck between an adult complainant’s right to privacy and the right of the accused person to procedural fairness. However, upon further reflection in this regard, I have tabled an additional amendment – amendment No. 40 – which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children’s private and confidential counselling sessions, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account – the who, what, where and when – of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.
The second phase is the therapy. The therapy notes are concerned with documenting the child’s feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child’s thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.
Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child’s living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.
Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.
I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance that needs to be there in law. I hope the Minister would look favourably on these amendments.
Full debate https://www.kildarestreet.com/sendebates/?id=2016-01-21a.178&s=jillian+van+turnhout#g190
The Minister of State is welcome to the House. I avail of the opportunity to welcome to the Visitors Gallery Dr. Bryan McMahon, chairman of the working group which is to report to the Government on improvements to the protection process, including direct provision accommodation and support for asylum seekers.
I am pleased that the last motion to be debated during Private Members’ business in the 24th Seanad looks at the living conditions of children and young people in the direct provision system. Our group has used its time to consider this issue and I have spoken about it at every available opportunity, including in numerous Adjournment debates and debates on legislation, in an effort to bring the plight of children to the fore. This is the critical issue of our time. In fact, Dietrich Bonhoeffer has said the test of the morality of a society is what it does for its children. I fear our failures and the treatment of children in the direct provision system will be the subject of a Ryan report in the future, but we have an opportunity to make changes now. All too often we look back in shock at what happened in the past and say how desperate it was, but what we do now with that knowledge is on what we should be judged.
My entry point to the issue of direct provision is from a children’s rights perspective. My perspective has been informed by my previous work in the Children’s Rights Alliance, the recommendations of the Government appointed special rapporteur on child protection, Professor Geoffrey Shannon, the concerns raised consistently by advocacy groups, my visits to two direct provision asylum centres as an independent Member of the Seanad and the recommendations of the working group. It has taken me a long time to wade through the mire that is the political discourse on the direct provision system. I have struggled to understand the distinction drawn – I still do not agree with it – between children cared for by the State, as children in the direct provision system are described, and children in the care of the State as those in foster care and other care systems are described. I have argued strenuously that children are children, irrespective of their status, and that it is stretching credulity to claim that children in the direct provision system are in the care of their parents in circumstances where their autonomy to make even basic decisions about their children’s care, for example, on what and when to eat, is so limited as to render it absent.
The direct provision system is detrimental to the welfare and development of asylum seekers and, in particular, the 1,225 children residing in direct provision accommodation throughout Ireland. There is a plethora of difficulties, including the dubious legality of the direct provision system, the lack of an independent complaints mechanism for residents, the absence of independent inspection of centres in which children reside, the decision by Ireland to opt out of the EU directive to allow asylum seekers to enter the workforce if their applications have not been processed after one year and the fact that there are no prospects post-secondary education for young asylum seekers. It is like hitting the pause button for an uncertain and, doubtless, lengthy period.
I appreciate that we have made some moves, but for most of the children, there is this cliff, the fettering and erosion of normal family dynamics and functioning, the lack of autonomous decision-making and the negative impact on the mental health of adults and children in the direct provision system. The ultimate failure lies in the length of time people remain in the system waiting to have their claims processed. I note the efforts the Government has made to reduce the length of time involved through the International Protection Act 2015 by introducing a single procedure to deal with international protection applications, but the reality is that the average length of stay is four years. However, a significant number have remained within the system for five to ten years. Some 55% have been on the waiting list for more than five years. I ask the Minister of State to think of all the things we have achieved in the past five years when he is on the election trail. There are people who have been in the direct provision system for that period of time. What a substantial loss of time it has been for the individuals, families and, particularly, children who have spent their entire childhood in direct provision centres. They are waiting for their lives to resume.
I was saddened to read in the final report on the child care law reporting project by Dr. Carol Coulter and her team, presented in November 2015, that children born in 2007 were still in the direct provision system. The only time they spent outside it was when they were placed in foster care while their mother received treatment for a mental illness.
