I thank the Chairman and the committee for this opportunity to air some issues arising from the publication of the Ferns Report. It has always been our view that the report is such a substantive work that the issues arising from it in terms of child protection need the proper consideration of a committee such as the Joint Committee on Health and Children.
We are eager to move today's discussion on Ferns to examine specifically current child protection practice and legislation, a number of the issues arising from the Ferns Report and others that I have highlighted. We are informed of our views on this matter. When we look back, particularly in terms of how the State has prioritised children and child protection, it is interesting to read a section of the democratic section of the first Dáil Éireann in 1919 which stated that it shall be "the first duty of the Government of the Republic to make provisions for the physical, mental and spiritual well being of the children". This was quite an aspiration for the first Dáil to make. It is sad to reflect that our Constitution in 1937 failed to recognise these rights, which has been an ongoing difficulty.
On examining the Ferns Report, what seems clear is that the catalogue of abuses detailed therein were only possible in the main because the State abdicated its primary role in guaranteeing the welfare of children. It failed to put in place proper safeguards for the protection of children and, in particular, seemed unwilling to intervene in matters it often saw as church affairs. When I say the State, I do not necessarily mean Governments. Often there was an attitude in Irish society that these issues were the domain of the church and not something that the State should interfere in. It has been particularly important for us to challenge this mindset over recent years.
I remember looking towards the establishment of the Ferns Inquiry when there was a discussion that the committee might remember about whether it would be constitutional for the State to carry out an investigation of that type, that the Constitution guaranteed churches the right to manage their own affairs and an investigation that examined the management of child protection within the church context might, therefore, be unconstitutional. This may seem farcical at this stage but was a serious consideration in 2002.
The Ferns Report details compelling evidence of the failure of the State to protect its children adequately and how appalling sexual abuse of children occurred despite numerous complaints and allegations to both church and civil authorities. It found that current child protection policy and legislation are almost entirely ineffective in cases of extrafamilial abuse.
The committee will be aware of the detail of the report, which dealt with more than 100 allegations of rape and sexual assault allegedly perpetrated by 26 priests in the diocese of Ferns. Following on from the report, we saw revelations from other dioceses suggesting that almost 300 priests in the Republic had faced allegations of some type. This was extraordinary given the context of where we were at the beginning of this process of inquiry. There is no doubt that there was a particular difficulty in a church context.
What was significant about the Ferns Report in terms of current child protection legislation was that it discovered that in cases of extrafamilial abuse — third party abuse cases, the Health Service Executive, HSE, had no explicit powers of intervention. If it received a report of someone outside the family context abusing a child, all it could do was carry out an investigation and perhaps validate that abuse. Having validated the abuse, it had no powers of intervention. It could only sit on its hands and do nothing to prevent further abuse. The only power the HSE had was implied rather than explicit under the Barr judgment, meaning that the HSE could inform an employer about a concern or allegation but only if it also informed at the same time the person against whom the allegation was made. Beyond this, the HSE had and has no powers of intervention in cases of extrafamilial child abuse.
It is striking that there have been seven inquiries into child abuse over recent years. Referring to the Kilkenny incest case, Ms Justice Catherine McGuinness commented that: "The very emphasis of the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving higher value to the rights of parents than the rights of children." This is within the familial context. It seems the failure in the Constitution to recognise explicitly the inherent and individual rights of children and to require the State to act to safeguard those rights is a contributing factor to failures in current child protection practice and legislation.
Over recent weeks we have heard discussions on List 99, a list of people who should be barred from working with children in the United Kingdom because of the risk they pose. The Minister of State with responsibility for children suggested that although this was a good idea, it would not be possible in Ireland because of constitutional difficulties. Although our Constitution fails to protect children, fails to recognise their inherent rights and particular vulnerability, and fails to place an obligation on the State to safeguard those rights, it prevents significant preventative measures, such as the use of soft information in child protection, which are accepted as good practice in child protection.
We recommend an amendment to the Constitution that recognises the inherent and individual rights of the child and the unique status and vulnerability of the child. Such an amendment should reflect the right of children to live free from abuse and exploitation and affirm the duty of the State to safeguard children from harm. Such an amendment would require that child protection practice and legislation vindicate those rights. Current constitutional guarantees of the right of citizens to their good names may be in conflict with that practice in child protection if we consider some of the comments made last week. Until the State explicitly recognises and affirms the rights of children and deals with the ridiculous situation in our Constitution where, as Ms Justice McGuinness stated, children's rights are often seen as secondary to the rights of others, no legislation, practice or policy has intent of the State behind it.
Existing child protection legislation policy and practice must be reviewed to ensure meaningful intervention in extrafamilial child abuse and retrospective disclosure by adults of past child abuse. The Ombudsman for Children appeared before this committee last week and spoke of complaints received about current child protection practice. In our work, we make referrals to the Health Service Executive, HSE, on ongoing concerns revealed through disclosures by adults of past child abuse. Our work tells us that the approach adopted by various regions of the HSE, the former health board regions, is inconsistent.
Last week, in preparation for appearing before this committee, we decided to examine the Children First guidelines, calling every duty social worker department listed in Children First to see how easy it might be to make a third party disclosure of child abuse. In one day we placed a call to each of the 32 duty social work departments. In 10% of cases we received no answer; in 12% we encountered a voicemail service; in 12% we were offered a call back; 7% of numbers were incorrect, despite being listed in Children First as those of duty social workers; in only 7% of cases details of the concern were taken; in 7% of cases the caller was directed to other services and in 31% of cases no one was available to speak to the caller.
