10,992 entries for Inspections - State

This paper aims to provide a review of the evolution of policy, legislation and practice in relation to child welfare, with a particular emphasis on residential childcare from the mid-1960s to the present. It does not claim to be exhaustive; rather it attempts to delineate a number of the key shifts in the organisation of child welfare in Ireland that have led to the current configuration of services.2 Furthermore, the paper does not fully embed the trajectory of change in child welfare services within the broader social, economic, cultural and political environment that shaped Ireland during this period. The changing role and status of religious Congregations is clearly of importance3, as are changing perceptions of the status and rights of children and the changing structure of the family.4 Similarly, the economic environment was significant in determining the level of funding available for child welfare, as was the political will for prioritising child welfare.5 Shifting forms of governance at national and local level have also shaped child welfare policies over this period.6 These broader issues are well-documented elsewhere7 and it is therefore the intention of this paper to focus in a singular way on the specifics of residential childcare. Neither does the paper attempt to provide an interpretation of the shifts in the function, organisation and delivery of residential care in Ireland. Rather, by utilising the archival records of the Government Departments centrally concerned with this area of public policy, the Departments of Health and Education, supplemented by a secondary literature, the paper hopes to outline the intent and shifting concerns of policy makers, policy activists and service providers during the period under review, particular the crucial period between 1965 and 1975.

The paper suggests that the key debates in relation to the organisation, structure and delivery of child welfare services, in particular residential childcare services took place between approximately the mid-1960s and the mid-1970s, culminating in the Government decision of 11th October 1974 to ‘allocate to the Minister for Health the main responsibility, including that of co-ordination in relation to child care’. Although the intent of Government may have been clear, the absence of clear guidance on what ‘main responsibility’ entailed was to cause considerable administrative and Ministerial difficulties over the next 30 years.8 In relation to residential child welfare services, the publication of the Report of the Committee of Enquiry into Reformatory and Industrial Schools’ Systems (Kennedy Report) in 1970 is an important catalyst in these debates. The analysis of the child welfare system, particularly residential childcare, provided by the Committee crystallised a view of the system that had gained significant momentum in the second half of the 1960s that significant reform of the system was required, and the report acted as a spur in its aftermath for the realisation of organisational change.

The same Government decision that allocated to the Minister for Health primary responsibility for childcare also established a Task Force on Child Care Services which submitted its report to the Minister for Health in late 1980. This report exposed a number of difficulties that had emerged in relation to implementing desired changes. These included the difficulty of devising new legislation, despite an acknowledgement that it was required and the scale of the organisational changes required. An evolving external environment exacerbated this, with a professional childcare and social work cadre emerging alongside a decline in the role of Catholic Religious Congregations in the delivery of childcare services. Eventually, primarily due to inter-departmental difficulties and a lack of consensus on particular aspects of child welfare policy, particularly in the area of juvenile justice, a staggered repeal of the Children Act 1908 emerged with the Child Care Act 1991, the Educational (Welfare) Act 2000 and the Children Act 2001, primarily sponsored by the Departments of Health, Education and Justice respectively. Ministerial responsibility for child welfare services was formalised in the early 1990s. With the raising of the age of criminal responsibility to 12 (with certain exceptions) in 2006 and the ending of the role of the Department of Education in the administration of residential childcare in 2007, the core recommendations of the Kennedy Report were realised. In the intervening period, a range of issues not specifically discussed by the Kennedy Report were debated and policy decisions taken, particularly in relation to child abuse and specifically abuse in institutional settings.9 These debates are, of course, not unique to Ireland, and in recent years considerable debate has taken place on the extent and nature of abuse in residential childcare settings in, for example, the UK10 and Canada.11

This paper firstly provides an overview of the current configuration of child welfare services in Ireland. It then presents data on the shifting patterns of child welfare interventions between 1960 and the present, highlighting in particular the decline in the number of children in residential care. The paper then reviews the debates on child welfare from the mid-1960s to the publication of the Interim Report of the Task Force on Child Care Services in 1975, including in particular the Report of the Committee of Enquiry into Reformatory and Industrial Schools’ Systems. Detailing the difficulties and delay in implementing the recommendations broadly agreed on then follows. The paper explores, in particular, the difficulties in firstly transferring the majority of children’s homes from the Department of Education to the Department of Health; secondly, the shift from funding the homes on a capitation system to a budget system; thirdly, introducing new child welfare and juvenile justice legislation to replace the Children Act 1908 (as amended); and fourthly, the provision of secure accommodation for children. The rationale for selecting these areas is that these were core to the recommendations of the Kennedy Committee, which it is suggested, summarised the views of a range of interested parties at that time. The difficulties experienced in realising the recommendations of the Kennedy Report related not to a lack of effort by any party, but reflected that despite a broad consensus on what should be done in the area of child welfare, interested parties held opposing views on the precise mechanisms, principles and pace of change required.

