Social Justice and Protection – Governance Consulting

13 April 201616 December 2018

Children’s Rights Alliance lecture marking the work of Jillian van Turnhout

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.

Marriage Age
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.

Independent
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.

Reform
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.

Constituency
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.

Shelter
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.

END

15 March 201616 December 2018

Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages

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

8 December 201516 December 2018

International Protection Bill 2015: Second Stage, 2 December 2015

Senator Jillian van Turnhout: It is almost ten years since the last substantive legislation was introduced in this area. I am cognisant of what we are trying to do today. It is complex. It has been difficult for Members and the civil society organisations specialising in the areas of refugees, asylum and children’s rights issues – from whom many Members, including myself, seek guidance and advice in advance of parliamentary debates – to analyse the intricacies of this Bill in the time that has been given to us. On the other hand, I appreciate the effort on the part of the Government to bring this important Bill to fruition before the Christmas recess.

I intend to focus my intervention and my engagement on this Bill to issues relevant to children and children’s rights, because I believe this is the area where I can add my expertise. In this regard, I thank the Children’s Rights Alliance for its support in helping me to understand the complexities of the Bill.

Article 22 of the UN Convention on the Rights of the Child obliges Ireland to ensure that children seeking or holding refugee status, whether unaccompanied or not, should receive appropriate protection and assistance in the enjoyment of the rights of the convention and other applicable human rights treaties. The State is further obliged to assist a child in the tracing of his or her family and in obtaining information relevant for reunification. In circumstances where the child’s family cannot be found, the child is entitled to the same protections as other children deprived of their families under the convention.

In 2006, the UN Committee on the Rights of the Child called on the State to “take necessary measures to bring [its immigration] policy, procedures and practice into line with its international obligations, as well as principles outlined in other documents, including the Statement of Good Practices produced by the United Nations High Commissioner for Refugees and Save the Children”. As the Minister is well aware, Ireland will be examined before the UN Committee on the Rights of the Child in January 2016, in other words, in a few weeks’ time. It would be very disappointing if the provisions for children in this Bill were found by the committee to be wanting in respect of our convention obligations. My concern in this regard is further heightened by the fact that the key recommendations of the working group on direct provision in respect of children are not implemented in this Bill. It is disappointing that there have been no positive reforms for the 1,600 children currently in the direct provision system – they are the most vulnerable group of asylum seekers – despite a HIQA report in May 2015 identifying serious child welfare and protection concerns in a number of children and family services areas.

I realise it is outside the scope of this Bill, but the Minister knows of my view on the importance of having an independent complaints mechanism similar to that afforded to the Ombudsman for Children. I have raised the issue with the Minister for Children and Youth Affairs as well.

I am also concerned about payments, particularly payments to children. They have not changed in 15 years. At the least, the payments should be brought in line with the qualified child increase as referenced in the working group report. I imagine that is a decision for the Minister for Social Protection but perhaps the Minister for Justice and Equality could advise the Seanad on the matter.

I welcome the provision in the Bill for the new single application procedure to streamline and speed up the application process. It is long overdue. Even ten years ago people were talking about the establishment of an independent protection appeals tribunal and the inclusion of child-specific forms of persecution as grounds for protection. These are referenced in section 7(2).

One substantive area I have difficulty with relates to the notion of the best interests of children and how this is dealt with in the Bill. I thank the Minister and her officials for their engagement in the past 24 hours to try to see how we can strengthen the relevant provisions and work together. Let us consider the provisions relating to the best interests of the child in Irish legislation. It was the current Minister for Justice and Equality, Deputy Fitzgerald, who, during her previous role as Minister for Children and Youth Affairs at the time of the passage of the Child and Family Agency Bill as well as recently with the Children and Family Relationships Bill, put the key provisions relating to the best interests of the child into Irish law. I am keen to ensure we progress that legacy with this Bill.

