JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Tuesday, 1 May 2012

Children First Bill 2011: Discussion

Chairman

I welcome the following: Mr Fergus Finlay, chief executive, Barnardos; Ms Caroline O'Sullivan, director of services, ISPCC; Ms Maria Corbett, deputy chief executive, Children's Rights Alliance; and Ms Maeve Lewis, executive director, One in Four. I thank the delegates for attending this meeting.

This is our first meeting to discuss the heads of the Children First Bill 2011. The Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, invited the Joint Committee on Health and Children to hold public hearings and to seek written submissions on the proposed legislation. This is a very important process and I thank members and witnesses for being present. Before we commence proceedings, I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If a witness is directed by the committee to cease giving evidence in relation to a particular matter and the witness continues to so do, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and witnesses are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Finlay to make his presentation.

Mr. Fergus Finlay

I congratulate the Chairman on the speed and urgency in which he has begun the work of examining the legislation that was published in draft form only a few days ago. The downside however, is that we will be offering preliminary views. We will make a fully detailed submission within the deadline but in the short time available what we say today may not be as comprehensive as we would wish.

I suspect that I speak for all my colleagues when I congratulate the Government and the Minister on bringing forward this Bill. It is long overdue. It has been awaited a long time. We recognise, as the Minister states, that child protection is the responsibility of a whole society and a whole community. It is not a simple straightforward matter. Many of us who have been working directly with children for many years have been learning how to do it right and it is not always as easy and straightforward as it might seem.

Legislation is crucially important to underpin what has been up to now effectively guidelines. As we all know, the guidelines have not always been applied evenly, even within the State services for children. They have not always had the force that they should have had outside the State services. The underpinning of the legislation by a strong commitment to the Children First guidelines and to the welfare and protection of children is extremely welcome.

We have analysed the Bill in the short time available. We are not here to find fault with it. In many cases the Bill measures up to what we would regard as the requirements of best practice. There are a few points where additional clarity is required and areas of some concern. In my presentation, I will go through the heads as they appear and will concentrate on listing these points

Head 7 of the Bill puts a clear onus and responsibility on organisations. It will be onerous but nevertheless a welcome responsibility. This responsibility will require in the first instance a degree of public awareness, a dissemination of information, knowledge and a degree of training. All of that must be resourced to some extent. It is not reasonable to expect every organisation in Ireland that works with children, to a greater or lesser extent, to become expert overnight in the application of this law. They will need some assistance. There is a requirement on designated officers to appoint internal audit committees. We would welcome a provision in the Bill that enabled designated officers, who in the main will be the chief executive officer of an organisation, to also appoint external experts to increase the level of independence and skill available. There are many organisations where internal audit, almost by definition, generates a degree of conflict and the presence of an external person frequently helps to resolve that conflict.

I understand that the national vetting bureau Bill will be published next month and it is extremely important that these two Bills be aligned in terms of their timeframes and that consideration be given to the fact that this Bill will place a further onus on the national vetting bureau, which does a magnificent job in very constrained circumstances. This Bill will lead to a greater demand for more vetting, as it should, and therefore there will be an issue of resourcing the national vetting bureau itself and the Bill that will underpin that bureau.

We have a number of anxieties about designated officers. We welcome the fact the designated officer should be the most senior person in an organisation and that there should be clear lines of accountability. The Bill is rather vague in respect of the defences available to a designated officer. In one of the heads, it states for example, that a designated officer should report suspected abuse unless he or she has a reasonable excuse. That is not enough. One would need a great deal more than "he or she has a reasonable excuse". It will never be enough for a designated officer to say, "I did not report it because my phone was out of order". The Bill needs to be more specific in regard to the exceptions, defences or excuses that can be offered. At present it is far too vague.

We also support the concept put forward by Mr. Ian Elliott, the chief executive officer at the National Board for Safeguarding Children in the Catholic Church in Ireland, that designated officers within the church and faith-based organisations should be lay people or the function should be at least delegated to lay people in the interest of ensuring transparency and full accountability to the law within those structures. We have a number of anxieties about things and people who are, or who appear to be, excluded from the Bill. The Bill is not quite clear about places where children can be at play, for example, swimming pools come to mind, where children can be at play without adequate supervision, sometimes without parents being present and so on. There needs to be a good deal of clarity about that.

There are two groups to whom the Bill is not regarded as being applicable at present, and we want to see them included. The Bill seems to say that it will apply to people employed in crèche facilities with FETAC level 7 or higher qualifications and therefore it will not apply to anybody with lower qualifications than that. The Bill should apply to everyone who works in a crèche. At present, crèches are funded to a very considerable extent and can access subsidies to a very considerable extent on the basis of employing people with FETAC level 5 qualifications and yet they are excluded from the Bill. The Bill also excludes professional child minders. It may have been that the intention of the Bill was not to include a grandmother or a grandfather when she or he was minding children, but there needs to be a definition of professional child minding in the Bill. Perhaps it should be defined as somebody who looks after one or more children on his or her domestic premises for reward. Any such person must be covered by this legislation and all professional childminders, regardless of whether they are obliged to be notified to the HSE, must be covered by the Bill. These are the main points I wish to raise.

My colleagues will be making other points of further detail. In general, what I want to say on behalf of Barnardos is that like every other organisation involved in the care and protection of children, we have been through our own learning process in regard to getting child protection right. We made mistakes in the past and have learned from them. Many of us in our field have believed in and apply the principle of mandatory reporting for a number of years. While the phrase "mandatory reporting" is not used in the context of this Bill, we think it is an immeasurable strengthening of protection for children even as it stands and with the improvements we are suggesting. Let me repeat that we will make a more detailed submission in the fullness of time. I welcome the Bill and commend the Minister and wish the committee well in its work.

Chairman

Mr. Finlay is correct that there must be proper engagement. Should Barnardos wish to come back to the committee, we will try to facilitate that request.

I call Ms Caroline O'Sullivan from the ISPCC to make her submission.

Ms Caroline O’Sullivan

I echo Mr. Finlay's remarks in welcoming the proposed legislation. In the ISPCC we see it as a significantly positive step in the right direction. We have been calling for the Children First - National Guidance for the Protection and Welfare of Children to be placed on a statutory footing for a number of years. It is very welcome that what we had hoped for, is now to become a reality. We absolutely believe that an obligation should be placed on named professionals and organisations to comply with the legislation. We believe this has been long overdue and that individuals who work in a professional capacity with children and young people all across the island must be obliged and compelled to report if they are aware of a child being harmed or at risk. While we welcome the draft there are a number of clarifications we seek to raise.

We would like to see references to other proposed Bills included in the draft, for example, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012 and also the proposed vetting Bill. We feel these are interlinked and will work with each other.

I will also go through the heads but will avoid the areas that Mr. Finlay has spoken about.

In respect of head 2 which defines forms of abuse, we are concerned that emotional abuse is not included within the definitions. While we understand that emotional abuse is part and parcel of all the other forms of abuse, we feel it can be a form of abuse on its own and also that it warrants separate identifications in terms of the forms of abuse.

We feel strongly that the area of peer consensual activity needs to be included in the draft. We are acutely aware of the fact that there are other laws which still allow for inequality between young boys and girls who are involved in consensual activity, which I know cannot be dealt with here. It is important to point out that this inequality still exists.

