Seanad Éireann - Volume 184 - 26 October, 2006

Child Care (Amendment) Bill 2006: Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

  Mr. B. Lenihan: I am pleased to have the opportunity to address the House today on the Second Stage of the Child Care (Amendment) Bill 2006 which provides that a foster parent or a relative who has had a child in his or her care for a continuous period of five years, the child having been placed with him or her by the Health Service Executive, may apply for a court order for increased autonomy in the care of the child.

Child welfare and protection policy is grounded on the principle that children who cannot, for whatever reason, live with their own families are provided with an appropriate alternative. Studies have shown that the development of a child is best achieved in a loving family environment, which foster care can provide. Foster care is the main form of alternative care provided by the Health Service Executive for children in need of care and protection. Our latest statistics from December 2004 show that more than 5,000 children and young people are in the care of the Health Service Executive. Almost 4,250 or 84% of these children are in foster care. This rep[1942]resents an increase of 4% on the previous year’s figures. I welcome this increase in foster care which is in line with my stated policy and that of the Government. The number of children in residential care declined by almost 2%, from 527 to 442, between 2003 and 2004.

These figures show the critical importance of the foster care services in our child protection and welfare service. Families and family life are important to all children and the opportunity to experience the quality of family life is one of the main objectives of the national children’s strategy. For those children who cannot be looked after in their own families, and need to be provided with alternative care, foster care is the best way for them to experience family life. The challenge for us is to provide an appropriate response to the children of this vulnerable group. This response must respect their rights to a childhood in a secure family environment so that they may fulfil their potential in adulthood.

Foster carers play a crucial role in the lives of children by providing a welcoming place in their homes at a vulnerable time in their lives. It is important that foster carers are recruited on an ongoing basis. As Minister for Children, together with the HSE, I actively encourage people to consider becoming foster carers. Last December I launched a research document entitled Lives in Foster Care, undertaken by the Children’s Research Centre in Trinity College. I was heartened to see that the study produced positive findings on the daily lives of this young group of foster children in the areas of schooling, friendships and hobbies.

The study found that on the whole, the young people were leading regular lives, 98% of them attended school regularly and the majority were expected to stay on in school; and 92% had regular friends and these friendships were deemed to be beneficial. The study also found that, like most young teenagers, 90% of these young people had a hobby they did at home, including listening to music, playing the PlayStation and reading. As a society, we take these activities for granted but for many young people in care, taking part in such so-called normal activities and leading what they perceive as a normal life is an achievement, given the difficulties with which they have already had to cope.

This research also highlighted the benefits of relative foster care and the importance of being placed with a birth sibling. The latest available statistics from the Child Care Interim Dataset 2004 show that 32% of children in foster care were in relative foster care. This number has increased over recent years. At the end of 1998, 635 children were in relative care and by the end of 2004, the figure had grown to 1,349, an increase of 112%. This is a very positive development. Looking to the extended family members in the first instance for placement is a recommendation [1943]of the working group report and part of the national standards for foster care. It is important, however, that where the State places a child or young person with relatives, it also has an onus to provide the necessary supports to those carers.

As a result of this Bill, foster parents or relatives who have had a child in their care for a continuous period of five years will no longer have to seek the permission of the Health Service Executive when certain decisions have to be made in relation to the child. With the development and extension of fostering there has been an increase in the number of children in stable long-term foster care and it is important that the parents have the power to make decisions in the best interests of those children and do not single them out as against other children with whom they associate. For example, the foster carer will not have to obtain permission to seek medical or dental treatment for a child or for a child to receive an immunisation or to go on a school tour. The proposals outlined in the Bill will help to prevent the possible stigmatisation of these children in school when they have to wait longer than their peers or classmates for such permission.

Two new sections, 43A and 43B, will be inserted into Part VI of the Child Care Act 1991. Section 43A(1) provides that a foster parent or relative may apply for a court order whether the child is in care on a voluntary basis under section 4 of the principal Act or is the subject of a care order under section 18 of the Act.

Persons can be admitted to foster care under the principal legislation either voluntarily surrendered into care or the courts can make a care order in respect of the child. Section 43A(2) sets out the conditions on which the court must be satisfied before granting such an order. These include that the child must have been in the care of the foster parent or relative for a continuous period of five years; the granting of the order must be in the best interests of the child; the Health Service Executive must consent; and the parents having custody or the person acting in loco parentis must have consented if the child is in voluntary care, because the child has been surrendered voluntarily into custody and therefore the parent has an ongoing veto, or must have been informed if the child is the subject of a care order. The child’s wishes must also have been taken into account in so far as is practicable.

Section 43A(3) provides that the conditions in respect of the notification or consent of the parent having custody or the person acting in loco parentis do not apply if the parent or person acting in loco parentis is missing or cannot be found by the Health Service Executive or the court so directs having regard to the child’s best interests.

Section 43A(4) provides that, subject to any conditions or restrictions imposed by the court, [1944]an order granted authorises the foster parent or relative to whom it is granted, on behalf of the HSE, to have like control over the child as if it were the child’s parents and to do what is reasonable to safeguard and promote the child’s health, welfare and development. In addition, the foster parent or relative is authorised under the order to give consent to any medical or psychiatric examination, treatment or assessment and to the issue of a passport or passport facilities for the child.

