Recent issues

In May 2010 the Ombudsman for Children published an investigation statement on the implementation of Children First: National Guidelines on the Protection and Welfare of Children. This report is the result of an investigation launched by the Ombudsman for Children’s Office in November 2008 into the implementation of Children First: National Guidelines for the Protection and Welfare of Children by the Health Service Executive (HSE), and the monitoring of this implementation by the Office of the Minister for Children and Youth Affairs. The investigation was conducted in accordance with Section 10 of the Ombudsman for Children Act, 2002, which provides that the Ombudsman for Children may conduct an investigation of her own volition.

• A report based on an investigation into the implementation of Children First: National Guidelines for the Protection and Welfare of Children- April 2010
• Executive Summary
   

In considering the complexity and depth of complaints received by the Office, it is clear that the role of an effective advocate is crucial to addressing issues facing children and young people. This need is evident throughout a range of complaints and is not confined to any particular category.

While the primary focus of the complaints and investigation function of this Office is the determination of adverse effects on the child as a result of the administrative action of the public body, we are increasingly seeing situations where it is apparent that the amount of time, energy and resources devoted by parents or guardians to advocating on behalf of the child is also having an effect on family life.

A substantial part of the daily routine may already be taken up by providing direct care for the child and arranging transport to and from educational or therapeutic provision. While it is clearly a natural role for parents or guardians to engage in such advocacy for a child, there are instances when the efforts that such advocacy involves is clearly impacting on the quality of family life. In one particular complaint, a parent was actively liaising with professional groups and bodies from 24 different health specialties on behalf of two children, each with their own wide-ranging complex medical needs. The pursuit and organisation of medical and educational intervention for the two children took the form of constantly following up on the transfer of files, coordinating the relevant information, arranging and rearranging assessments and tests and generally petitioning for services on their behalf. It appeared to the Office that the complainant was not being assisted by an administrative system which sought to reduce the burden on those it deals with. It was also clear that but for the high degree of advocacy undertaken by that parent, the children would not be benefiting from the current level of services.

This then leads to the question of children who do not have a parent to fight their cause. In simple terms, children without effective advocates may not have their voices heard and sufficiently considered. Where children are already vulnerable due to their special needs or care circumstances, this Office is concerned that they may miss out.
 

During 2009, the Office received a number of complaints made directly by or on behalf of young people who were homeless and/or accessing Crisis Intervention and out-ofhours services. The complaints generally related to difficulties experience  accessing the appropriate supports, therapeutic interventions and placements to cater for their needs. Moreover, through its investigation work, the Office has become aware of children availing of out-of-hours services for extended periods of time either continuously or intermittently. These are clearly very vulnerable young people.

The UN Convention in the Rights of the Child (article 20) provides that: “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State”.

In Ireland, this is principally the remit of the HSE. The HSE has an obligation under the Child Care Act 1991 to identify children in need of care and protection and to provide child care and family support services for any such children. If a child is  homeless but not already in care, the HSE has an obligation to try to reunite the child with his/her family. They are also authorised to take such a child into care if necessary, but can consider alternative methods of provision for them, including finding suitable non-care accommodation.

In some cases, the children concerned were already in the care of the HSE. Hence, these children were already identified as needing care and protection from the State. For these children, the main difficulties lay in finding suitable placements and adequate support given their often complex needs; including experiences of trauma; mental health difficulties; problems engaging with the relevant professionals; and difficulties with drug and alcohol addiction.

Through investigation, the Office found that in some cases social work practitioners experienced difficulties identifying and/or accessing placements for these children because of waiting lists or unavailability. The children in question often continued to access the out-of-hours services during this time. In one particular case, the Office found that a child had restricted access to the out-ofhours accommodation and was only allowed admission late at night, after 11.30pm. In other cases, it came to our attention that children did not have an allocated social worker prior to or while accessing the out-of-hours services. This is of serious concern as these are young people who, by the very nature of their circumstances, are most in need of appropriate advocacy and support.

Homeless children not formally in the care of the HSE also contacted the Office about their difficulties accessing placements and adequate supports for their needs. In these cases, the Office noted that unsuccessful attempts were made by the HSE to reunite the child with his/her family and the children continued to access the out-of-hours services for extended periods of time. Because these children were not formally in the care of the HSE, they did not appear to benefit from being part of the ‘through-care’ model of care. Such homeless children are not then subject to regulation, care plans or aftercare provision, and are particularly vulnerable if their relationship with their family has broken down. One such young person who came to the Office had spent 10 months in crisis intervention/out-of hours services before turning 18 and could not access any aftercare provision as she had not been formally in the care of the HSE.
 

The issue of provision of care and support to young people in the care of the State when they reach the age of 18 years has previously been raised by this Office both with the Irish Government and the UN Committee on the Rights of the Child. The Office understand  that work is underway in both the statutory and voluntary sector to look into and improve aftercare provision.

However, during 2009, the Office continued to receive complaints, primarily from children and young people, about the aftercare provision available to them following their discharge from care. Concerns related to delays and inadequacies in aftercare planning, lack of an allocated social worker and a lack of support generally. During the course of examining these complaints, the Office became aware of a wide variation in aftercare service provision nationally, with some areas having an aftercare policy and dedicated staff, while other areas had no clear policy and limited services available.

There is a clear imperative to progress the standardisation of aftercare service provision nationally and to ensure that all young people leaving care are provided with adequate support services. The Ombudsman for Children continues to be of the view that legislation needs to be stronger than the current provisions and should provide for a statutory responsibility for aftercare.
 

