JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Thursday, 7 Jun 2012

Children First Bill 2012: Discussion (Resumed)

Chairman

I welcome Mr Gordon Jeyes, national director of children and family services at the HSE and Mr. Phil Garland, assistant national director of the HSE. This is a continuation of our series of meetings as part of the committee's deliberations. We have two distinct groups and our time is limited. I ask members to be aware of time constraints and to make concise contributions. I also welcome Mr. Conor McCarthy, an intern from the US, who is in the Visitors Gallery.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence you are to give this committee. If you are directed by the committee to cease giving evidence in relation to a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise nor make charges against any person(s) 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 to the effect that members 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 ask members to turn off mobile telephones. I invite Mr. Gordon Jeyes to make his presentation.

Mr. Gordon Jeyes

As guided by the Chairman, I shall try to be uncharacteristically brief and allow time for questions. I welcome the invitation to attend the committee meeting today and the opportunity to comment on the heads and general scheme of the children first Bill. I am happy to answer any questions on that and the steps taken in the reform programme to ensure services are fit for purpose as we transfer to a separate agency in 2013. I welcome the guiding principles underpinning the heads of the Bill and the proposal to put Children First: National Guidance for the Protection and Welfare of Children on a statutory basis. Our obligations and responsibilities to protect and safeguard children should not be negotiable.

Children and family services have been criticised for inconsistency and when Children First: National Guidance for the Protection and Welfare of Children was reissued in July 2011 the Child Protection and Welfare Practice Handbook was also published. It has been welcomed by the profession and those in the sector. Copies have been made available to the committee.

That was the response to poor levels of consistency in the implementation of policy across the country. The criticism came from the Ombudsman for Children and others. When this proposal becomes legislation, it is crucial that the children and family services provides clear and unequivocal advice so that the temptation of local variations is avoided. The emphasis on societal responsibilities in the heads of the Bill is also welcome. Child protection is everyone's responsibility and cannot be parcelled off and handed to the State.

Regarding the roles, responsibilities and duties, the provision of lists of organisations with a statutory obligation and the services not encompassed by the Bill is a helpful starting point. However, the blanket exemption of all persons directly employed by the child's parent or guardian should be reviewed. We often think of the last thing that was wrong with our car when advising someone else. My experience in other jurisdictions is that those providing one-to-one tutoring can often go under the radar. I understand why the exemption is included but it needs further review. Similarly, the blanket exemptions for facilities that cater for adults but allow children to use them needs further consideration.

Keeping to the theme that everyone has responsibility, my comment on reporting is that we should keep everything in line with Children First: National Guidance for the Protection and Welfare of Children. The description of when an allegation is not reported to the HSE and must be recorded is satisfactory but should be further strengthened so that the sole basis for not reporting is that there is no reasonable grounds for concern, and the person relating it as such. As we move towards a more formal legislative proposal, it would also be advantageous to reflect further on the distinction between designated officers who hold that position as a consequence of their professional status and employment and designated officers who fulfil that role in an entirely voluntary capacity and receive no payment for the work which they undertake. In the initial proposals, the penalties associated with failure to comply with the role by designated officers, who work in a professional capacity, may well be appropriate. However, consideration should be given to the accountability and culpability of those who work in a voluntary capacity, and perhaps responsibility should rest with the organisation. Perhaps some organisations will not be registered or will not be capable of providing services to children.

The management of referrals is a grave responsibility. Social work teams need to manage proactively all referrals received. Sometimes we can be only as effective as we would wish if the referral is of a high quality. The more detailed and better quality the information received, the more efficient and proportionate the response. All referrals require screening and work must be prioritised according to need. Within this context, I wish to override a system where every referral gets a response which is efficient, effective and proportionate. I have provided an attachment on our preliminary thinking about how such a system would work as we work with communities to establish clear identification of thresholds so that people know what we do, and this is the sort of support one should be able to receive. We have been doing that based on the excellent site work that has been happening in both north and south Dublin, Limerick and Sligo.

Let me comment on information sharing and the duty to co-operate. I am a guest worker here and I struggle a little with it. I note it is clearly stated in the heads of the Bill that information sharing, when it is for the purpose of protecting a child, will be permissible. However, the number of times that information sharing comes up as an obstacle under data protection legislation means it is necessary to review it further or there is a misunderstanding that must be resolved. I take a very simple approach. I do not know of any case during my lengthy career where a child has been harmed through information being shared. Unfortunately, I know of circumstances where a child has been harmed where information has not been shared. How often do we read a serious case review, and the headline could be that somebody, somewhere knew? Information sharing is one of a number of duties all organisations working for children should have as a specific statutory responsibility. I believe that needs further consideration.

I also strongly believe that child protection is everyone's responsibility. The section on the requirement to co-operate needs to be expanded. I have focused a great deal in my 18 months in this position on improving and working with the Garda Síochána. Equally, as we move towards being a separate agency, our relationship with mental health services, services for children affected by disability, primary care and other health services will be vital, as will our relationship with those in education and local government. We need to ensure all involved in the future of children's services committees co-operate with the child protection notification system, which we need to continue to strengthen.

The general structure as outlined in the heads of the Bill is welcome. It is important when taking the crucial first steps in this process that we keep it as straightforward as possible. All organisations should have a published child protection policy, all should have a keeping children safe plan, and all should produce an annual report. All of us sitting here in the democratic heart of the country should recognise the virtues of transparency and should be aware of the value of the public knowing that local organisations are transparent and their processes are open to scrutiny. This can do a great deal to make children safer as they go about their lives. It is crucial the guidance put in place once the legislation is finalised is standardised, consistent and has straightforward templates.

When discussing policy, or dare I say legislation, the temptation is to add every detail, but that should be avoided, not least to ensure the burden on small organisations is not too onerous. This is an important step in the evolution of child protection and welfare arrangements in Ireland. The processes can be strengthened as the system matures. The duties set out for children and family services within the Health Service Executive are welcome and should be given the force of law. When we enter a service level agreement with the voluntary community sector within a commissioning framework, we should expect those standard to apply to them.

I hope my opening statement is of assistance to members. My colleagues and I will be happy to try to answer all of the questions that are raised.

Chairman

I thank Mr. Jeyes for his presentation. I call Deputy McConalogue.

Deputy Charlie McConalogue

I thank Mr. Jeyes and Mr. Garland for appearing before the joint committee to outline their views on the Children First Bill. Some very important areas were covered by Mr. Jeyes in his presentation. Will he comment on the level of consultation the Department of Children and Youth Affairs had with him when it was drafting the content and structure of the Children First Bill? The proposed establishment next year of the new child and family services agency will have important implications for the overall child protection systems and the proposed legislation. Did Mr. Jeyes have an opportunity to raise such issues with the Department and was there much co-operation in the drafting of the Bill?

I wish to raise the distinction drawn by Mr. Jeyes on professional designated officers versus volunteer designated officers in voluntary organisations, an issue which has been raised at previous sessions of the joint committee. We are creating a culture of reporting on children to ensure their protection. We are also creating a culture of ensuring people take responsibility for their processes at ground level, but in many ways this could lead to volunteers having fears as to when and whether they should report incidents, and instead of the volunteer acting as a filter and taking as much responsibility as possible at ground level, this could lead to cases being passed up the line and over-burdening the system.

