I move "That the Bill be now read a Second Time."
The purpose of this Bill is to ensure that Tusla, the Child and Family Agency, has the appropriate enforcement powers to address serious non-compliance with regulations for early years services and to ensure that parents have access to information in relation to the quality of those services. The intention is not to increase enforcement action but to make it more effective and address some of the limitations of the current legislation, and as such improve overall compliance within the sector.
In addition to strengthening the powers of Tusla’s early years inspectorate, this Bill will remove the current exemption from regulation of self-employed childminders who work in the childminder’s home. The removal of this exemption will allow the Minister, following enactment, to introduce childminding-specific regulations, in line with the commitment in the National Action Plan for Childminding 2021-2028. The opening up of regulation to childminders will make possible their participation in the national childcare scheme, thus expanding access to that scheme for parents who use childminders, which is a key commitment in First 5, the whole-of-government strategy to improve the lives of babies, young children and their families.
I would like to take a few minutes to discuss some of the policy considerations which informed the development of the Bill, before I outline its main provisions. In 2019, the then Minister for Children and Youth Affairs, announced that a review of the enforcement powers of Tusla’s early years inspectorate would be undertaken by the Department, following an "RTÉ Investigates" programme that made allegations of serious and significant breaches of regulations in early learning and care services. That review was paused during the Covid-19 pandemic. I recommenced the review in early 2021. The review included a public consultation, the report on which was published in March 2023.
The review resulted in key elements of this Bill, including the enhancement of Tusla’s enforcement tools, such as immediate closure of an unregistered early years service, temporary closure of a service where there is an immediate and grave risk to children, and putting the enforcement pathway, including immediate action notices and improvement notices, onto a legislative footing. It also includes a formal mechanism for sharing of certain information with parents relating to the quality of an early learning and childcare service and a fit for purpose person regulation to empower Tusla to assess the suitability of a person applying to be a registered provider of an early years service.
In addition, this Bill will allow for the extension of regulation to childminders. This has been a priority for me since coming into office, to ensure the safeguarding of children in childminders’ homes, to provide assurance to parents of the quality of childminding services and to allow parents who use childminders to benefit from the national childcare scheme. The Bill will provide for a transitional period of three years, during which it will be possible for a childminder to register with Tusla but with no requirement to register until the end of the transition period.
This will ensure that childminders have time to understand and prepare for new regulatory requirements. I am committed to ensuring that childminding-specific regulations, when they are introduced following enactment of this legislation, will be proportionate and appropriate to the home and family settings in which childminders work. My Department has recently concluded a public consultation on draft childminding regulations. Understandably there is anxiety among many childminders about the prospect of regulation, and I will consider the findings of the public consultation very carefully before finalising the regulations and commencing the relevant sections of the Bill.
Originally, when the general scheme was published, the measures in the Bill sat alongside wider reforms of the Child Care Act 1991. However, the decision was taken by Government to divide the legislative proposal into two Bills, with the remaining amendments relating to child welfare and protection following in a separate Bill later this session. The decision reflects the need to enact the Part VIIA amendments at the earliest opportunity to allow childminders to commence registering with Tusla from September this year.
The general scheme of the Bill was examined by the joint committee as part of the pre-legislative scrutiny process in May 2023. Many of the committee’s recommendations related to the wider reform of the Child Care Act will be considered when the second amendment Bill is progressed.
This first amendment Bill addresses many of the concerns raised by the committee relating to early years services, with other recommendations addressed outside the Bill. The committee recommended that constructive consultation with early learning and school-age care providers should continue, including in the development of forthcoming regulations. This has been addressed through the public consultation that took place on the review of regulations, through the recent consultation on childminding-specific regulations and through planned future consultation on comprehensive regulations for school-age childcare.
The committee also recommended that the regulatory and administrative burden on providers should be reduced insofar as possible without compromising child safety and safeguarding. I am addressing this in a number of ways, which include amendments made in 2022 to the regulations to streamline the process of re-registration for early years services; the commitment in the First 5 Implementation Plan 2023-2025 to bring together the functions carried out by the Tusla early years inspectorate and the Department of Education inspectorate’s early years team into a single body that provides integrated care and education inspections; and plans to publish an action plan for administrative and regulatory simplification for the early learning and childcare sector in 2024, the action plan to reduce administrative burden, which will be published later this year. It is informed by an independent review and a series of regional and online consultations that have been conducted over recent weeks.