Section 43A(5) provides that the court may impose conditions or restrictions to the extent of the authority granted. Section 43A(6) provides that consent given by a foster parent or relative to whom such an order has been granted will be sufficient authority for the carrying out of the medical or psychiatric examination, assessment or treatment or for the provision of a passport or passport facilities.

Section 43A(7) provides that where a foster parent or relative refuses to give consent in accordance with an order made under this Part, the HSE will have authority to give consent in accordance with section 18(3) of the Principal Act. Section 43A(8) provides that any consent permissible under section 23 of the Non-Fatal Offences Against the Person Act 1997 will continue to be effective consent. This provides that a minor who has reached the age of 16 years may consent to any surgical, medical or dental treatment. Section 43A(9) provides that any access arrangements in place before the granting of an order under this section will continue unless the court orders otherwise, in accordance with section 37 of the Principal Act.

Section 43(A) provides that any other functions of the HSE in the child’s interest, such as care planning in accordance with any other provisions of the Child Care Act 1991, will continue in force. Section 43B(1) provides that the court may vary or discharge an order made under this section on the application of the HSE, the person to whom the order was granted, a parent having custody at the time the child came into care or a person acting in loco parentis.

Section 43B(2) sets out the circumstances where an order granted under this section may cease to have effect. These include where a child in voluntary care returns to his or her parents or other person, where a care order is discharged, a child is adopted, a child is removed from the custody of the foster parent or relative by the HSE, the foster parent or relative requests that the child be removed by the executive or the child concerned reaches 18 years of age or is married. Part V of the Child Care Act 1991 which deals with jurisdiction and proceedings applies to proceedings taken under Part VI and the new provisions will be in Part VI, the District Court.

The importance the Government attaches to foster care was underlined by the publication in [1945]2001 of the report of the working group on foster care, Foster Care: A Child-Centred Partnership. The report recommended strengthening and developing the service and provided the guidelines to improve standards in foster care. Following on from this, national standards for foster care were published in 2003. The standards focus on the quality and consistency of services for children and young people in foster care, standards and practices related to foster care and guidance to the HSE on how it can effectively meet its statutory obligations.

Since the standard’s publication, the social services inspectorate has carried out a national audit and a pilot inspection of foster care services. The pilot inspection considered three of the standards of practice. Three community care areas, located in the HSE eastern, southern and western regions, were nominated by the former health boards to be inspected against these standards. The sample group covered both urban and rural areas. The case files of a total of 56 children and young people were considered during the inspection, representing approximately one third of the total number of children in foster care in the three areas.

On the basis of the information yielded by the pilot, inspectors found each of the community care areas provided a good foster care service. The inspectors found the foster care service provided stability and continuity of care for the children and young people, with the majority of children having spent on average three quarters of their time in care in their current placement. The inspection found the services provided children and young people in foster care with an opportunity to maintain links with their families of origin. It was noted over one third of the children and young people were placed with relative carers and two thirds of the children were living with at least one sibling at the time of the inspection. These figures were viewed as a demonstration of the former health boards’ clear commitment to maintaining the connection between children and young people in the foster care system and their families of origin.

Each of the 56 children and young people had an allocated social worker and the inspectors found the social workers provided a good service to the children. They visited them regularly and often helped them come to terms with the reasons they came into care. They also maintained a high level of contact with the foster carers to provide them with support.

This was a pilot inspection. When the social services inspectorate is established on a statutory basis in the near future it will be in a position to broaden the range of inspections undertaken against the national standards for foster care to ensure services of the highest standard are provided.

[1946]While the proposals sensibly give the foster parents greater autonomy in the practical day-to-day care of the children, the children remain in the care of the HSE which will be responsible for their overall well-being and protection. To be effective service providers, we need a long-term vision for the children in our care. These young people must be empowered while they are in foster care so they can be happy, secure and successful adults in society. The Bill’s proposals will help give them a greater sense of belonging in a family where their foster parents are responsible for many of the practical decisions affecting their lives. I salute the work done by foster carers. It is important we have more foster parents. I also salute the work of the Irish Foster Care Association which advocated the initiation of legislation along these lines.

The adoption (Hague Convention, adoption authority) Bill, which is being drafted, will ratify the Hague Convention, bringing it into force under Irish law. The legislation will also establish the Adoption Board as an independent statutory body known as the adoption authority. The issue of the adoption of a person who is 18 years or more by the person’s long-term foster carers is one of the miscellaneous issues under consideration in the context of the Bill.

The Government attaches a high priority to the report of the Ferns Inquiry and to following up on the report’s recommendations in the context of ensuring effective child protection and welfare systems are in place to protect children. Before the publication of the Ferns Report, I sought the advice of the Attorney General on the report, including the issue of the HSE’s powers with regard to third party abuse raised in the report. The advice was that the executive had general powers under the Child Care Act 1991 regarding third party abuse.