Article 3 of the UN Convention on the Rights of the Child as it relates to the best interests of the child is clear. My difficulty is that the Bill only refers to the best interests of the child in a limited way, for example, in cases where international protection has been granted upon recognition of a child’s status in the application of a medical examination to determine the age of an unaccompanied minor or in certain aspects of the conduct of protection interviews for unaccompanied minors. The working group report recommendation stated that the International Protection Bill 2015 should reflect the general principle contained in the Convention on the Rights of the Child to the effect that the best interests of the child should be a primary consideration in all actions concerning children.

I submitted an amendment yesterday, but I have since redrafted it to ensure that in introducing the idea of the best interests of the child as the primary consideration, nothing in this legislation shall affect any provisions that are more conducive to the realisation of the rights of the child contained in other enactments or international law. For example, the European Court of Human Rights has asserted the importance of the child’s best interests. It also stressed the importance of reuniting the child with his or her family unless it is not in the child’s best interests. I have submitted an amendment to ensure that the best interest principle is subject to the obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Another area I have concerns over relates to training for authorised officers on children’s rights. The working group report made clear that there should be a provision requiring decision-makers who take decisions in respect of children and those who interview children have received appropriate procedural and substantive training. This could be specific training on children’s rights and certified qualifications in interviewing children. Perhaps that is something the Minister could address. I have not tabled an amendment on the matter at this point but I will do so on Report Stage if I believe it is not being dealt with. Section 34(8) relates to how personal interviews by authorised officers may be dispensed with where the applicant is under the age of 18 years and he or she is of such an age and degree of maturity that an interview would not usefully advance the examination. Will the Minister to look at the Children and Family Relationships Act which includes the provision for a court to appoint an expert to determine and convey a child’s view? I agree with the recommendation by the Children’s Rights Alliance that the Bill should include a provision that section 34(8)(b) can only be exercised upon the appointment of an expert on the views of children. Perhaps that is something we can look at.

Article 37 of the UN Convention on the Rights of the Child is very clear on the issue of child detention: “The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. It was of great concern to me when I read section 20(1)(c) in conjunction with section 20(7). The latter provides that a child under 18 years can be detained as an adult if there are reasonable grounds for believing the person is not under 18 years. I believe this is a breach of the UN Committee on the Rights of the Child’s general comment No. 6 which provides that in cases of uncertainty as to the individual’s age, the individual should be given the benefit of the doubt and should be considered a child. I realise that the Bill’s provision has been inserted to protect a Garda who, using reasonable presumption, makes such a decision. In response, I have submitted an amendment that I hope will provide protection for children’s rights and provide balance. I thank my group colleagues, Senators Fiach Mac Conghail, Marie-Louise O’Donnell, Averil Power, Katherine Zappone and Mary Ann O’Brien, who have supported the two amendments I have tabled for Committee Stage.

17 July 201516 December 2018

Civil Debt (Procedures) Bill 2015: Second Stage 17 July 2015

[CHECK AGAINST DELIVERY]

Welcome Minister.

While I appreciate the desire to have certain pieces of legislation passed through the Houses before the summer recess, it should never be at the expense of the democratic process.

You are aware Minister as are my Seanad colleagues that our agenda has gone from meagre at various stages over the last few months with (let’s be honest) thinly veiled time fillers…to the scenario we have now where there is insufficient time to scrutinise this Bill properly and fulfill our legislative duty.

I was unable to follow the Bill’s conclusion in the Dáil yesterday afternoon due to the Health and Children Committee session, legislative briefings and various meetings throughout the day.

There wasn’t even an updated version of the Bill reflecting the Report Stage amendments from the Dáil, when this speech was put together.

Only for a briefing late yesterday afternoon by your Department Officials, which was extremely helpful, I wouldn’t have known and been able to welcome the fact that the Bill has been amended to repeal the relevant provisions of the Enforcement of Court Orders Acts 1926-2009, which was preventing the Bill from truly abolishing the imprisonment mechanism for non-payment of civil debts.

As you know Minister I strongly support extending the recognised principle of detention as a last resort for children to adults and with urgency for the 18-24 year old cohort.

