JOINT COMMITTEE ON CHILD PROTECTION debate -
Tuesday, 17 Oct 2006

Child Protection: Discussion.

Chairman

We come to the discussion with psychiatrists with experience of treating child victims of sexual offences and of treating adult offenders. I welcome Dr. Kate Ganter, chairperson of the Irish College of Psychiatrists, and her colleagues to the meeting. We appreciate that they have facilitated the committee in accommodating our change in schedule a few weeks ago. Certain events took place which meant we had to postpone our hearings on that day. I thank the delegation for accommodating the committee. The committee was most anxious to have expertise in the area of child psychiatry and to hear the delegation's perspective on the effects child sexual abuse and child sexual offences have on children and how it relates to the perpetrators of these crimes.

Dr. Ganter is accompanied by Dr. Imelda Ryan, director of St. Louise's child sexual abuse assessment and treatment unit, and Dr. Harry Kennedy, consultant forensic psychiatrist at the Central Mental Hospital.

Dr. Kate Ganter

We welcome this opportunity to speak to the committee. I am pleased to be accompanied by two very distinguished colleagues who have a lot of experience in the areas which are of interest to the committee. The number of psychiatrists immersed in this area is small and two of them are here today. Dr. Imelda Ryan is a consultant child and adolescent psychiatrist in St. Louise's unit, which is a specialist unit in Our Lady's Hospital, Crumlin, dealing with child sexual abuse. Dr. Ryan has also sat on the Laffoy commission and on the Ryan inquiry. Dr. Harry Kennedy is the clinical director in the Central Mental Hospital in Dundrum. He is a forensic psychiatrist who has extensive experience and has written extensively about the topics.

Chairman

Before we begin, I remind the delegation that while members of this committee have parliamentary privilege, witnesses appearing before the committee do not. I invite the delegation to make some opening remarks and we will then engage in a question and answer discussion.

Dr. Imelda Ryan

To repeat what Dr. Ganter has said, I welcome the opportunity to speak before the committee. To put myself in context, my name is Imelda Ryan and for the past 18 years I have worked in the area of child sexual abuse. The unit to which I am attached is involved in both assessing the credibility of children when they make an allegation of being sexually abused and in providing therapeutic services to children and their parents when we have concluded that they have been abused. We provide a range of services from assessment to therapy.

In my presentation I wish to speak about one of the remits of the committee's terms of reference, namely, the criminal justice procedures relating to the evidence of children in abuse cases. The committee will have before it two documents that were produced by my unit together with Temple Street Hospital. We have made a direct submission to this committee but we have also copied to the committee correspondence between us and the commission for victims of crime. I will shortly be meeting members of the commission to advocate proper services for children.

I will make a general point in the first instance. There needs to be awareness that we ask a great deal of children who have been victims of or witnesses to crime to participate in what I believe is a very adversarial system. It is a system designed for adults, not for children. We expect young children and adolescents to take part in a process that many adults find complex, confusing and intimidating. We require them to answer detailed questions about terrifying events, in the presence of strangers and quite often, the defendant.

I have a strong view that given that an investigation and a trial are a search for the truth, we must do everything we can to enable children and adolescents to tell what happened to them as clearly and completely as possible. I also have a strong view that just as the criminal justice system makes accommodations for witnesses and victims who do not speak English or who have a physical handicap, it must also make accommodations for children. It is important that the criminal justice system adapts its practice to recognise the developmental stages and the needs of child witnesses so as to ensure they are sensitively treated throughout both the investigative and the trial process. In order to do this, the system must operate from an understanding of children and child development.

I remind the committee that our unit, together with Temple Street Hospital and the Office of the Director of Public Prosecutions, recently conducted some research in which we have elicited the views of children and families who have gone through the criminal justice system. Without going into too much detail about what the children and families told us, they are saying things that we would all take as a given.

They say that what they find most difficult is hostile cross-examination. They also express difficulties about what they perceive as the formality of and the language used in the court. They make particular reference to the length of time it takes for cases to come before the court. What they find most difficult is trying to understand that when they go before the court, the prosecution is not their case; children think it is and they have difficulty in understanding that they are only there as a witness for the State. This can be very difficult for them.

When we surveyed children and parents, the majority of children surveyed had been abused between six to ten years of age. The abuse was intra-familial in 57% of cases. The abuse experienced was penetrative sexual abuse in 65% of cases. The mean waiting time from their reporting of the crime to a decision from the DPP to prosecute, was 1.31 years, with a standard deviation of 0.9 years. The time from their giving a statement to a verdict being delivered was 2.1 years. More often than not, children had to testify in open court as opposed to via video link.

We also sought responses from gardaí. A total of 60% of gardaí who responded to our survey said they had no specialist training in questioning children. Of the 21 barristers and solicitors who responded, none had specialist training in questioning children. I present this data for the committee's consideration.

Chairman

The committee is interested in those statistics. Is it possible to have a copy of those statistics or are they part of the report?

Dr. Ryan

They are not part of the report. These are the more demographic data. We are still collating the more qualitative data. The research has not been completely written up yet but these are some preliminary demographic data which are emerging.

Chairman

The committee would be grateful if it were possible to have some statistics in written format, in so far as those statistics can be validated.

Dr. Harry Kennedy

I am a consultant forensic psychiatrist and clinical director at the national forensic mental health service at the Central Mental Hospital in Dundrum and I am also clinical professor of forensic psychiatry at the University of Dublin.

I will cover briefly some introductory points, bearing in mind the questions set by the committee. Sex offenders, those convicted of sexual offences, are prone to recidivism — prone to repeat their offence. There are various ways of describing and measuring this but it is important to state that the classification systems are less specific than people often think. For example, offenders against children may later offend against adults or offenders against girls may offend against boys. Unlike violent crime or crime against property, sex offence recidivism does not diminish much with age and there are identifiable risk factors which clinicians can describe.

There is little if any link between sex offending and severe mental illness, although there is a small link between such illnesses and non-sexual violence. Alcohol and substance abuse are far more significant contributory factors.

Risk assessment is possible using actuarial instruments and check lists, for example, as well as forms of structured clinical judgment, which is a more modern approach. Risk assessment is widely misunderstood. It is a way of placing people in high, medium or low risk groups so that appropriate treatment or risk management can be provided. The limitations of risk management as a form of prediction are important, however. Those who have posed questions will be interested to know that pre-employment screening for people with privileged access to children is best done by checking for past convictions, which is essentially what happens now. If a risk is discovered, further risk assessment by specialist professionals may assist those who are obliged to make risk management decisions in cases of this nature.

The role of expert witnesses in cases of this nature — which is distinct from the role of treating clinicians and requires additional training — is not widely understood in Ireland. In my experience, the role of expert witnesses is particularly misunderstood in cases of the assessment of adults who are possible offenders against children. A great deal could be done to make the task of expert witnesses easier and more effective in such cases. Research literature relating to identified sex offenders — people who have been convicted — enables clinicians to distinguish between effective and ineffective treatments. The treatments in such circumstances are not the same as treatments for mental illness. The most effective treatments are modelled on modern approaches to addictions and appetitive disorders. The treatments emphasise voluntariness, motivation and long-term relapse prevention strategies. They can most appropriately be given during the course of the criminal justice sanction the courts find appropriate. Mitigation on the grounds of "mental disorder" can often be quite counter-productive and anti-therapeutic. That is something to which we can return if the committee wishes.