In line with the recommendations, however, it was considered that the Department of Health and Children, in conjunction with the Attorney General’s office, should undertake an in-depth study of the HSE’s powers in third party abuse and this would be followed by legislative proposals as necessary. Following further detailed discussions between my office and the Attorney General’s office on the question of conducting the in-depth examination of these issues, my office and the HSE are examining in detail the various issues involved. I expect this process will be concluded in the near future and that the advice of the Attorney General’s office will be sought on the outcome of these deliberations as necessary.

When this is concluded, I will bring forward legislative proposals as required on Committee Stage. My officials are preparing proposals to reform and regulate the provision of public law guardian ad litem services, identified as a priority area for reform. The issue of the courts’ role in [1947]special care is also being examined. An amendment will be required regarding school age child care to come within the requirements of the Child Care Act 1991 in the same way as pre-school services. I will return to these matters on Committee Stage.

I commend the Bill to the House.

  Mr. Browne: I wish to share my time with Senator Tuffy.

  An Cathaoirleach: Is that agreed? Agreed.

  Mr. Browne: I welcome the Minister of State to the House and wish him continued success in his area of responsibility. It is right and fitting that our children have the Minister of State as their ambassador at Cabinet.

The Fine Gael Party welcomes the Child Care (Amendment) Bill. It is fitting that people are given extra rights after five years of having children in their care. Some 5,000 children are in foster care and I compliment those involved in fostering. Although I have no children, I see the amount of work my sister puts into rearing hers. I compliment those who care for children other than their own and I also compliment the social workers involved.

Despite our affluence and improved educational opportunities, there remains a need for foster care. Many people are rearing their grandchildren as a consequence of, for example, marital breakdown or parents moving abroad. I recently visited the home of a woman who told me she was rearing her grandchild. I had no idea this was the case. Similar arrangements are in place in every town and village.

The Minister of State said there are officially 5,000 children and young people in foster care. Am I correct in assuming there are many others who are not officially in foster care but are being reared by a relative? Is there an obligation on the grandparent, uncle, aunt or sister to inform the authorities of such arrangements? Could the official figure be far higher and what are the implications of that?

Are persons who foster children and subsequently decide to adopt them placed at a financial disadvantage? I understand foster carers receive a fostering allowance in the region of €300 or €400 per week. If foster parents adopt the child in their care, will they lose this allowance? Are adopted children automatically entitled to inheritance rights? Could these factors act as deterrents to the adoption of children by their foster parents?

In the United Kingdom, foster carers receive a tax credit whereby they do not pay tax on their income from fostering up to a maximum of £10,000 plus allowances. Is there any similar arrangement here? Foster carers in Britain are also entitled to home responsibility protection, [1948]which means they are not subject to a reduced basic retirement pension after fostering a child later in life and staying home to look after him or her. It is important we do not put anything in place that would be a disincentive for those considering fostering a child.

There has been some discussion of the question of whether adopted children should have access to their birth certificates. The Minister spoke about this issue on “Prime Time” in 2003 and I understand a commitment was given at that time that children would be given such access. Will he update the House on what progress has been made in this area?

I wish the Minister of State well with the passage of this Bill. It represents a positive and forward step.

  Ms Tuffy: I welcome the inclusion of relatives in the provisions of the Bill. I have encountered relatives who are taking on the role of foster parent because the parents are, for whatever reason, not in a position to look after their child. Their position is not good relative to that of other foster parents. As Senator Browne observed, such persons cannot access similar allowances. This must be reviewed because there are many relatives in this position. Some of them receive the orphan’s allowance or other forms of payments but others do not. The manner in which they are dealt with by the Health Service Executive is not always helpful and some do not feel secure in their status. This Bill will help to some degree but it is an area the Minister of State should consider reviewing.

Section 43A(4)(a) of the Child Care Act 1991, as inserted by section 2 of the Bill, provides that the foster parent or relative shall have “on behalf of the Health Service Executive, the like control over the child as if the foster parent or relative were the child’s parent”. This definition seems faulty because it does not allow for the possibility that the child’s parent may be an unmarried father who, unless he seeks guardianship rights through the courts or with the agreement of the mother, has no rights in this regard.

The Minister of State mentioned the possibility of setting up a register of unmarried fathers. We should follow the example of England, Wales and Scotland where the man designated as the father on the birth certificate has automatic guardianship rights to the child. There are many thousands of unmarried fathers who have no rights, including those in unproblematic relationships who are not even aware they do not have those rights. A register is inadequate to deal with this. The authorities in Scotland found that men simply did not register their guardianship agreements. My suggestion represents only a halfway house and one could go much further. It would, however, do much for unmarried fathers in terms of extending [1949]their guardianship rights. I hope the Minister of State will take it on board.

Section 43 A(4)(b) of the 1991 Act, as inserted by section 2 of the Bill, defines what a foster parent or relative may do for the purposes of safeguarding the child’s health and welfare, including the ability to consent to any medical or psychiatric examination, treatment or assessment and the provision of passport facilities for the child. Are other guardianship rights not included, such as decisions in regard to education and so on?