I accept imprisonment is unavoidable in certain circumstances, particularly in the case of violent offences but our rates of committal to prison under sentence and the increasing number of committals for less than three and six month periods, means that Ireland has one of the most punitive criminal justice systems in Europe.

I was interested to know what kind of numbers we were looking at in terms of imprisonment for non-payment of debt and according Irish Prison Service Annual Report, 23 debtors were subject to a period of custodial sanction in 2014.

This was compared to 8,979 committals for non-payment of court ordered fines, the vast majority of which were for periods of less than three months, but nonetheless at significant cost to the State.

Minister, when will the Fines (Payment and Recovery) Act 2014 be commenced? While not completely removing the possibility of imprisonment for non-payment, the Act provides much needed alternative such as the payment of fines by instalment, by attachment and recovery orders if appropriate, and by the substitution of community service orders for the fines.

It is now simply absurd that 5 years after the first Fines Act (2010) introduced a payment by instalment mechanism that the Court Service is still unable to progress the facility and there are nearly 9,000 committals a year as a result.

I have a number of concerns about the Bill before us, which echo many of the same concerns flagged by FLAC in their submission.

I had a chance to discuss some with your Department Officials at yesterday’s briefing.

Assessment of ability to pay issues:

Why is there no statutorily enshrined guidance for the District Court in determining a debtor’s ability to pay their debt or the amount to be attached or deducted over a given period?

Minister, I put it to you that there will undoubtedly be unequal assessment depending on the court. This already happens in relation to family law maintenance where orders can vary extensively depending on the court in question. There is a need for guidelines. The guidelines exist.

Guidelines on reasonable standard of living, reasonable living expenses for debtors:

I suggest the Bill would be greatly strengthened by specific reference to the “reasonable living expenses” guidelines that the Insolvency Service of Ireland and the Official Assignee in Bankruptcy must consider in accordance with section 23 of the Personal Insolvency Act 2012 to ensure a debtor’s income doesn’t fall below an acceptable minimum standard.

The guidelines have their base in objective, academic work principally of Michéal Collins at Trinity College working with the Vincentian Partnership for Social Justice who in turn used a well-established model developed by the University of Loughborough in the UK and are used for debts big and small in the insolvency service including assessments for Debt Relief Notices where the maximum reference debt is €20,000 but can be much smaller.

If it’s good enough for insolvency and bankruptcy deliberations I don’t see why it isn’t good enough in the context of civil debt?

I cannot help but wonder if the reason it isn’t included in the Bill is that many social welfare recipients, if not all, subject to its assessment would fail to reach the threshold and the truth is that this Bill, while necessary and welcome in many ways, has a special interest in ensuring that outstanding water bills can be collected from the “refuse to pay category” in receipt of social welfare.

Social Welfare:

Is the point of social welfare not to provide the minimum of what people who are not in employment need to survive? How then can any deduction (even where as low as the €1 and €5 per week as mooted in the briefing) not cause additional hardship to those already experiencing poverty?

Apparent contradiction in that there is no provision for the deduction of fines from social welfare payments under the Fines (Payment and Recovery) Act 2014 and plans to introduce such arrangements.

Proceedings in Open Court:

I am really concerned that the civil debt proceedings will be taking place in open court.

At least with family law maintenance hearings only the parties to the case will hear all of the details of income and expenses.

The civil debt situation is in open court (District Court-often really full) where the debtor must file details of their finances or face prosecution and where the creditor can question the debtor in open court.

If the reasonable living expenses guidelines I have suggested were used, then a debtor’s affairs would only be opened out for the general public in cases where the expenses were above what was considered reasonable. And the expenses would be the same throughout all the courts of the land.

Employment Protection Issues:

There is no protection in the Bill for the debtor against adverse or unfair treatment by his or her employer owing to there being an Attachment of Earnings Order against them.

This situation is different to a maintenance attachment in a family law context, which is regarded as a family matter/familial dispute/nobody’s business. In a failure to pay a civil debt context I am worried that an employer might infer that the employee is untrustworthy/unreliable.