In head 6, where organisations have the statutory obligation to report, there is confusion around sole practitioners and self-employed, because parents can employ a person in their own home, which Mr. Finlay referred to as child minders, but sole practitioners, or psychologists or counsellors could also be employed by a parent in a private capacity in the child's home, but this could be excluded under this head. There may be some confusion about this and it would need to be clarified.

In terms of the designated officer, Mr. Finlay mentioned that would most likely be the chief executive officer and that this could be delegated to other members at a senior management level within an organisation. That is all right if there is a very large senior management team but for an organisation like the ISPCC where the majority of our staff are people working on the ground who have the skills and knowledge and are supervising staff and volunteers, there must be a flexibility to allow the organisation to chose the skilled person to take on that designated officer role, which of course will be fed back up to the main designated officer within the organisation.

In terms of volunteers who fail to pass on information, there is a statement in head 10, that the volunteer may be prohibited from working in that organisation again. However, there is no clarity about whether that information should be shared with other organisations that are also compelled to follow this or if it should be reported to the HSE. There would then be a concern about what is done with the information. Does this become part of the vetting Bill, or is it soft information or not? While they may not have harmed a child, they may not have acted in preventing a child being further harmed in the future.

Mr. Finlay has raised the issue of what is a reasonable excuse. We would also be very concerned about that because what is reasonable to one person may not be reasonable to another, so that needs clarification.

We believe that head 12 places the onus on the HSE to promote awareness and to provide training around best practice. That is an important point. The HSE should have that responsibility, but again there must be somebody monitoring the HSE in carrying out that duty. We know that the training has already begun across the country and the HSE has acted very quickly in the cascade training on Children First, which is happening. Organisations are actually getting that training, which is very positive.

The power to examine compliance is something that we greatly welcome. That must be in place and it must be followed. What is really good about this provision is that it gives organisations lots of different opportunities to improve the practice that they are working in, from the improvement of the written direction to the improvement notice to the prohibition notice. Every step is being taken to support organisations but at the end of the day, the sole goal is to act in the best interests of the child and this seems to permeate the whole Bill. That is what is the most important factor.

The inclusion of the Data Protection Act in head 18, and not actually preventing exchange of information, is a really important point. We welcome its inclusion.

Head 20 deals with offences and sanctions. It is important that clarity is provided regarding who owns the offence. Will it be the organisation, the CEO or the officer designated by the CEO? The question also arises of what a reasonable defence might comprise. If an organisation such as the ISPCC has put in place structures to allow the passing of information and concerns relating to child protection to the designated officer, who is culpable if a member of staff decides not to pass on the information for whatever reason? Is it the staff member, who can be dealt with through the labour relations structures, the volunteer, who can be prohibited from working in the organisation, or the designated officer for not fulfilling his or her duties? Is the reasonable excuse provision based on knowledge of a child being harmed? Unless that question is clarified, it will cause a significant amount of distress not so much for large organisations which have already put structures in place but for all the pre-school services, crèches and smaller organisations around the country that may not have these structures. It is a scary idea that an individual could be held responsible for something over which he or she does not have control. The sanctions are warranted and sufficient but further clarity is required in this area.

Chairman

I invite Ms Maria Corbett, deputy chief executive of the Children's Rights Alliance, to make her presentation.

Ms Maria Corbett

I thank the committee for inviting me to address it. I represent the Children's Rights Alliance, which is a coalition of over 90 non-governmental organisations working to promote the implementation in Ireland of the UN Convention on the Rights of the Child. The alliance warmly welcomes the publication of the heads of the children first Bill 2012. We first called for such legislation in 2006 and this recommendation was echoed by the UN Committee on the Rights of the Child later that year. Under Article 19 of the UN Convention on the Rights of the Child, every child has the right to be protected from abuse and the State has a positive duty to put in place prevention, identification and reporting mechanisms. We also welcome the innovative decision to allow this committee to enter a period of consultation on the Bill and we value the opportunity to contribute to its development at this early stage. I will provide initial comments on the Bill today and the alliance will also make a written submission to the committee later this week.

There is much to be welcomed in the heads of the Bill. However, a number of areas would benefit from further examination by this committee. I will organise my comments according to themes rather than follow the order of the heads. I am interested in considering not so much the principles of the Bill but what it will look like in practice. I have grouped my comments under four categories, namely, omissions, accountability, aligning legislation and protecting access to services.

The first topic is omissions. As Ms O'Sullivan has noted, emotional abuse is currently omitted from the definition of child abuse. This is an unacceptable omission and it must be rectified. There is precedence for emotional abuse in other legislation, such as the definitions used in the Protections for Persons Reporting Child Abuse Act 1998 and in the Children First guidelines. Child minders are explicitly excluded from the remit of the Bill. As this issue has already been discussed I will not speak further about it, other than to note its critical importance.

The third omission is that the criteria used to guide an individual's decision on the making of a report are to be found in proposed non-statutory guidelines rather than in the Bill. I strongly recommend that a set of criteria be inserted into the Bill to ensure the legislation is sound. These criteria can be further elaborated in guidance if necessary. In the absence of statutory criteria it is not clear what level of information merits the making of a report and thus constitutes a statutory obligation. The law is thereby vulnerable to challenge by an individual who is accused of non-compliance. The Bill should also clarify that the legislation takes precedence over guidance documents.

The next issue I wish to discuss is accountability and penalties. The Bill sets out two new roles for the HSE, namely, to provide an information and advisory service to individuals and organisations on compliance with the legislation and to regulate the same individuals and organisations on their compliance with the legislation. In addition, the HSE will also be the subject of regulation. This obviously poses a conflict of interest and it would be more appropriate to assign the regulatory role to another agency, such as the Health Information and Quality Authority.

The Bill proposes four penalties for failing to report appropriately a concern or allegation which vary depending on the individual's level of responsibility. Volunteers may be penalised by being prohibited from volunteering in an organisation. This penalty has knock-on implications for access to future employment and volunteering opportunities, as well as damage to one's good name, both of which are constitutionally protected rights. It is important to clarify whether the prohibition would meet the criteria for soft information and thus merit notification to the National Vetting Bureau. The focus of this provision is to penalise an individual's failure to act rather than supporting his or her capacity to comply with the legislation. There is a lot of stick but not much carrot. It would be more appropriate to focus on how the HSE can support organisations to fulfil their statutory duties under the Bill in regard to training and informing volunteers. Many member organisations in the Children's Rights Alliance are already following best practice but the upskilling required under this provision will be a huge challenge to others, particularly those which rely on a large base of non-professional volunteers.

In regard to designated officers, where the HSE is of the opinion that an organisation is breaching the legislation it can prohibit specific organisational activities by serving the designated officer with an improvement or prohibition notice. However, as this is an organisational rather than an individual sanction it should be served on the organization. The legal responsibility for compliance with the Bill should be reconstructed. The responsibility should rest with the organisation or corporate entity rather than an identified individual within the organisation. In many cases the designated officer will be an unpaid non-professional volunteer. In a parallel development, the scheme of the National Vetting Bureau Bill 2011 attaches liability for compliance to the employer.