Section 43B(1) of the 1991 Act, as inserted by section 2 of the Bill, sets out the persons or bodies on whose application the court may vary or discharge an order under section 43A, as inserted by section 2 of the Bill. These include, as well as the Health Service Executive and the foster parent or relative to whom the order was granted, the parent having custody of the child at the relevant time. What about the parent who does not have custody at the relevant time? A mother who does not have custody, for example, but is by law the child’s guardian should be able to go to court and make the application as the guardian. The definition needs to be clarified to cover such situations.

In general, however, I welcome this Bill. I hope the Minister of State will build on it and introduce other positive measures.

  Mr. Glynn: I welcome the Minister of State to the House. I warmly welcome the Bill, which shows that he has blazed a trail in this portfolio. The Bill deals with a section of society which needs the care and attention of the Government and Oireachtas. It is an important measure in ensuring that children in foster care are assured of better care where that is necessary and that foster parents will gain additional rights in respect of the children placed in their care.

I agree with Senator Tuffy’s comments on the rights of unmarried fathers. However, I would like to see some unmarried fathers taking their obligations more seriously. In some cases, they are not taken seriously at all. It has been said on many occasions, including by a former Member of this House, that there are some who seem to make a practice of being unmarried fathers. It is important that the children born in these situations are cared for by society. Many people show great generosity in this regard. A man and woman I met recently, having reared their own family, have no fewer than three foster children. I admire those people.

As chairman of the Midland Health Board in 2003, I had the honour of officially opening the Irish Foster Care Association conference in Tullamore. At that time I had a number of conversations not only with foster parents but with social workers. Has there been any improvement in the number of social workers being recruited? [1950] One former health board had to go to South Africa to recruit social workers.

The Irish Foster Care Association has welcomed this Bill. I expect that when the legislation is enacted, foster parents, the children in their care and relatives will benefit, which is the object of the Bill. The Health Service Executive will also benefit in the longer term as the number of court directions which have been sought will be reduced significantly thereby freeing up social worker resources to work with, and support, other families, which is important. We are freeing up an important resource.

The Irish Foster Care Association has more than 1,000 members but has said there are not enough foster care families available and that there has been a steady decline in applications. Why is that the case? Is this becoming a less generous society in that regard? I sincerely hope it is not.

Under this Bill foster carers have increased autonomy in consenting to medical examinations and treatment and to the issue of passports as well as in the day to day care issues such as giving permission for children or young people to go on a school tour or attend a conference. Although they are basic issues, they have been causing difficulties for foster parents, relatives and especially for children in foster care who are made to feel different in a school situation as the process of consent often involves going to court and, therefore, takes much longer. We want to ensure children in foster care have every opportunity to fit into a stable family and school life and this legislation is especially tailored to do that.

The Minister of State instanced the number of children in foster care and the number of children who have been in foster care for five years or more, although not all may have been in the same placement for that period. An important stage in one’s life is childhood when one’s personality is formed and the home and the parents play a pivotal role in that regard. It is imperative the mental and physical health of the child is ensured and nothing can complement that more than a good and caring natural family or, in the absence of that, a good, caring foster family.

Foster carers and their families make a huge contribution to the improvement of the lives of children and young people in their care by providing a welcoming place for them in their homes at what can be a vulnerable time in a child’s or a young person’s life. We want to ensure children in foster care have every opportunity to fit into a stable family and school life. As I said, this legislation is geared to do that. The Health Service Executive will continue to have a role in the lives of children in respect of whom the new court orders will be granted — for example, through the care planning process. In addition, the child’s parents or a person acting in loco parentis will be [1951]notified or will have to give consent, as appropriate, before the court grants an order.

The Minister of State will be the keynote speaker at the Combat Poverty Agency conference — Children Living with Poverty and Disadvantage: New Knowledge, New Perspectives — on Wednesday, 22 November 2006. I look forward to attending that conference, if I can.

Since its inception in 1981, the Irish Foster Care Association has endeavoured to improve the services provided for children in foster care. Over the years, this has been achieved in partnership with the Department of Justice, Equality and Law Reform, the health boards and other relevant agencies. The association played a key role in the development of the Placement of Children in Foster Care Regulations 1995 and the report of the working group on foster care. The association was also ably represented on the group which developed the national standards for foster care, which the Minister was happy to launch in April of this year. The association has moved from being an organisation of mutual support for those involved in foster care to one which provides training programmes on many aspects of foster care aimed at foster carers’ children and young people in foster care and the people who wish to explore the possibility of fostering.

Foster carers play a vitally important role in the lives of children when they provide a place in their homes for them at a vulnerable time in their lives. As parents and carers, their role in the care of children is to ensure they facilitate them in every way possible to allow them to achieve their true potential. The Minister of State has spoken extensively on this issue and I welcome the contributions of my colleagues opposite. There is unanimous approval for this important Bill.

Is it true that when a bequest is made to a child in foster care, the status of that bequest is different to that to a child who is part of a natural family? This is an area at which the Minister of State might look with a view to changing it. I look forward to hearing his views on it. Many foster parents feel very strongly about this issue and I have been contacted by a number of them. The Minister of State nodded in recognition of what I said. I congratulate him on introducing this Bill and look forward to contributing on Committee Stage. As the Minister of State said, he will have something additional to say at that stage.