In September 2008, there were 5,380 children in care in Ireland, of whom only 400 (or 7.4 percent) were in residential care. This is in stark contrast to the position in the late 1960s, when approximately 3,000 children were in various forms of residential care. At the end of the 1960s, all children’s Residential Homes were managed by either Catholic Religious Congregations or voluntary organisations, whereas by 2008 the vast majority of homes were managed directly by the State or it agents, with the last of traditional religious providers of residential care, the Sisters of Mercy ceasing their direct involvement in 2003.12 On 1st March 2007 administrative and legal responsibility for the Children Detention Schools, 13 with the exception of St Joseph’s in Clonmel14, were transferred from the Department of Education and Science to the Irish Youth Justice Service15, an executive office of the Department of Justice, Equality and Law Reform. This transfer thus ended the involvement of the Department of Education in the administration of residential childcare, a role they commenced in June 1924.16 The changes arose from the youth justice reforms approved by Government in December 2005 following a review carried out by the Department of Justice, Equality and Law Reform and given statutory effect under the Criminal Justice Act 2006.17 The rationale for transferring responsibility for the administration of the Children Detention Schools from the Department of Education and Science was: the Department has a limited role in the provision of residential care. The Department itself is of the opinion that the administration of detention schools would appear to be more appropriate to a body with experience and expertise in childcare, residential care and security issues.18

This decision concluded a debate, initiated some 40 years previously, over which Government Department should have responsibility for the administration of residential childcare in Ireland.19 By 1984, the majority of Residential Homes had been transferred to the Department of Health, with the Department of Education retaining responsibility for the administration of a small number of Reformatory and Industrial Schools, collectively referred to for administrative purposes as Special Schools since the early 1970s. Initially, the Department of Health wished to take responsibility for these schools, but this was resisted by the Department of Education as it was felt that as the educational facilities were provided on site, they were the appropriate Government Department to administer them. By the mid-1980s, the Department of Education was agreeable to transferring the Schools to the Department of Health, but by now, Health was not willing to accept them. By the late 1980s, the Department of Education had firmly concluded that they were not the appropriate Department to manage these schools, and recommended that the Department of Justice take responsibility for their management. It was not until the mid-2000s that the issue was finally resolved and the Department of Education finally severed their role in administering the schools. Thus, from once being the Government Department with primary responsibility for residential care for both offending and non-offending children for most of the 20th century, the Department of Education and Science now has responsibility only for the educational input in the schools. Working with the Office of the Minister for Children and Youth Affairs (which was established in 2005), the objective of the Irish Youth Justice Service is to ensure co-ordination between the various agencies that provide services in the youth justice arena (e.g. probation services, the Gardaí, the courts etc.) in the context of the Children Act 2001 and in addition to running the children detention schools as noted above. The establishment of both the Office of the Minister for Children and Youth Affairs and the Irish Youth Justice Service were in response to long-standing criticisms that a fundamental flaw in the Irish child welfare system was the absence of a lead Department, and a lack of co-ordination between the disparate elements that made up the child welfare system.20

The aforementioned Office of the Minister for Children and Youth Affairs (OMCYA) is part of the Department of Health and Children. The role of the OMCYA, which was set up by the Government in December 2005, is to implement the National Children’s Strategy21 and bring greater coherence to policy-making for children. The OMCYA units that are part of the Department of Health and Children include: Minister’s Office Staff and Advisor, the Child Welfare and Protection Policy Unit, the Childcare Directorate (formerly part of the Department of Justice, Equality and Law Reform) and the National Children and Young People’s Strategy Unit (formerly the National Children’s Office22). The Minister of State, who has special responsibility for children, is officially styled Minister of State at the Department of Health and Children, at the Department of Justice, Equality and Law Reform and at the Department of Education and Science (with special responsibility for Children), and is a junior ministerial post in the Departments of Health and Children, Education and Science and Justice, Equality and Law Reform of the Government of Ireland. The Minister works together with the various senior Ministers in these departments and has special responsibility for children’s affairs. The Minister of State does not hold cabinet rank, but does, however, attend cabinet meetings. The position, in its current form, was created on 20th December 1994. The current incumbent is Barry Andrews, TD, who took up the post in May 2008.23

