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.