  Dr. Henry: I welcome the Minister of State and the Bill. As Senator Glynn said, some of the issues in the Bill have been of concern to foster parents for quite some time and it is only right we should try to address them. The Minister of State’s figures were very interesting. Some 4,250 of children in care — 84% — are in foster care. Are these children all in long-term foster care or [1952]are there additional children in short term foster care?

This Bill deals with children in long-term foster care. It is important we deal with this issue because, unfortunately, there is much breakdown in society which needs to be addressed. We no longer have the extended families we had in the past who would have been in a position to cope with a child bereft of parental attention for one reason or another. I was interested in the discussion about the pop singer, Madonna, and her adoption of a child from Malawi. It was said there is never really a child who is in an orphan in Africa because of the extended family. I will not get into the rights and wrongs of whether children should be adopted from abroad but it is interesting to think that we have perhaps lost a great deal of the support of the extended family while people in other places would keep a child if they had the means to do so.

I hope the Minister of State will do as much as he can to ensure there is plenty of social support and not only financial support for families who run into trouble, particularly in the case of single parent families where someone has a medical or a psychiatric problem and children must be placed in care. However, it is important that we assure such people that the social support they need will be there when they manage to overcome whatever difficulties they may have in order that their children are returned to them. Sometimes people feel that, although they voluntarily gave their children into care, they did not find it as easy to get them back as they had imagined. I cannot divulge the details of specific cases, but we have all occasionally had people address us on the issue. Social support for families is very important; the Government is making a good effort to bring forward financial support.

In going through this Bill, we must be careful we do not make unfortunate mistakes of the kind we did with the Social Welfare and Pensions Act 2005, in which we changed the definition of an orphan. In the new Bill the parents are required to have “abandoned and failed” to provide for their child, whereas under the old Bill it was “abandoned or failed”. Of course we did not mean that both criteria had to be fulfilled, but it has given appeals officers an increased workload. I am glad to say that, as far as I can see, they have been very generous in their assessments. Usually it is a grandparent who has to deal with children in a situation where it is absolutely impossible to get them cared for by their offspring. We must go through this very carefully.

Perhaps we might be a little more daring in the Bill, changing the time period to three years for older children. I am anxious about the fact that there must be five years’ continuous fostering. Let us suppose the child is voluntarily taken back by the parents after three and a half years and, despite our all hoping for the best, the situation [1953]breaks down again after three months, with the child returned to the foster parents. I know the courts appear to have plenty of discretion in such matters, but I would like us to consider individual situations with as much generosity as possible, particularly with older children.

The child’s wishes, in so far as is practicable, have been given due consideration, having regard to its age and understanding. As the Minister of State, Deputy Brian Lenihan, said, children are now allowed a louder voice in issues regarding their welfare. We may need to be as far-sighted as we can. The Minister of State quite rightly said that one did not want children to be embarrassed at school because they could not go on the school trip. However, good and generous foster parents, when trying to go to Torremolinos or wherever for two weeks, find that the foster child cannot come. Will the five-year criterion still apply? It appears it will, and that is why I wonder if we might not be a little more generous and make it three, particularly with older children. It is difficult at that stage, when everyone is getting ready to go off with one’s bucket and spade. Perhaps we might do a little more for them.

I was interested to hear the Minister of State proposes to address issues that arose in the Ferns report. It is a good idea to include them here, and I am glad he brought them to the House, since I am sure we will try to go through them as slowly and as carefully as possible. It was very unfortunate to discover from the Ferns report that the community medical officer in one case acted ultra vires by questioning children about abuse, since one is entitled to do so only if the abuse took place within the family. That also might be addressed in this Bill; I am sure the Minister of State has other areas to include.

I am delighted with the thinking behind the Bill, and I am sure the Minister of State’s concern is that the very best be done for children in such situations, respecting the fact that they may have parents hoping to give them a proper family life some time in the future. We must be as broad-minded as possible, particularly with older children, since they have a very good idea themselves of what they would like to see done. I am very glad to see the courts taking so much more notice of what such children say. Years ago the situation was pathetic, since children seemed to have no voice whatsoever. However, now one finds they are asked for their views.

I hope we can increase the number of psychologists available to the courts and the health service to deal with children who may have behavioural problems. Foster parents often have to deal with them before they become far more serious as the children become teenagers.

  Mr. Minihan: I, too, welcome the Minister of State and the legislation before us.

[1954]The child must be central to any such Bill, and I am delighted we are introducing legislation the emphasis of which is on the welfare of the child. The legal definition of “foster” is to help grow or nurture talents. Foster children are in the legal guardianship of the State or a private adoption or foster agency, yet they are cared for by foster parents in their homes under some short or long-term foster care arrangement with the custodial agency. We are dealing here with people who take children into their homes on a short or long-term basis to care for, nurture and develop them, helping them bring forward all their talents, allowing them to take their rightful place in society.