There is a concordance between therapeutic relapse prevention programmes and criminal justice conditional release and supervision. Systematic means of identifying high-risk offenders and imposing supervision and surveillance are criminal justice matters, rather than mental health matters. Some good models are being used in other jurisdictions. Multi-agency public protection arrangements have been established by statute in England and Wales, for example, and similar MASRAM arrangements are in place in Northern Ireland. I commend to the committee the interesting, useful and entirely different approach adopted in Scotland by the Risk Management Agency, which was established following the McClennand committee. The contribution of mental health professionals is secondary and supportive only. It is almost always appropriate for mental health professionals, psychiatrists and multidisciplinary teams to be involved in the aftercare of those with severe mental illness. It is also appropriate to take a calculated therapeutic risk with a view to rehabilitation in such cases. In the cases of people who are not mentally ill, medical treatment should not be misused as a back-door means of what lawyers call "incapacitation by preventive detention". That would not be a health issue.

Chairman

I thank Dr. Kennedy and Dr. Ryan for their brief comments. As we know, a question and answer session can be the most productive way of contributing to our work. I invite the members of the committee to ask questions.

Deputy Howlin

I thank the witnesses for their presentations. The objective laid out by Dr. Ryan is very close to the committee's heart. There may be some difficulties in achieving that objective as we will have to overcome the legal impediments in our constitutional jurisprudence. I would like to explore some of those difficulties. Dr. Ryan has helpfully outlined her model of a child witness support scheme. We need to design such a scheme in a way that does not ignore the requirement to give everyone a fair trial. For example, we should not rehearse witnesses in any way. Does Dr. Ryan consider that the support service will be offered by the court, by the health service or by the Office of the Minister for Children? Where will it be developed? How will it be kept separate from the legal procedures?

I would like to hear Dr. Ryan's views on the effectiveness of video evidence, based on her experience. Does it ease trauma significantly? Should it be a preferred option? Is it something we should consider as a requirement?

I would like to highlight some specific issues to which Dr. Ryan did not refer in her oral presentation. I am interested in hearing her views on some of the issues with which we are grappling. It is obvious that there is some debate within the committee about the age of consent. Can Dr. Ryan tell the committee, based on her experience and that of her unit, what the normative age for sexual activity in 2006 is? I hope it is possible to address that question. Would Dr. Ryan like to comment on the appropriateness of the ages determined in the legislation that was enacted earlier this year? How should we communicate that?

The joint committee has had some debate about the extent to which children between 15 and 17 and children under the age of 15 should be differentiated. Is that a useful differentiation to make, in Dr. Ryan's experience? Would it be better to provide for a single age, while ensuring that a different sentencing regime, or tally, is available to the court so that it can impose an appropriate penalty depending on the conditions of the case? If Dr. Ryan does not have a view on any of these questions she does not have to answer them.

The different treatment of boys and girls, which was the subject of debate in the House when the 2006 Act was being considered, was not explored by Dr. Ryan in her presentation. Is there a coherent reason for providing for such a different approach?

Dr. Ryan

I suspect this is a subtle test of my cognitive abilities, as I have to try to remember many questions. I hope to answer them as they were posed to me by Deputy Howlin. I was asked who should take responsibility for the witness support service that we advocate. The criminal justice system should take that responsibility. We need to consider how children are prepared for court and who does what in court. Court visits should be arranged before children go to court so they can see the lay-out of the court. Children should be given information about the role of the different players within the court system. Such issues are most appropriate to the justice system.

We have had some useful conversations with Dr. Claire Loftus, from the Office of the Chief State Solicitor, who has taken a keen interest in this issue. We meet her on a regular basis to explore what is possible within the constraints of the current system, which has some limits, as Deputy Howlin has said. We have to balance the rights of the child with the rights of the defendant. People sometimes assume that mental health professionals have no regard for the rights of defendants, but I absolutely do. We need to balance the rights I have mentioned, which are not quite competing rights. We need to be sensitive to them. As mental health professionals, it behoves us to develop a greater understanding of the requirements of the justice system. We need to consider whether an adversarial justice system can ever be anything other than it is, as children experience it. In our submission, we have advocated the possibility of moving towards an inquisitorial system, like the system that applies in some other jurisdictions.

Deputy Howlin

That is like the story about an American who asks for directions — he is told "if I were you, I would not start from here". We are where we are.

Dr. Ryan

We could look at the possibility of special courts. An EU study conducted under the Daphne project resulted in the publication of a report on the issue of special courts for children who come through the system. I hope that answers the Deputy's first question.

Video links are good when they work, but the children we surveyed did not have an opportunity to give evidence in that way. There are limits to the number of video-link facilities available to children and families. If, for whatever reason, the system breaks down, which it can do regularly, cases are postponed. I do not know if members are aware that when a child is giving evidence by video-link, he or she is placed in a locked room with the support person, which can have certain associations for a child who has been abused. The reason the children are placed in that facility is to ensure nobody can come into the room who is not meant to do so. However, one should be aware of the small but interesting point that if the support person is ill, anybody from the court system can be drafted in, and that person may have no knowledge of children and child development. I am not casting aspersions because I understand the people who perform this function are extremely sensitive and attuned to the needs of children. However, the system in which they operate is far from ideal.

Apart from considering video-linking, we could consider the provisions in the Criminal Evidence Act, which contains a section that allows for a video-recorded statement, made by the child at the time of the initial complaint, to be used as a evidence-in-chief. The committee that drew up these guidelines was established by the Minister for Justice, Equality and Law Reform and I was a member. The report was submitted in 2003 but has never been acted upon. Many people, including those in the criminal justice system and the mental health sector, worked together on the report. Good guidelines were drawn up but they must now be re-evaluated because of the passage of time.

The age of consent represents a very difficult problem. I read with interest the survey on sexual activity published today. It did not question children under 18 and this is a deficiency.

Chairman

Was it the one published today in the Irish Examiner?

Dr. Ryan

Yes, and in The Irish Times.

There is no doubt that children are engaging in sexual behaviour at a very young age. The survey published today found that the median age of people engaged in sexual activity is 17. I allow for the fact that I may be dealing with a very biased sample but I certainly come across children who are engaging in consensual sexual activity at the ages of 13, 14 and 15. This would also be Dr. Ganter's experience.

On the question of whether there should be a differentiation in the law pertaining to 15 year olds and 17 year olds, one can legislate for adolescent sexual activity but one cannot control it beyond that. One needs to address this issue from a public health perspective. There is no doubt but that there is an increasing incidence of sexually-transmitted disease among younger children and that children are engaging in sexual behaviours which they are totally unaware are illegal. Factual information should be circulated among children and adolescents through the CSPE programme in schools. It should have a public health focus rather than a limited legal focus and outline what sexual activities are legal and illegal. It should also outline the likely impact on children who engage in such behaviours. As a society, we need to adopt a much broader view of this issue rather than trying to legislate and getting caught up addressing the activities of 17 year olds and 15 year olds.