As the issue of aligning the Bill with other legislation has already been addressed I will proceed to the issue of accessing services. Many of the alliance's member organisations have contacted us over the past several days regarding this aspect of the Bill. One of their key concerns is how the Bill, when considered alongside the Criminal Justice (Withholding of Information Concerning Offences against Children and Vulnerable Adults) Bill 2011, will impact on their ability to provide children with counselling and advice services, particularly in the area of sexual health. Mixed messages and practices abound and it is unclear if it is the intention of the legislation to require all consensual sexual activity between individuals aged 16 years or younger are to be reported. The alliance believes it is not appropriate for society to use legislation or criminal prosecution to deter young people from engaging in consensual peer sexual activity. Investments in services in recent years have brought about significant positive developments, including empowering young people to make responsible decisions about their sexual health. We are conscious that we need to protect the right of young people to access such services without fear of criminalisation. It would be useful for the committee to explore this further during its review of the Bill.

I thank the members of the committee for the opportunity to speak today and wish them well in their work in coming weeks.

Chairman

I thank Ms Corbett for her presentation.

Ms Maeve Lewis

I am grateful for the opportunity to address the committee today. Everybody in this room today has a common goal which is to ensure that this Bill in its final form helps make Ireland a safer place for children. At present we do not have an effective child protection system in Ireland. One in Four estimates that for every 80 cases of child abuse, there is one criminal conviction. One out of every 80 child sex offenders is convicted of his or her crime and the others walk around with impunity, free to harm other children. The level of proof required for a criminal conviction is so high that the criminal justice system cannot deal with most cases, which means it must fall to the child protection system to deal with children in this regard. This makes the work the committee is doing today very important.

We welcome the intention of the Minister for Children and Youth Affairs to place Children First on a statutory footing. We are in broad agreement with the provisions of the Bill and echo many of the points made by my colleagues. We particularly welcome the Minister's statement that she and the Minister for Justice and Equality intend to work closely together to ensure that the children first Bill, the withholding information Bill and the vetting Bill operate seamlessly together.

One in Four is unique in that we work with every aspect of sexual violence. We offer counselling and advocacy services to men and women who experienced sexual abuse in childhood and we also offer a sex offender treatment programme. Each year we work with almost 1,000 people. The majority of our clients were sexually abused in their own families or neighbourhoods - fewer than 30% were abused in the Catholic Church, which would tend to mirror the experience in other organisations.

Through our clients we have learned a great deal about sexual abuse. We know the pain that exists behind the statistics and we know that sexual abuse in childhood reverberates throughout a person's life and does not stop in childhood. Therefore protection of children is at the core of what we do. We are deeply committed to ensuring that today's children are safe from sexual abuse. We have developed very wide experience in helping people to negotiate the complex terrain between their personal traumatic experiences and the statutory systems with which they must often engage. Our observations today are based on that expertise and we hope they may be of some value.

We are delighted that the new legislation will, when enacted, place clear, unambiguous obligations on statutory and voluntary organisations and on designated professionals to report concerns about child abuse to the HSE, which will end the very hazy situation in which we now operate. We are particularly glad that independent psychotherapists and counsellors will be included, as they are often the people to receive first disclosures of sexual abuse. We also welcome the clarification of the role of the HSE in supporting and monitoring the child protection practices in all the organisations and professions concerned, and in enhancing its legal obligation to investigate allegations. We are pleased with the creation of a legal capacity for the HSE to intervene when best practice is not being implemented.

I wish to touch on three areas of concern: retrospective allegations; the needs of survivors; and the allocation of resources. We are concerned that the new legislation does not sufficiently acknowledge the role and responsibilities of organisations or independent practitioners who work with adult survivors of child sexual abuse. The reality is that children do not tend to tell about the abuse at the time it is happening. The majority of victims only disclose when they reach adulthood and feel safe. However, just because the abuse happened ten, 20 or even 30 years ago does not mean that the sex offender is no longer a danger to children. The man who abused his daughters may now be abusing his grandchildren and the teacher who abused in the past may now be abusing whole new generation of schoolchildren.

It is imperative that the new legislation spells out explicitly the obligations of organisations and professionals working with adult survivors and the role of the HSE in investigating retrospective allegations. Currently we estimate that the HSE investigates fewer than 10% of the cases we refer to it. As they relate to retrospective allegations they do not have the same priority as current notifications, which needs to be addressed.

Many commentators have expressed concern about the consequences of introducing what is in effect mandatory reporting. They focus on two issues: the potential to silence victims thereby stopping them coming forward; and the danger of overwhelming an already overstretched child protection service. At One in Four we operate a mandatory reporting policy. All allegations and concerns are reported to the HSE child protection services. However, we are working with vulnerable and distressed men and women who have reached out for help to deal with the effects of child sexual abuse on their now adult lives. We have to balance their need to access services with the need to protect children. The last thing any of us wants is to frighten people from coming forward thereby further silencing victims.

Our clients are usually reluctant initially to report to the HSE, especially when they have been abused within their own family. They fear, often with good reason, the reaction of family members and neighbours to a disclosure. In our experience, with skilled intervention most people will in time agree to a report being made. Reporting concerns without the co-operation of the victim is next to useless as they are almost impossible to investigate. Unless victims are supported and prepared to engage actively in the investigation, this legislation will result in a box-ticking exercise by organisations passing on useless information to the HSE which will be able to do nothing with them. Victims need sustained professional support to consider the repercussions of disclosures, to deal with the fallout in their families and when making statements to social workers. Without that support it is likely that many people will choose not to come forward to disclose their experiences, leaving other children vulnerable to abuse from the same offender. This is particularly worrying in the case of intra-familial abuse where it is well documented that sexual abuse typically crosses generations.

International experience shows that this type of legislation can lead to increased reporting levels and to services being swamped. We can learn from these countries by creating a reliable triage system whereby serious allegations are prioritised by the HSE. However, we must also ensure that proper resources are available to investigate the new allegations. It is pointless to introduce this legislation if it cannot be properly implemented. In this harsh economic environment difficult decisions will have to be made in allocating resources. However, if we are serious about protecting children then the effective implementation of this Bill must be an absolute priority.

If we have learned anything from the various reports of the past decade, it is that silence and secrecy endanger children. Children were abused and tortured in full sight because adults chose to turn their faces away. We all want Ireland to be a place where our children can grow up safe from sexual harm. One in Four welcomes this Bill as an important element of the framework of child protection that is being put in place. Together with the proposed withholding information and vetting legislation it will help to foster a culture where all adults in this country will realise it is their responsibility to protect every child from harm.

I thank members of the committee for the opportunity to speak this afternoon. We will make a more detailed written submission in due course.

Chairman

I thank Ms Lewis for her presentation. I remind members and the four witnesses this afternoon that the committee is seeking public submissions from which we will continue to hold a series of meetings over the next month before reporting back to the Minister, Deputy Fitzgerald, in June. The closing date for receipt of submissions is next Friday and further details are available on the Oireachtas website. Members and witnesses are encouraged to invite submissions from other groups if they wish. We look forward to hearing further from the groups represented today.

Deputy Charlie McConalogue

I welcome the representatives of the four organisations, who have given their thoughts on this important legislation. We may have been somewhat unfair to the witnesses by inviting them in this early, which may not have given them sufficient time to digest what is in the Bill and to tease out its numerous implications. Looking at the heads of the Bill, it strikes me that they have been prepared unduly hastily. There are gaps in them, as well as various other issues. The hastiness with which we are seeking public submissions, before people - especially those who will be affected by it - have had time to examine and consider it in detail, is reflected in these gaps. More thought should have been given to some of the sections.