The committee’s recommendation that there should be some discretion relating to past convictions of a service provider to prevent inadvertent penalisation of certain communities is addressed through an amendment in the Bill to give Tusla discretion in determining how to respond to past convictions.
On childminding, the committee recommended that the new regulations should be proportionate and appropriate, be available as early as possible and be informed by the childminding sector. I assure the House that the approach I am taking fully reflects these recommendations.
The committee’s recommendation that providers designated as “relevant bodies” should be resourced for the role related to proposals in heads 10 and 11 of the general scheme on child welfare and protection. I no longer intend to specify early years services within these proposals.
The joint committee also recommended that the access and inclusion model, AIM, programme should be expanded to support children with disabilities in early learning and care services. I was very happy to announce two weeks ago that from this September AIM will support children beyond time spent in the ECCE programme. A child who gets AIM for the three hours of ECCE can get that AIM support for the full day and it will also be offered outside the 38 weeks of the ECCE term. Those are two important and very welcome steps of progress.
I will turn to the provisions of the Bill. Section 1 defines the Child Care Act 1991 as the principal Act.
Sections 2 and 3 move the definition of personal data to ensure that the definition applies also to Part VIIA of the principal Act.
Section 4 amends section 58A to define new terms introduced in this Bill, including a definition of a “childminding service” and also amends the definition of “early years service” to include a childminding service.
Section 5 amends section 58B to empower the Minister to make regulations to ensure that registered providers of early years services, persons in charge of services and persons involved in management, are “fit and proper” persons to carry out those functions. This section also provides that the Minister may make regulations requiring early years services to share information on certain enforcement actions with parents and to share personal data of parents with the Child and Family Agency where necessary and proportionate.
Section 6 makes technical amendments to section 58C.
Section 7 amends section 58D to require the agency to correct the register where it finds an error and to take into consideration enforcement action taken against a registered provider, or a relevant person, when making decisions on registration. This section also provides the agency with discretion in registration decisions, including in considering past convictions of an early years service provider.
Section 8 inserts a new section 58DA that requires the agency to publish information on enforcement actions against early years services where to do so is in children’s interests.
Section 9 amends section 58F to provide for appeals against a “temporary prohibition order”, which is a new enforcement power introduced by this Bill.
Section 10 amends section 58J by the insertion of new subsections relating to the validity of a warrant and the inspection of documents and records by Tusla’s early years inspectorate. The measures include allowing for more than one entry to a premises over a 28-day period under a warrant, and for extension of a warrant in certain circumstances. The new provisions also specify Tusla’s powers to examine, copy and remove relevant documents and records.
Sections 11 and 12 put on to a legislative footing certain steps in the enforcement pathway that are currently administrative steps: “improvement notices”, where an authorised person requires a provider to address an issue of significant concern that, if it persists, is likely to pose a risk of harm to a child, and “immediate action notices” where an authorised person requires a provider to address an issue that poses an immediate risk of harm to a child. In both cases, if the provider does not comply with the notice, sections 11 and 12 provide for Tusla to apply to the District Court for an order to comply with the notice, either an “improvement order” or an “immediate action order”.
Section 13 inserts a new section 58JC to enable an authorised person who is of the opinion that there is an immediate and grave risk to the health, safety or welfare of children attending a service, to issue a “temporary prohibition order” preventing the service from operating for a specified period up to six weeks, extendable to 12 weeks if the matter has not been remedied. Given the significance of the measure, section 13(2) provides that the authorised officer must consult with the CEO, or a designated person, of the Child and Family Agency before issuing a temporary prohibition order, and must inform the board of the agency.
Section 14 inserts a new section 58JD that enables the agency to apply to the District Court for a “closure order” against a service in certain situations: first, where a temporary prohibition order was in place and a service is carried on in contravention of the order; second, where the matters specified in the temporary prohibition order are not remedied before the expiration of that order; and, third, where the agency has reason to believe that a person is providing a prescribed early years service where they are not registered to do so.