The Law Reform Commission stated in its report on this matter that we need to consider the issue of child sexual abuse and determine whether it should be a new offence. Such consideration, of necessity, would encompass coercion, threats, bribery and the power differential. This does not apply to 15 year olds and 16 year olds but it applies to the issue the committee is currently examining. Does that answer Deputy Howlin's question?

Deputy Howlin

I am not quite sure.

Chairman

I will allow other members to contribute and then allow Deputy Howlin to respond. I thank Dr. Ryan for her comprehensive replies.

Deputy J. Breen

In Dr. Ryan's view, do children and adolescents really know the age of consent? If the practice of pressing charges were abandoned, would it be less likely that an accused person would feel guilty or would it worsen circumstances for the person who was abused?

Dr. Ryan referred to the number of gardaí and lawyers who are au fait with the procedures for questioning children. Have the judges sitting on the Bench no experience either? Is the rate of abuse of children below 12 higher than the rate of abuse of children between 12 and the age of consent? Does Dr. Ryan believe judges are too willing to adjourn child abuse cases on foot of very flimsy excuses, thereby frustrating the child who was abused? This is happening to some extent. A judge should have a really good reason, rather than a flimsy excuse, to adjourn a case. Should a specific offence be created in respect of those with authority over children?

Dr. Ryan

I do not have enough experience of the legal system to speak with any authority on the question of whether judges are too willing to adjourn cases. Judges are perhaps loath to intervene in very hostile cross-examinations because they may be worried the cases will go to appeal if they are too interventionist. I do not have enough information on the adjournment of cases by judges.

On the question of whether the rate of abuse of children below 12 is higher than the rate of abuse of children between 12 and the age of consent, our research indicates that most of the children surveyed had been abused between six and ten years of age. Very young children are being abused quite seriously and in this regard we discovered most of the abuse perpetrated was penetrative abuse.

Our criminal justice system is set up such that it is very hard to prosecute in respect of a child aged four or five who has been sexually abused. We need to consider this because children in this age group are availing of our services. Perhaps that answers the Deputy's question.

Children absolutely do not know the age of consent. I suspect that if one went into any school and conducted a survey on pupils' awareness of the age of consent, one would discover they did not know it.

Chairman

At what age does Dr. Ryan believe they become aware of it?

Dr. Ryan

How would they know it? I am not sure if the age of consent features in any of the school curricula, including the CSPE programme. In saying this, I may be doing a total disservice to people who run very good programmes within schools and I am quite prepared to be corrected in this regard. How are children informed about what sexual activity is legal or illegal? Perhaps very good work is being done but my own children certainly did not suggest they knew or were told the age of consent in terms of engaging in sexual behaviour.

Dr. Ganter

That is my experience also. From having spoken to children in the clinical setting, I discovered they really do not know the age of consent. To be honest, they are not interested and believe it does not impinge upon them at all. They believe the activities in question are private and they do not have any idea that we consider this matter. Some surveys show that they often do not understand some of the actions in which they are partaking. Some of them become troubled by this later on. There is much to be done in terms of educating the public and, in particular, parents who are often not aware of the age of consent.

Deputy J. Breen

Where specimen charges are dropped, does this make it less likely an accused will plead guilty and does it worsen the situation for the child?

Dr. Ryan

Children in families struggle with the concept of specimen charges, particularly where the abuse has been ongoing for a protracted period. The idea that the defendant is charged with specific instances does not make any sense to children because they do not think like that and do not remember in that way. That is why I say that going forward there needs to be an appreciation within the criminal justice system of the developmental stages of children in terms of how they construct their world which is quite different to how we as adults do so. We must be sensitive to this and create an awareness of it. Children struggle with the concept of another being charged with specimen charges.

Deputy J. Breen

How should we deal with a person in authority?

Dr. Ryan

While we can legislate for what may be considered consenting sexual activity, we need to ensure such legislation deals properly with people who perpetrate child sexual abuse. The dynamics of the abuse of authority — coercion, threats, bribery and breach of trust — is central to this issue. We must develop proper responses in this regard.

Deputy Enright

I will direct my first question to Dr. Kennedy and ask that he expand on the rates of recidivism. Also, is there any evidence that some people who start with a lesser offence — if any of these offences can be described in that way — often progress to more serious types of offences?

Dr. Kennedy referred in his presentation to the effectiveness and ineffectiveness of treatment and of forced versus voluntary treatment. I suppose the following argument could be made in relation to the entire criminal justice system in terms of the level of treatment available. If it were to be mandatory that as part of sentencing a person undertake treatment, what difference would this make bearing in mind the person might do so in an unwilling capacity? There may be evidence that this is the case but I would like to hear the delegation's opinion on it.

Perhaps Dr. Kennedy would also expand on what he said in regard to post-conviction supervision and the benefits in that regard. Senator McDowell raised the following issue during our first meeting. Some people claim paedophilia is inherent and that it is not treatable. Perhaps the delegation would give the committee its views on whether that is the case? I accept there may not be a definitive view on this issue. However, it is an issue worth discussing.

Is there a need for specific legislation in regard to children with special needs? I acknowledge the legislation deals with these matters in the context of whether an offence is or is not committed depending on the age of the child. However, is this an issue which the committee should consider? Should the committee consider the understanding which children with special needs have of the age of consent in terms of the types of activity in which they may engage? I know it is quite common now for people with different needs to engage in relationships and so on. I would be interested to hear the delegation's views on this issue.

Deputy Howlin spoke earlier about the age of consent and Dr. Kennedy mentioned that 12 and 13 year olds are engaging in sexual behaviour. I do not suggest there can be a reason for everything but has Dr. Kennedy, through his contact with young people, come across any evidence which would suggest a link between background, lack of education or parental support and those engaging in sexual activity at a young age? I accept there could be a variety of reasons for this but have there been any studies in this regard?

In terms of the legal system, judges, lawyers and so on, do we have examples of best practice in this country in terms of whether some judges are particularly better at dealing with such issues than others and whether some have, within the constrains of the system, tried to tackle these issues themselves?

Dr. Ryan mentioned the length of time it takes to deal with cases and the difficulty that creates for children. I do not wish to encourage a lengthy process but this might perhaps assist children in terms of providing them with time to mature and have a greater understanding of what is going on.

Dr. Kennedy

I will answer some of the Deputy's questions and will then ask Dr. Ryan to answer the others. Recidivism rates are very well described for large groups. The problem with this type of information is that it is statistical. I know from experience that most people, including my colleagues, glaze over statistics. The interesting thing about sex offenders is that they continue to offend to an advanced age, so that there is a recidivism rate. Unlike most other types of crime, sexual offending does not decline much with age. If one takes large mixed groups of sex offenders — this is the type of study commonly done in Canada in particular — one will find that the recidivism rate on release from prison is of the order of perhaps 10% in the first year. This then falls off to a steady rate of 3% or 4% per year indefinitely. That is a little artificial in that it mixes all sorts of offences and offenders with different types of history.