FLAC Recommendation: Amend the Unfair Dismissals Acts 1977 to 1993 to specifically prohibit dismissal on the grounds of being subject to an attachment of earnings order.

Can the Minister explain why the Bill allows an attachment order to be obtained and notified to a person’s employer without any prior steps being taken to recover the debt?

Surely an Attachment of Earnings Order should only follow the debtor’s failure to meet the terms of an Instalment Order and where the varying of an Instalment Order downwards has been considered?

-END-

21 April 201516 December 2018

Private Members Motion: One Parent Families

I welcome the Tánaiste. It is with pride that I second the motion. The result of inadequate income for many one-parent families is food poverty, fuel poverty, over-indebtedness, difficulty with education-related costs, cutting out extra-curricular activities and children’s hobbies, living in poor quality housing, risk of homelessness, and homelessness. The latest SILC data for 2013 revealed that in lone parent households, the at-risk-of-poverty rate was 31.7%, the deprivation rate was 63.2% and the consistent poverty rate was 23%.

The particular and distinct vulnerability of this group is further shown by the Society of St. Vincent de Paul which has confirmed that one-parent families constitute one of the major groups to which it provides services. The financial assistance the Society of St. Vincent de Paul provides is connected with their low and inadequate incomes, particularly those in receipt of one-parent family payment. The Society of St. Vincent de Paul has advised that despite incredibly careful budgeting, there simply is not enough money in the house, and they find they need a payment to buy food or meet the costs of school, energy and housing.

Parents who work part-time find that their pay is low and unlikely to rise significantly as they often have low educational levels because of the situation they are in. Child care is an issue in terms of cost of child care and the salaries for those working in child care because all too often jobs that are considered to be women’s work get lower rates of pay.

The Society of St. Vincent de Paul also supports both two and one-parent homeless families that are in emergency hotel accommodation, in the majority of cases because of the major shortage in social housing or having been pushed out of the unregulated monopolistic private rental sector where market rate far exceeds rent supplement caps and where the housing assistance payment is only available from selected housing authorities. That is an issue that differs around the country.

Society of St. Vincent de Paul volunteers report that their members are finding that the move from one-parent family payment to the jobseeker’s transition allowance is causing them considerable uncertainty and fear, particularly among those who have received the letter from the Department. This is something I found repeatedly as I talked to groups in preparation for this debate.

The proposed changes regarding the one-parent family payment have also caused considerable stress, upset and confusion with Doras Buí, a community-development organisation centre that provides high quality supports and services to one-parent families living in the Coolock area of Dublin. That organisation outlined some of its concerns. Obviously a major cause of concern is the provision of adequate, quality and affordable child care in that area. It claims that the provision of the after-school subvention scheme is not adequate. First, not all private child care providers have taken up this scheme and many parents are unable to find a provider to collect their child from their school. It is great to say that one has the scheme in one place and the child somewhere else, but how is the child supposed to get to the scheme? Second, the subsidised scheme only lasts for 52 weeks. What are parents to do after the first year of the scheme finishes? The Department has advised parents to contact their child care committee after this time.

Many parents have expressed concerns regarding their current working arrangements and qualifying conditions for jobseeker’s allowance. Some are working ten to 15 hours per week, broken down to two to three hours per day for five days, in order to fit around child care arrangements. While working these hours, they do not qualify for jobseeker’s allowance because they work for more than three days per week. Many parents and their employers are not in a position to increase working hours to at least 19 hours, which would allow parents to be eligible for FIS and the back to work dividend. Another example has been clearly illustrated by the Dunnes Stores workers who work 15 hours per week. We see the precarious position they have been put in. A person may be called in to work thinking they might have five hours, and organise child care on that basis, only to go in to find out they have one hour of work.

Due to the current housing crisis and the lack of social housing, many lone parents are in receipt of rent supplement. Under the conditions of rent allowance a recipient cannot work more than 30 hours per week, so we are moving up the scale. If they do, they lose their rent supplement, so parents are left with a choice between working full time and keeping their home.