In the case of an unregistered service, the section provides that the application for a closure order can be made on an ex parte basis, and if that is the case the agency is required to notify the person without delay if the order is made.
Section 15 inserts a new section 58JE that allows a registered provider or relevant person to appeal to the Circuit Court the decision of a District Court to grant a closure order, within seven days of the granting of the closure order. The section also stipulates that the bringing of an appeal against the closure order does not have the effect of suspending the operation of the closure order.
Section 16 amends section 58K to extend the actions for which a person is guilty of an offence, to include failure to comply with an improvement order, an immediate action order, a temporary prohibition order or a closure order. A person who impedes or obstructs an authorised person during the course of an inspection under section 58J was already guilty of an office, and this section also ensures that this provision extends to all the agency’s powers of inspection.
Section 17 amends section 58L of the principal Act by enabling persons who care for relatives other than their own children to register with Tusla if they provide an early years service, including a childminding service. It will remain the case, however, that a person who only cares for relatives is not required to register with Tusla.
Section 18 inserts a new section 58M that provides for transitional arrangements that will apply to childminders over a three-year period following the repeals set out in section 22, which will bring into the scope of regulation all childminders who care for non-relatives in the childminders' homes. The amendment allows for the exemptions repealed by section 22 to continue to apply to any person to whom they applied prior to their repeal. This transitional arrangement will also apply to any person who commences as a childminder during the transitional period once he or she meets the previous conditions of the exemption. This section allows for those persons covered by the transitional arrangement to apply for registration during the transitional period. The section also makes provision for a childminding service that was registered immediately prior to the commencement of section 22 to be deemed registered as a childminding service following that commencement.
Section 19 amends Schedule 1 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 by the substitution of “early years services” for “pre-school services” to ensure that, for the purposes of Garda vetting, the definition of “relevant work or activities” encompasses childminding services and school-aged childcare services also, not just preschool services.
Section 20 amends Schedule 2 of the Children First Act 2015 by the substitution of “an early years service” for “a pre-school service” to ensure that, for the purpose of child protection reporting, mandated persons include not just persons working in preschool services, but also childminders and persons working in school-aged childcare services.
Section 21 amends the Childcare Support Act 2018. It amends the definition of “childcare service” to refer to the amended definition of “early years service” in this Bill to ensure that childminders are able to take part in the national childcare scheme. This section also amends Schedule 2, entitled "Agreements with Certain Statutory Bodies", by the addition of the Minister for Further and Higher Education, Research, Innovation and Science as a statutory body that can enter into agreements under section 14 of the 2018 Act for the provision of supports for vulnerable children.
Section 22 repeals sections 58L(b) and (c) of the Principal Act, thus bringing childminders who work in their own homes into the scope of regulation, subject to the transitional arrangements in section 18, once this legislation is commenced.
Section 23 is a standard provision that provides for the Short Title and collective citation and allows for the commencement of different provisions of the Bill at different times.
The purpose of this reform is twofold. The first purpose is to address some of the limitations of the existing regulatory and enforcement powers of Tusla’s early years inspectorate. I am confident that these proposals will help to protect children and strengthen quality assurance in the early learning and childcare sector and improve overall compliance with regulations without increasing the regulatory burden on services. The second purpose is to provide for the regulation and registration of childminders who work in their own homes through a phased approach in line with the national action plan for childminding. I am committed to delivering childminding-specific regulations that are both appropriate and proportionate, safeguarding children and providing assurances of the quality of childminding services while acknowledging the unique circumstances of a childminder working in his or her own family home.
I wish to take this opportunity to commend the excellent work done every day by childminders and by those working in early learning and care services and school-aged childcare services right across the country. While many provisions in the Bill focus on enforcement actions where poor practice is found, we all know the very high quality of most such services and their great importance in giving young children a good start in life and in enabling parents to work. I thank all of those working in the sector and all the stakeholders who have contributed to the development of this Bill. I am pleased to have had the opportunity to outline its provisions and I look forward to hearing Deputies’ views on its contents.