There are a couple of things on which I would like a response from the witnesses. The guidelines under which designated officers would be required to decide whether they should make a report are not included in the legislation. It is an insult to us to introduce legislation that does not outline the guidelines under which people who have the responsibility of protecting children within businesses, professional and voluntary organisations will need to make that critical call. It is mentioned in the explanation that the guidelines will be published later on the Internet and will be updated as required to reflect changing child protection requirements. That is not in any way acceptable; it is a sign that this has been much too hastily put together. This needs to be addressed.

The Bill will have serious implications for every organisation in the country that deals with children. As such, it will take time, and strong consultation will be required with each of those organisations. There is no published version of the Bill yet; these documents came to the committee only today. Each organisation that will be affected must take time to appreciate the implications of the Bill. We also need to ensure there is effective consultation with these organisations and that they come before this committee. In advance of that, they must have the opportunity to examine what the Bill will actually mean for them.

I am taken aback that the first step of this Bill does not involve sitting down with the Minister to go through it head by head, teasing out exactly what is meant by each of the provisions and the ideas behind them. We have a poor history of child protection in this country, as we are all aware. Moving to a system under which the Children First guidelines are put on a statutory footing is the right approach. However, I have serious issues with the way this is being done in the Bill.

Chairman

I spoke to the Deputy about the process we are engaging in, and he had no difficulty with it. As Chairman, I spoke to members of the committee and said that, starting today, we are inviting public and written submissions. The Chair will not be in any way protectionist, but that is an important point.

Deputy Charlie McConalogue

That is certainly something to look at. However, the fact that the heads of the Bill only came to us today is a reflection of the hastiness with which they have been drafted. They were published on a website last week.

I would be interested in hearing the views of the witnesses on the position of designated officer. In view of the onus that is put on that person, organisations will find it difficult to fill that role. Volunteers will now find themselves in a situation in which they could be breaking the law and could face fines or a jail sentence for failing to report. That is a massive responsibility for any volunteer. That is what this Bill will do, and it will create many difficulties, particularly for smaller organisations such as soccer clubs. The question of indemnity also comes up. This is a big responsibility to take on. Even highly qualified and trained professionals such as architects or solicitors would not do a job without having indemnity, yet we are asking people to take on a role with serious repercussions which should also require indemnity. That will pose a problem for smaller organisations.

A point some of our guests made was about the role of the HSE. According to this legislation, the HSE is required to advise designated officers in clubs and organisations, to deal with complaints that come in and to monitor the implementation of the system. That is not a structure we would put in place for anything else. For example, the HSE provides health services and HIQA monitors them. It is not a sensible approach to take.

The heads are a little lax in terms of placing the Bill in the context of other child protection law - that is, the Child Care Acts - as well as the national vetting bureau Bill and the criminal justice (withholding information on crimes against children and vulnerable adults) Bill. Another key thing we have not seen over the course of the consideration of this Bill by the Department is its impact on resources. There has been a marked reluctance by the Minister to use the term "mandatory reporting" when dealing with the system to be implemented by this Bill. Part of the reason for this is the desire to avoid the implications of mandatory reporting in terms of resources, based on the experience in other states when a system is introduced that obliges people to report on pain of penalty or criminalisation. I would be interested to hear the views of the witnesses on the implications for reporting. By its nature, a Bill designed to improve reporting will result in an increased number of reports. If it does not, then the Bill was not needed in the first place, and I think we would all agree it is needed. Experience from other countries shows that the introduction of mandatory reporting with penalties has led to an increase in reporting. We are about to introduce a system under which every soccer club and small youth club will have a designated officer who is required, on pain of criminalisation, to report any suspicions he or she may have of a sexual nature. It is also pointed out in the heads of the Bill that most abuse is intra-familial, yet these designated officers are required to keep an eye out for that. On pain of criminalisation, what will these officers do? They will report anything at all they are unsure of. This can only lead to an increase in reports. Our system is already overburdened; not all of our children in care have a dedicated social worker, and we have seen that those who retire are not necessarily being replaced. I would be interested in the witnesses' views about what this will lead to in terms of an increase and on whether the system is actually equipped to deal with this.

The intention of the Bill is right, but it is being done too hastily and there are too many gaps. The last thing we need to do is to introduce a structure that will cause more problems for our child protection system than it solves.

Chairman

I remind the Deputy that on Wednesday I met the Minister and on Thursday the committee discussed this in private session. All parties were present at the meeting, and I was clear on what the process would be. The committee published the submissions on its website on Friday. We have been very clear on what we are doing.

Deputy Caoimhghín Ó Caoláin

I welcome the witnesses to the committee. I appreciate the limited opportunities for discussion so far, but this is something we have all been working towards, and so this a happy day for us. As an Opposition Deputy I wish to record my warm welcome for the presentation of this Bill and, in time, its introduction. This is a Bill for which we have campaigned for a long time. My sense is that the Bill, as presented, will give statutory footing to the guidelines that have applied heretofore and that is a very welcome development. Any comments I have to make, therefore, are not part of an exercise in looking for holes, but to tease out a better understanding of some of the wording, phraseology, consequences and so on. That is the approach I am taking with it.

I wish to speak about the referencing to organisation. Perhaps the representatives can offer a view and the Chair, in turn. Maybe there is a need for an elaboration. Deputy McConalogue has mentioned clubs, but clubs are all part of an organisational structure. Is this required only in terms of a national body? How will that work in terms of permeating down to the reality of day-to-day life in communities right across the length and breadth of the jurisdiction? In terms of the understanding of the word "organisation", that is, the major national sporting body, will there be a designated officer at the helm of these bodies or will it go down to club responsibility at the first point of engagement with the child or young person? That is not clear having read the explanatory memorandum. I would like to have that teased out with a view to having a better understanding of it. My preference would be that the designated officer would be at the lowest common denominator in terms of the make-up of any structure that impacts directly with the child. That is what we should work towards and that should be the understanding of everyone. If the Minister were to clarify that issue it would be very welcome.

The referencing to the designated officer status is a line of responsibility surely. In reading the explanation of the heads of the Bill, a number of the key points overstate the responsibility as against the role. It is important that the organisation recognises that it is the responsible body and the designated officer is not a scapegoat within a structure. The language could be strengthened and tightened up to give a clearer sense and understanding of that. My view is that an improvement notice - whatever about a prohibition notice which is the end of the game - should not only be sent to a designated officer. For all the obvious reasons that should be copied to other notified officers of any given organisation or structure, otherwise too much power, decision making and responsibility is left in the hands of a singly identified person. For all the lessons we have all learned, that is not the way to go. There needs to be other safeguards built into the system. That can only be achieved through proper copying of the improvement notice, whereby there can be no excuse for someone saying they did not know as it was all in the hands of such and such or it was on that desk and we never had sight of it. Those are important issues that need to be considered.

Moving away from the organisations to the individuals and Schedule 1, I listened to each of the contributions including Mr. Finlay's references to a number of other areas. The word "organisation" can be quite loose when it comes to providing service supports to young people. It does not always happen on a one-to-one basis but the word "organisation" may not apply. There is a whole raft of other points of potential impact. They are not imaginary because there is ample evidence that in some areas these have been fault lines in the system in the past. In the list of those professionals statutorily charged, even the word "professionals" suggests a cohort of people with a particular academic achievement as against those who are in-----

Chairman

Is the Deputy's mobile telephone on as there is the buzz?