Mr. Jeyes did not refer to the move to a system of mandatory reporting and the impact it will have on resources, an issue of crucial concern to many. When the Minister and her officials from the Department of Children and Youth Affairs appeared before the committee a number of weeks ago, they made it clear that an impact assessment has not been carried out on mandatory reporting.

Chairman

On that point, Ms Elizabeth Canavan said at that meeting that this was not part of this section of the draft heads of the Bill and that it would be done later.

Deputy Charlie McConalogue

She did say it would be done down the line.

Chairman

Let us be fair. She said it is part of the process that would be done at a later time.

Deputy Charlie McConalogue

My point is that as a first step, before one makes a policy decision to do this, one would make an assessment as to the impact it would have, what would need to be done in terms of resourcing it, the cost of so doing and whether the State would be able to do it to ensure a safe child protection system would be achieved.

Chairman

At that meeting, the Minister, Deputy Frances Fitzgerald, stated that 57 social workers would be recruited and appointed. It is important to be fair, Deputy.

Deputy Charlie McConalogue

Absolutely. I am making a crucial point. It has been decided to embark on this policy route. The first step in that process should be to conduct an impact assessment and decide how it is to be resourced. That should not be done after the event. It is an important distinction. We have to try to ensure the child protection system has enough resources. I refer in particular to social workers. I will not get into that aspect of the matter today.

There has been an assessment of the potential increase in the number of reports. I would like to hear the views of Mr. Jeyes and Mr. Garland on what is likely to happen in that regard. If there is the potential for an increase in the number of reports, how will it affect the ability of the HSE to deal with the reports presented? We know that ensuring reports are acted on has been as big a problem as ensuring there are reports produced.

I would like our guests to comment on a couple of other issues, the first of which is indemnity. What do they think will happen if the provisions in the legislation relating to voluntary officers are not amended? The other matter I had intended to raise eludes me. Perhaps our guests might respond to some of the remarks I have made and questions I have asked.

Deputy Caoimhghín Ó Caoláin

I welcome Mr. Jeyes and Mr. Garland. We have been told that the child and family support agency will be established by January 2013. Can the delegates give us an indication of the number of staff who will be required for the new agency? Will additional staff, over and above those who will be redeployed from existing structures, be required by the new agency? Has the potential for co-operation with the comparable body north of the Border been explored? Such co-operation is required when cases with a cross-Border dimension are presented. I refer, for example, to the cases of children's rights and children at risk that are reflected in the experience of many elected representatives in Border constituencies.

The briefing document states a direct line of professional accountability from national director to area manager has been established in each of the 17 HSE areas. Will the delegates tell us what this means in real terms? Will they help us to understand what is meant by "a direct line of professional accountability"?

The briefing document also states a certification process has been undertaken to ensure all HSE child protection social workers have "received, read and understood Children First and the handbook". I was more than a little taken aback when I read this. I would like to know what procedure applied before now to ensure this obvious requirement was in place and that this practice was being followed.

I would like to address some of the discrepancies or inconsistencies we have noted. Some of our colleagues who are not in attendance have raised the question of emotional abuse on a number of occasions. "Emotional abuse" is categorised in the Children First guidance document and the Protections For Persons Reporting Child Abuse Act 1998, but it is not included in the current document. Why does it not feature in it? The draft heads of the Bill provide that reports must be made in writing to the HSE, whereas the 2011 Children First guidance document provides that reports can be made in writing, by telephone or in person. Why is it being proposed that this can be done in writing only?

It is also being proposed that a designated officer must maintain all relevant records. I seek clarification on whether there are concerns or considerations in relation to data protection requirements. I suggest elaboration is needed in this regard.

The draft heads of the 2012 Bill fail to identify the relationship between HSE inspectors, the service organisation and the designated officer. I ask the delegates to elaborate on this aspect of the matter.

I would like to quote from the Institute of Community Health Nursing's response to the draft legislation:

While the phrase ‘mandatory reporting' is not expressly used in the Bill, there are groups of professionals and organisations, listed in the schedule, that will be required to provide safe environments for children and to report suspicions of child abuse and neglect ... The implications of the rising caseloads will have negative effects on the work practices of practitioners most directly involved in child welfare and protection.

I would like to get a sense of where we are at in terms of planning. There has to be a figure for the number of children in the State who have care needs and the planned number of social workers the new agency will have. Will the delegates advise us on what the anticipated or projected caseload per social worker will be? Can they give a clear answer to that question?

I will conclude by speaking about the recent reports on the deaths of children in care. Many of the children in question were known to the care services. However, their circumstances were deemed to be below the current threshold for intervention. Will the delegates tell us how the new mechanisms being proposed will address that cohort of children? Can they assure us that mechanisms are being put in place to secure a safe environment and supports for all children?

Deputy Denis Naughten

I thank Mr. Jeyes and Mr. Garland for attending.

The legislation will impose significant obligations on voluntary organisations. There is concern about the obligations that will be imposed on the State and the HSE. The reality is that confidence in the HSE is at a low ebb, following the publication of a number of child protection reports. Head 12 of the Bill will give the HSE a role in providing information and advice. The HSE will also act as regulator in this regard. Who will monitor the work of the HSE in this respect? That aspect of the matter does not seem to be addressed in the Bill. Who will ensure there is consistency of practice? Who will ensure there are consequences if this is not achieved? There is a history of consistent failings within the system and the HSE not having consequences for those involved. There is a need for clear consequences in the event of failure. If organisations fail to comply with this legislation, there will be clear consequences for them, but it seems a similar standard is not being set for the HSE. I remind the committee of the substantial delays in obtaining reports on the children who had died in State care when we tried to receive information on the number of children in question. I ask Mr. Jeyes to comment.

On the threshold for reporting, Mr. Jeyes has noted in respect of referrals that the HSE has an efficient, effective and proportionate response. These three adjectives are crucial and each must be given equal weight. We do not want to go from one extreme to another. Will a mechanism be established to centralise information obtained from reporting? One could easily have a circumstance in which a neighbour, youth worker, teacher and health professional each make a report, none of which, when taken in isolation, is deemed to reach the threshold set, but, when taken together, they show a consistent trend that warrants further scrutiny. Who joins up the dots, so to speak, and is a mechanism in place to ensure they are joined?

When representatives of One in Four gave evidence to the joint committee on the heads of the Bill, they reported that only 10% of retrospective reports of abuse were being investigated. We all know that in many cases children are not in a position to report abuse at the time it occurs. In many such cases the abuse is identified by third parties and it may be some time before a child reports it. It is widely believed alleged abusers continue to abuse other children, yet the Bill does not appear to make specific provision for ensuing retrospective reports are acted on. I ask Mr. Jeyes to comment. Will he also comment on the failure of the Bill to make provision for emotional abuse, an issue addressed in the Children First guidance document?