Deputy Howlin

What exactly does that type of information tell us?

Dr. Kennedy

It tells us little more than that there is such a thing as recidivism. There are ways of identifying those who are at a higher risk of recidivism than others. Again, in a statistical sense, that does work. At an individual level, it has a high false positive and high false negative rate. We use it to identify those on whom to concentrate therapeutic resources and detentions. This is based on the fact that one might treat four or five people to prevent one serious offence.

Deputy Enright asked about progression. Again, within psychopathology there is evidence to suggest some people progress. What is more important is that there is no consistency. Although paedophiles, people who repeatedly offend against children because they are fixated by them, exist even they will vary their type of offence from time to time. Those who offend against adult women may offend against girls and those who offend against boys may also offend against girls. There is a fair amount of cross-over as well as some consistency within different groups.

The Deputy also asked about the difference between forced and voluntary treatment. The point I would most like to make is that the best evidence for treatments that are worthwhile, in the sense that they have an effect, concerns treatments which are similar to those used to treat addictions. There are probably very good reasons for this. It ties in with the Deputy's question about paedophilia so perhaps I might combine those.

The Deputy asked if paedophilia is inherent or treatable. From a psychiatrist's point of view the inherent question is not very important or interesting. One can get lost in philosophy and the history of Freudian development and so forth which without denigrating it in any way — it has a place in some therapies — does not assist one in most effective treatments to address the problem of helping somebody not to further victimise people. Whether or not it is inherent is not the relevant question. The question is, is it treatable. The treatments that appear to work best are those which are similar to coaching someone about how not to relapse. The analogies with the treatments we use for people who drink or abuse heroin are close. I refer here to what are broadly called cognitive therapies, programmed therapies and so-called manualised therapies which are systematically given by trained therapists to large numbers of people.

For the most part, these therapies have been developed in Canada and there is evidence that they work. If the question had been asked 20 years ago, the evidence would have been that nothing worked at all. Therapies, especially the ones to which I refer, have progressed through research of the type carried out in Canada and, according to the evidence, have a partial effect in a statistical sense. For example, in a group with an expected relapse rate of 10% a year, treatment might reduce the relapse rate to 5% a year. These are representative rather than exact figures. One must live with the fact that 5% of those in treatment will re-offend. In fact, the figures are sometimes better than that with an overall rate of approximately 3%, but higher risk groups may also be identified. In the case of groups with a much stronger likelihood of re-offending, one aims to reduce the risk. Many treatment programmes end up closing down because of public criticism. It is very difficult for the public and, especially, the media to accept that reducing the recidivism rate from 10% to 5% is worthwhile. All they see is the recidivism rate among those in treatment. There is a great deal to be done to educate everyone on the limitations of what can be achieved and the benefits of what is worth doing. There is a worthwhile effect.

The programmes in Canada that have explored these matters in some detail demonstrate not only what works but that which is worthwhile. They show that the follow up must be over very long periods of time, involve very large numbers and that it will be a very expensive process. It is very resource intensive, requiring significant numbers of trained personnel following significant numbers of people over long periods.

Dr. Ryan

To turn to the issue of paedophilia, an analogy I use in my clinical practice is that not everybody who reads a book is a bibliophile. Not everybody who abuses a child is a paedophile. The word "paedophilia" is bandied about whereas in most of the cases I see I do not diagnose offenders as true paedophiles according to the DSM4 classification. Most of the people I come across in my clinical practice who abuse children tend to be inadequate personality types and to be unable to sustain appropriate adult sexual relationships. While they turn to children for sexual gratification, it is not necessarily because they are driven by a paedophilic tendency. The true paedophiles one meets are chilling characters whose whole arousal and fantasy patterns are concentrated completely on children.

Chairman

Is there a specific age at which the medical profession defines an act against a child as "paedophilia" as distinct from adult predatory sexual abuse?

Dr. Ryan

Generally, we speak of paedophilia as the abuse of prepubescent children who have not developed secondary sexual characteristics.

Dr. Kennedy

While there is a distinction between hebephilia and paedophilia, that is really to get into the minutiae of the issue.

Dr. Ryan

It is absolutely the case that provision should be made in our system for children with special needs. If we feel children in general are disadvantaged, children with special needs must be doubly so. It is something we must consider and address as a special issue.

I do not have a complete answer as to why children are engaging in sexual behaviours quite early. It is clear that the current generation of children is exposed very early to a climate of explicit sexuality which comes through MTV channels and all kinds of other fora and media. Young children are also reaching puberty at a much earlier age than used to be the case. There are differing factors which come into play. My clinical impression is that many children are engaging in sexual talk behaviours which are quite inappropriate to their stage of development. As Dr. Ganter said, they engage in these activities perhaps due to peer pressure and the feeling that everybody else does it. Sometimes the behaviour is very inappropriate and may be quite damaging when they reach a more complete understanding of what they are doing.

The committee inquired about best practice among judges. I did not mention it earlier, but judges came out of our survey extremely well according to children and their families. While the status traditionally afforded to judges may be a factor, there was a tendency to see them as helpful and supportive.

The committee also asked if the length of time which elapses before a child gives a statement or provides evidence is helpful, to which the answer is "Absolutely not". Where a child is abused at age seven but not put on the witness stand until age nine, he or she will have become a completely different child in his or her developmental ability. Not only is the lapse of time counterproductive, it may also be re-traumatising to bring a child back to a specific event which may have happened two years previously.

Deputy Curran

While my first question is directed to Dr. Ryan, Dr. Kennedy may feel free to comment too. When she was asked about the age of consent and sexual activity, Dr. Ryan said she worked in a specialist area and that sexual activity was beginning at a younger age. That is the specific reason she is here. It is a question we wish to tease out a little more. Dr. Ryan deals with children who have been sexually abused and she provided the committee with interesting information and views on video evidence. While in some cases the DPP feels there is not enough evidence to pursue a criminal trial, are there other factors which prevent cases from being pursued?

Prior to entering the Dáil, I worked in a business which was involved in providing a video link from this country to Australia for a murder trial. While I saw the significance and benefit of video evidence, it must be managed very carefully to prevent it being tainted in various ways. Dr. Ryan spoke, for example, about having someone with a child. One must balance both the rights of child and the defendant. Given how daunting it is for a child to give evidence, what can be done to make it more child-friendly while preserving the integrity of his or her evidence?

Dr. Ryan

Apart from decisions of the DPP, many cases do not go forward because parents absolutely refuse to allow children to go before the criminal justice system to give evidence. The reason they give is that they do not want to put the child through a process which they perceive will be hostile and alien.

Deputy Howlin

How prevalent is that?

Dr. Ryan

I do not have numbers, but it is very prevalent. When we raised the issue with the Office of the Director of Public Prosecutions, we were told it was of great concern.

Deputy Curran

Is this happening in a significant number of the cases Dr. Ryan has seen?

Dr. Ryan

Absolutely. Parents are reluctant to make a statement or expose their child to what they perceive to be a hostile system.