While there are child care education and training support programmes available for parents who are studying a FETAC level 5 course to help towards the cost of further education, there is no such funding for parents who want to go to degree level. This is limiting their education choices, which in turn limits their ability to gain full-time well paid employment.

I will end by mentioning a lone parent involved in Doras Buí who asked me to share her story with the House. Her name is Leanne and she is a single mother of one. She says:

The new changes in the One Parent Family Payment will really affect me in a bad way. My son turns 7 years old on the 14th of July, so this will affect me immediately. My son has been diagnosed with ADHD and Oppositional Defiant Disorder and takes daily medication. I attend monthly and sometimes weekly appointments in the Mater CAMHS hospital. I am currently working part time and I face a drop of 70/80 euro a week, basically between 280/320 a month. This is a huge stress on a lone parent like me, trying to better myself for my son by getting out and working part time and this strain is unbelievable. I attend counselling over these stresses. I cannot work full time as I don’t have a minder for my child and with these changes I won’t be able to afford one any time soon.

This really illustrates how a number of factors that I have tried to demonstrate come together and compound this downward spiral at a time when we should be supporting and lifting up lone parents and giving them the opportunities we say we wish to give them. I cannot see the evidence of investment in child care and after-school care. There has been investment, but there are no guidelines, no clear structures and no regulations, so the reality is that when people try to access services, be they housing or employment, all these obstacles are in the way. We really need to tackle this issue to lift lone parents and their children out of poverty.

25 March 201516 December 2018

Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015: Second Stage 25 March 2015

I warmly welcome the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015, which sets out the wording of the amendment that will be put to the people in a referendum on 22 May 2015. If passed, the amendment will allow two people to enter into civil marriage without distinction as to their sex. For me this is a simple question – one of equality, fairness and civil rights. It is very important that we distinguish what is hoped will be a new right to civil marriage from that of religious marriage. Civil marriage will be a relationship between two people, irrespective of their sexual orientation that is sanctioned and licensed by the State. In the same way as religious institutions are not obliged to remarry divorced couples, they will not be forced to marry same-sex couples, should civil marriage be extended to lesbians and gay men.

I was married in the Catholic Church and I have no sense whatsoever that my marriage to my husband will be in any manner, shape or form altered or undermined by the extension of civil marriage to same-sex couples. I welcome the decision by the Association of Catholic Priests not to take a position on the same-sex marriage referendum on 22 May and its recommendation to priests not to direct parishioners to vote either “Yes” or “No”. I also welcome the Minister’s confirmation that there will be no conscience clause about which my colleagues have spoken eloquently.

This is about ensuring equality and parity of legal treatment. Comparing the census figures for 2006 and 2011 shows a 100% increase in the number of same-sex couples. The 2011 census recorded 230 same-sex couples with children. Indeed we are talking about 7% of the Irish people based on national and international surveys.

I welcome the impact the Children and Family Relationships Bill 2015 will have in reforming, modernising and bringing legal clarity to many aspects of Irish family law, particularly to diverse parenting situations and diverse family forms including for the children of same-sex couples. That Bill, which we will continue to debate tomorrow, is very welcome.

I stand here in a very privileged position because I do not see this as a dramatic change. It has no impact on my life or on what I do. Along with many other people I am very supportive of the amendment. I want to be clear and unequivocal in my support. Senator Byrne was right to mention the journey. I do not know when I made a conscious decision that I supported it. For me this is very much about equality, fairness and civil rights.

As many Senators will know, my husband is Dutch and as the Minister outlined, the Dutch Parliament was the first parliament to take such a decision in 2001. I hope the Irish people will be the first to vote “Yes” in a public referendum. As I said, this vote has no impact on my life but I am very conscious that it will have a disproportionate impact on our gay and lesbian friends and that is wrong, because it is about equality. Whatever the decision, we need to ensure that it is about equality.

I want that what I have with my husband is available to my good friend, Senator Zappone, and her partner, Ann Louise Gilligan, who were married in Canada, and that before the eyes of this State all marriages are equal. It is simple. For me it is not dramatic or massive but I know the impact it will have on individual lives.