Deputy Peter Fitzpatrick

I welcome Mr. Jeyes and Mr. Garland. The number of social workers employed in child and family services stands at 1,197, which includes 258 of the 263 posts filled to date in line with the recommendations made in the Ryan report. I understand Mr. Jeyes has been given the authority to fill the 57 vacancies that have arisen as a result of retirements and so forth. Every year more than 30,000 child protection and welfare concerns are reported, of which more than 16,000 are child welfare concerns, more than 13,000 are child protection concerns and more than 1,500 refer to cases of sexual, physical and emotional abuse. This means thousands of children have been raped, humiliated and assaulted in recent years with the knowledge of others who did nothing and instead turned a blind eye. This may be due to embarrassment, fear or a lack of care. People are not aware of the shambles in which child protection services were left. We need to reform the systems of State care and intervention. Fixing them will require a national framework for child services and the introduction of new laws. I ask Mr. Jeyes for his opinion.

Senator Imelda Henry

I thank Mr. Jeyes for his presentation. Deputy Caoimhghín Ó Caoláin asked the question I had intended to put to the delegation, namely, what is the current position vis-à-vis the new agency.

Deputy Peter Fitzpatrick has made a number of points about what took place in the past. We know what occurred to children in the past and are fortunate that we now have a Department with responsibility for children and a Minister specifically for children. The joint committee is in a position to make suggestions on the heads of Bill and I assume the delegation will take on board the issues members raise. It is important to note that the number of social workers has increased and that 57 vacancies have been filled. Positive and good work is being done.

Mr. Gordon Jeyes

This feels a little like my oral leaving certificate examination. I will respond first to Deputy Charlie McConalogue's questions. I have regular discussions with the Department regarding consultations. I was appointed before the change of Government to run a reform programme. I have also become involved in many day-to-day issues and was a member of the task force. I look forward to the issues identified in the programme for Government, all of which merge, being addressed.

In terms of the revision to Children First, we wrote a handbook with reference to all of the recommendations made in various reports and made reference to international best practice. While I had discussions with the Department while it was drafting the Bill, the drafting of legislation is a matter for the Department, the Minister and the Dáil.

Chairman

Has an evaluation been made of the levels of consistency achieved since the handbook drafted by Mr. Jeyes was issued?

Mr. Gordon Jeyes

Our measures show there is greater consistency. I may be able to discuss the issue in greater detail later. The Chairman asks a very good question which picks up on Deputy Caoimhghín Ó Caoláin's question as to why on earth this was not done before. One year on, we need to ensure not only that we have the product - the safety blanket - but also that it is still being used and updated.

I was also asked about taking responsibility, a crucial issue. I am not proposing a definite answer on the designation because we are in a period of reflection before the full legislation is introduced. More than anything else, it is important that we pass this legislation and make it work. People involved in voluntary organisations are not putting their hands up to be health and safety representatives. We need to ensure responsibility begins in the family, is supported in the community and that the State comes in when necessary. That is the reason I raised the possibility of making a distinction between those acting on a voluntary basis and others.

An impact assessment will be made when the legislation has been produced. Despite being viewed by many as a little outspoken, I have never specifically made points about resources. I remain unconvinced that we are making the most effective use of all our resources. The one thing I have learned from the history of the health service in Ireland and personal or local community choices is that they are highly inconsistent. While I have some sense of the distribution of social workers across the country - it is not very consistent and, as chief executive designate, I need to address that issue - I also need to know what is the total resource in a given community. If these resources are not being spent on social workers, it may be that they are being spent on something else that is effective. We must provide for the fair distribution of resources based on the population of children, with an element to take account of deprivation and rurality or sparcity of population because the delivery of services can be more expensive in rural areas. I am doing some work on this issue with health economists. These three factors make up the denominator. We must examine the data very closely.

While I am deeply conscious that the system is under pressure, that does not lead me to say more resources are the only solution to the problem. I fully understand the current financial circumstances which should lead to a debate on prioritisation. We must view the legislation in that context because I do not hear alternatives. If there is deep concern about a child's welfare and need for protection or a child is at risk of extensive harm, reporting should not be negotiable. That work must be prioritised within the resources available.

This leads to the issues raised by Deputy Ó Caoláin. The schedule is 1 January 2013. Changing uncertainty is very difficult, but we need to bring about change. The timetable is daunting, but children are at risk while we decide where the deckchairs will go on the Titanic. The less risky course is to move quickly and get on with taking this forward. We need to look at the staffing complements and commit, with the trade unions, to fuller consultation over the summer. We have had an interim structure in place which is clear from the top down, but it must also be clear from the bottom up, and I will get to the issue of the line of accountability. We must decide on how many groups of staff there will be, on supervision and on caseloads. That work is ongoing, but we must attain a clear picture of what we have before we begin thinking about additional staff.

When speaking about additional staff, I include contracts being commissioned with the wider sector. This is about what a whole community does, including through the excellent work of Barnardos, Daughters of Charity and other organisations throughout the country. The work we do is complementary. I am exploring ways through which we can have services with the counties in the North for specific reasons, not least to do with the democratic timetable North-South, and the main focus will be on child protection. We are appointing a senior management team to work with me and take forward the new agency, and we have been getting advice and guidance from colleagues in Northern Ireland on that to give us an external perspective.

With regard to the direct line of accountability, I want to see an agency that exists primarily at two levels. I want to see it with a strong centre, because we are a small country and should have consistency. The standard expected of child protection in Killybegs should be the same as in Clonakilty or Dublin city centre. Many people think the HSE is a strong centralised organisation, but I am not so sure. We want a strong centre that is clear about policy, strategy and quality assurance and which takes a strategic approach to resource distribution. We also want strong subsidiarity. Everything else should be in place at a local and practical level and serve the communities taxpayers have funded us to do. The way the system is organised in Ireland currently, there are no boundary solutions for the organisation. However, I want my area managers to have a Garda superintendent with whom they will work and build a good relationship and I want them to have similar contacts in the health service and with the network of school principals.

I meet the 17 area managers once a month and that makes a difference. That group is not much bigger than this and I tell them to look about and see themselves as the adults in charge. They are to recognise it is not about somebody else and that if they think the way we do it in Donegal is the best way, they should speak out about that. I will referee the debate and we will decide together on a consistent policy. A principal social worker is now only four steps away from my position, which is reasonable in the context of a national scale. From area manager to front line is also only four steps. Accountability runs both ways and I have discussed this a lot with my colleagues. I have discussed the standards I expect of them and the support I give them and the standards they expect of me.

Chairman

Is Mr. Jeyes satisfied that standard will not be compromised in the current economic situation?

Mr. Gordon Jeyes

I am satisfied we need a public debate about prioritising, ensuring I account for every penny of taxpayers' money I spend and that I use it for the best purposes. The debate should be even wider than that as we approach the second part of the economic programme. Perhaps the phase where we must all share the pain together is over and a wider debate is needed. Perhaps we should consider that this particular aspect of public service is important and that despite the straitened times, we should decide we can afford it. However, it is not for me to decide that.

