I rise to speak is the Chairman of the Oireachtas Joint Committee on Health and Children. I pay tribute to the Minister for her stewardship of the Department and for the publication of the Bill. To be generous to the Minister, Deputy Halligan made an understatement because, as he stated, the Minister listens and takes advice. One of the first things she did as Minister was to refer the Children First Bill to the Oireachtas Joint Committee on Health and Children for pre-legislative scrutiny and it was one of the first pieces of legislation we dealt with. In my hand I have the tome of our hearings which we presented to the Minister.
My remarks today will be about the pre-legislative hearings and what the committee has done. I would also like to discuss my observations and points on the Bill, and in particular address some of the issues.
The purpose of the Children First Bill is to put children first. It puts Children First: National Guidance for the Protection and Welfare of Children on a statutory basis, which is a key commitment in the programme for Government. In April 2012 the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, referred the heads of the Bill to the committee, which over two months undertook extensive consultation and engaged with many key stakeholders through written submissions and public hearings. In the report we laid before the Houses of the Oireachtas one can see the various groups from education, child care and the professions which came before the committee. There was an extensive range of communication.
A total of 58 submissions, including oral submissions, were received from State agencies, voluntary organisations, professional bodies and members of the public. As I have done previously I thank everybody who made a contribution to our work and took time to write or participate in public hearings. Between 1 May and 30 June 2012 the committee met eight times to hear, during its public consultative process, submissions and oral presentations from stakeholders on the heads of the Bill. We met 47 witnesses from 29 groups and it is important to state the work of the committee provides a platform for Members of the House and outside groups, agencies and professionals to assist and participate. I contrast this with what happened in the past in Departments when writing a Bill moved from a civil servant in one Department or section to another and back. Now it is done publicly in a visual and participative manner which involves and gives ownership to many people. The overview of contributions assisted the Minister and the Department in the consultative process.
It is worth recounting the background to the Bill and to highlight how long it has taken to put in place a statutory basis for the protection of children. It is important we acknowledge that in the first half of her term in government the Minister has acted to do this. In many cases rhetoric is easy and we can all use language to promulgate, advocate, deny or procrastinate, but the Minister acted. I heard Deputy Troy speak yesterday, and while I do not mean to be political his party had an opportunity during its time in government which was not acted upon. In stating this, in 1999 the Department of Health and Children introduced the Children First guidelines for the protection and welfare of children. As we all know well, these were produced to assist the identification and reporting of child abuse and to improve professional practice in State and voluntary agencies which support children and families, as Deputy Halligan rightly mentioned in his remarks, with regard to out of hours services in particular.
The Children First guidelines identify the duty to report abuse as a societal duty owed not only by social and medical workers but by all who work with children, including An Garda Síochána, HSE personnel, those working in public agencies, voluntary and community organisations and all of us as individual citizens. All of us have a duty and a role to play and we should never forget this. It is also important to outline that the guidelines provide guidance on identifying physical, sexual and emotional abuse and neglect and on when and how to report an issue, and on the procedures for assessing and managing cases. They also set out the role of agencies such as the Garda Síochána, the HSE and school and medical professional personnel, and provide for participation at local and regional level through the creation of child protection committees. The guidelines also outline procedures for co-operation between the HSE and the Garda, which are the two agencies with statutory responsibility for child protection. The guidelines also stress the importance of family support services as a means of mitigating risks to children.
The implementation and operation of the Children First guidelines were reviewed several times during the years after their introduction, including by the Office of the Minister for Children and Youth Affairs in 2008. This resulted in a number of revisions to the guidelines which were published in 2011. Among other matters, the revisions took account of the recommendations of the Ryan report of the commission to inquire into child abuse. We all remember when it was published and the need for action as a consequence. One of the recommendations arising from this was that the Children First guidelines would be placed on a statutory footing. The main objective of Children First: National Guidance for the Protection and Welfare of Children is to establish a firm foundation from which practitioners can develop uniformity and consistency in the application of these national guidelines throughout the State, something we all want to continue to see happening. We welcome the fact it is happening.
It was clear from the committee's hearings that we would need to foster a culture of understanding and compliance. The creation of an office at Cabinet level of a Minister for Children and Youth Affairs has helped no end. It has given the Minister an authenticity which perhaps Ministers of State with responsibility for children may not have had. I do not want to be derogatory about previous Ministers of State, who did quite well in the position they had, but the Minister sits at the Cabinet table which gives her an opportunity to be seen as equal to her Cabinet colleagues, which is important.