As previous speakers said, it would be remiss not to acknowledge, congratulate and salute those families that take that responsibility upon themselves. Those of us who are parents know the responsibilities associated with parenting. Unfortunately, when we debate other issues in this House such as anti-social behaviour, we consistently return to parental responsibility. I do not know how many times during debates in this House that issue has been mentioned. However, there is a group of people who, rather than walk away from such responsibility, are willing to accept it for a child biologically not connected to them. For that reason, as modern society has developed, we have owed a great debt of gratitude to foster parents and the Irish Foster Care Association.

Senator Henry mentioned the five-year period, something on which I have reflected and which I could argue both ways. I was concerned at the unfortunate child who, after four years and 11 months, was moved to another family. However, one cannot give foster parents the responsibility that we give them willy-nilly without their having some form of medium to long-term relationship with that child. However, if a child enters foster care at the age of 12 or 13, when it enters secondary school, it practically goes through a full secondary school cycle before that responsibility is given to the parents.

I am unsure of my own opinion, since I can argue both sides, but this issue will benefit from a Committee Stage debate and from listening to the Minister’s views. I am sure in drafting that point, a decision had to be reached and those arguments have been already considered. I look forward to Committee Stage and hearing the Minister’s views in that regard.

We should also consider the different types of foster care. Here we are dealing mainly with long-term foster care, but we have day and short-term foster care, including that provided by relatives. However, in the long-term area, it is only right and proper that such decisions as are outlined in this legislation be within the remit of the foster parents. That is right, just and in the child’s [1955]interests, for which reason I strongly welcome the legislation.

We cannot lose sight of the fact that in schools and among groups of children, stigmas attach very easily. Children can be very cruel to each other. It is not intentional, since young children simply behave that way. The stigma of a schoolchild who is in foster care but cannot have the same simple rights as other children, such as holidays, passports and medical attention — which is particularly important — must be addressed. For that reason I welcome this legislation.

I look forward to Committee Stage and to hearing the Minister’s reasoning and the process taken to arrive at the five-year rule. I understand the necessity to come up with such a period. However, Senator Henry has raised an interesting point with regard to older children, especially children who are moved after being in care for a long period of something like four and a half years. Perhaps we should re-examine this issue. I support the Bill and look forward to Committee Stage.

  Ms Feeney: I welcome the Minister of State with responsibility for children, Deputy Brian Lenihan, to the House. I agree with all those who have said this is wonderful legislation. I also agree with Senator Minihan who said we owe foster parents our gratitude. Without them where would the 5,000 foster children the Minister of State mentioned be?

I am privileged to know some foster children as well as foster parents. One I know is now a young lady of 21. She has been in foster care with different families from the age of 18 months. While she considers herself to be exceptionally lucky on the one hand, she feels unlucky on the other because her sister was adopted, but her mother, who is long-term psychiatric care, never gave her up for adoption. This young lady is now attending third level and studying to be a social worker. What better career for a person who has been raised with the help of social workers.

I welcome the Bill and wish it a safe passage through the House.

  Mr. B. Lenihan: I thank Senators for the generous welcome they have given this legislation. Senator Henry took us to Torremolinos in her contribution which is not a bad point of departure for my reply.

When a child is taken into care, social workers are involved on behalf of the Health Service Executive. In that position, that child is in the care of the executive and it acts as the parent. Therefore, it is the Health Service Executive, through the social workers, that must decide whether the child can go to Torremolinos, have a [1956]passport or have an essential medical operation. In some cases, the social workers or their superiors in the Health Service Executive do not have the confidence to make these decisions without further recourse to the courts. This is a difficult position in which to put a foster parent when a child is in foster care for a substantial period. I will study carefully what Senators have said about the relevant period, but I had to make a judgment on the appropriate period because there are also short-term arrangements in operation. It would be inappropriate to attach to the parent in such a position the full powers of the Health Service Executive.

This legislation allows the Health Service Executive and the foster parent to go to court and obtain sanction to give the foster parent all the powers of a parent. It is quite a radical step in terms of current legal and constitutional arrangements and a balance must be struck as to how many years must be experienced by the parents before they are empowered to that extent.

  Mr. Browne: On a point of information, do the five years apply from the day of placement to the day of application——

  An Cathaoirleach: The Senator is not permitted to come in on the Minister’s reply. He can raise these matters on Committee Stage.

  Mr. B. Lenihan: We will explore that issue further on Committee Stage, but it is five continuous years. Senator Minihan wanted to divine my thinking on the issue. I am trying to outline my thinking and to show how we arrived at the five-year period. I am open to suggestion on it, but do not see a need to increase it to six years. Senator Henry seemed to suggest that some circumstances arise where a small break in continuity should be disregarded for continuity purposes and we could examine that on Committee Stage so that a person who was substantially in continuous care would not be discriminated against. I am not open to pushing the period back below four years. There must be a definite bond between the parent and the child before legislation of this nature can come into operation.