There are more than 17 recommendations in the report of the working group which are specific to children and young people. I take the opportunity to thank the Children’s Rights Alliance and its member organisations for ensuring the unique vulnerability of children in the direct provision system was not lost in the process. I will cover briefly the first of those recommendations that we have cited in the motion. My colleague, Senator Fiach Mac Conghail, will speak to the others.
There is a need for child-friendly materials containing relevant legal information. The reality for all of us in full health is that the system is very legalistic; as it can be intimidating, people need support, particularly children who are unaccompanied and seeking guidance on how to pass through the system and for what they need to apply. We need to ensure the material is in a language they can understand in order that they can appreciate the ramifications of the decisions they will take.
The remit of the Office of the Ombudsman for Children should be extended to include complaints about services provided, transfer decisions and so on. Ireland ratified the third optional protocol to the UN Convention on the Rights of the Child which involves a communication procedure. It allows individual children, groups of children and their representatives, including those in the direct provision system, to submit a complaint to the UN Committee on the Rights of the Child about specific violations of their rights under the UN Convention on the Rights of the Child. I had the privilege of attending the hearing on Ireland before the UN Committee on the Rights of the Child. The question was rightly asked how Ireland had in place a system that allowed children in the direct provision system to make a complaint to the UN Committee on the Rights of the Child but yet they had no right to make it to the Ombudsman for Children. How can this be the case? Technically, the recommendation that the remit of the Ombudsman for Children be extended is supported in the Child and Family Agency Act 2013 which in section 69 includes a provision on the referral of complaints to the Office of the Ombudsman for Children. Technically, it requires nothing more than a ministerial order or a statutory instrument similar to the one made in 2012 when the decision was made to extend the remit of the Ombudsman for Children to receive complaints from children in prison. It is a question of political will. It is absurd that one can report to a UN body based in Geneva but not to the Ombudsman for Children. I know that the Ombudsman for Children is ready and willing to receive these complaints and wants to be there for all children in Ireland.
The lack of an independent complaints mechanism is completely out of step with the jurisdiction conferred on the office of ombudsman across the Continent. In November 2014, in CA and TA – a minor – v.the Minister for Justice and Equality, the Minister for Social Protection, the Attorney General and Ireland, Mr. Justice Colm Mac Eochaigh found that the RIA’s complaint procedure was deficient, not sufficiently independent, owing to the fact that it was the final arbiter in the process and that some elements of its house rules were unlawful. I do not care what anybody says, I trust the system, yet I would not be comfortable in making a complaint to those who I perceive as being part of the asylum system. We need to develop a welfare strategy and ensure all children have a named social worker based within the Child and Family Agency, not within the system in which a decision will be made on an application. I have argued for the application of the HIQA national standard for the protection and welfare of children, for the involvement of the Health Service Executive’s child and family services, particularly where a referral is made by the child and family services unit in the RIA to the HSE of a child. It is shocking that there is still no independent inspection regime or national standards for direct provision centres, given that we know that there is a significantly higher referral rate for child protection and welfare cases from direct provision centre than among the general population. In one in four cases at least one parent is from an ethnic minority or an asylum seeker or Traveller. I implore the Minister of State to be cognisant of the consistent findings in child care law reporting projects that social exclusion, poverty, isolation, mental health issues and disability are common features of mothers and fathers facing court proceedings and the acknowledgement that minority groups, including asylum seekers, are particularly vulnerable.
My colleague, Senator Fiach Mac Conghail, will speak in greater detail about the issues related to the weekly allowance. There is also the issue of those seeking jobs.Ireland and Lithuania are the only two EU member states that apply a blanket prohibition on asylum seekers entering employment or setting up a business in the state. In conclusion, I wish to quote the words of Bill Frelick, the refugee programme director at Human Rights Watch. He said: “Ireland should recognise work not only as a source of dignity, but as providing a livelihood that is integral to sustaining asylum seekers in the pursuit of their right to seek asylum.”
I thank, in particular, Senator Fiach Mac Conghail who worked with me on this issue, on which we have been at one. I also thank Senators Brian Ó Domhnaill, Martin Conway, David Norris, Marie Moloney, Trevor Ó Clochartaigh and Ivana Bacik. It is great that the House is united on the issue.