I cannot imagine what it would have been like if I had not got married in Ireland. Let us say I had got married in the Netherlands and for some reason my marriage was not recognised here. I cannot imagine what that would be like. It makes me realise the privilege I have and that is why I will certainly not only be voting “Yes”, but I will be actively campaigning for a “Yes” vote. Changes to our Constitution have legal importance but they also have an important resonance across our society and it reflects us as a society. I want to ensure we really are an equal society.

In ending I wish to quote from the Minister’s speech earlier when she said, “We will have to decide if marriage should be defined against the prism of the past or a vibrant institution embedded in the modernity of the 21st century.” I hope the people will vote “Yes”. I thank the Minister for introducing the Bill to give the people an opportunity to have their say.

23 January 201516 December 2018

Statements on Direct Provision 22 January 2015

I hope the Minister of State has a little bit of latitude given the lack of Members in the House. We are approaching the 15th anniversary of the system of direct provision, a system that places asylum seekers apart and away from the community in conditions described by some as warehousing and others, who have made their way out, as open prisons. Therefore, it is not an anniversary that any of us here are celebrating. I welcome the Minister of State’s willingness to come to the House and debate the issue and his statements on the issue.

The significant length of time that asylum seekers and their children may have to stay in direct provision centres is something that I have raised consistently in this House along with many of my colleagues, most recently in the context of the Immigration (Reform) (Regularisation of Residency Status) Bill, initiated by my colleague, Senator David Norris, and I in October 2014. While we were not successful in our endeavour since our efforts on that date, I note that the Irish Refugee Council and Doras Luimní have published a joint proposal for a one-off scheme to clear the existing and significant asylum backlog, and I am happy to support that initiative.

There have been some welcome developments in recent months such as the assurances from the Minister for Justice and Equality that the International Protection Bill will be published by the end of January. I am sure the Minister of State is confident of the input and expertise he can expect from this House in shaping the most robust, fair, accountable and transparent system for protection status determination as possible.

I also very much welcome the appointment of the working group to examine improvements in the protection process and direct provision system, and it is on its work that I will focus. I noted with concern when reading the terms of the working group that the first proviso for the recommendations for improvements to be brought forward by the group states that “in light of the budgetary realities, the overall cost of the protection system to the taxpayer is reduced or the remains within or close to current levels”. The current system of direct provision is rampant with human rights breaches. While I do not need to remind the Minister of State, I would remind the Government of the position maintained by the international human rights fora that a state’s obligation towards the promotion and protection of human rights is not diminished by economic and financial crisis.

Like many, I eagerly await the recommendations of each of the three thematic groups, but I would be particularly interested to see the outcome from the theme two Group, which will deal with improved supports. There are a number of issues which I have raised repeatedly. One is access to education opportunities. I have long decried the fact that with no current prospects for post-secondary education, we are effectively hitting the pause button on young asylum seekers’ lives. I meet them all too often and see that the light has gone out because there is no hope for them within that system. Another issue is access to the labour market. Ireland is the only country in Europe not to have signed up to the Recast Receptions Conditions Directive. I have yet to be presented with convincing evidence of the pull factor so desperately feared with respect to allowing asylum seekers access the labour market, but I have spoken to enough individuals trapped in the asylum system who have spoken of the devastating impact of enforced and prolonged idleness on their family dynamics, self-esteem and mental health to know that the human price paid is far higher than the cost of this so-called pull factor. There is scope to increase the weekly allowance paid to residents and children, which has not increased in 15 years, and with no entitlement to discretionary social protection supports, in effect we see many living in poverty and not being able to have the same, or even near the same, opportunities as other children. We hear it from teachers in primary schools that are accommodating children from the direct provision system.