Deputy Curran

Is video evidence the sole answer or are there other things which can be done?

Dr. Ryan

I am uncertain as to whether the Deputy is referring to a video link to the actual court or the provision by a child of his or her statement while being video-taped.

Deputy Curran

Either.

Dr. Ryan

The latter system is the way forward. Provisions exist under statute to proceed which must be implemented.

Deputy Curran

To be clear, is Dr. Ryan telling the committee that a significant number of cases of alleged abuse do not proceed because families do not want their children to go through the system as it exists? Does she believe that pre-recorded video evidence would make a substantial change to that?

Dr. Ryan

It would go some way towards ameliorating the worst aspects of the system as it currently applies. In fairness, there have been improvements within the system. The DPP's office is looking constructively at these issues. I would enter a slight caveat in terms of balancing that stark fact. If one looks at the types of abuse perpetrated, in several of these cases the abuse has been perpetrated by a father. Children may love the perpetrator so we have got to allow for that as well, and they may not wish to make a statement for that reason. In cases where abuse has occurred outside the family, we hear children and families say they do not want to make a statement. It is a matter of concern that they do not have confidence in the system and that families have worries about the impact of exposing their child to the system.

Deputy J. Breen

Emergency legislation was passed a few months ago, which will make it much harder for a child to come forward now than heretofore. When a child has to sit down in front of an experienced lawyer to be questioned, will fewer children report?

Dr. Ryan

Looking at it prospectively, we may have evidence of that in terms of whether there is a decrease in the number of complaints being made. We need to look carefully at the legislation to see how it will be interpreted and used. Potentially the onus could be put on child witnesses to clarify whether they told their age, what kind of clothes they were wearing, and whether there could have been a reasonable perception on the part of the accused that they were older than they were. We need to examine all those factors and see how it plays out.

Deputy Curran

In his presentation, Dr. Kennedy referred to "identifiable risk factors". When he spoke subsequently, he said he could treat four or five to prevent a serious offence being committed. Identifiable risk factors are used primarily from the point of view of treatment. Are those identifiable risk factors fed into our current procedures concerning vetting and the sex offenders' register, or do they relate purely to treatment?

Dr. Kennedy

At the moment they only have a life concerning treatment. The Deputy asked about other contexts, such as vetting and the sex offenders' register, which are both important and interesting. More or less everyone who is liable to be vetted — people applying for jobs which give them privileged access to children or vulnerable people in education or health, for instance — is checked for previous convictions. That is probably as good a way of screening large numbers as we are likely to find. It is as effective as the quality of the information recorded. For example, therefore, if the system for recording previous offences is unreliable then obviously it will be flawed but that is a matter for other people to talk about, in information management and so forth.

I worked for a time in England and, as a forensic psychiatrist, I was quite often asked to see those who for some reason had been identified as a risk — people who were already working in such a job who had been convicted of some offence and were liable to be excluded from their profession, for example, teaching or nursing. There was an organised system for appeals at which evidence would be considered by some quasi-judicial body and evidence would be submitted from experts concerning risk assessment. One has a role in that secondary situation. It is useful to have such structures. It is worth considering whether we currently have such structures.

The second point the Deputy raised concerned sex offender registers and what happens to people post-conviction and post-release. At present, the Act, as I understand it, makes some distinction so that if it is a more serious offence one goes on to a particular regime, whereas less serious offenders go to a lesser regime. There is no doubt that could be enhanced in various ways. I mentioned, for example, the Risk Management Agency in Scotland, which has a developed system for allocating people to levels of risk and then imposing various forms of supervision and monitoring through the criminal justice system. Those are criminal justice matters and the role of mental health professionals, although secondary, is supportive.

Senator Terry

My questions are for Dr. Ryan. Before coming to court to give evidence, generally how many sessions would a child have attended with a social worker? Do legal people attend those prior sessions? I wonder how many times a child has to tell the story before giving evidence via video-link or in court? I agree with Dr. Ryan's comment that it cannot be good to have a long delay between the time the crime is committed and the court proceedings. If we are dealing with a young child of six or seven and we must wait 18 months for that case to come to court, how good is a child's memory in that respect? Are we getting the best information from the child with that type of time lapse?

Is Dr. Ryan suggesting that all evidence should be given by way of video-link? Would she go so far as to say that children should not have to appear in court at all to give evidence?

When a child has given a statement or evidence by way of video, what happens to the tapes afterwards as regards confidentiality? Who holds those tapes once a case is closed?

Having spoken with public health nurses and social workers, there seems to be a great difference in how these matters are dealt with in various areas, even in the greater Dublin area. For instance, in the Swords area more than 200 files are currently open, whereas in a particular area of the inner city there are a small number of files. That does not necessarily mean that social workers in that particular part of the inner city are working longer hours or doing a better job but they may have different standards. How much variance is there and why do we see more files open in one area than in another? My concern is that there are not enough social workers and that some cases are not receiving due attention. Perhaps Dr. Ryan can enlighten us as to any information she may have in that respect.

Dr. Ryan

The number of times children may have to tell their story before going to court varies. In the main, we do not have joint investigative interviewing between gardaí and social workers, as one would have in the United Kingdom. There can be some instances where there is joint interviewing but in the main children will tell their story to the Garda. If they come into the child protection system they will have to tell their story there. The potential currently exists that children may have to tell their story many times over. I was not quite certain when the Senator referred to the number of sessions they might have with a social worker, whether she referred to the investigative or therapeutic aspect of dealing with child abuse.

Senator Terry

Investigative.

Dr. Ryan

Sometimes a child will give a statement but then has to repeat his or her story when a garda seeks further elaboration after realising that a pivotal issue was not addressed. It is not uncommon for very young children to take up to three hours to provide a statement.

Senator Terry

In Dr. Ryan's experience, is that traumatising for a child?

Dr. Ryan

Absolutely, which is why we have to ensure our systems are driven by the primary aim of avoiding further trauma to children. That consideration has to cut across all our interventions, whether in respect of mental health, law enforcement or legislation. Otherwise we would create a disincentive for children to speak about abuse.

Some interesting research has been conducted on memory in younger and older children. However, it may be beyond the remit of this forum to consider all the available research on this topic. The fact that young children have a better memory for central, as opposed to peripheral events, is relevant to how investigating gardaí can be trained to elicit the best quality of evidence. It will never be the case that a seven year-old child will provide evidence that something happened at, for example, 5 p.m. on Thursday but that is how statements are currently constructed. When I read some of these statements, I think there is no way a seven year-old child could have given such accurate evidence because they do not talk or think in that manner. However, they have good memories, so it is perhaps fallacious to assume young children will not remember central events.

With regard to whether video links are inevitable, children should be given a choice in the matter. Some children may wish to face their abuser and we should provide for that rather than imposing a structure without offering options. I do not know what happens to the tapes. I assumed that live video links would be involved and did not know that recordings were made.

With regard to variance in practices among social worker teams, we recently made a submission to the Minister of State at the Department of Health and Children with responsibility for children regarding the deficits we identify in the system as it currently stands. There is no doubt that there is significant variance in terms of practices, generally as a result of resource driven and case load factors.