The Children First Bill is about aligning the law with what is right. It is about bringing an end to any remaining attitudes which may choose to ignore child abuse and neglect. It can no longer be an option to put child protection to one side. We must put child protection as a priority and compliance with Children First must be mandatory and cannot be voluntary. For the Children First legislation to be effective the committee embarked on open dialogue with the groups which will work with the legislation on a daily basis. The process undertaken by the committee gave key stakeholders an opportunity to contribute in a meaningful way to the formulation of the legislation. The people who participated did so in an holistic way and were not afraid to make comments. They did not hold back in their remarks and comments on the heads of the Bill, which I will discuss later.
As part of the process we held a series of public hearings with advocacy and representative groups from Departments and voluntary organisations working in sports and youth activities. We also met key personnel in child protection, child law, children and family services and education.
Providing these groups with the opportunity to contribute enabled their practical day-to-day experience to inform the legislative process. As I alluded to earlier, this is something that has been done to a significant extent in this Dáil.
The committee system is benefiting from legislation coming to it for pre-legislative scrutiny, albeit not in an adversarial fashion. I pay tribute to people such as Deputy McLellan, who is in the Chamber, Deputies Ó Caoláin, Kelleher and Troy and Senator van Turnhout, as well as members of Fine Gael and the Labour Party who go into the committee and give of their time to parse and go through legislation and engage with people for the betterment of society, as well as to make the legislation more complex and comprehensive than it may have been on its arrival. Were people to read the full transcript of the hearings, they would discern that there was genuine participation in respect of the outlining of the stakeholders' views, as well as those of the joint committee members and that the child was at the centre of those discussions. It is in the interests of all in society and of all children and parents that Children First legislation is practical and effective. Moreover, it must deliver a reformed child protection regime. As part of the debate taking place this week, the Minister should take on some of the views expressed by all Members in the House.
One must protect children by making sure that their concerns are acted upon and not ignored. I speak as a schoolteacher of 20 years' experience, as someone involved with Cumann Lúthchleas Gael and as someone who is involved in his community. The issue of child protection and the manner in which young people are dealt with has evolved to a more professional and more thorough level than obtained previously and thankfully, the child now is at the centre. The observations and recommendations in this committee report were and are intended to inform and guide the drawing up of the Children First legislation. The joint committee members welcomed the opportunity to engage at an early stage in shaping and in flagging issues in the legislation before it came back to the Dáil and Seanad. At this juncture, as the Chairman of the Joint Committee on Health and Children, it is appropriate that I record my appreciation, as well as that of my colleagues, to the many different interest groups that made submissions to the joint committee in its preparation of the report. In addition, as I noted earlier, it is important to acknowledge the members of the joint committee for their invaluable work, commitment and dedication to this important body of work. Equally, in the case of this legislation and the very large tome the joint committee and I have put on record, it is important to acknowledge the contribution made by Mr. Michael O'Sullivan, who was engaged by the joint committee in a professional capacity to assist as its rapporteur in writing and compiling the report. I also thank the Houses of the Oireachtas staff members in the committee secretariat of the Joint Committee on Health and Children for their assistance in the compilation of the report.
I will now turn to the overview of the contributions made to the committee. It is of equal importance that the next part of my contribution is given over to a synopsis of the main arguments and observations made in submissions and presentations to the joint committee on the heads of the Children First Bill. I do so against a backdrop whereby one can discern where the Minister has listened and chosen to act, as well as where she has listened and chosen not to take on board some of the views of the joint committee, which also is fair enough. Perhaps, as part of this discourse, it may be possible to ascertain whether there are other issues the Minister may reconsider. However, under the general scheme of the Bill, nearly all contributors welcomed the proposal to give the Children First guidelines a statutory underpinning in the Bill. A common observation was that giving effect to the Bill, particularly in the early stages of its implementation, would require substantial investment in resources, including the training and recruitment of personnel and in offering support and feedback. Many contributors made the point that it was of particular importance that the Bill be drafted to mesh seamlessly with the provisions of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill and the National Vetting Bureau (Children and Vulnerable Persons) Bill. Several contributors stated the Bill made insufficient allowance for the voice of the child to be heard, as mandated by the UN Convention on the Rights of the Child.
Other contributors criticised the general scheme of the Bill as misguided, stating that its focus on reporting missed the principal causes of failures in child protection. These contributors generally thought the Bill should place greater emphasis on family supports, early intervention, multidisciplinary assessments and co-ordination between all relevant agencies and Government bodies. Another criticism of the general scheme was that the requirement to report concerns or suspicions of abuse, together with criminal sanctions for failing to do so, would cause defensive over-reporting, placing undue burdens on organisations, possibly overwhelming the State's child protection services and diverting resources from support and intervention services. Several contributors stated it was particularly important for the implementation and operation of the Bill to be reviewed after no more than three to five years.