In October 2008, it was announced that that the Children Acts Advisory Board would also come under the OMCYA. The Children Acts Advisory Board was established under the Child Care (Amendment) Act 2007 on 23rd July 2007, which changed the name, and some functions of the former Special Residential Services Board.24 The Children Acts Advisory Board has a role conducting or commissioning research, promoting enhanced interagency co-operation; promoting, organising or taking part in, seminars and conferences; publishing guidelines on the qualifications, criteria for appointment, training and role of any guardian ad litem appointed for children in proceedings under the Act of 1991; preparing and publishing criteria for admission to and discharge from special care units, in respect of children subject to special care and interim special care orders in consultation with the Health Service Executive; giving its views on any proposal of the Health Service Executive to apply for a special care order; and preparing reports on certain court proceedings. The Child Care (Amendment) Act 2007 broadened the remit of the Board to become an enhanced advisory and enabling body whose functions include providing advice to the Ministers for Health and Children and Justice, Equality and Law Reform on policy issues relating to the co-ordinated delivery of services to at risk children/young people, specifically under the Child Care Act 1991 and the Children Act 2001.

The Child Care Act 199125 (as amended) and the Children Act 200126 (as amended) have replaced the Children Act 1908 and the Health Acts 1953 and 1957 as the primary statutory framework for the care and control of children in Ireland.27 The Child Care Bill was enacted into law on 10th July 1991, as the Child Care Act 199128, its purpose being to ‘up-date the law in relation to the care of children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk’.29 The main provisions of the Act are: the placing of a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection; to strengthen the powers of the Health Boards to provide childcare and family support services; the improvement of the procedures to facilitate immediate intervention by health boards and the Gardaí where children are in danger; the revision of provisions to enable the courts to place children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk, in the care of or under the supervision of regional health boards; the introduction of arrangements for the supervision and inspection of pre-school services; and the revision of provisions in relation to the registration and inspection of residential centres for children.30 Also of note is section 24 of the Non-Fatal Offences Against the Person Act 1997 which provided that: ‘The rule of law under which teachers are immune from criminal liability in respect of physical chastisement of pupils is hereby abolished.’31

The Children Act 2001, which was signed into law by the President on 8th July 2001, not only repeals the Children Act 1908, it also introduces significant new sections to the Child Care Act 1991.32 Described by one author as ‘fundamental revolution in the law relating to juvenile justice’33, the Children Act 2001 focuses on preventing criminal behaviour, diversion from the criminal justice system and introduces principles of restorative justice.34 Crucially, and in contrast to the situation that prevailed for much of 20th century, the use of detention for a child is to be a last resort; the Act requires that all avenues be explored before it is used.35 The main principles of the Children Act are: any child who accepts responsibility for his/her offending behaviour should be diverted from criminal proceedings, where appropriate; children have rights and freedoms before the law equal to those enjoyed by adults and a right to be heard and to participate in any proceedings affecting them; it is desirable to allow the education etc. of children to proceed without interruption; it is desirable to preserve and strengthen the relationship between children and their parents/family members; it is desirable to foster the ability of families to develop their own means of dealing with offending by their children; it is desirable to allow children to reside in their own homes; any penalty imposed on a child should cause as little interference as possible with the child’s legitimate activities, should promote the development of the child and should take the least restrictive form, as appropriate;36 detention should be imposed as a last resort and may only be imposed if it is the only suitable way of dealing with the child; due regard to the interests of the victim; a child’s age and level of maturity may be taken into consideration as mitigating factors in determining a penalty; and a child’s privacy should be protected in any proceedings against him/her. On 16th October 2006, under the Children Act 2001, the age of criminal responsibility was effectively raised from 7 to 12 years. Under the new provisions, no child under the age of 12 years can be charged with an offence.37 Before the Children Act 2001 was fully implemented, it was, substantially amended via the Criminal Justice Act, 2006. Among the areas where change has taken place is the age of criminal responsibility, the Diversion Programme, arrangements for the detention of children and the introduction of a new regime to deal with anti-social behaviour.38

The Children Act 2001 also amended the Child Care Act 1991 by allowing for establishment of special care facilities for children who required secure accommodation. This amendment was necessitated by a series of actions that sought clarification on the implementation of section 5 of the Child Care Act 1991. The key issue was by what criteria the provision in the Act stipulating that health boards ‘take such steps as are reasonable’ be evaluated and what constituted ‘suitable accommodation’ for homeless children?39 The first substantial challenge to the use of bed and breakfast accommodation for homeless children came in 1994. In the case of PS v The Eastern Health Board40, it was argued that the Eastern Health Board (EHB) had failed to provide for the welfare of the applicant under section 3 of the Act and to make available suitable accommodation for him under section 5 of the Act. The applicant, who was 14 years of age at the time, had a history of multiple care placements from a young age and had been discharged from a Residential Home and spent 35 consecutive nights sleeping rough before the EHB had agreed to intervene and provide him with accommodation. By the time the case reached the High Court, the applicant had been placed in a health board premises along with another child and a number of security staff. The EHB made the point that, under the Child Care Act 1991, they had no powers of civil detention and, if the applicant would not co-operate, they were limited in the service they could provide.