Senator Terry

It is dreadful that we do not have trained personnel available in the Garda and the legal profession who can question children. Who would be best placed to provide the necessary training? Would Dr. Ryan's unit, for example, be able to offer such a service?

Dr. Ryan

We need to be cautious with regard to how we interpret data. The corollary of my comment that 60% of gardaí reported they had received no training is that 40% had training. However, we ought to investigate whether that training is adequate and is developed in a comprehensive fashion. We have provided training in Templemore and to the domestic violence and sexual assault investigation unit on eliciting the best quality evidence from children. However, a co-ordinated approach is needed because we have to consider whether training will be applied in such a way that people are in a position to use their training or if everybody will receive broader training irrespective of whether they ever investigate cases.

Chairman

The Criminal Law (Sexual Offences) Act 2006 created two categories of offences depending of the age of the child. A lesser sanction is applied in respect of offences against children aged between 15 and 17 years, whereas a life sentence can potentially be imposed on those convicted of offences against children aged under 15 years. Given that the defence of honest mistake is now enshrined in legislation as a result of the Supreme Court decision and can be used by a defendant to cross-examine a child on whether a mistake was made, it is in a defendant's interest to claim, for example, that a 13 year old child looked older than 15. Does that have the potential for causing serious long-term damage to children? In other words, is another offence being committed against the child in the laudable attempt to seek justice for the victim? Do parents who do not want to bring their children forward to make complaints have well-founded concerns in that regard?

I was interested to hear Dr. Kennedy's comments with regard to recidivism. The Irish Times recently carried three separate reports on criminal cases before the courts. In the first, a Wexford man sexually abused his partner’s young daughters over a period of years. He was sentenced to seven years but will possibly be released in less than five years. Given the evidence that recidivism is a significant issue and bearing in mind this committee’s remit on child protection, is the possibility not being created that this perpetrator can once again cause serious damage to children?

Dr. Kennedy

I do not want to comment on a specific case but, in general terms, nothing has changed because that has always been the situation for many different types of offence, including violent offences. A question arises with regard to the extent to which action can be usefully taken. The evidence indicates that well organised and systematic programmes carried out on a fairly large scale can make a partial difference. Legal structures in certain jurisdictions allow for such programmes but they are normally reserved for people who already have a history of repeat offending or more extreme types of offence. Those two categories always enter into risk management considerations so that the people with the highest risks of re-offending or committing more serious offences can be identified. Beyond that, action requires the will of the State.

Chairman

In other words, longer sentences.

Dr. Kennedy

At this point, I am straying outside the normal competence of a doctor. There are several ways in which offending can be prevented, including, in criminal justice terms, incapacitation. There are different approaches in this respect. Clearly, if someone is incarcerated, he or she cannot take certain types of action. The intervening factors in these issues are the concerns raised by lawyers with regard to proportionality and fairness, which are not really my domain. It is a case of somehow squaring the circle, finding a way of protecting the public while at the same time being just. For that reason, looking at some of the very developed models, all of which are very controversial, is worthwhile. There is always this play-off between protecting the public and being in some sense fair and just under the terms of the European convention.

Dr. Ryan

The issue of -----

Deputy Howlin

May I explore that point as I think it is an extremely important point for members. I invite Dr. Kennedy to go beyond the sphere of a doctor because he has so much experience in this field. One of the greatest challenges facing legislators is to address the issue of providing safety for children in as far as we can in the light of released sex offenders going back into communities. We do not have preventive detention thankfully and I am not making such a suggestion. We need to understand better — and Senator Terry made this point — if international practice has shown that an optimum treatment period is required before a treatment is effective to any degree? Is the treatment of incarcerated persons any different from the treatment post-release? Should we be looking at having part of the sentence remitted, subject to a post-release treatment regime? These are the topics we must address to see if we can construct a regime that will make things as safe as is practicable.

Obviously, as Dr. Kennedy has made clear, recidivism will happen inevitably in any case and we are not going to lock people up permanently on a preventive basis because that would be wrong and unconstitutional. How do we as legislators get it as right as we can so that the optimum protection is provided while balancing the rights of everybody in a fair system? When people are released after serving a sentence how do we balance their rights against societal rights? That is the challenge for members. Dr. Kennedy will not be able to address all those topics, but will he help us as far as he can based on his experience?

Dr. Kennedy

I am happy to try to do so, but I am not sure I have all the answers. First, in response to the Deputy's question on optimum treatment time, let me take one step back because understandably the Deputy is talking in terms of treatment, but treatment is not always the right term. Even in relation to the addictions that most people would see as a disorder, it is more useful and more successful to think of the approaches to prevent relapse in that area as being almost more like coaching rather than treating.

Medicalising a problem can have a bad effect on the concept of responsibility. People will find that very often if strong arguments have been made that their responsibility was impaired in some way and they were not responsible for what they did, that is very anti-therapeutic. The goal of what are termed "treatments" is to encourage somebody to recognise, develop and strengthen their sense of responsibility. "Treatment" is not always the best term and it is genuinely not a treatment in the same sense that one is treating a mental illness or a case of asthma or pneumonia. There is an interesting play-off between what we know of the natural history or the psychopathology of people who offend against children and the criminal justice considerations about what is fair and proportionate. I am not a lawyer, I have some knowledge as a psychiatrist of human rights matters but only from a psychiatric point of view.

Deputy Howlin

There are plenty of lawyers.

Dr. Kennedy

I dare say and we throw ourselves at their mercy. From the natural history point of view, it does not go away, the risk of re-offending keeps on for very long periods of time. This has challenged jurists in other jurisdictions where, for example, people have devised made-up disorders such as dangerous severe personality disorder which, for a time, the English were trying to introduce into their legislation because judges were unwilling to use life sentences. If one cannot have a life sentence, one finds a mental health provision which is for life and controls things that way. Unfortunately, that has proved neither popular nor practical and I understand it may be developing in a different direction.

Those jurisdictions that have grasped the jurisprudence nettle, such as Scotland, have got it correct. Protecting the public is a criminal justice matter and it is well within the expertise of judges to make risk assessments based on history. There is a role for assisting judges by having risk assessments prepared by experts who may be clinicians but the decision rests with the judge, if the structure can be found that persuades the judges to use it.

Members may know that discretionary life sentences were introduced in the neighbouring jurisdiction, but according to research were used in only a tiny fraction of eligible cases. Somewhere between 5% and 15% of those eligible for discretionary life sentences for this kind of offence actually received those sentences because judges are uncomfortable with it as a concept. The challenge to legislators is to square that circle. There are very good structures out there for what you do with it when you find the solution. I keep coming back to the Scottish solution that is very promising. There are approaches to this problem in other jurisdictions, which to a greater or lesser extent are satisfactory. The Canadians also have a good handle on this issue.

The next question refers to how the offender is dealt with, whether as an inpatient or in the community. All the evidence is that obligatory treatment is not terribly helpful. Motivating people by offering them rewards for engaging in treatment is useful. The Deputy's question about remitting some of the sentence, goes to that to some extend, however, it raises the question about what follows. There is very good evidence from Canada that if one treats large numbers of people in prison they have a lower recidivism rate than similar people who do not receive treatment.