I will move specifically to discussing the contributions regarding head 2, which pertained to interpretation. A majority of contributors argued that the definition of "abuse" should include emotional abuse. A significant number of people made this argument and the reasons for so doing included the long-term effects of emotional abuse and its relatedness to grooming and physical and sexual abuse. Many pointed out emotional abuse is included in the Children First guidelines and suggested that its exclusion from the Bill would cause confusion and inconsistency in enforcement. The Minister should be complimented both on the manner in which she has handled the issue of grooming and on how she has been to the fore in protecting the rights of the child in this regard. In its presentation, the Department of Children and Youth Affairs argued that the exclusion reflected international evidence on the difficulty in reliably diagnosing emotional abuse to a standard that could support criminal prosecution. Emotional abuse could still be reported under the guidelines and its exclusion from the Bill related only to the criminal sanctions for failure to report abuse. The Department also indicated it was open to this matter being revised. Similarly, it was suggested that the definition of "physical abuse" was inconsistent with that included in the Children First guidelines.
The Irish Medical Organisation thought the definitions of abuse in the Bill needed to be much clearer for doctors to be confident of diagnosing abuse to a standard suitable for judicial proceedings. Moreover, it was suggested that the exclusion of married persons aged under 18 from the definition of "child" was not appropriate. Several contributors advocated greater clarity in the definition of "concern", both because of the possible criminal sanctions in the Bill and to assist effective reporting without overwhelming organisations or the child protection system. This was a strong point and both joint committee members and participants were worried about the degree to which such overwhelming of organisations and the system could arise from the Bill. However, it also was suggested that the definition should extend to suspicions that a child is at risk of abuse, rather than simply that a child is being abused. It was pointed out that the definition of "employment" was inconsistent with that contained in the National Vetting Bureau (Children and Vulnerable Persons) Bill and that this discrepancy should be remedied. It was also suggested that including unpaid positions such as internships in the definition of "employment" while volunteers had different responsibilities was anomalous.
Many contributors expressed concerns about the definition of "sexual abuse" itself. These mainly centred on the lack of clarity as to when peer sexual activity between teenagers is or is not consensual in the eyes of the law. A number of contributors pointed to discrepancies between the language of the Bill and that in existing statute law and the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill. There was general, albeit not unanimous, support for the view that the Bill should not require reporting of consensual peer sexual activity between teenagers as it was thought that this would inhibit recourse to sexual health and advice services that seek to reduce teenage pregnancies and underage sexual activity and to promote sexual health. Several contributors suggested the definition of "volunteer" was too broad and that it should not include, for example, parents who volunteer on an ad hoc basis to drive children to a sports fixture or school outing. The definition in the Bill differs from that in the Children First guidelines, which it was believed at the time could cause confusion.
I will now turn to head 5 in the context of aims and principles. Several contributors suggested that the reference in head 5(1) to "the welfare and protection of the child" should be changed to "the best interests of the child" to reflect the UN Convention on the Rights of the Child. There was wide support for the requirement to have due regard to the Children First guidelines.
However, several contributors argued that the duty to report should be extended to all State agencies, to all persons having access to children, or even to all persons regardless of their status.
A number of contributors suggested that the Children First guidelines, as well as other guidance documents provided for in the Bill, should all be given statutory effect as regulations made under the Bill rather than as non-statutory guidance documents. The relationship of the guidelines to the Bill was problematic for some contributors, who pointed out the difficulty of reconciling definitions, roles and responsibilities under them.
Head 6 deals with organisations with a statutory obligation to report child abuse. The type of organisation included or excluded from the Bill's operation was the subject of much discussion. Many contributors objected to the exclusion under head 6(3) of services paid for directly by a child's parents or in the child's own home, such as a childminder. While many accepted that the organisational requirements of the Bill would be inappropriate in such settings, the duty to report should apply, as should the requirement for training and familiarity with relevant guidelines. Similarly, it was suggested that bodies such as agencies that supply minders, au pairs or nannies should come within the terms of the Bill. There was wide support for the view that the exemption should not cover any paid arrangement for minding children, particularly when this takes place in the minder's home. The presumption that parents provide the best supervision for their children was criticised as being inconsistent with the fact that the majority of abuse takes place in the child's own home. The exclusion of leisure facilities, particularly swimming pools, that cater for adults but allow access to children, was criticised by a number of contributors. Similarly, settings such as domestic violence shelters, third-level institutions, particularly those that arrange placements involving care of children, and asylum-seeker centres should be expressly brought within the Bill's operation. Several contributors argued that employers of children should be covered by the Bill.
With regard to head 7, organisation, many contributors said that the detailed requirements for organisations were onerous and would pose difficulties, particularly for small or voluntary bodies. The view was expressed that these requirements should be phased in over time to allow time to cope for the organisations to which they applied and to allow time to put good governance structures in place. There was a widespread view that the safeguarding guidance for organisations and the model Keeping Children Safe plan should be published and opened to comment by stakeholders before the Bill became law. A number of contributors made the point that these documents should be merged so as to reduce the number of reference documents that organisations must use. Several suggested that the safeguarding guidance for organisations should, along with the guidelines for the reporting of abuse, be issued as statutory regulations.