Deputy Caoimhghín Ó Caoláin

It is not mine. I never bring the monster with me to a meeting.

Chairman

Good. If any member has a mobile telephone will he or she, please, take it away from the microphone?

Deputy Caoimhghín Ó Caoláin

The word "professional" and the list of those outlined suggests a certain level of academic achievement as against other areas of engagement with young people. That needs to be looked at because there is a number of different points of contact with children that are neither organisationally defined or that come under the list of professionals with a particular requirement. There are sports minders, music tutors, coaches, out-of-school education provision, grinds, etc. There is also the issue of transport. We have had a recent example of how vulnerable young people can be in such a situation. The full extent of the possible areas where problems or serious issues might arise have not been fully taken into account in the preparation of the Bill. This is the best time to try to have all of that reflected. As I said at the outset, I am not trying to find holes but trying to work with the Minister for whom I have great respect and all those who are campaigning in this area. Now is the time to try as best we might to address any deficiencies that may occur to us.

It would be unusual if I were not to use my ten minutes. I wish to make two further points. The legislation, unless accompanied by adequate resources, will not do all we would wish. It will certainly help and make a very valued contribution but there is a requirement to match the intent and the legislative process with improved resources. I know the difficulties. We are all more than conversant with the problems that obtain at this time but if we are really serious about it there will have to be a reprioritisation of funding if no new funding can be created. In this area it is important that happens.

Ms Maeve Lewis referred to "first disclosure". I will speak in terms of first disclosure. I would drop the word "first" and just say "Disclosures from first encounters". That is how I would like to reference it as it will always best come from the child. It is about empowering children more. It is not enough that the Children First guidelines are placed on a statutory basis, but in tandem with this a greater effort must be employed, and the education system is the obvious vehicle, to ensure children feel empowered and have the courage and confidence to be able to speak out. There should be no penalty or fear of marginalisation or labelling. Young people from a reasonably young age would be encouraged where any inappropriate engagement takes place to speak out. Rather than waiting for other signs or signals to present, if we can empower children to speak up and we listen, that will ensure that many of the terrible tragedies of the past will, please God, not present in anything like the extent that they have in the future.

Senator Jillian van Turnhout

I thank my former colleagues for their presentations. It is strange to be sitting here. Certainly the initial thoughts they have shared with us are extremely strong and reflect some of the concerns I would have had on my initial reading of the Bill. I echo Deputy Ó Caoláin's sentiments that we are not picking holes in the legislation. We all welcome the Bill and I am pleased we are examining it.

With regard to the role of the designated officer, several witnesses mentioned the role of the organisation versus the individual. How do we achieve balance? How do we ensure that appropriate responsibility lies with the collective and the individual? When I was preparing for today's discussion I read health and safety legislation that outlined the role of the employer, yet the employer has to appoint a competent person as the organisation's safety officer rather than the designated person being the most senior manager. From my reading of the Bill I would have a slight difficulty with appointing the most senior manager because he or she may not be the most competent for this specific task and role. I would be interested to hear any comments the delegation wish to make on the matter.

I wrote the words "all paths lead to the HSE" on my notes. Deputy McConalogue posed a fair question on the role of the HSE. We know from the report of the Ombudsman for Children that the Children First guidelines, as they were known then, were not applied consistently around the country and we also know about the resources issue. Is that the appropriate way to do things? Who will monitor the HSE if one feels that it has not replied to concerns or information from the delegation? Ms Lewis, from the One in Four organisation, said that only 10% of the cases of retrospective allegations are taken up by the HSE. These people are still alive but I immediately wondered whether children are still at risk. I do not mean the adults that the organisations are dealing with but people who are children now. That is my concern with the figure of 10%.

A number of witnesses raised the sensitive question of underage consensual sexual activity. We are always uncomfortable talking about the issue because it sounds as if we are trying to give permission to young people for doing so. The reality is if two 16-year olds have underage consensual sexual activity nobody is happy and often a baby is the result. I have heard that in such instances the male is urged not to put his name on the birth certificate in order not to incriminate himself. The relationship may be fine between the boy and girl but if it breaks down the fact that he can be reported for a crime hangs over his head. Are we exacerbating the difficulties in this instance? It may be an issue with all of the child protection legislation that we are examining and we may have to address the thorny issue of how to deal with underage sexual activity. The committee may need to examine the issue further.

As organisations and umbrella bodies did not need legislation to implement the Children First guidelines and now guidance, what protection would they like this legislation to put on a statutory footing? An example would be the protection of an employer who must ensure that people are vetted. What protection do employers have if they dismiss an employee or a volunteer? I know that organisations must have counselling within their remit. With regard to immediate disclosure, does it mean that a person will not disclose because they are fearful? Counselling will help victims to talk about it but disclosure is a very grey area.

I have read the heads of the Bill and wonder about the definition of a designated officer. From my background as a volunteer in the girl guides I know that the organisation has a system of a safeguarding membership officer who can be contacted if one has a concern. Equally, if one's antennae goes up and one is not quite sure if it is an issue, a leader can informally talk through the issue with someone. There is an onerous obligation on a designated officer to note everything that is said and transcribe it. Does that deter people from having the appropriate support and the ability to have an informal conversation? A volunteer can talk aloud without talking to a local leader. Most volunteers work in small communities and one does not want to talk to the other leaders because one may make the situation worse yet one still needs to talk it through with somebody.

Those are some of my concerns about implementing the Children First guidance. I wonder about what the organisations have said to us. We are examining the legislation but should other issues be included?

Chairman

Committee members, other than the lead spokespersons, have five minutes each.

Deputy Robert Dowds

I thank the Chairman but I do not think I need any more time than that. I thank all of the witnesses for coming here, I appreciate their comments and welcome the Bill.

I have had a lot of experience of dealing with children because I taught for many years and dealt with children in all kinds of situations. I am pessimistic about how much can be done to safeguard children because they are very vulnerable at certain stages of their lives. I shall focus on a remark made by Ms Lewis. It appears to me that the greatest problems for children arise in the home whether at the hands of a parent or another relative and, therefore, it is difficult to deal with child safety. Legislation will assist the situation to a degree but to what extent? I had to report a case but I shall not mention the names or institution involved. In one of the schools in which I worked I had to report the case of a very vulnerable teenager who was intelligent but physically disabled to the extent that he could not put himself to bed at night. He opened his heart to an SNA in my classroom and told her he was left on a sofa all night and could not get to bed. He felt that his comments were only between him and her but she rightly felt that she must report it to me and I reported it up the line. It was the weekend and the Garda rather than social workers called around to his house. That was not the best way to deal with the matter. It was clear to me that the only person to suffer was the boy because he was got at by the family for opening up to someone about his problem. To what extent do the organisations feel the legislation will deal with that sort of vulnerability? Are there ways to improve it?

One of the great difficulties in dealing with the issue is if it relates to a parent or someone in the house. Except in extreme cases one clearly does not want to take children away from their parents. It is best to encourage people to treat their children properly rather than sanction the removal of their children or put an individual in prison. Can the organisations comment on how they consider the legislation will address vulnerable situations?

Deputy Denis Naughten

I thank the groups for coming here today to make their presentations and I will not need five minutes. We would all agree that the committee mechanism of dealing with the heads of the Bill is a positive measure and allows us to tease out issues. I hope it will ensure that legislation brought before the Oireachtas brings clarity to many issues raised.

