Policy Brief: Child Care Amendment Bill 2023

Proposed legislation, which aims to give Tusla greater enforcement powers in its regulation of Early Years (EY) and School Age Care (SAC) settings, was approved for drafting by Government last week. Under The Heads and General Scheme of the Child Care (Amendment) Bill 2023, Tusla will be able to immediately close unregistered EY and SAC services, temporarily suspend registered services where there are concerns about significant risk to children, and share information on enforcement action with parents. The Bill will also place some additional enforcement measures on a legislative footing and introduce a “Fit Person” regulation. This draft Bill is the result of a broader review of the Child Care Act 1991, which is the primary piece of legislation regulating child care and child protection policy in Ireland.

In addition to the revision of the regulation of the Early Years sector, the Bill also aims to better reflect changes in child welfare and protection services in Ireland in the 30 years since enactment of the 1991 Act, as well as capture current legislative, policy and practice developments.

This landmark Bill has been sent by the Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD, for pre-legislative scrutiny to the Joint Oireachtas Committee on Children, Disability, Equality, and Integration. Early Childhood Ireland has been invited to appear before the Committee next month.

For the EY and SAC sector, the legislation proposes the following:

First, it allows the Minister for Children, after consultation with the Minister for Education and the Minister for Housing, Local Government and Heritage, to make regulations for the purpose of securing the health, safety and welfare, and promoting the development of children attending Early Years services.

Early Years and School Age Care settings

• “Early Years” services will include both pre-school and school age services.
• School Age Care staff and registered providers will be mandated persons under the Children First Act.

Childminders

• Garda vetting of childminders and other adults in the childminder’s household will be introduced.
• It provides a definition of a “childminding service”.
• The Bill allows for the phased introduction of childminder specific regulations and for a transitional period of three years within which childminders may register with Tusla, from the date that the regulations commence.
• Following the expiry of the transitional arrangements, childminding services will need to have either transferred to the new arrangements for childminders or, if they wish to remain registered under their existing arrangements, will operate and be classified as a single person operator of an Early Years service and not as a childminder.

Tusla powers

• “Fit person”: It allows the Minister for Children to make “fit person” regulations. The regulations will allow Tusla to assess the suitability of a person to become a registered provider, or any person involved in the management of Early Years and School Age Care settings.

Tusla will be allowed to refuse registration to an applicant or remove a service provider/manager where it considers the person unfit to provide EY and SAC services.

• Single register: A single register for all Early Years services and school age services will be established.
• Notices and Court Orders:
  • Tusla can seek a Court Order for the closure of an unregistered service.
  • Tusla may suspend the registration of a registered provider where it has reason to believe that the continued provision of the service poses grave and / or immediate risk to the health, safety and wellbeing of children in the service. If the service continues to operate while suspended, Tusla can apply to the court for a closure order.
  • The legislation puts the issuing of immediate action notices and improvement notices on a legislative basis, thus strengthening Tusla’s ability to enforce them.
  • Where an immediate action order or an improvement order is issued by the Court, and the registered provider fails to comply with such order, Tusla may take such non-compliance into account in any decision to suspend a registration, attach a condition to a registration, refuse a registration, or remove a registered provider from the register.
  • Tusla’s ability to gather evidence to build a case for prosecution and / or to seek a closure order through the Courts will be enhanced, e.g. a warrant may be issued for multiple entries to a premises.
  • Tusla will be allowed to publish notices in relation to removals from the register or attachment of conditions to registration. Service providers will also be obliged to share this information with affected parties. Should a service provider refuse to inform parents/guardians, Tusla can obtain the contact details of affected parties and contact them directly.
  • In consideration of the application for a Court Order, the legislation provides for the Courts to take into account the best interests of the children attending the service.
• Expired registration: The Bill provides for the removal of a registered provider from the register at the expiration of their period of registration, in circumstances where the registered provider fails to submit an application for renewal of registration.
• Appeals: the legislation allows the service provider to appeal the suspension.

Early Childhood Ireland will continue to monitor this legislation as it goes through pre-legislative scrutiny in the Oireachtas Committee and beyond. If you have any questions regarding this legislation or any of our work, please contact our policy team.