During 2009 the Office received a number of complaints regarding delays accessing suitable health services for children and young people. The complaints were brought primarily by parents on behalf of their children who were awaiting services such as Speech and Language therapy, Occupational therapy, Psychology services, Child and Adolescent Mental Health services and hospital services. Parents reported significant waiting times for their children to be seen.

In one case where a child required a psychological assessment, the parent was advised that the waiting time was two years due to staffing shortages. In another investigation, a child, following a diagnosis of autism, waited for three years prior to receiving Speech and Language therapy due to the length of the waiting list and difficulties with staff recruitment for vacant posts.

It appears that there can be significant regional variations in service provision. In one particular circumstance, a child was seen by a community speech and language therapy team within three months of referral, while in another area there was a two year wait for even high priority cases. Child and Adolescent Mental Health Services have seen similar discrepancies. From the cases investigated it appears that difficulties have arisen filling vacant posts due to budgetary constraints. This has resulted in a significant impact on services available in some areas, with differing strategies being used to deal with the
problem. Some areas have lengthy waiting times to be seen, whilst others have cancelled services for some groups of children completely. The complaints received by this Office have underlined the impact this can have on young people requiring these services.
 

During 2009, concerns were raised with this Office by a substantial number of families and advocates regarding difficulties accessing integrated services to meet their children’s needs. The needs identified typically fell into the categories of education, health and housing. The majority of the complaints received were made on behalf of children with special needs who required a range of services from various public bodies across these three broad categories.

Both families and professionals advocating on behalf of such children reported difficulties in accessing a coherent and coordinated support framework for those children. On a number of occasions the Office was contacted by families who found themselves in a position where they had to choose between which of their children’s needs to prioritise.

A good example of how a coordinated approach would best serve the needs of a child can be illustrated by the problems that face parents of children with special needs when choosing a school. A special needs entitlement to school transport is dependent on the identification of the nearest recognised school (mainstream, special school or unit) that is, or can be, resourced to meet the child’s needs, as recommended by the National Council for Special Education (NCSE). However, often the school to which the child is entitled to transport is not the one recommended/serviced by the HSE professionals involved, or where the HSE services (such as occupational therapy and speech and language therapy) needed by the child are available. In a number of cases, the Department of Education and Science (DES) and NCSE have both indicated that HSE services were a matter for the HSE alone and the provision of such supports is not considered when making determinations of school transport.

Similarly, in one particular case which was received at this Office, a child availed of respite care from the HSE; however the school transport provided by the Department of Education and Science was subsequently taken away on the grounds that transport is only provided from the child’s home to school.

There are also issues regarding professional opinions either sought by families or offered as part of the application process for special educational needs resources, specifically, professionals making recommendations about required resources that are not consistent with DES policy. This has led to a perception of inequity by complainants in the distribution of resources to provide for special educational and care needs. On examination, the Office found in some cases that a lack of clear communication in the application, decision-making and review process contributed to the difficulties. The full enactment of the Education for Persons with Special Educational Needs (EPSEN) Act, 2004 may address some of these issues by providing for a more comprehensive and transparent framework for addressing special educational needs. This enactment is unfortunately still pending.

It is the view of the Office that the above complaints illustrate a ‘systems’ approach rather than a child-centred approach to service provision. In 2009, this appears to have been exacerbated by a tightening of resources which curtails any flexibility that was previously possible.

While, on examination, the bodies concerned may have individually followed the correct administrative procedures set by their own agencies, the Office found that in a number of cases, no consultation appeared to have taken place between those bodies to deliver services to children more coherently. Thus the best interest of the child as a whole was often not considered, which itself is in contravention of the UN Convention on the Rights of the Child.
 

Over the past two years the Office has received a number of complaints about HSE service provision for children and young people who present with multiple and complex needs. Offering appropriate support services to such young people poses many challenges, in particular, the provision of Special Care placements. Issues with these have arisen both in contact from professionals working in the area and in the process of investigations being carried out by the Office. Special Care placements involve a short period of civil detention of a young person (usually for 3 to 6 months) in a Special Care Centre and are sought when there are concerns that a young person is in need of a period of stabilising care and protection. It is considered a placement of last resort, as the young person’s liberty is restricted, so therefore other alternatives should have been attempted prior to such a placement. Approval for Special Care Placement must be sought from HSE national and then an application made to a High Court judge for the making of a Special Care Order.

The OCO has recently completed a number of investigations into HSE service provision for children/young people with complex needs and where Special Care placements have been sought. Particular concerns have arisen from these investigations regarding difficulty accessing Special Care placements, in particular for young people involved in the criminal justice system. It appears that, following a number of High Court Judgements in 2007, the HSE and Children’s Act Advisory Board have revised the admissions criteria. In practical terms this has resulted in children/young people involved in ongoing criminal proceedings being unable to avail of such a placement until the criminal proceedings are concluded. In effect this can result in the anomaly whereby they cannot avail of such a placement whilst the criminal proceedings are ongoing but can avail of the placement when convicted (where custodial sentences are not given).

This Office has expressed concern to the HSE that the High Court Rulings on these matters have had unintended policy consequences which prevent appropriate responses to the needs of some children. Legislation regarding Special Care has been passed, but not yet implemented, and thus matters relating to special care have been dealt with by the High Court. As part of the Child Care (Amendment) 2009 Bill, a statutory scheme for Special Care provision is currently under consideration by the Department of Health/Office of the Minister for Children and Youth Affairs. The advice of this Office will be submitted shortly in this regard.

In addition, the HSE recently took a decision to close Ballydowd, one of the three Special Care units, following a HIQA inspection. This Office was subsequently contacted by both young people and professionals raising their concerns about this, specifically the level of consultation with children about changes in the units and the short notice for such changes. The Office has sought further information from the HSE in respect of its actions and will continue to monitor the situation.