Senator Trevor Ó Clochartaigh is correct to ask what we have achieved. For me, what is most depressing is that we can unite on an issue, but the question is whether we can really bring things forward. Senator Fiach Mac Conghail is correct – as we have the working group’s report, we do not need to have long discussions; we need to move to its implementation. I would like to see the progress reports of high level groups published in order that the process is transparent.
I have listened to the debate on the importance of cooking facilities for families. There is the issue of costs because people need materials in order to be able to cook. We can have that debate, but I will go home tonight and decide the time at which I want to eat and what I will eat. I do not have to depend on a service that provides for me to eat at a specific time. How many of us eat at the same time every day? That alone is institutionalisation. Friends have told me how difficult they find it when they are in hospital for one week. I cannot imagine what it is like to be in a direct provision system.
On the issue of tenders, why are we allowing people to profit from the misery of others? I have a fundamental problem with this. Why is the State not providing the service? Why do we not ask an NGO to do it? There are some really excellent NGOs working in this area. I am thinking of Crosscare, but I am sure there are others. I have seen first-hand the work they do.
On the remit of the Ombudsman for Children, I believe it could be done by statutory instrument or ministerial order. It is, therefore, an issue of political will. If one goes back to the debate in the Houses of the Oireachtas on the Ombudsman for Children Act 2002, this issue was raised. Would we leave an especially vulnerable group of children and young people outside the scope of the Ombudsman for Children’s investigatory remit? In response the former Minister Mary Hanafin said, “The children of asylum seekers and refugees will have access to the Ombudsman for Children in the same way as every other child in Ireland.” That is what the Houses were told. The only thing excluded is the administration of the law, that is, the procedures for defining and determining whether a person is entitled to a particular status. She also explained:
If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law.
Why does the Ombudsman for Children not have a remit to look at the application? We live on an island, but we really are an island as far as the rest of Europe is concerned because children in other countries can go to their ombudsman for children. It is enshrined in the Constitution that all children are equal, yet now we say we will interpret it slightly differently and that children in direct provision centres do not have the same rights. The Ombudsman for Children and Mr. Peter Tyndall made a joint submission to the working group which clearly explained the benefits, from their involvement in the direct provision system, that their experience could bring and the ease with which they could move into that space if allowed to do so.
The Minister of State has talked about the additional resources that would be needed. It makes me more fearful because it means that he believes there would be lots of complaints and resources needed. What is happening if we know that we will need all of these additional resources? We would need some resources. He goes on to say it is also important to recall that the working group looked specifically at the possibility of setting up a separate complaints procedure but rejected the idea in favour of extending the remit in order that the established offices could take on this role. It is welcome that the Minister for Justice and Equality will meet the Ombudsman for Children next Wednesday. I hope we will move on this issue because it is about giving people hope.
I explain that my job is about nudging. When one is in a direct provision system, it is difficult to understand the nuances in things moving forward and progressing. People need hope and we need to see some big changes. We need to see an increase in the amount of money given to those in direct provision centres in line with the working group’s report. Although a figure of 60% makes for a good news day, it has not risen in 15 years. The people concerned cannot afford to do the normal things children do. I want to be happy that we are moving forward and have a great report, but we are not doing enough. I hope that when the House comes back, Senators will again unite and push firmly for change.
I thank the cross-party group and all Senators who have united on this issue. In particular, I thank the working group’s members, the secretariat, the different Departments that have come together on the issue and, in particular, Dr. Bryan McMahon. We now need to stop the discussion and begin implementation. We need to ensure hope for all citizens and that children are children first and foremost.
The following motion will be taken from 4pm to 6pm on Wednesday 27 January 2016.