Chairman

Many of us, as public representatives, find that accountability within the health services is missing at certain levels. Therefore, I was interested to hear that you meet once a month with your area managers. Given the issues with regard to the Croke Park agreement and best practice, do you feel that model is working and can be developed?

Mr. Gordon Jeyes

As an agency within an agency, we have had direct line accountability only since May. Dublin north-east was a little ahead because of an agreement that came into place on resources as I was satisfied I had sufficient resources there. Accountability has been a weakness due to certain structural and cultural issues that are wider than the HSE. My mantra has always been accountability, consistency and transparency, and we have made progress on all three of these areas. However, there is a long way still to go.

Deputy Ó Caoláin made the point about certification, that it was not rocket science. I agree. I cannot answer for what happened heretofore. The figures represent the social work front line and social workers signing to say they have received, read and understood what is required. We will follow through on that to ensure consistency. I am used to those straightforward audit practices so that the relationship is understood.

The Deputy also raised the issue of emotional abuse. I understand and am sympathetic to the evidence he has heard from the Department as to why it was excluded. To ensure we are as consistent as possible on this, we should make Children First statutory. There are issues with regard to the definition and what has happened internationally. I see these things as evolutionary and I believe the most important issue is to produce legislation which helps increase parental, community and State responsibilities for child protection. Ireland has come a huge distance in its children's welfare services in a brief time, for example, with regard to the extent of good quality foster care where standards are much higher than in many other European states. Levels of aftercare and associated social work support has improved greatly. Progress in this has been achieved over a brief period since the 1991 Act. This legislation is another important step in that journey and there will be further evolution.

Deputy Ó Caoláin asked about the importance of this being passed and why the option has been moved to being in written form. I do not know; I did not draft it.

Deputy Caoimhghín Ó Caoláin

Why is it in written form only?

Mr. Gordon Jeyes

I do not know, but I am sure there will be comments on that. The most important thing is that we need clarity on the naming of the parts, such as when a referral is a referral. For me, if somebody attends an office who wants movement on something and this is written down, that is clearly a referral. There might be other circumstances where it is just a matter of a concern being raised. We need discipline with regard to what we are doing. However, I do not know the answer to the Deputy's question. There are technical issues with regard to records and data protection. I have concerns about data protection being used too regularly as a shield and about the rights of perpetrators sometimes taking precedence over the rights of children to be safe. We have a capacity to operate when it seems correct in the balance of probability, as opposed to being pushed constantly to act only when the matter is beyond all reasonable doubt.

Chairman

Are you happy that information sharing between the HSE, education, the Garda, local education and local government is taking place? You were very strong with regard to the issue of the lack of information sharing doing more damage than good for the protection of the child.

Mr. Gordon Jeyes

That is very much my view. The sharing of information between the children and family services and An Garda Síochána is very good, and that is how the legislation is set up. While previous reports have criticised this, I feel relations and the work going on in this regard is good. However, often the information can only be shared between these two parties and I believe this should be widened. An individual concern or referral might not look serious, but it would do so if the youth worker, the neighbour, the school and others all had concerns. We need to develop an assessment framework that pulls together all of that information so that we have the complete referral and we can still look for an involvement of family life that is as minimal as possible and is proportionate to the child's needs.

The other point raised was the business of rising caseloads. Some of that is related to prioritisation. Some initial work was done with IMPACT in 2009 and got stuck for some reason over the last few years but I have restarted it. It is not the case whereby the right number in a caseload is X, because clearly one could have a small number of cases that are incredibly demanding and a large number of cases of well settled children which are quite straightforward. We are doing that work as part of the design work and it is in partnership with our trade union colleagues.

Deputy Caoimhghín Ó Caoláin

In trying to anticipate the necessary number of social workers that will be required, there must be some calculation on projected caseload capacity per worker. I wondered if that calculation had been done by now. I asked that question because I would view it as indicative of the stage the HSE was at in terms of planning and design, as Mr. Jeyes referred to it.

Mr. Gordon Jeyes

We are looking at that work from a couple of years ago and we have reconstituted it with the unions, because it is quite sensitive to today's work. However, I completely agree with the Deputy's conclusion about the shape of the service. We need to make sure that we look at ways to increase social workers' productivity for the way they work as part of a team. Some of the reviews have been critical about the number of people who were involved in a family. That is not necessarily a bad thing but it is about how the team pulls it together as one plan for the child, which can be done by the social worker as the most qualified professional. The structure of the workforce relates to that caseload management issue as well.

There is a rising number of children here. This is my only resource point of the morning but I should get a demographic uplift each year, like that which exists for medical cards. In the last four years there has been a 20% increase in the number of children and a 17% increase in the number of children in care. That figure rises for the number of children in intensive care with high needs at the more expensive end to fund that. If that money comes from elsewhere, it represents another cut in the budget. The demographic uplift should be acknowledged before we start looking at our savings.

Later in the summer we will discuss the publication of the independent review into deaths of children in care in the first decade of this century. I ask that we try to avoid the shorthand of referring to children in care. It is children known to the system in aftercare or in care. I do not wish to sound defensive on behalf of the agency for which I am accountable, but for the impact that it can have on children in care when we read sensational headlines that are not accurate. These also have an impact on the excellent work of foster carers. Ireland has rightly set high standards for a very broad group of children, a minority of whom are in care at the time. We need to be clear about that and do further work on the thresholds, some of the outlines of which committee members have seen. We also need to be clear about the stages of intervention. If we are not doing this, then who is? I am very critical of an aspect of our special care system in respect of how the admission system works. A child may quite appropriately be rejected but it like going down the snake and starting again. We need to have an admission system with multiple exit points, so if it is not a priority for social work, what service will the child get? That also fits in with re-establishing the confidence and the credibility of the system.

It may be anecdotal but we have seen from the work in DRM and from the work with the Daughters of Charity that where families have got a response, then they do not feel stigmatised from a referral to a social worker because they are getting a service and some support. Establishing the threshold is going to take some wok. That takes us to Deputy's Naughten's point about confidence. We have issues of credibility, some of which are very unfair. Probably next to banking, the HSE is a broken brand and I have sometimes quipped that I am responsible for everything that has gone wrong since the time of Brian Boru. Often it is justified but sometimes it is not. The majority of children in our care are very well looked after. We have outstanding foster carers. We provide aftercare packages for 1,340 young people. We have to go beyond taking it on the chin every time, even though sometimes it is well deserved.

When we are implementing this, we need to make sure that every organisation with which we make contact is fulfilling obligations in respect of equality of opportunity, race relations legislation and child protection. That is built into our service level agreement and we need to assure that adherence is made to that service level agreement, or those organisations will not get any work from us. In doing that, we are the regulator so to bring in another regulator - as some have argued - would be duplication. HIQA will be inspecting us and our capacity to manage the service level agreements appropriately. We have got to make sure that we are all clear about each other's roles and we are fit for purpose.