Senator Browne raised the issue of the number of grandparents, relatives and extended family members now caring for children, not all of whom are in the foster care system. He is quite right on that and the figures I gave relate to the numbers in the foster care system. The reason for my lower figures is that children are only brought into care by the Health Service Executive if they are in need of care and protection. It is not necessarily the case that a child being cared for by a relative is in need of care and protection.

The typical circumstances with which we are all familiar occur where both parents die and the child is reared by another member of the family. That child does not, as such, require care and pro[1957]tection and, therefore, has not come to the attention of the HSE for the purposes of the foster care system. However, Senator Browne made a legitimate point in that regard. Those people also need special supports. The report of the working group on foster care looked at this issue, but was emphatic that only children brought into care should come under the Child Care Act and the fostering system. Outside that, it should be for the Department of Social and Family Affairs to devise appropriate income support arrangements for those circumstances where a child is outside the immediate family setting and being cared for by members of the extended family.

Senator Browne also raised the topical issue of the costs of adoption. When the original Adoption Act was enacted in 1952, the view was taken that the Constitution precluded the adoption of a child of a marriage. In 1998 the Oireachtas enacted legislation which permitted the adoption of a child of a marriage in very limited circumstances. We may well have to revisit this issue on constitutional terms because I am not satisfied we have adequate powers to deal with it.

The 1998 legislation has been in operation a number of years and requires an application to be made to the High Court for the adoption of a child in the position of long-term foster care. The Health Service Executive pays the costs of the application to the High Court, but those costs can be as high as €150,000. The process is a full High Court application, in which the proofs which must be satisfied in order to come within the scope of the 1998 Act, are the proofs of parental failure, abandonment and all the related constitutional terms. These carry a heavy burden of proof.

3 o’clock

While it is true that the Health Service Executive discharges the costs of foster parents who wish to adopt their child in long-term foster care, and a number of applications have been successfully made, it remains an expensive procedure. That is the reason, as I mentioned in my opening remarks, that in the context of the adoption legislation which I hope to publish in a matter of months, I address the question of the adoption of foster children again and propose that when the child reaches the age of 18, he or she can be adopted by the foster parents. This is important and necessary reform because the number of children in long-term foster care is constantly growing.

Senator Glynn touched on this matter also when he referred to the issue of a legacy to a foster child. The Senator is correct in that the foster child is a stranger for the purposes of adoption or inheritance legislation. I understand the legacy would be taxed as if the person were a stranger, but I would be happy to be contradicted by the Minister for Finance.

  Mr. Glynn: The Minister of State is correct.

[1958]  Mr. B. Lenihan: Senator Browne referred to the disincentive of a lack of inheritances in foster cases, but fostering was never envisaged as a complete transfer of rights. Adoption is the total transfer of rights and is required when a child in a long-term fostering arrangement has bonded with the foster parents and has no real connection with his or her natural parent or parents.

We must examine this issue. Constitutionally, we can approach the matter by allowing a child over 18 years of age and who has been in foster care for a specified period to be adopted by simple declaration of the child and the foster parents. The imprescriptible rights of a parent over a child disappear when the child reaches majority, is of full understanding and can give consent. I propose to address the issue in this way in the adoption legislation. I welcome the opportunity to outline my proposal because the Bill cannot be considered in isolation from that reform.

I am trying to provide a spectrum of legal certainty about the future to children brought into our care system, which they do not really have. They are consigned to permanent foster care and without the possibility of enhancement. When this legislation is enacted, the parental position will be strengthened in the spectrum. When the adoption legislation is enacted, the full issue of adoption can be addressed freely in the manner outlined.

Traditionally, common law systems do not permit the adoption of adults. They introduced adoption as a statutory arrangement that tended to be a care option for children under the age of 18 years. In civil law jurisdictions, the adoption of adults has been a recognised feature of the legal landscape and it was this that inspired me to the idea that we should examine that option because it would be a useful and convenient way to address the needs of those children.

Due to the significant increase in the number of long-term fostering arrangements, particularly since the 1991 Act, there will be an increasing cohort of such children. While many are still growing up, inheritance questions will arise. The only way to address the matter is by making adoption easier and less expensive. Adopting a child on an application to the High Court, which is the constitutional procedure accepted by the Supreme Court, is cumbersome and it is not surprising that many foster parents are deterred from making such applications.

Senator Browne raised the question of adoption information. I will examine this matter through the adoption Bill, as a number of its proposals relate to the issue. It is a difficult and sensitive area, but the Adoption Board can and does release original birth certificates to adoptees based on their applications and with the co-operation of the relevant agencies. Only in a small number of such applications are refused. The board contacts the agency and an attempt is made [1959]to determine the current circumstances of the mother and to ascertain her opinions on the matter. In 2003, 39 applications were approved, 55 were awaiting further information and three were refused. In 2004, 53 applications were approved, 30 were awaiting reports and four were refused.

The case law laid down by the Supreme Court is that the child has a right to know the identity of his or her natural mother, but the State must respect and vindicate the potentially conflictual right of the natural mother to privacy and confidential. Neither of these rights is considered as absolute by the courts. As a Minister of State, I have tried to create and foster a climate where people realise that disclosure is the better course of action, but some cases can be difficult.