I will not criticise because we are all trying to deliver effective legislation that will be of benefit to children in this country. What we are all trying to do is to deliver effective legislation that will act for the benefit of children in this country. Separating the proposed guidelines from the legislation and publishing them separately is a positive development because it allows us deal with the primary legislation. We are all aware and, sadly, I have a good deal of personal experience from my own constituency and many other constituencies throughout the country, where flaws were made in primary legislation children suffered consequently as a result. It is important that we get the primary legislation right in that regard. My fear is that if the guidance document is published the focus will be on that and how it impacts on a day-to-day basis and we will not deal with the statutory footing behind it. It is important that we give ample time to both aspects of that process.

With that in mind I want to pick up on a comment Ms Marie Corbett made. She is right. It is important that the guidance document has a statutory footing but it should not be written into primary legislation because it is far too difficult to amend such legislation when we find a weakness or a flaw in it or something that requires further clarification, although it must have a statutory basis. Mr. Fergus Finlay's submission for Barnardos referred to putting it in the form of a statutory instrument or regulations. That is the way to proceed with one caveat, namely, it would require a positive vote of the Oireachtas to enact it to ensure that those regulations are formally debated in the House before they are adopted rather than the current position where many statutory instruments are literally rubber-stamped by the Houses of the Oireachtas.

I want to make two other comments, the first of which picks up on the comments made earlier on the impact this measure will have on local clubs and local volunteers. How can we get the structure right given that we have to err always on the side of protecting the child while ensuring we do not discourage people from volunteering or getting involved in local organisations. It is important that we get the legislation right in that regard and that is the reason it is important that the two documents are separate.

I wish to pick up on a comment made by Ms Maeve Lewis on the triage system. It would be interesting from a committee's perspective to get examples of how that is operating effectively in other countries. On a related issue, a fear we all have is that once this legislation is enacted an avalanche of complaints will follow. However, there are good examples elsewhere in Europe or internationally where the other side of it was dealt with, namely, malicious complaints. We all know of instances where that has happened in the past. With the levels of complaint being far fewer currently it is probably easier to deal with malicious complaints but a situation could arise under this new structure where malicious complaints could take up an inordinate amount of time. No more than someone making a malicious report about the fire brigade service or the ambulance service, proper checks and balances must be in place in terms of something such as that happening because it diverts workers away from the coalface and protecting another child.

Deputy Regina Doherty

I welcome the witnesses and thank them for attending at short notice. In my relatively short life so far this is probably one of the most significant processes I will have had the privilege to be part of and I am excited to be part of it. All of us are being very politically correct here when we say we do not mean to nit-pick but that is the purpose of this discussion. We need to nit-pick because this process, and it is not about personalities liking each other, is about getting the most robust legislation that can arise from these heads and for the legislation to be passed in the Dáil to protect our children.

I spent a number of hours reading the draft Bill last week and a number of aspects struck me on my first reading about which I would have concerns. This process is about expressing concerns, hearing experts' views, having those concerns addressed or not, and posing questions at the end of that process. I encourage members to nit-pick in the course of the next month, and it is not about causing offence or whatever.

There is a minor aspect about which I would be genuinely fearful. I hear everybody talk about the designated person. In reality, many of the clubs involved in this area have such a designated person because most of them are adhering to the Children First guidelines. I realise that putting them on a legal basis will change that process but there is a major area about which I would have concerns, and the witnesses might touch on it later. They talk about abuse within a family setting. Although this draft Bill attempts to address that it misses the concept that the child, or in some cases the child who is now an adult, still has a tremendous amount of love and affection for the person who abused or is abusing him or her and-or the people in the wider family. We need to equip those children and adults with the tools, by which I mean more organisations and support such as those represented by the witnesses, to give people the confidence to be able to deal with the ramifications of what it is that they will expose without potentially hurting other people within their own family. I have not spent weeks reading the draft legislation and am not sure it goes to the fullest extent possible, or if there is anything we can do in legislation in regard to such situations occurring. However, it is something we need to recognise and discuss during the course of the next few weeks. Any information, advice or examples of situations the witnesses dealt with that they could give us would be very welcome.

I thank the witnesses for being part of this process. I encourage them to keep in touch with us during the course of the new few weeks while we deliberate on this legislation.

Deputy Catherine Byrne

I apologise to our visitors for not being here in time to hear their presentations but I have copies of them which I will read later.

I read this document and did not sleep last night having done so. That is why I have been yawning a little since I came in. This is the first step of putting together something that will help all of us, whether it be families, communities, churches, playgroups, public representatives or people at community level. Being a good neighbour and watching out for children living either side of one is important when it comes to child abuse. The gardaí, the district nurse and people like that are usually the first to tell one what is happening in the community. It is a little like the Neighbourhood Watch programme in the past, in that we look out for them and they look out for us. There is a need for that kind of relevance in the community.

Coming from a background of having worked as a volunteer most of my life until I entered politics, I was always assured of the fact that the people with whom I worked were very capable and, in general, they were there for all the right reasons. It would have been a very small minority who had other agendas. I found community-based volunteers in the past to be dedicated people who wanted to play a part in their community and to give to the children involved in clubs or children in their parishes.

Deputy Naughten was right in what he said. I have found from talking to people in the community that in recent years people are not as willing to become involved in voluntary organisations as they were in past. That is probably because much more legislation and rules have been in place, which are important. This is the beginning of a journey to put something together which will mean that in ten or 20 years time we will not have to sit to listen to what has gone on in the past. I would look on this as being the bible for examining how people work with children and the functions they have. There are a number of parts of it. I agree with those who stated one cannot read this once and understand it. It must be looked over repeatedly. It is important that it has come to the committee because this is not about criticising one another; it is about deciding what is best for every child in every community and house and particularly in schools. Sometimes when one identifies children as being in very vulnerable positions and challenges organisations about them, the organisations get defensive and do not want to accept something is happening or take responsibility for what one is trying to get across. I hope the Bill will mean people reporting child abuse will not be hidden away and that organisations will not form a circle and protect themselves, because the most important people involved in this are the children. For what it's worth my opinion is that the State and religious institutions have protected themselves and forgotten about the children. We must stop this. This is a real challenge but it is also a real opportunity. I look forward to reading the draft heads of the Bill for the second or third time and discussing it further. The views of everyone here are very important.

Mr. Fergus Finlay

I thank the committee members who have already put a large amount of work into reading the draft heads. I read this over the weekend but I did not re-read the Children First guidelines which I read when they were published and several times since and I read the version published last year, but I should have read them side by side with the draft heads because it makes far more sense when one looks at the legislation and the guidelines at the same time, particularly if one is likely to be covered by the legislation. I am the CEO of an organisation; therefore, the legislation refers to me and imposes responsibilities on me as it does on all of my colleagues and on a wide range of other people.

There is a sense in which one could say it is too much and one cannot handle it, and that responsibility should be on the organisation and not on the individual because there is a danger the individual could be scapegoated. I recognise and understand this and the need for balance, but if one ever worked as treasurer of one's local GAA club one knows the members of the GAA club expect one to take the job seriously and do it as professionally as one can and be accountable. If one is the CEO of an organisation one already has a wide range of responsibilities under company law, and the organisation does not have to be large as it could be a company registered and limited by guarantee in Ireland.