I note the Deputy's point about the delay in the publication of serious case reviews. I can only speak for the past 18 months, during which we know the exact number of serious case reviews, how many deaths have taken place of children involved in the system, be they of natural or unnatural causes. There have been 17 reports produced so far and every one of them has been openly published and made available. That is the standard we will maintain. There will be circumstances where I will refuse to publish a report where that is in the interest of the family or the surviving siblings. Some of the historic cases fit this. However, I am happy to work with independent people nominated by the Oireachtas or elsewhere to make sure that there is no hiding place for management decisions in terms of collective and individual accountability. The comments made that we have been far too slow in this area are correct.

I have probably said enough on Deputy Naughten's points on thresholds thus far, and I picked up his point about combining. I have had those discussions in respect of the Deputy's point about One in Four. Risk assessments are carried out in the first stage of a section 3 inquiry to make sure that today's children are safe. The statistics are food for thought about the way in which we work with the Garda Síochána on allegations made on things that have happened people in their childhood. Under the principle of subsidiarity, I am giving serious thought to whether that should be a national service. It is specialist work and so it might be a good idea to take a social worker who is dealing daily with the safety protection risks for children into that specialist area, working with the likes of One in Four, the Garda Síochána and in multidisciplinary teams with health specialists, social work specialists and the voluntary sector.

With regard to Deputy Fitzpatrick's figures and his point about distribution, we have accurately counted the generous allocation of the 260 additional social workers over 2010 and 2011. There are two pressures on us. The first is the general pressure coming from the public policy of reducing the number of people we employ and ensuring we are doing that while keeping the balance of the workforce correct. Second, we are under financial pressure and we must balance that. We have to ensure every social work team is at a complement that can fulfil the work expected of it.

Deputy Fitzpatrick is correct when he says that in 2011 there were in excess of 30,000 referrals. That was not 30,000 children. In the work HIQA and we do, we need a clearer and tighter definition of child protection and risk of significant harm in order that we are able to achieve what we are setting out to achieve and get better referrals. As has previously been reported to the committee, neglect in Ireland is probably underestimated. Too much of that is in the 15,000 figure of welfare. Some of that figure could, perhaps, warrant a lower and more proportionate response but some of it should probably be elsewhere.

There are those who ask why we are having this statute, but non-reporting should not be an option. For the Dáil to pass this legislation is to say not only that child protection is everyone's responsibility but also that it is non-negotiable. I hope we can strengthen the ways all the agents of the State are involved and ensure the duty to co-operate is fully multidisciplinary. There are those who say thresholds are the problem, but we must work more with thresholds. If I set the threshold too high, children will be at risk. If I set it too low, the system will silt up. Wherever I set the threshold, legislators and communities need to understand it and we need, not least through our representatives, to debate that.

We need to set up triage systems, evolving over a few years, where we have the full range of perspectives. Research says the best referral systems are social work-led but also take in the wisdom and local knowledge of the Garda Síochána, the health services and bodies such as the National Educational Welfare Board. We need a range of professionals and perspectives. With that, we can make great progress on the referrals and have a system that does justice to the legislation, when it arrives.

Deputy Catherine Byrne

In the past year and a half the Government has come under huge criticism about many things. However, the Taoiseach cannot be criticised for having immediately established a Department and appointed a Minister for Children and Youth Affairs. His action was the result of the failure, in the past, to consider children's rights with a clear and open mind. We now have a Minister who is dedicated to taking on that role.

Other members have referred to the increased number of social workers and the importance of maintaining a high ratio. In the future, it will be Mr. Jeyes's task to ensure those roles are fulfilled. People, especially families, who need to see social workers should not have to wait any length of time. The process should be automatic.

I come from a voluntary background and have worked all my life in voluntary organisations. When the Bill is passed, how will it be monitored through voluntary organisations? Will it be monitored by the HSE? What will happen if people do not comply with statutory requirements? In his opening statement, Mr. Jeyes said "penalties associated with failure to comply with the role of designated officer ... may well be appropriate". Can he explain this?

Deputy Charlie McConalogue

Mr. Jeyes's role in our child protection system will be crucial in the coming years. The children and family services agency, which will be established at the start of the year, will be crucial.

The Bill and the other measures we take will be judged by how they lead to a safer child protection system. Any proposals we make for amending or improving that system will be key. What impact will the legislation have on resources? There is evidence that legislation of this sort leads to an increased number of reports. The United Kingdom shied away from going down this route. In recent years, the number of reports has increased to almost 30,000 while the substantiation rate, that is, the number of child protection concerns arising from those reports, has not increased. The rate used to be approximately 30%. It is now approximately 10%. I would be interested to hear Mr. Jeyes's view on that.

There is a concern that the number of reports may increase. Is Mr. Jeyes satisfied the system will be able to cope and will lead to a safer child protection system? We must ensure we get the reports, but we must also ensure we are in a position to act upon them.

Chairman

There is also a duty on us all to be conscious that the heads of the Bill and the referendum are about child protection, not anything else.

Mr. Gordon Jeyes

I thank Deputy Byrne for her question which gives me the opportunity to clarify my remarks. The penalties referred to in the heads of the Bill may well be appropriate for those who have the role of designated officer in a professional capacity. We should look again at their appropriateness for those who have that role in a voluntary capacity. There should be a system whereby organisations should not be running services for children if they cannot do a straightforward policy plan and annual report and take those forward. There are models of where that works well.

This brings me to Deputy McConalogue's point. Reporting may not be mandatory in the United Kingdom, but child protection is non-negotiable there, and there is ministerial guidance on the strength of the child protection policy in schools, health centres and everywhere else. We need the information about risks to children in our community if we are to help communities and families fulfil their obligations to ensure a safer and fulfilling childhood. I need that information in order to design a response. The legislation can help us get that information and we can design the response around it.

Deputy McConalogue asked if I am satisfied this will make a contribution to a safer child protection system that is more systematic, disciplined and consistent. I am, absolutely. Ireland has not defined child protection as tightly as it might. We need to be more insistent with a family because we do not want to take their children into care and separate that from where a family is seeking support for welfare purposes. The numbers, in terms of the quick comparison as to how we come through, do not stack up. The 5% figure is not accurate, not least because the 30,000 are not individual children. Many separate concerns are about the same children.

Deputy Charlie McConalogue

Does Mr. Jeyes expect to see an increase in the number of reports as a result of the legislation? What level of increase does he estimate and will it require the allocation of additional resources?

Mr. Gordon Jeyes

There needs to be a clear system of filters in order that we are more inclusive and responsive and work with all in the sector to provide the response that each family is due and at the earliest possible moment.

Chairman

I thank Mr. Jeyes for his presentation and his in-depth responses to questions from members. I thank Mr. Garland for his attendance. This is a very important piece of legislation. It is not a political football and should not be used as such.

I propose the sitting suspend until after the vote in the Dáil and I apologise to our next witnesses. The vote is at 12.52 p.m. so it makes no sense to start the presentation now.

Sitting suspended at 12.50 p.m. and resumed at 1.15 p.m.

Chairman

We will now commence our second session. I welcome Dr. Helen Buckley, associate professor in the school of social work and social policy at Trinity College Dublin and chair of the national review panel on serious incidents including deaths of children in care; and Mr. Geoffrey Shannon, special rapporteur on child protection. Witnesses are reminded that they are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence in respect of a particular matter and continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are advised that only evidence connected to the specific matters under discussion is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, 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 to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such as way as to make him or her identifiable.