Deputy Howlin

Dr. Kennedy refers to treating large numbers, is that important?

Dr. Kennedy

Because the information is statistically reliable.

Chairman

I will try to allow the Minister of State in, as well as Dr. Ryan.

Dr. Kennedy

My last point is that although it is useful to provide treatment which is motivated in some positive way in prison, it is only effective if one follows on with long-term supervision and support after release.

Dr. Ryan

On the question of the defence of an honest mistake, what will be important going forward is how that actually translates in practice. I suggest that the onus must be on the defendant. He or she must be asked very searching questions about what attempts he or she made to elicit the age of the child and not on the child to defend himself or herself against the charge of being dressed provocatively or looking older that his or her years. I think the balance must be in inquiring from the defendant about what attempts were made to elicit the age of the child

Chairman

Does Dr. Ryan believe there should be an absolute obligation?

Dr. Ryan

Yes.

Chairman

The other part of my question related to the response to Deputy Curran on the concerns among parents of the trauma which their child may go through by being cross-examined by experienced senior counsel. Is that concern well-founded? Is there a possibility of long-term psychiatric or psychological damage to the child by such cross-examination of a 13 year old ?

Dr. Ryan

Some interesting research has been done in terms of what is the most traumatogenic feature of the criminal justice system for children. One might hypothesise that it was due to the outcome of the case. So, if the accused was acquitted that would have a more traumatagenic effect on the child because he or she had gone through the process for nought. It was interesting that that was not the most traumatogenic fact, which was hostile cross-examination. We know from what children and parents are telling us which parts of the system they are having difficulty with. If we can correct those or move toward modifying the worst aspects, again bearing in mind the right of the accused to a proper defence, I think and hope children and parents will have more confidence in our criminal justice system and be more willing to engage in it. We know the parts we have not yet got right and we should begin to address those on behalf of the children and families. However, right now there are difficulties for some children and families in engaging with the system.

Chairman

Would the Minister of State like to ask some questions?

Minister of State at the Department of Health and Children (Deputy B. Lenihan)

I thank Dr. Ryan for assisting us and throwing some light on this subject. I also thank her for the assistance she has given my office in seeking to improve services in this area.

My first question is about the issue of the age of consent. Dr. Ryan mentioned that she accepts there is a concept of consenting behaviour between teenagers. At what age can a free and genuine consent be given by an adolescent? I am assuming that before puberty a person is incapable of giving consent, and there we have the true cases of paedophilia although, as Dr. Ryan says, it is not necessarily always paedophilia in the case of person before puberty. However, in the case of a child who has gone through puberty, at what age can that child give to anyone, irrespective of the age of the other party, his or her free and informed consent to sexual conduct?

Dr. Ryan

The Minister of State used the phrase "sexual conduct". There are dimensions and ranges.

Deputy B. Lenihan

I mean consent to sexual intercourse, which was the subject matter of the CC case.

Dr. Ryan

It is a hugely difficult issue. It is very hard to attach an age to it and say that is the right age and that below that age it is wrong and above that age it is okay. It is, in a sense, case dependent. Having said that, I do not envy the members of the committee their task as legislators trying to grapple with this issue.

The bar must be set somewhere. The issue then is whether to set it at 17 where it is currently set, or to set it at 16 or 18. We have to be guided and talk to children and teenagers, first to ascertain what ranges of behaviours are currently engaged in and then to form an informed opinion as to whether an age can be set. The committee must do so, but I cannot answer the question whether that should be 17, 16 or 15. Within that, the committee must take into consideration that some 15 year olds may be much more developmentally mature than a 17 year old and capable of giving informed consent to behaviours. A 17 year old may be coerced or caught up in a situation and may not be capable of giving consent. I am aware that does not answer the question. One would need the wisdom of Solomon.

Deputy B. Lenihan

Dr. Ryan has illustrated very well the difficulty we face. Last week the Ombudsman for Children made the point, and Dr. Ryan has repeated it today, that there is a distinction in practice between an abusive relationship in which an older person is a sexual predator or in any way interferes with a younger person in their innocence, and two younger persons. However, when there are two younger persons, one party may not have a very innocent motive either. The variety of circumstances is legion. Parents expect us to provide an absolute zone of protection for their children. That is a strong demand addressed to us.

The question of strict liability and absolute liability is the subject matter of the CC case. We are asking Dr. Ryan to advise on legislation. We are legislators. We value her advice and we are aware she is trying very hard to help us. We must look at the question of whether there should be a zone of absolute protection, protected by an offence of strict liability. In other words, is there an age at which we should be able to say questions not only about consent but about whether there is an honest mistake should not even arise in relation to that age group. I assume Dr. Ryan would agree that it is beyond question in the case of a child before puberty and it should not arise.

Moving to the difficult area we were in on the last question, when a child goes beyond puberty, is there an age on which we should fix, in respect of which we should say, irrespective of what the Supreme Court thinks about it, that below that age a child should not be questioned about informed consent? I am not arguing for a referendum. I am trying to look at it in an informed way.

Dr. Ryan

We spoke earlier about the different developmental stages throughout childhood. There are different developmental stages throughout adolescence. Using a crude divide, I would suggest there is early adolescence, mid-adolescence and late adolescence. If I were to say where things should be totally forbidden, I would say early adolescence. Mid-adolescence is a greyer area and we come right back to the whole issue of developmental and cognitive abilities.

Chairman

When Dr. Ryan suggests early adolescence, does she have a specific age in mind?

Deputy B. Lenihan

It varies but on average when, typically, does early adolescence end? Is it two years after puberty?

Dr. Ryan

At the age of 13 or 14.

Deputy B. Lenihan

And mid-adolescence is 14 to 17.

Dr. Ganter

It depends on the developmental stage of the child. Dr. Ryan has been trying to highlight that. It is a difficult issue. We are putting chronological years on it and this issue is not about that. It is more about the development of the child. We all develop at different rates and that makes it very difficult. As the people who must make the laws, the members of the committee must define it in a way we cannot help them with because we do not perceive it in that way. Development is a continuum that takes place at different rates in different domains. Intellectually a child may be fairly well developed and one might think he or she really does understand, but emotionally the child may not be well enough developed.

Deputy B. Lenihan

A child might not be sexually well developed either. That is another sub-category.

Senator Terry

In talking about children, we are generally talking about children of good intellectual ability. How would Dr. Ganter approach the issue of the age of consent in the case of a child with an intellectual disability? Would she differentiate between the normal intelligent child and the child who has an intellectual disability?

Dr. Ganter

That also is a very complex question because there are different levels of learning or intellectual disability. In this conversation one would exclude children who are severely intellectually disabled. This is where the difficulty arises. There are children who are mildly disabled, who are in school with help and would be expected to lead independent lives in the future but who will possibly always need help. They will learn to read and write but they will never be particularly good at abstract thinking.