“That Seanad Éireann:
– welcomes the final Report of the ‘Working Group to Report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers’, published in June 2015;
– notes, according to the latest available statistics from the Reception and Integration Agency (RIA), in its Monthly Report September 2015, there are 4,814 RIA residents ‘live on the system’ of which 1,225 are children;
– welcomes Ireland’s ratification of the Third Optional Protocol on a communications procedure of the UN Convention on the Rights of the Child which allows individual children, including those in Direct Provision, to submit complaints concerning specific violations of their Convention rights;
Asks the Minister for Justice and Equality to outline the exact progress of the recommendations, in relation to children and young people, drawing specific attention to the following recommendations:
– child-friendly materials containing relevant legal information should be made available and widely distributed, including through special information services for children such as specialised websites (Recommendation 3.262);
– the remit of the Office of the Ombudsman and the Office of the Ombudsman for Children should be extended to include complaints relating to services provided to residents of Direct Provision accommodation centres, and transfer decisions following a breach of the House Rules (Recommendation 4.135);
– Tusla – Child and Family Agency should liaise with the RIA to develop a welfare strategy within the RIA, to advise on policy and practice matters and to liaise on individual cases as required (Recommendation 4.199);
– Tusla and the HSE should identify a named social worker on their respective child protection, mental health and primary care teams to be the identified lead social worker for a Direct Provision centre in their area (Recommendation 4.199);
– the Minister for Justice and Equality should establish an inspectorate (or identify an existing body), independent of the RIA, to carry out inspections in Direct Provision centres against the newly approved standards (Recommendation 4.226);
– all families should have access to cooking facilities (whether in a self-contained unit or through use of a communal kitchen) and their own private living space in so far as practicable (Recommendation 4.75); and
– the Direct Provision weekly allowance for adults should be increased from €19.10 to €38.74 for adults and from €9.60 to €29.80 for children (Recommendation 5.30).”
– Senators Jillian van Turnhout, Fiach MacConghail, Mary Ann O’Brien, Averil Power and Katherine Zappone.
Question 10 (Senator Jillian Van Turnhout)
Can the Minister give his considered view on the recommendations in the Report of the Joint Committee on Health and Children on the General Scheme of the Adoption (Information and Tracing) Bill 2015?
My Department is examining the Report on the Pre-Legislative Scrutiny of the General Scheme and Heads of the Adoption (Information and Tracing) Bill 2015, recently published by the Joint Committee on Health and Children.
I would to thank the Chairman of the Joint Committee on Health and Children, Jerry Buttimer TD, and members of the Committee for their work in producing the Report without delay. I know that a considerable amount of work has gone into this Report and it is being studied in detail as we continue the preparation of the legislation.
The Report has made key recommendations as follows:
- That the definition of ‘compelling reasons’ be further clarified and more tightly defined in the Bill.
- In cases where non-disclosure is sought citing ‘compelling reasons’, this should be supported by medical evidence.
- that consideration should be given to excluding the Statutory Declaration provision from the Bill. This could possibly be replaced by an alternative provision where the applicant is required to attend one preparatory session to discuss and explore the issues concerning privacy and respect, before the Birth Certificate is released.
- that consideration should be given to reducing the lead-in to a much shorter time period, and to holding a shorter, more intense information / awareness campaign over a six-month period, to include engagement with social media and a wide range of community groups who can help to raise awareness about the new Register.
- in the case of the illegally adopted, that consideration should be given to establishing a dedicated unit to actively investigate those cases.
- that a review of service requirements arising from the Bill is undertaken.
All the recommendations of the Committee will be fully considered with a view to incorporating the Committee’s views where appropriate and subject to legal advice.
The Committee also recommended that I give consideration to issues highlighted during the pre-legislative scrutiny process in relation to step-parent adoption. I am addressing this matter in the context of the Adoption (Amendment) Bill.
Question 11 (Senator Jillian Van Turnhout)
Can the Minister provide an update on the progress by the Child and Family Agency of a national seven day, 24-hour social work service for children and families at risk?
Tusla, the Child and Family Agency provides a range of services aimed at addressing emergency situations in the area of child welfare and protection. In the main, these emergency situations arise out of hours.
I am pleased to inform the Committee Members that Tusla commenced the new Emergency Out-of-Hours Social Work Service last month. The key objective of the service is to co-operate with and support An Garda Síochána in the execution of their duties and responsibilities under the Child Care Act, 1991 and the Refugee Act, 1996.