In 2003, I undertook a consultation process and the administrative provisions relating to making contact were drawn up with regard to the views of adopted persons, natural parents, those who adopt, professionals, agencies and international best practice. We set up a national contact preference register on an administrative basis to enable the mother and adopted child to register their names voluntarily to clarify that they are available for contact. The register is maintained by the Adoption Board and does not preclude an adopted person from applying for the release of the birth certificate in any event. In practice, many adoptees can ascertain the identities of their parents through a search in the register of births, deaths and marriages because it is common for the person’s Christian and original names to correspond. Searches can narrow the range of possible candidates and are commonly carried out by those seeking to trace their parents.

I am anxious to increase the discussion and publicity of this matter. The contact preference register was advertised by door-to-door household leaflet drops one or two years ago and there has been some response. It is our intention to place the register on a statutory basis and, in the context of the legislation, I would be open to Senators’ suggestions regarding contact. It is a difficult issue. The courts have laid down clearly that there are two conflicting interests and the question is one of how much balance should be provided.

In light of the importance of modern medical and genetic science, there must be a presumption in favour of knowing about one’s origins. When the 1952 legislation was enacted, the knowledge of ancestors’ medical conditions was not considered relevant to one’s physical or mental health, but we live in a different world. We can revisit this issue in the context of the adoption Bill.

Senator Tuffy raised the question of persons outside the foster care system. The working group [1960]examined the possibility of placing some children in the care of the Health Service Executive to provide the income support for the family in respect of the child. The group was strongly of the view that such a practice would be highly inappropriate because income support should be a matter for the Department of Social and Family Affairs. If children who are taken into care meet the criteria for protection, they are put in the fostering system.

I appreciate that Senator Tuffy and others, including myself, can be put under pressure by people’s relatives who see an injustice in the greater support given to foster parents through the payment of the foster care allowance compared to the payment obtained by people outside the foster care system. The foster care payment was introduced because the children in question are difficult and have experienced problems. To take on the task of fostering is to take on the task of looking after not just a child, but a child in need of care and protection. We should not lose sight of this during the debate.

Senator Tuffy outlined a number of ideas relating to guardianship and how the position of the father can be strengthened, but they are matters for the Minister for Justice, Equality and Law Reform. I will not speak for the Minister, but Senator Tuffy made an eloquent case in respect of the birth certificate in that if a father is disclosed on the certificate, he should have some rights without the need to go to court. The Senator was concerned about definitions, but I assure the House that the powers given to parents under this legislation would be the same as those currently enjoyed by the HSE. Instead of the State being the parent, it is delegating parental responsibility to foster parents.

Senator Glynn referred to the rights of unmarried fathers in a similar sense, but he was anxious that unmarried fathers should meet their obligations, which is a major issue. He raised the same issue as the Irish Foster Care Association, namely, how to recruit more foster carers. We are researching the matter. We find it is easier, particularly with the very challenging children, to find a placement outside Dublin and that is a cause of concern to us, but then one also wants to keep closer the link between the child and his or her place of origin and where the child’s mother or father lives, and there is a difficult balance to be struck. Senator Glynn also referred to the bequest and inheritance issue which I addressed already.

Senator Henry was anxious to know the figures for long-term and short-term fostering arrangements. Of the 2,869 general foster care placements in 2004, for example, 605 were for less than a year, 1,146 were for between one and five years, and 1,118 were for more than five years. There are placements in foster care where children have special requirements or extra supports, the [1961]number of which is small. There were only 25 of those in all in 2004. Of relative foster care in 2004, 294 were for less than a year, 676 were for between one and five years, and 379 were for more than five years. There was a very small number — 38 in all — of pre-adoptive foster placements. That gives Senator Henry a general sense of the figures. Of course with relative foster care, the child is in need of care and protection. It is the case that the HSE social workers have located a relative who will look after the child rather than another person who will take on that responsibility.

Senator Henry made a good point, that the foster carers need social as well as financial supports. It is not enough to simply pay the foster care allowance and say “Well done”; they need support from the social workers. One of the merits of this legislation is that in time it will free up social work time. At present, much social work time is being taken up dealing with children in long-term foster care, as in the Torremolinos example she gave earlier, and that is undesirable. I hope this legislation will enable them to focus on that supportive role which foster parents also need.

Senator Henry raised the question of the appropriate duration of time, as did Senator Minihan. Senator Feeney also welcomed the measure. I outlined to the House my thinking on the measure at any rate. This is about giving a spectrum of rights to the foster care parents. The particular spectrum here is giving the parents more responsibility in bringing up the children after a designated period of time, but we need to complete that spectrum by making the adoption option far more available than it is today and I will be addressing that in the adoption legislation. I thank the Senators for their welcome for the measure.

Question put and agreed to.

  Mr. Finucane: When is it proposed to take Committee Stage?

  Mr. Glynn: On Thursday, 2 November 2006.

Committee Stage ordered for Thursday, 2 November 2006.

  Acting Chairman: When is proposed to sit again?

  Mr. Glynn: At 2.30 p.m. on Wednesday, 1 November 2006.