A feature of the issues that will be dealt with by the theme one group, and I still cannot understand why we cannot do something about this within a matter of days or weeks, is the putting in place of a complaints process available to residents. I am baffled and utterly disappointed there is still no independent complaints mechanism in place. The Minister of State mentioned the judgment from Mr Justice Colm Mac Eochaidh where he found that the Reception and Integration Agency’s complaints procedure was not sufficiently independent due to the fact that the RIA is the final arbitrator in the process. I have tried to put myself in their position, and I trust the system, but bearing in mind that there is nobody independent in place, I would find it very difficult if I was put in their position to trust that system without the willingness to have an independent complaints mechanism. For example, the Child and Family Agency Act 2013, includes a provision in section 69 for referral of complaints to the Ombudsman for Children’s office. We all trust in the State but Child and Family Agency still has an independent complaints mechanism. In 2012, the Minister for Justice and Equality was able, by way of ministerial order or statutory instrument, to give effect to a decision to extend the remit of complaints for children in prisons. That was done literally overnight. I know there was a lot of preparation work beforehand, but it was able to be done to ensure that the Ombudsman for Children could take complaints from children in St. Patrick’s Institution. Since then, complaints have been made, but it is nowhere near opening the floodgates, which was the argument used. It has not happened in the case of St. Patrick’s. It is the final arbiter, so I ask why it is not in place. I find it unacceptable that the RIA says it will be the final arbiter of its own work.

Another matter under theme one about which I have a concern is catering facilities in direct provision centres. In so far as I understand, direct provision centres were originally self-catering – or at least, self-catering step-down facilities were provided in order to prepare successful asylum seekers for independent living. These facilities have effectively been closed over the years. Is self-catering regarded as a pull factor? Is it a deliberate policy of the RIA to close these self-catering units? The official line from RIA is that the policy is supported by the value-for-money report carried out in 2010 and that it was done purely based on economic considerations. I do not accept this, because the value-for-money report did not consider the health and social inclusion costs for asylum seekers – their physical, mental and psychological health. I refer to Dr. Bernard Ruane, who spoke to colleagues at the Irish Medical Organisation conference in 2008. Dr. Ruane said there was a 90% rate of depression among asylum seekers who have been here for six months. He identified their cramped living conditions and the prohibition on working as factors contributing to their depression. We must be mindful of this point.

The Minister of State will know that I could say so much more on this topic. With regard to child protection concerns, I implore the Minister of State to be cognisant of the findings of Dr. Carol Coulter and team’s second interim report on the child care law reporting project. She found that social exclusion, poverty, isolation and disability were common features among the mothers and fathers facing court proceedings, and there is an acknowledgement that minority groups, including asylum seekers, are thus particularly vulnerable. This concern is supported because in one in four cases she examined at least one parent was either a member of an ethnic minority, an asylum seeker or a member of the Traveller community. This prevalence is evident. I ask the Minister of State why we are not seeing more action from the National Action Plan Against Racism. It seems as though the plan has been shelved.

I would like to say a lot more, but those are my points for now. I ask why we cannot do something now about the complaints mechanism.

4 December 201416 December 2018

Statements on Homelessness Wednesday 3 December 2014

PLEASE CHECK AGAINST DELIVERY

According to the Dublin Simon Community, the official count for rough sleepers last month was 168. This represents a 30% increase in numbers since Spring 2014 and double the number since November 2012.

This is a time of many sickening firsts and all-time highs:

Emergency accommodation now has over 1600 adults plus 680 children. That’s never happened before!

Of the 1600 adults in emergency accommodation, 39% are women. That’s never happened before!

Emergency accommodation is turning into long term accommodation with no viable options to transition onto. That’s never happened before.

Many have given up looking for emergency accommodation.

Others believe themselves to be safer on the streets than in emergency accommodation.

Individuals and families are being are evicted from private rental properties every day of the week, unable to meet rent increases in an unfettered market.

We have an Emergency on our hands and it is winter. A very cold winter.

The numbers are steadily increasing and we need to act. Really act. Not a knee-jerk panicky reaction following the tragic death of Jonathan Corry. A dedicated and sustained response that looks at the crisis holistically.