I apologise for the delay in proceedings as a consequence of the Dáil division. Apologies have been received from Deputies Michael Colreavy and Ciara Conway and Senators Colm Burke and Marc MacSharry. I invite Dr. Buckley to make her opening remarks.

Dr. Helen Buckley

I thank the Chairman and members for the opportunity to address the committee. I have already sent a written submission in response to the heads of the Children First Bill, and I understand members have received a copy of an article I wrote for The Irish Times last month in which I outlined some of my reservations regarding the introduction of legislation on reporting. I have raised concerns about the current critical condition of the child protection services and their capacity to deal with the potential consequences of increased reporting. I made the point in my earlier submission that the Health Service Executive is evidently not capable of responding quickly to the majority of reports made to it. I also expressed doubt that the level of investment required to enable the statutory services to cope with added pressure will be available. Furthermore, I raised concerns about the gap between the expectations of those who make reports to the system and the thresholds which the child protection services are forced to apply, and pointed out that both professionals and families get caught in that divide, which is distressing and dangerous for all concerned. Finally, I observed that in all of the high-profile familial abuse cases that have come to public attention in recent years, reporting was not an issue of concern - rather, the failures of different agencies to respond, plan, case manage, share information and collaborate were identified as the primary deficits. Unfortunately, the proposed legislation does not address these issues.

I do not intend to labour these points yet again but would like instead to use this opportunity to offer constructive suggestions as to how the proposed legislation might be developed in order to address some of the fundamental weaknesses in the system, particularly the lack of integrated service responses. I am disappointed that despite the title of the Bill, only the sections of Children First dealing with the establishment of safe practice and reporting procedures in organisations are to be put on a statutory basis. The legislation stops short of requiring an obligatory response from services beyond the reporting of suspected child abuse. The most significant sections of the Children First guidance, which deal with the period post-reporting where multi-agency assessment, case conferences, planning, intervening and onward safeguarding must take place, will be left as they are, even though they are the elements of the child protection service that have been shown to be the weakest. I am strongly of the view that positive and safe outcomes for children will not be achieved unless a comprehensive service is provided by all the organisations and institutions involved in the lives of children.

As chair of the national child death review panel, I have seen ample evidence that child protection cases which come to the attention of the HSE require a level of collaboration between children's services that is not currently happening. We have finalised 17 reports to date, including the six that were published two weeks ago. The majority of reviews concerned children and young people whose very complex needs could not be met by statutory child protection services alone. The children who were the subject of the reviews had been experiencing a number of difficulties associated with out-of-control and anti-social behaviour, intellectual disability, mental health problems, chronic illness, addiction, school drop-out and delayed educational progress. Most of the young people died from causes associated with risk-taking behaviour. These reviews provide a clear illustration of the diverse nature of problems experienced by vulnerable children and young people. In some cases timely attention to some or a number of these issues may have prevented the problems from escalating further. In a number of others more collaborative work at the post-reporting stage could have made a positive difference.

The reports illustrate poor collaboration in many cases at a formal level, a failure to communicate important information, gaps in services and false assumptions about actions taken by one or other professional or organisation, all resulting in no one organisation having a complete picture of a child's needs or the extent to which they were being addressed. In a number of the cases there had been opportunities for services to form multi-agency strategic plans, but this did not occur. Depressingly, findings of this nature tend to be replicated time after time when child deaths are reviewed here and in other jurisdictions.

More recent information from the HSE indicates that the education sector is the most frequent source of reports to the child protection system, followed by the Garda and health services. The data clearly illustrate the potential for services provided by these sectors, particularly schools, not only to identify children at risk but also to provide for early and sustained intervention to help compensate for the adversities experienced by children both prior to and following the reporting of their concerns to the child protection services. It is important for all organisations involved with a child to continue intervention after a child abuse report has been made and not to assume that once the statutory system is involved it has the capacity to meet all of the child's needs.

Numerous options for promoting a multi-agency or an holistic response to children at risk could be incentivised by a legislative requirement for organisations to actively promote child protection and welfare. As I pointed out in my written submission, other jurisdictions have recognised the limited capacity of statutory social work services to comprehensively intervene in the lives of children at risk. Whole of government approaches have been adopted, whereby a range of Departments with responsibility for children's services are named in the legislation and obliged to proactively safeguard children by using their budgets to provide relevant services, for example, the employment or co-location of social workers in schools and child protection units within the relevant Departments.

The UK Government has accepted the recommendations made in the Munro report for greater accountability in the sectors of health, justice and education and a stronger role for the local safeguarding boards responsible for co-ordinating their contributions. The Northern Ireland safeguarding board which will come on stream later this year has prioritised investment in multi-agency training and inter-agency structures, reflecting the international trend towards spreading the statutory responsibility for child protection between government Departments.

The reporting of a child abuse concern is only the start of a long and complicated process, yet as we see over and over again in child abuse inquiries, failures of communication, co-operation and collaboration between agencies are cited as fundamental weakness in the child protection process. These are as serious, if not more so, than a failure to report. In the same way as reporting legislation signals the commitment of the State in protecting vulnerable children, legislation to oblige a whole of government multi-agency response to children at risk either before or after reports are made would make a significant statement, ensuring for the first time child protection was really everyone's business.

I respectfully request the committee to reflect on the evidence I have presented and consider the potential of the proposed legislation to impose additional child protection and welfare requirements on organisations providing services for children and families. Throughout this process I have noted a number of pertinent points raised by organisations and individuals addressing the committee. This is a complex field, with many stakeholders, the views of some of whom conflict. It is essential to include in the proposed legislation a statutory requirement to review its impact and effectiveness within a specified period, say, three to five years, to maximise its effectiveness in the longer term.

Chairman

I thank Professor Buckley for her thought provoking and challenging presentation. She is correct in pointing out that there are differing viewpoints and that it is important we reflect not only on the presentations being made today but also on those that have been made already. I invite Dr. Shannon to make his opening remarks.

Dr. Geoffrey Shannon

I thank the joint committee for giving me this opportunity to address it on what I regard as probably the most important legislation to come before both Houses of the Oireachtas in two decades since the enactment of the Child Care Bill because its implications will be felt for many years to come. Therefore, I am grateful to have this opportunity to address the committee.

I was struck by Professor Buckley's presentation. I have also been involved in reviewing the deaths of children in care. As the Chairman said, sometimes there are differences in this regard and my experience has been very different from that of Professor Buckley in that mine has brought me more in the direction of requiring the reporting of allegations of abuse. That is why I am more supportive of this legislation than I would have been. What characterises the child protection system is that essentially it is a voluntary reporting system. A mandatory reporting system would ensure the rights of all children were upheld. That is hugely important in terms of compliance with international law.

I have provided members with a copy of my presentation. I will briefly touch on some of my remarks made as I am conscious of the time limitations. In my preparatory work for the meeting I put together a 16 page flow chart including all of the provisions in all common law jurisdictions and asking a number of key questions which I hope will be of assistance to the committee in its deliberations. If it would be of assistance, I would be happy to furnish a copy to the clerk to the committee.