In a series of further High Court actions, the courts identified a gap in Irish childcare legislation in that health boards were adjudged not to have powers of civil detainment. The judgments resulting from these actions led to the establishment of a small number of high support and special care units for children by the Department of Health, in conjunction with the health boards.41 However, the number of children before the High Court continued to grow and, in July 1998, Justice Kelly issued an order to force the Minister for Health to provide sufficient accommodation for the children appearing before him in order to vindicate their constitutional rights. In his conclusion, Mr Justice Kelly stated: It is no exaggeration to characterise what has gone on a scandal. I have had evidence of inter-departmental wrangles over demarcation lines going on for months, seemingly endless delays in drafting and redrafting legislation, policy that appears to be made only to be reversed and a waste of public resources on. For example, going through an entire planning process for the Portrane development only for the Minister to change his mind, thereby necessitating the whole process being gone through again. The addressing of the rights of the young people that I have to deal with appears to be bogged down in a bureaucratic and administrative quagmire. I have come to the conclusion that the response of the Minister to date falls far short of what this Court was reasonably entitled to expect concerning the provision of appropriate facilities for young people with difficulties of the type with which I am dealing.42

The Children Act 2001 inserted a new section into the Child Care Act 1991 (section 23) imposing on the health boards a duty to seek a special care order in the District Court where the behaviour of the child or young person was such that it imposed a real and substantial risk to his or her health, safety, development and welfare and where it was necessary in the interests of the child that such a course of action be adopted. By 2005, three special care units were established with an approved bed capacity of 30, in addition to 13 high support units with an approved bed capacity of 93.43 In 2007, 34 children were placed in special care units, down from 55 in 2004.44

In 2000, the Education (Welfare) Act was passed by the House of the Oireachtas. This Act replaced the School Attendance Acts 1926 to 1967.45 It raised the minimum school leaving age from 15 to 16, or the completion of three years of post-primary education, whichever is the later. The Act established a National Educational Welfare Board, the objective of which is to develop, co-ordinate and implement school attendance policy so as to ensure that every child in the State attends a recognised school or otherwise receives an appropriate education; appoints education welfare officers to work in close co-operation with schools, teachers, parents and community/voluntary bodies with a view to encouraging regular school attendance and developing strategies to reduce absenteeism and early school leaving; maintain a register of children receiving education outside the recognised school structure and assess the adequacy of such education on an ongoing basis. Reform of this area of child welfare had been long sought, with both the Kennedy Report, and in the same year, the Commission on the Garda Síochána (generally known as the Conroy report), highlighting the inadequacy of the system for regulating school attendance. The Report argued that the Gardaí had been called on to do many duties that had no connection with their primary duties as policemen. Included in a menu of extraneous duties was the enforcement of the School Attendance Acts and recommendation 1188 argued that steps should be taken to relieve the Garda Síochána from the obligation to carry out, most, if not all, of the extraneous duties imposed upon them.46 This view simply gave voice to a long-established trend where from the early 1950s onwards, the Gardaí had scaled down their involvement in the implementation of the School Attendance Acts and the only areas where school attendance officers had a significant presence were in the cities of Dublin, Cork, Limerick and Waterford where school attendance committees were in operation. The Kennedy Report had argued that: Persistent absence from school may be one of the early warning signs of the existence of families and children in difficulties. Such difficulties may be physical, psychiatric or psychological. Early identification of and treatment of the causes will, therefore, be necessary if the break-up of the family is to be avoided. Other possible causes are many and varied. Illness, inadequate parents, unemployment of the father and the mother working, indifference of the parents to education may all lead to absence of one or more children from school. The child may be experiencing difficulties at school, may have physical disabilities such as hearing or sight defects. Backwardness may make it difficult for him to keep up with his class, unsuitable home conditions may make it impossible to prepare homework with consequence reluctance to attend school.47

Thus, rather than viewing non-attendance at school through the prism of deviance or criminality and the resulting mode of intervention, punishment: non-attendance at school was viewed as symptomatic of a more deep-rooted maladjustment in the child’s life and requiring professional intervention in the shape of social workers, psychiatrists and psychologists. Thus, the Gardaí, irrespective of their reluctance to remain involved with school attendance duties because of operational restraints, had no role in this new understanding of the causes of non-attendance at school and modes of intervention in solving the problem. The Kennedy report also stated that ‘It is obvious that the present School attendance system needs to be re-examined and a more efficient system evolved’,48 a statement that was to be echoed in numerous subsequent reports that generally looked at the issue of school attendance in passing.