I am resisting the temptation to refer to Senator van Turnhout as Jillian-----

Senator Jillian van Turnhout

Jillian is perfect.

Mr. Fergus Finlay

Senator van Turnhout referred to health and safety legislation which also imposes responsibilities as does labour law and the budget. Recently I was involved in a situation where my organisation was entitled to apply for something I did not know about and I could have been regarded as quite remiss in not knowing about it. I believe what will happen when the law is passed is that the organisations which must adapt will do so and we will learn as we go. We will make mistakes and then we will get it right.

Chairman

Is there a fear of an avalanche?

Mr. Fergus Finlay

No. There is every possibility that in the initial stages there will be an avalanche and that it will be easier to report than manage. This is why it is well worth reading the Children First guidelines with the draft heads of the Bill. Last year we worked with approximately 5,000 vulnerable children and families. I would say all of them virtually without exception were children loved by their parents who were doing their best for them. However, we still found things to report. I cannot say we regularly reported abuse, but if one works with vulnerable children in disadvantaged communities, particularly in the times in which we are living, one will come across signs of neglect. One will come across headlice, hunger or a cold that has not been treated. These must be managed in the course of one's daily work. Every time a child comes in with headlice one does not go to the Garda or the HSE but because one has an awareness of child protection and a child protection policy, and this applies just as much to a crèche as to a large professional organisation, one recognises that small signs of neglect can be the precursor of larger signs of abuse. This abuse may not be wilful; sometimes it can happen because the lives of the parents are overwhelmed or on a downward spiral.

To take the point made by Deputy Dowds, it is sometimes the case that if something is reported it will not be well managed at the other end. This will happen but it is not a reason for not reporting. It is the reason for working through a proper system that is well informed by the guidelines . I would almost describe the guidelines, and I do not mean this in any disrespectful way, as an idiot's guide. It is perfectly possible for any layman, and I am a layman, to open up Children First and work out what to do on a step-by-step basis. The guidelines give this help. It has always been a source of amazement to me that more organisations do not grab them and use them and that there has not been more consistency because they are helpful. Their underpinning by law will be helpful.

In response to Deputy McConalogue, and the last thing I want to do is get involved in an argument, I take the point about there being gaps and work needing to be done but all of us on this side of the table have been seeking this legislation for at least seven years. My understanding is that it was started from scratch a short while ago. It has now been produced and we have a great opportunity in the next month or two to get it right. I do not think it needs to be rushed or unduly delayed.

Chairman

Does Mr. Finlay have a timeline in mind?

Mr. Fergus Finlay

I would love it to be law by the end of this year and I would love next year to be the year of implementation. One of the reasons I say this is because side by side with this a huge amount of work is being done on the establishment of the new national child and family support agency. In preparation for any avalanche that will occur the skills, management and structures required are being developed in the organisation. It is public policy that it will be incorporated and up and running on 1 January next year and that on this date all of these responsibilities will pass from the HSE to the new national agency. This is a huge opportunity, perhaps a once in a lifetime opportunity, to get it right. Undoubtedly the new agency will have teething troubles. Let the legislation have its teething troubles in the same year and at the end of that year we will all be the better for it.

Chairman

Mr. Finlay made reference to the role of the layperson. Does he really believe this is the most important methodology?

Mr. Fergus Finlay

There are issues of accountability. Of the approximately 400 people who work in Barnardos, I suspect 380 of them would be better qualified than am I to operate the system. I will be delegating the operational responsibility to people who are much better at it, because that is the way to get it done right. I should not be and hope I will not be allowed - and hope I would resist the temptation - to delegate the accountability for it.

Chairman

That is my fear if one takes the position being advocated.

Mr. Fergus Finlay

This is the distinction that must be made all the time. Operationally, one could have a senior church figure whose sense of accountability is pulled into three different directions, as he or she might be accountable to a higher authority, to the children of his or her diocese and so on. It is better for operational reasons that this be delegated in a way that it can be made much more transparent. However, no one should be allowed to evade their accountability.

Ms Caroline O’Sullivan

I concur with Mr. Finlay's latest point as it is really important that individuals are willing to take accountability. No one on this side of the table or anyone who works in child protection or welfare would try to abdicate this responsibility because this is something we have sought and desired. Within the ISPCC, we already operate a policy of mandatory reporting and already mandate all of our staff and volunteers to be vetted. On the point that volunteers will not come forward, we have not found that to be the case. While they might think we are fairly stringent, it is important to send out a strong message that this is taking place and that this is what we wish to continue to do.

Mr. Fergus Finlay

Incidentally, while I do not wish to interrupt Ms O'Sullivan, when one is obliged to work with children and one receives a letter from the Garda, which has trawled through one's past, stating one is deemed safe to work with children, it is a really liberating thing to have in one's hand.

Ms Caroline O’Sullivan

Yes, it is great. Again, the ISPCC hopes the vetting Bill will include a proviso that it would be re-examined within a particular timeframe. However, that is a discussion for another day.

In respect of guidelines not being published and the difficulties arising therefrom, we believe very good guidelines already exist. The Children First guidance that has been published and the accompanying handbook really are exceptionally good and clear. I note the ISPCC already has been trained by the HSE and training now is under way with our volunteers. They are finding it easy to understand and the guidelines are quite good. Consequently, I do not see the published guidelines referred to in the heads of the Bill as being way off the mark in this regard. There already is protection in legislation for volunteers, staff and designated offices in respect of making a report. There is nothing to fear. The Protection for Persons Reporting Child Abuse Act 1998 states one is protected as long as one makes a report reasonably and in good faith. Consequently, that protection already is in place and again, I do not perceive this to be an issue for organisations in the future.

On Deputy Ó Caoláin's points on reprioritisation of resources, the Deputy is absolutely correct in respect of having a child-centred approach to the way in which we look at children. I refer to children being citizens, having a say and being encouraged to come forward and tell, as well as to developing such a telling atmosphere. While people talk about creating telling atmospheres within schools, this must be developed within a societal context in order that children know that when they talk, they will be believed and listened to and that actions will be taken. This legislation greatly strengthen such a development because people will be compelled to take those steps and I absolutely concur with the Deputy's points in that regard.

On the balancing of responsibilities referred to by Senator van Turnhout, it is really important that organisations perceive it to be their responsibility. However, I agree with Mr. Finlay's point that this must be placed on an individual and that this individual will make decisions. Again, those with the expertise and knowledge will be making such decisions within organisations. This is the reason I made the point it cannot simply be senior management but must be those who work with people on the ground. I do not believe this will be an onerous responsibility. I can understand the reason people might say this and while things must of course be recorded, if we have learned anything from past experiences, it is that one must take responsibility, take the fact that there will be additional administrative duties or work and be delighted to be in a position to so do. Consequently, I hold a very different belief system in this respect.

As for the prospect of an avalanche of reports, I acknowledge there will be more reports until people become comfortable with what is happening. I note that under head 12, the advisory role within the HSE in which it will advise whether one can report or not will assist people. I am aware this Bill will contain a proviso to the effect this cannot be used as a defence, which may cause some concern. However, it is important that such an advisory role exists to assist people in the future to make the right decisions. Moreover, within the Children First guidelines, the handbook and all the guidance that will be published as a result of this legislation, each organisation will have the tools or even a template to develop proper procedures.