Chairman

Yes, that would be helpful.

Dr. Geoffrey Shannon

The questions I pose revolve around who reports the abuse because it is important that we draw on the experiences of other jurisdictions and how to report - these are all critical questions that will need to be addressed - as well as penalties, defences and other matters. The jurisdictions of most relevance are Canada and Australia. I have looked at the eight provinces in Australia, the six provinces in Canada and virtually all of the American states. I have examined how we might learn from errors made in these jurisdictions.

The legislation proposes to place the Children First guidelines on a statutory basis, but it goes beyond this. It is important that we learn lessons from mistakes made in the past. The lessons to be learned can be seen in the context of the Ryan report which shows that there was a failure to uniformly and consistently implement the Children First guidelines. There has been an abject failure to implement the Children First guidelines, which is unsatisfactory from a child protection perspective. This will be addressed in the new legislation, under which schools, sport clubs, the church or organisations which children attend without their parents will have a legal duty to make sure they are a safe place for children. Such provision will also apply to named professionals.

I draw the committee's attention to a number of issues. I suggest emotional abuse should form part of the legislation for a number of reasons. The common core in other jurisdictions includes emotional abuse. It would be a retrograde step, therefore, not to include it, given that as far back as 1998 it was included in the Children (Reporting of Alleged Abuse) Act. The most insidious form of abuse is sometimes emotional abuse, which point is sometimes lost on us. I would be strongly supportive of its inclusion in the legislation. I outline in my paper why it should be included, although I am conscious of the difficulties involved in that its identification is complicated by the diversity of signs and symptoms a child may display. I suggest there are two options the committee might consider. First, it could consider an obligation to report emotional abuse without penalty and, second, that under the legislation designated persons be in a position to voluntarily make a report.

Looking at other jurisdictions, six of the eight provinces in Australia mandate the reporting of emotional abuse, the only exceptions being the Australian capital territory and Victoria where the reporting of emotional abuse is voluntary. Three of the provinces provide protection for a child exposed to violence within the home, which is very important. Four of the six provinces in Canada mandate the reporting of emotional abuse. The position in the United States is different in that in some states it is mandatory, while in some, it is not. I cite California as an example of a jurisdiction where the reporting of emotional abuse is not mandatory and New York as an example of a jurisdiction where it is mandatory. What I suggest to the committee for consideration is deferring including emotional abuse to a later stage if the committee is of the view that it would place an undue burden on the system.

In terms of the definition of sexual abuse I have a concern which revolves around the definition itself. The heads of the proposed Bill state that: "it is presumed that consensual sexual activity permitted by law is not sexual abuse". I was invited last week by the Royal College of Physicians to address a public meeting on the issue of consent. What we all want to make sure in this hugely important issue is that we prevent early sexual activity and adults exploiting children but we also want to make sure that young people are not deterred from accessing services for sexual health issues. That is hugely important and it is something that we need to take into account.

There were three important recent surveys to which the committee should be alive. The first was a pan-European survey in 43 jurisdictions. It dealt with the health behaviour of school-aged children. It found that approximately a third of the children engaged in sexual activity below the age of consent. That broadly mirrors a 2004 study in this jurisdiction. The most recent survey by the health promotion research centre in NUI Galway which was launched by the Minister, Deputy Reilly, what we found is that between the ages of 15 and 17, 27% of young people had been engaging in some type of sexual activity.

There is vulnerability and conflict in terms of providing counselling and services to sexually active young people below the age of consent. The conflict is that on the one hand there appears to be a professional duty to provide support to these young people and then there is an obligation to report the issues to both the HSE and the Garda. The legislation will have an impact in that at the moment there is discretion in terms of the reporting but in the future it will be a requirement. What I would urge the committee to do is to consider the provision in the withholding of information Bill, which provides for designated persons, or their equivalent, a defence of reasonable excuse in that context. What we all want to ensure is to defer early sexual activity but we do not want unsafe sexual behaviour. We do not want a situation whereby one has crisis pregnancy decision making without appropriate counselling. It is a real challenge but it is one to which the committee should be alive. That appears to me to be one of the consequences of the Bill.

There needs to be greater clarity in terms of the organisations covered under the Bill. We see that there are two particular heads of relevance – 6(2) and 6(3). I have cited an example of a swimming pool, which could fall under section 6(2)(ii) of the proposed Bill, which means that it would be covered by the legislation but, equally, it could fall under section 6(3)(f) where it could be regarded as a leisure facility. I suggest that in terms of the consumer we must be clear as to who is in or out in the context of the legislation. I am also profoundly concerned that individuals who have direct unsupervised access are not obliged to report under the Bill. I refer to personal tutors and dance teachers, for example. There needs to be uniformity in the approach that we adopt to the legislation.

I welcome the mandatory requirement for training in terms of organisations. That is hugely important because the legislation will be challenging in terms of its implementation. In terms of the annual audit I suggest that the legislation would allow for at least one external report to be procured as part of it. As a filtering system I am supportive of the designated officer because on the one hand it balances a need to protect from excessive reporting or over-reporting and on the other hand it does not reduce the protection afforded to children. The designated officer is a key part of the legislation. He or she will make the decision on whether to report. The guidance for the designated officer should be considered in secondary legislation to ensure maximum compliance.

If it is the case that the committee, and ultimately both Houses, proceed not to deal with the issue by means of secondary legislation; if the guidance is to take the form of guidelines then the primary legislation should make reference to the thresholds or grounds for making a report. For example, that designated officers would know or have reasonable grounds or cause for concern that arises during the course of their work. The minimum threshold should be set in the legislation and clarification of the criteria should be set out in the guidelines. That would be a useful template given that other jurisdictions such as Australia and Canada follow that route.

I would urge the committee to consider the experience in New South Wales. That is the first state-wide multidisciplinary online reporting guide tool. It is a very useful tool which will guide one as to whether information one meets the criteria to make a report. Having a similar tool available in this jurisdiction would assist the implementation of the legislation. What I have tried to come up with are practical mechanisms for making the legislation more consumer friendly. I would urge the committee to consider that as a suggestion.

Head 9(2)(b) is deficient in that it lacks detail. We need to provide further detail on the reporting of procedure in terms of the timeframe. Let us say, for example, one makes a report then that should be followed up within a period of 48 hours with a written report. An example of where that occurs is New York.

In terms of the organisational requirements on employees or volunteers, what I suggest is that if I report to a designated officer there should be some protection for the member within the organisation. I suggest that there should be a non-penalisation provision which exists in employment law in general. That should also apply to the designated officer. For persons who are statutorily required to report child abuse, in terms of head 11(3), organisations should provide designated officers with considerable training but such officers should also be alive to the responsibilities that are being foisted onto them. I will give an example from California where there is a requirement that one signs a statement to say that one understands the role, the obligations and the penalties that will flow from one's failure to comply with those obligations.