For it is not just a homelessness crisis. This is a housing crisis.

A housing crisis characterized by a shortage in the social housing sector and a serious lack of affordability in the private rental sector, exacerbated by an absence in rent regulation, a rent supplement scheme completely out of sync with actual rental prices and the absence of measures to prohibit landlords discriminating against tenants on rent supplement.

The unprecedented crisis in the social housing and private rental sectors is pushing non-typical candidates into risk of homelessness and homelessness itself, for example, there are as many as 150 families in emergency hotel accommodation, the majority of whom have been pushed out of the private rental sector by spiralling rents.

Aside from the massive cost to the State, this hotel and B&B accommodation is completely inappropriate, hugely disruptive for families and children, who may have to move schools as a result, and potentially unsafe.

I call on Government to immediately family proof all forms of emergency accommodation and to coordinate with the Child and Family Agency and emergency accommodation staff concerning child protection.

The crisis is in turn putting unprecedented pressure on frontline services and pushing those more “typically” vulnerable to homelessness (those with addiction issues and mental health difficulties and in complex situations such as young people aging out of State care, victims of domestic violence leaving the home) it pushes them further and further to the margins only to resurface to public and political attention when they die in their sleeping bag, sleeping rough on the door step of the National Parliament.

The recently published Private Residential Tenancy Board Consultant’s Report found that rent control would make the housing market worse.

Focus Ireland rejected this finding. It maintains that rent regulation is a crucial part of a suite of measures, including an increase in rent supplement to reflect the actual cost of rent and tax breaks for landlords to encourage them to rent their properties.

I would also subscribe to a measure of rent regulation against an index as in many European countries or in line with inflation.

There are many initiatives to be commended, however there are “buts” attached to nearly all of them. For example:

Housing 2020 and the recently announced Social Housing Strategy but realistically we are 1.5/2 years away from meaningful delivery.
The new rent increase protocol agreed with the Department of Social Protection for families at imminent risk of homelessness but it is only available in Dublin and what we really need is a level of flexibility throughout the system and at an earlier juncture.
The Housing Assistance Payment, which is receiving a positive response from Landlords in terms of there being a guarantee around rental payment but doesn’t actually prohibit landlords from refusing to accept tenants in receipt of financial support. Also, how are people to find suitable accommodation within the maximum rent limits?

Excellent recommendations have been made in these regards and more by Focus Ireland, Threshold, Dublin Simon Community and Peter McVerry Trust. The solutions are there. They just need to be implemented.

In closing, I would like to briefly discuss something a number of colleagues in this House said yesterday concerning Jonathan Corry and the fact that he had been offered assistance and accommodation over the 30 years he had been homeless, which de declined to take up.

I sympathise deeply with Jonathan Corry’s family and friends following his death. I didn’t know him or anything about his mental health status but I think these examples of people failing to take up an intervention and seemly choosing to remain homeless needs to be viewed in light of the Dublin Simon’s recent statistics on mental health difficulties among their service users, whereby 71% were identified as having a mental health difficulty.

Of those identified with a mental health difficulty:

63% of individuals have been diagnosed with depression.
46% have been diagnosed with anxiety.
11% have been diagnosed with schizophrenia.
11% have been diagnosed with psychosis.

A very high proportion of people who are homeless have addiction issues. Furthermore, a very high proportion of people who have a mental health difficulty also have an addiction issue.

I call on the Government to urgently implement the key recommendations from Mental Health Reform:

Fully staff homeless outreach mental health teams.
Ring fence local authority housing for people being discharged from psychiatric hospitals.
On-tap, in-house mental health expertise within homeless services. E.g. Merchants Quay Ireland has an in-house mental health nurse full time, to provide support to clients that other staff members have concerns about. There are anecdotal reports that this has reduced the number of people having to access mental health supports through A&E when in a crisis.
Establish a dual diagnosis services for people with a mental health and addiction/alcohol misuse problems.

We have the reports. We have the plans. We have the expertise, particularly in the NGO sector. What we need now is action. Sustained and dedicated.