Prior to this new development Tusla provided, in an emergency situation, for residential and foster care placements for children under Section 12(3) of the Child Care Act, 1991 and placements for children referred under Section 8.5 of the Refugee Act, 1996;
The additional service now available allows the Garda Síochána to contact a national emergency social work out-of-hours phone service for general advice or consultation. This on-call service will be staffed by social workers operating from the Out-of-Hours services in Dublin, supported by on-call social workers in different parts of the country.
The social workers are currently employed by Tusla in its children’s services.
I welcome this new development. Up to now, under the Emergency Place of Safety Service, An Garda Síochána could access an emergency placement for children found to be at risk out of hours, but they did not have access to a social worker regarding the case or particular circumstances. In these circumstances, a child deemed to be at risk by An Garda Síochana was placed in a family setting until the following working day, when the local social work service would assume responsibility for the case.
Tusla and An Garda Síochána are the key agencies empowered by law to protect and promote the welfare of children and they have separate yet complementary roles. Mutual understanding and cooperation is essential in ensuring that these roles are carried out effectively and in a child-centred manner.
The aim of the Emergency Out-of-Hours Social Work Service is to ensure that the disruption and upset to which children may be exposed in emergency situations is minimised and the rights of parents and guardians are respected. The introduction of the Emergency Out-of-Hours Social Work Service assists in maximising inter-agency co-operation and promoting the safety and welfare of children.
Question 12 (Senator Jillian van Turnhout)
Can the Minister advise if he plans to legislate to vindicate children’s constitutional rights; including enacting legislation to satisfy Article 42A provisions on the best interests of the child, views of the child, and adoption. And if he plans to carry out an audit of laws, judicial and administrative practices and policies to identify gaps in the implementation of the best interests principle and to address these gaps without delay?
At the time the wording of the then proposed thirty-first amendment of the Constitution was published by the Government, there was a commitment to bring forward important amendments in adoption law. In order to fully inform consideration by the people of the constitutional change being put forward for their decision, the Government published the General Scheme of a proposed Adoption (Amendment) Bill 2012 which would flow from implementation of the change. With the thirty-first amendment now standing as part of the Constitution, in the form of the new Article 42A, my Department is progressing the promised Adoption (Amendment) Bill, in which the best interests of the child are a paramount consideration, for consideration by the Oireachtas.
The Constitutional amendment was the subject of consultation with Government departments to ensure their compliance with the provisions therein. While the amendment has set a standard that must be observed, there is nothing to constrain measures being taken in the public legislative or administrative domain that exceed the standard set. The impact of the amendment, and the willingness of the Government to foster a child-centred approach, are to be seen in provisions relating to the views and best interests of children in certain legislation enacted or introduced since the referendum, such as the Child and Family Agency Act 2013, the Children and Family Relationships Act 2015 and the Children First Act 2015.
The on-going implementation of Better Outcomes, Brighter Futures: the National Policy Framework for Children and Young People 2014-2020, is demonstrably rooted in the values and principles that the Constitutional amendment represents. The implementation of Better Outcomes, Brighter Futures is a ‘whole-of-Government’ commitment which is being driven with involvement by non-Governmental interests in the sector.
The policy framework relates to five specified outcomes for children and young people, which include that they will be connected, respected and contributing to their world. A major commitment by my Department in that regard is to greatly enhance the basis, and opportunity, for participation by young people in decisions that impact on them. To that end, I published the first National Strategy on Children and Young People’s Participation in Decision-Making 2015-2020 which is a constituent strategy of Better Outcomes, Brighter Futures. The Participation Strategy specifies a number of commitments to be delivered by various public bodies. In my Department’s case this includes a commitment to bring about a major development by way of the establishment of a Children and Young People’s Participation Hub to become a centre of excellence on children and young people’s participation.
While an audit of the kind referred to in the question is not planned at this time, emerging developments in the legislative and policy domains indicate that possible change is already underway and more is in prospect.
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