ANALYSIS:Lack of transparency and accountability are central to problems with the HSE's childcare system, writes CAROL COULTER
The submission on the Child Care (Amendment) Bill 2009 from Barnardos, the Irish Foster Care Association and the Association of Young People in Care should be a wake-up call for all those concerned about the state of our child welfare services. All three organisations have two things in common: they have on-the-ground experience of dealing with children at risk; and they are independent of the HSE.
One of these organisations, Barnardos, also operates a service providing guardians ad litem (Gals) for children whose welfare is being considered by the courts. Under the 1991 Child Care Act a Gal can be appointed by the court for children who may be the subject of care and supervision orders, or in the care of a health board, if considered necessary in the interests of the child and consistent with the requirements of justice.
The appointment of Gals is patchy, and depends to a certain extent of whether individual judges consider it helpful. But it provides an important independent voice, charged only with the interests of the child and with bringing the voice of the child into the proceedings, particularly where there can be conflict between the HSE and parents about what is in the best interests of the child.
It is disturbing, therefore, that the latest piece of child welfare legislation proposes to further limit the role of Gals and put them at the mercy of the HSE through permitting it to pursue them for legal costs in childcare proceedings.
There are also to be further restrictions on the costs of this service paid for by the HSE, which is now to be subject to the caveat “reasonable”, presumably leaving it up to the HSE, often the opposing party in proceedings, to decide what is reasonable. It is not clear why this is necessary, as already the HSE can have legal costs taxed.
Even more serious is the proposal that the HSE can seek an order for costs against any other party to the proceedings. Who would be pursued for such costs? The only people who could be would be the parents of such children and the Gal, who is recognised as a party in the 2009 Bill. How can a Gal represent a child properly if he or she is fearful that by doing so in a way that contradicts the HSE might make him or her personally liable for costs? What these proposals reveal is the thinking that appears to pervade the HSE child welfare service – that of hostility to external scrutiny of or opposition to its way of doing things.
Recent weeks have shown what this leads to – children left for years in intolerable situations, leading to life-long damage; other at-risk children left overnight in the most unsuitable places; yet more children just lost. Rightly, these issues are being inquired into.
But inquiries are not enough. We need to know how the system operates on an ongoing basis. It must be open to scrutiny and discussion. Hiqa has an essential role in this. But that does not permit the public to know what is being done in its name.
The 1991 Child Care Act makes it an offence punishable by 12 months imprisonment or a fine of €1,270 to publish material that could lead to the identification of a child who was subject to the proceedings. Childcare proceedings, which are mainly heard in the District Court, often in a hurried way, are heard in camera, and cannot be reported.
The protection of the identity of the children should not mean that such proceedings cannot be reported at all. The media has extensive experience of reporting the most horrendous crimes against children without identifying the children involved. Why can the same rules not apply to childcare proceedings? Indeed, the Oireachtas committee on the children’s rights amendment specifically recommended the modification of the in camera rule in such proceedings.
The Child Care (Amendment) Bill 2009 provides an opportunity to bring more transparency to the actions of the HSE. This, and not further restrictions on the only voice a child has, should be its priority.