The need for resources and training from the HSE was stressed by many contributors, as well as the need for suitable "train the trainer" courses that could be used to develop training within organisations. A number of contributors offered to provide training based on their areas of expertise. Many contributors agreed that the vetting requirements under this head should be reviewed to ensure consistency with the vetting Bill. Teachers' unions pointed out that schools operate a number of policies and procedures to implement the Children First guidelines. The Bill should take account of that and seek to accommodate the existing arrangements so as to minimise duplication, disruption and confusion.
The requirement for internal audit raised a number of questions. Many contributors argued that external experts should be allowed onto the relevant committee. National bodies such as sporting organisations queried whether internal audit should be the responsibility of each affiliated body or club, and argued that it would be better to leave the responsibility at the level of the umbrella body. It was also pointed out that the requirement for designated officers to appoint internal auditors was inconsistent with the way in which schools are organised and that the Bill should accommodate appointment by structures such as boards of management.
Head 8 deals with notification to HSE by organisations. The timeframes for notifying the HSE were found by many contributors to be very tight and the requirement to maintain records onerous, particularly for small organisations. Support from the HSE was suggested as a means of overcoming these difficulties. This was a recurring theme. Several contributors said that an extensive publicity campaign would be necessary to ensure that both organisations and the public are aware of the need for registration. One contributor suggested making failure to register a summary offence. Several contributors pointed to the importance of maintaining consistency with and avoiding duplication of provisions of the Child Care Act 1991, the 2006 pre-school regulations, and the vetting Bill. There was uncertainty about the registration requirements of national organisations and their affiliated bodies and whether all such bodies were subject to all provisions, including record keeping, under head 8.
Head 9 deals with the designated officer in organisations. Contributors universally welcomed the role of designated officer as helping to ensure accountability and responsibility for child protection and as a necessary means of filtering concerns so as to avoid over-reporting. However, the view was expressed that the extensive functions and duties listed under head 9 may prove too onerous for school principals or small voluntary organisations and may deter potential volunteers for the role. Similarly, several suggested that the focus of responsibility on the designated officer, rather than the organisation itself, was inappropriate. The role of the designated officer must be monitored and communicated clearly. There was a widespread recognition of the need for training, including ongoing training, as stressed by many contributors. Several contributors noted differences between the role of designated officer under the Bill and that of designated liaison person under the Children First guidelines. They suggested that the discrepancy be remedied in the Bill. Some contributors suggested that seniority alone was not sufficient qualification for the designated officer role. Suitability and experience were also essential. The designated officer must be suitably qualified and experienced. It was pointed out that the seniority criterion was not appropriate for schools, where the principal was answerable to the board of management, which would be the appropriate body for functions such as appointing the internal audit committee. The designated officer's power to delegate was commented on by several contributors. National governing bodies such as sporting organisations suggested a cascade model, whereby a national designated officer could have overall responsibility for the role, while designated liaison persons in local bodies such as clubs could be delegated powers accordingly. Some contributors suggested curbs on the power to delegate to avoid the possibility of its being used to avoid the performance of essential functions. We must pay tribute to the sporting organisations who have put in place a very robust child protection structure. I am involved in Cumann Lúthchleas Gael and I know the GAA is very vigilant. I commend the people in Croke Park and at council level in the provinces and at county board level and club level. This work is done quietly in many cases and without any fuss. The child is at the core of what we do.
There was a consensus that the safeguarding guidelines for organisations and the guidance for the reporting of abuse should be published as soon as possible and in any event before the Bill took effect. Several contributors said that the Bill should clarify that the duty to co-operate and assist the HSE with investigations would not require organisations themselves to conduct or play a role in investigations for which they lacked authority and expertise. Contributors suggested that the HSE should develop standard protocols for reporting based on current ones and make them available online. There was a view that employees and volunteers should be examined carefully to ensure consistency with the Withholding of Information Bill, the 1998 Act, the 2011 Department of Education and Skills procedures, and the proposed new guidelines for the reporting of abuse.
Some speakers suggested that volunteers and employees should have good faith indemnity similar to that provided for in the 1998 Act.
As I will not be able to discuss all of the various heads in the time remaining, I will refer briefly to head 20. Under this head, Dr. Geoffrey Shannon suggested that offences under the Bill should distinguish between those committed through negligence and those committed through reckless disregard for the protection of children, with the latter attracting more severe penalties.
The exercise was very worthwhile and I commend the Minister on it. Some of the heads have been merged into the Bill before us. It was important that I give a flavour of the work done by the joint committee in the period preceding the introduction of this Bill.