Some of these people can be taught to a certain extent and can understand at a certain level within certain contexts about certain matters, but in other situations they would not be able to generalise the information. It would, therefore, be very difficult to say that the age of consent should be different for them.

At what point does one make a distinction between the child of average ability or within what is construed as normal intellectual ability, and the child with moderate learning disability whose intellectual capacities are more limited and who cannot generalise or abstract in the same way? I am sorry to go into it but it is very complex.

Deputy B. Lenihan

It builds on what we are saying. I very much appreciate Senator Terry's intervention. As legislators we have two significant practical problems. One is that we have to make a classification, and a classification necessarily simplifies. The other problem is that society expects justice to be done and children to be protected.

To do that we have to appreciate the difficulties of burden of proof faced by the prosecuting authority in such cases. I am sure the delegation is well aware of this from their own practice. For example, we cannot leave it to a prosecuting authority to have to prove the degree of disability of a victim. That would entail an enormous burden of proof in a criminal trial. It is for this reason necessary we make an age classification. The traditional devices of ruling out the defences of consent or honest belief or setting rigid defences based on age limits facilitate the easier prosecution of these offences. I am sure the delegation appreciates the difficulties in this regard.

Traditionally the law in this country, and in most jurisdictions as I understand it, does not view late adolescence as an age that can be distinguished from adult sexual activity in terms of how the criminal law approaches people's behaviour. That is a fair comment. There can be rape or sexual assault but these are not differentiated from the same offences perpetrated on adults.

The delegation is suggesting there is a continuum — I appreciate they do not wish to be pinned down too much on this — between early and mid-adolescence to which we must extend some level of legal protection in terms of the difficulties of proof and the nature of offences which is what legislatures traditionally have done.

An offence of child sex abuse has been proposed in this regard. Should it apply to those under 17 years, 18 years or what other age is being suggested?

Dr. Ryan

I would welcome some consensus among the different pieces of legislation as to what constitutes the age of childhood. For example, the Non-Fatal Offences Against the Person Act provides that children can consent to medical intervention at age 16. The age of consent differs from one piece of legislation to another.

I believe, and this may be a simplistic way of looking at this, child sexual abuse is totally different to adolescents engaging in consensual sexual activity. The clinical definition of sexual abuse is the involvement of dependent, developmentally-immature children and adolescents in sexual activities which they do not fully comprehend or are unable to give informed consent to. They are the parameters onto which I hold when examining sexual behaviours in terms of whether they are abusive or consenting. They are the dimensions of child sexual abuse we need to examine. Included in this is informed consent and developmental maturity. I do not know if that answers the Minister of State's question.

Deputy B. Lenihan

It does, to some extent. However, for virtually all purposes of international responsibility, voting rights, criminal responsibility and civic and civil capacity, 18 years is now a crucial age. In the case of sexual crime, the age of responsibility is 17 years and, in terms of medical consent, 16 years. I suppose that is a reasonable classification because one should be entitled to visit a doctor on one's own quicker than one should be allowed to make other more fundamental decisions. I am trying to explain how that decision may have been arrived at.

Let us assume for a moment we decided — I am not suggesting we should do this — to include a special zone of protection for children providing that they cannot be cross-examined about honest mistakes and cannot give their consent and also a zone of protection for the middle adolescent group providing that they too cannot give their consent but can be cross-examined about their honest beliefs, which is one interpretation of what the Supreme Court is requiring us to do. I take it Dr. Ryan would agree that even with that group the honest belief cross-examination should be carefully surrounded by safeguards?

Dr. Ryan

Yes.

Deputy B. Lenihan

One such safeguard could be, as mentioned by Dr. Ryan, that the persons concerned would have to show they had made a reasonable inquiry. Another might be that a person in authority should not have such a defence.

Dr. Ryan

Yes.

Deputy B. Lenihan

A further safeguard might be that a person of that type would have to give notice before the trial of his or her intention to advance such defence.

Dr. Ryan

Yes.

Deputy B. Lenihan

The group's paper on procedures is very useful. The video-link is available in examination and cross-examination. However, the section which deals with preparation of the video recording is not yet operational. I would like to draw the committee's attention to one particular point and perhaps Dr. Ryan could confirm this for me. Am I correct in saying that that would be of particular value for younger child witnesses?

Dr. Ryan

Yes.

Deputy B. Lenihan

I am speaking of the category of children who before puberty often find it very difficult to give evidence.

Dr. Ryan

It will be the freshest evidence available.

Deputy B. Lenihan

Their memories are more short term. That section is very important in terms of this whole phenomenon of paedophilia.

Dr. Ryan

Yes, I would think so.

Deputy B. Lenihan

The submission places much emphasis on the need for those employed by the various authorities working in this area to receive proper training in child psychology and an understanding of children. I presume this is directed at professional bodies such as the Garda Síochána, social workers, prosecuting authorities, psychiatric services and so on. Is that a comprehensive list?

Dr. Ryan

I would go further and recommend to the committee that it consider the development of child advocacy centres similar to those successfully operated in the United States since the mid-1980s. These are standalone child-friendly facilities which bring together child protection services, law enforcement services, prosecution services, medical services, mental health services and victim advocacy services. They are all housed in a child-centred facility and work together to develop the best possible services for children.

Chairman

I have a final question for Dr. Ryan. It relates to an earlier question, the answer to which I was not entirely clear about. Does hostile cross-examination of 13 and 14 year olds have the potential to cause damage or trauma to the child?

Dr. Ryan

Yes. However, it is not yet known how long such trauma could last. If the Deputy is asking the simple question of whether children can be traumatised in this way, the answer is "Yes" but they can equally be traumatised by inadequate responses from the other systems which they come across.

Chairman

In certain cases, therefore, cross-examination may result in a child suffering long-term trauma in addition to the trauma suffered as a result of the physical act of abuse, which often involves penetration.

Dr. Ryan

It has the potential to do so.

Deputy J. Breen

When we hear of a child being abused, we tend to think of the abuser as being male. What percentage of females offend in this way?

Dr. Kennedy

An extremely small percentage.

Deputy B. Lenihan

That reply has prompted my next question. Dr. Ryan suggests in her paper that there should be no differentiation between males and females. If one criminalises a female one makes the burden of proof in the vast majority of cases much more difficult because she is then an accomplice to a crime.

Dr. Ryan

Yes.

Chairman

On that note, we have run way over time, a signal of the great interest in today's discussion. I say with a high degree of confidence that the submission made and evidence provided today will have a significant impact on our deliberations and the conclusions to which we will come in a few weeks. I assure the delegates that they have done the committee a great service. We are extremely grateful to them for their expert, professional help.

Dr. Ganter

Following further discussions on foot of this meeting, would it be acceptable to contact the committee subsequently if we have other thoughts or information to provide?

Chairman

Dr. Ganter is one step ahead of me. I was about to say that if thoughts occurred to the delegates arising from the meeting, the committee would be more than anxious to hear from them in writing. I thank them for attending.

The joint committee went into private session at 7.30 p.m. and adjourned at 7.40 p.m. until 9 a.m. on Thursday, 26 October 2006.