In light of the Ombudsman for Children's statement last week, there are significant difficulties in implementation of policy and practice. Children First is an extraordinary policy and is excellent in many respects apart from the obvious gap in protection in extrafamilial cases. Adequate resources have not been granted and the policy has not been fully implemented. Social workers have not received adequate training or resources to implement the policy.
For example, one person we called took details of a scenario concerning a music teacher. The caller thought there was a concern but was unsure what measures were possible. The person dealing with the call believed it could be possible for the HSE to alert parents in the area of the danger but added that this would have to be verified. This is impossible as the HSE cannot deal with a third party allegation, without investigation, by informing people that an allegation has been made. A social worker in a duty social work department believes this is possible. While I do not wish to attack the integrity or professionalism of social workers, the failure to implement and provide resources for child protection policy engenders patchy provision.
In another case we attempted to make a third party disclosure but the social work team leader suggested we could find ourselves in court and asked if we had consulted a solicitor before making this disclosure as what we said could be construed as defamation. We sought to pass on information on a specific case in which the complainant wished to remain anonymous because of safety fears. The complainant sought to pass on soft information that might help should further concerns arise. The social work team was reluctant to accept this information and suggested it was illegal for us to make the referral. This runs counter to the Children First policy and best practice.
Implementation of current policy needs to be urgently reviewed and we understand this is happening in some regard. A robust review and update of policy and legislation is needed. Ongoing review of policy and implementation is essential to ensure best practice. Unless policy is understood, resourced and implemented, it means very little.
A joint agency approach to child protection is needed. Lip-service has been paid to the idea in this State. Children First requires that the Garda Síochána and the HSE should share information but despite agreement that it would happen, the Ferns Report shows this did not happen, even after 1995. The Ferns Report suggested a process by which we would establish inter-agency review groups. These review groups would comprise representatives of the HSE, the Garda Síochána and the diocese. Such a review group exists in the diocese of Ferns.
The church has suggested that to establish such review groups solely in the context of the Catholic Church might be discriminatory, a view I believe is true. However, it would be sensible to establish such inter-agency review groups in the wider context of child protection. Such groups should include child protection specialists from the HSE, the Garda Síochána and voluntary groups working in child protection. The probation and welfare service could also play a role in post-release supervision and treatment of offenders. This would ensure a joined-up approach.
Inter-agency review groups should retain records of their meetings and collect soft information to best inform child protection. These records should be granted executive privilege. Inter-agency groups would be responsible for individual case reviews and for reporting on child protection practice in each area. A cohesive, coherent process could collate child protection practice and implementation into a national overview.
We suggest the establishment of a national office for child protection, perhaps under the National Children's Office, which could audit child protection policy and submit an annual report to the Joint Committee on Health and Children. Unless we constantly review implementation of policy, things go wrong. This committee would be an excellent forum for overseeing current practice, raising concerns and examining policy and recommendations.
Clear anecdotal evidence suggests Children First is not working and is not being fully implemented or applied uniformly. The Government has accepted a significant number of the Ferns Report's recommendations. In particular, it accepted the recommendation for a new express power to allow the Health Service Executive, HSE, to intervene in extrafamilial cases by applying for a High Court application to prevent those who may be a danger to children from working with them. Concerns were raised in some quarters that a power with such oversight might not be appropriate and may raise a civil rights issue. Ongoing review and examination of child protection practices in those cases would be a way around it.
Explicit recognition of the rights of a child through a constitutional amendment would be welcome. We recognise the recent recommendations of the Oireachtas All-Party Committee on the Constitution. However, we share the views of the Ombudsman for Children, Barnardos and other organisations that those recommendations fall a long way short of what is necessary and do not guarantee specific and inherent individual rights.
The Government also promised to make the reckless endangerment of the welfare of the child a new criminal offence. Legislation is valuable and extremely significant. However, it has meaning only if it is properly implemented. We must resource those responsible for child protection to ensure we work to best practice standards.
It is also clear that we must work on public awareness. Every report, inquiry and research, such as the SAVI report published in 2002, suggests we must undertake a programme of public awareness on child abuse to reach a point where we, as citizens of the State, recognise that the protection of all our children is our responsibility, individually and collectively. We must also reach a point where people are assured it is in order to raise a concern and that the best action to take if one has a concern is to contact a duty social worker. It is hoped one would have more success in making contact than we did. A duty social worker will listen to a concern, consider it and deal with it appropriately and professionally.
There is no doubt about the fact that not only in Ferns but in a great many cases, a fear of their words being viewed as an accusation caused people not to raise a concern when clearly there were grounds for doing so. We must inform our opinions and beliefs and reach a point where we recognise that the significance of the child protection issue makes it appropriate to raise a concern and refer the matter to the appropriate authority. The difficulty is that, in the absence of a properly resourced child protection service, often little happens on foot of those complaints. The Stay Safe programme in schools is very important but we now know it is not taught in 20% of schools. There is little understanding of how effective it is and how effectively it is taught.
To value children properly, we must value child protection. Everything will flow from recognising and crediting the rights of children to be safe and be protected and recognising our collective responsibility as a State to protect our children under the most basic instrument of our law.