On the issue of local clubs, local volunteers and the responsibility placed on them, the ISPCC has volunteers nationwide. It has 600 volunteers who work on a one-to-one basis in a mentoring capacity with children across the country. These volunteers know their responsibilities, which are the same as mine, namely, that if a child discloses they must act on that. However, it is about having in place the proper structures in order that the volunteer in question is not obliged to take that load but can pass it on to his her supervisor, who in turn can take on that responsibility from that point. I believe that answers the majority of points from my perspective.

Ms Maria Corbett

Perhaps I will begin by sharing a couple of thoughts on how to manage a potential flood of reports. I believe Ms O'Sullivan's point is well made that excellent guidance was made available in the Children First guidance that was recently published and updated. However, I am quite concerned that the proposals in the Bill provide for two new documents, in addition to an organisational plan. The latter obviously is highly welcome but I am unsure what is the precise purpose of the two new documents. I make this point in respect of streamlining the process to make it clear. A person who works in an organisation in which child protection is his or her job will be able to manage multiple documents at different levels. However, for those who are everyday volunteers or employees in a non-child protection setting, it must be made clear what is the single document with which they must familiarise themselves. Consequently, I encourage streamlining in this regard and suggest that rather than producing new materials, it might be preferable to update or add an appendix to the existing Children First guidance. The second point is that if a designated officer is working well, is trained and is sufficiently competent, one would hope they would act as a filter. While I acknowledge this would happen over time, they would understand what merits a particular reporting threshold and where such a threshold would be. Obviously, the role of the HSE to advise in this regard would be critical and I will revert to this point in a minute.

I refer to Deputy Dowds's point as to what will happen when the query is sent in. As Mr. Finlay mentioned, the HSE is in the middle of a highly ambitious reform programme to establish a new child and family support agency. Within that agency, I understand the proposed new service delivery model effectively will involve a triage system. It will consider the reports coming in and will determine whether they are of a welfare or a child abuse nature, as they would require different responses. The manner in which the flood is managed when it reaches the HSE will be of critical importance and the system must be set up and ready for it. Another issue that could be considered concerns the staggered commencement of legal duties. Potentially, the Bill could provide that for people who work directly with children and are defined in a certain category it would commence immediately, while its introduction could be slightly staggered for others. This would be with the proviso that one is building capacity, getting support and training up the relevant people in the organisation.

A point was made on whether the Bill will place obligations on organisations that are burdensome. I spoke of aligning the relevant legislation and we really must consider integrating the system under the vetting Bill with the system under the children first Bill. My understanding at present is that organisations will be required to register and appoint a liaison officer with the national vetting bureau, as well as being obliged to register and appoint a designated officer to the HSE. Consequently, two different registers are envisaged at present. The definition of who must register with the two agencies also differs, as does the composition of the relevant individuals. A joined-up approach is needed in this regard and I am considering this from the perspective of helping those for whom this is not their core work to understand their obligations. Moreover, as Mr. Finlay mentioned, one's corporate duties could even be linked in to the new duties one will have under this legislation. There is clear guidance in the Children First guidelines on what constitutes child abuse and on what are the signs of such abuse. There is a need to include in the Bill a broad set of criteria in regard to where the line is to be drawn in terms of what needs to be reported. There needs to be more discussion on this issue, including on what constitutes an offence, which links into the withholding of information Bill. We need to bed this down. It would not be feasible to enact legislation which points to a guidance document, which is only policy that is to be reviewed annually and will change but in respect of which criminal sanction for non-adherence is quite high. A broad outline of the criteria needs to be bedded down, which will also assist in terms of communication in this area. While guidance in this area is quite detailed, some issues are more straightforward than others. Neglect and emotional abuse can often be much more difficult to understand. There needs to be a core minimum to guide people, in particular given possible legal challenges to this legislation in the courts.

There is a need for more focus on the role to be played by the designated officer and to consider providing for shared responsibility. In my view, it is important the Bill does not place an enormous onus on a particular individual, such that he or she be upskilled and a competent person. Rather, responsibility must be broader in terms of requiring organisations to have proper systems in place. The designated officer may be competent, upskilled and on top of his or her brief but unless there is trust in terms of proper systems being in place and an understanding and willingness on the part of people below him or her to report, he or she will be too nervous to take on that role, in particular in organisations where child protection is not core work. There will also be turnover in respect of designated officers and as such a constant need to upskill. This issue needs to considered in the broader context of ensuring organisations have in place proper systems and culture. Given the requirement to implement an organisational plan, it is important if we are to continue on the route of the designated officer, that an onus is also placed on organisations.

Nothing in what we are proposing alters the threshold at which children come into care. This is more about reporting than changing what will be set out in the child care Bill.

Ms Maeve Lewis

I have very little to add as my colleagues have addressed most of the issues raised. On accountability, every organisation working in this field has been operating mandatory reporting for years and has addressed the issue of designated officer, how reporting is managed and its impact on clients. We are not re-inventing the wheel, rather we are seeking to ensure that this level of good practice operates across all organisations, independent professionals and so on. The anxiety in this regard is somewhat unwarranted.

The expectation of confidentiality for people attending counselling was raised. One in Four primarily provides counselling. It was difficult initially to educate counsellors as to the purpose of mandatory reporting and to help them to facilitate discussion with the client around the limitations of confidentiality. In our experience clients are quite open and almost expect mandatory reporting will follow. Child protection is not the only reason for breaking confidentiality in respect of counselling. The same applies where a client is suicidal, if records are subpoenaed by a court or where a client informs a counsellor the he or she intends to murder somebody. It is important we have well trained counsellors and therapists who understand and buy into the principle of child protection and manage to contain that discussion with clients and offer them sustained support while this is happening.

Undoubtedly, international experience is that when this type of legislation is introduced there is a flood of reports, many of which are not substantial and some of which are malicious. However, this tends to die down. As stated earlier, children and family services are putting in place a good triage system within the HSE, which will transfer into the new children and family services. I reiterate my point that where people who attend organisations such as One in Four for counselling report abuse and it is clear the abuser is still alive and there are other children at risk, this must be reported regardless of whether it increases the workload of the HSE. An example is a young woman in her early 20s who is being sexually abused by her father and there are other children still living at home. This must be reported to the HSE. Whether it chooses to act on that report is of course a different matter. I welcome that its legal obligation to investigate is being raised in this legislation. However, I have concerns in regard to how retrospective allegations are handled.

The most important thing this Bill will do is change the culture in which we operate in this country. It is hoped it will create a sense among every adult in the country and not just those of us who have legal obligations to act that all children are our responsibility. In this regard, I quote the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, who said "It takes a community to protect a child." That is the reality. We have seen the results where this does not happen. I welcome this legislation.

Chairman

I thank the witnesses for attending and for their thought-provoking presentations

Ms Maeve Lewis

The longer we have spoken the more thoughts that have come to my mind. Is the deadline of Friday absolute?

Chairman

If the joint committee is agreeable I propose that we extend the deadline for receipt of written submissions by one week to Friday, 11 May 2012. Is that agreed? Agreed. I look forward to receiving the witnesses' written submissions.

Deputy Charlie McConalogue

When the witnesses have left can we have a discussion on the structure of our meetings?

Chairman

We will do that during private session at Thursday's meeting.

The joint committee adjourned at 4.20 p.m. until 11.30 a.m. on Thursday, 3 May 2012.