The legislation needs to put more of a focus on the organisation. Where an organisation fails to comply with legislation it should be guilty of an offence. This legislation is too top heavy on penalising an individual with the consequences not being as far reaching for an organisation. I cite as an example section 80(1) of the Safety, Health and Welfare at Work Act 2005. A lot of jurisprudence has built up around that section which foists responsibility both on the organisation and on the designated person. Also, there needs to be protection from liability for the designated officer who acts reasonably and in good faith. Again, in the comparative material, the eight provinces in Australia and the six provinces in Canada have this type of protection. It is hugely important. In footnote 11, I make reference to the provisions that the committee might consider as a mechanism to provide some degree of immunity to a designated officer who acts in good faith. We do not want a situation where people would become reluctant to become designated officers. We need to provide some level of protection in that regard.

Head 11(3) is vague in terms of stating that a designated officer will be guilty without reasonable excuse. My recommendation is that "reasonable excuse" should be defined. Does reasonable excuse include legal, medical or religious privilege or that it would lead to self-incrimination? These are some of the defences available in other jurisdictions.

One of the issues not addressed by the Bill, which should be addressed, is the offence of knowingly making a false report because that will have a huge impact on the system. In terms of the comparative material, the majority of provinces in Canada and Australia have such a provision. In New South Wales and in Queensland the penalty for knowingly making a false report is higher than the penalty for failing to report. My biggest concern with head 11 is head 11(3) because it is not clear what offence one is guilty of if one contravenes it. That matter must be clarified. Is the offence a failure to report or can it include the offence of knowingly making a false or misleading report? The offences must be identified and clearly stated. I suggest two - a failure to report and knowingly making a false or misleading report.

In terms of the role to be played by the Health Service Executive, it should be advisory. We need checks and balances; oversight of the legislation should be the responsibility of the Health Information and Quality Authority.

In terms of the guidelines to be laid down for the reporting of abuse, my recommendation is that it be done by means of regulations which I suggest should consider two issues - the criteria to be used and the procedures involved.

The final head to which I want to make reference deals with offences. This issue needs to be re-examined because the penalties must be reduced. When a provision of the Act is breached, the response must be proportionate. In terms of proportionality, a maximum penalty of five years is too great for a designated officer because we want to create a culture of compliance. In terms of the position in other jurisdictions, the maximum monetary penalty in Australia, for example, ranges between $5,000 and $22,000, while the maximum term of imprisonment is six months. In New South Wales the criminal penalty was removed in 2010.

The monetary penalties in Canada range between $2,000 and $50,000. The upper figure of $50,000 applies in two of the provinces, Ontario and Manitoba. Canada is an interesting example in that while most jurisdictions allow for a jail sentence for non-reporting, the usual penalty is a fine, reflecting the educational intent. That is what this legislation should be about - creating a culture and a safe environment for children, rather than penalising individuals. Every jurisdiction in Canada deals with the offence at a local level. It is a summary offence dealt with in the provincial courts which similar to the District Court here.

In the United States there is the possibility of a fine. The term of imprisonment ranges from five days to five years, with Florida being the exception if one is found guilty of failing to report a household member. There is a greater penalty in the case of a second offence, as reflected generally in the legislation in California.

My final point is that there must be a much more structured approach to penalties. I recommend that we divide them into two sub-categories, the first of which is that one acts negligently before being liable to summary prosecution. The penalty would be a fine or imprisonment for one year. The second is that one acts with reckless disregard, in which case it should be an indictable offence, for which the penalty would be a fine and-or two years imprisonment. I suggest knowingly filing a false or misleading report should form part of the offences. It should be a summary offence, for which the penalty should be a fine and-or imprisonment for one year. Reformed management should give the HSE capacity in this regard.

I listened with interest to Mr. Jeyes's presentation. There will be a dedicated agency with a dedicated budget. I hope the Children First Bill will create a culture of reporting which will provide clarity and for accountability which is absent from the child protection system. We have had inquiry after inquiry and what the public wants is some level of accountability, which will happen.

I support the mandatory reporting provisions because they uphold the rights of all children, but mandatory reporting is not the panacea. It must occur alongside the provision of increased resources, reform and training. The challenge for Ireland is to learn from the past and the experiences of those adults who recount their experiences of stolen childhoods. Implementing the legislation is a necessary starting point in building a robust child protection system.

Chairman

I thank Dr. Shannon for an interesting and informative presentation that, with Professor Buckley's, challenges us and sets us thinking.

Deputy Charlie McConalogue

I thank our guests for their comprehensive presentations which enlighten the assessment of the Bill made so far by the committee.

I ask Professor Buckley to elaborate on an aspect of her contribution. I am aware that she has written a good deal about the impact mandatory reporting has had in other jurisdictions. Will she elaborate on how she believes it will impact here and the resource implications in that regard? This is a key issue in ensuring the child protection system will be prepared for it. What are her thoughts on that issue?

On some of the key points made by Dr. Shannon, he dealt with the legal aspects of the Bill and made a number of points which we need to explore further. He concluded by saying mandatory reporting was not the panacea, that it had to be accompanied by the provision of additional resources. What does he mean by this?

On the minimum threshold included in the Bill, a point I raised at an earlier meeting, will it be sufficient? What are the legalities surrounding this issue?

Dr. Shannon's point on providing for a reasonable excuse in terms of the age of consent is one to which the committee must give much more thought. When it is considered that up to one third of those under the age of 17 years are engaging in sexual activity, the Bill will have profound implications. Dr. Shannon's point about emotional abuse is also important, one the committee must revisit.

Deputy Caoimhghín Ó Caoláin

I welcome Professor Buckley and Dr. Shannon and thank them for their thoughtful contributions not only in the course of their presentations but also in the papers they have shared with us. I realise there are time constraints and that they are under other pressures, as are we; therefore, I will keep my questions short.

I would like to hear more from Professor Buckley on two points. The heads of the Bill provide for an annual audit of each of the scheduled organisations, but Professor Buckley spoke about the need for a "timeframed" review in terms of its implementation, progress, etc. Will she elaborate further on this point? It would be a worthwhile additional clause, one that needs to be introduced.

Professor Buckley also commented on the structure in place north of the Border. As a Dáil Deputy in a Border constituency - I raised this issue earlier with Mr. Gordon Jeyes - I am conscious of the need not only for awareness but also for full co-operation. I have made the point that I doubt if there is a Dáil representative in any of the Border constituencies who is not conscious of the way the Border is misused, or abused, in the context of child related issues. It is important that there is a seamless overview and administration to the best degree possible in current circumstances. I would welcome Professor Buckley's comments on this point also because it is not fully reflected in the undertakings given so far.

Regarding emotional abuse, I could not agree more with Dr. Shannon. However, I would not be inclined to defer or infer, as I wrote on the note I scribbled, that this was not as unacceptable a form of abuse as any other. I fear that the interpretation of "deferment" or the non-mandatory aspect of it might imply or suggest to others that emotional abuse is in some way a more acceptable disposition towards children. My sense of the matter from my exposure to it throughout the years is that it is remarkably distressful and mentally disturbing. Emotional abuse has the potential for more long-term consequences for the child in later life. People who are more expert and informed than I am may disagree, but I know of the scars of emotional abuse from some of the cases I have met personally. These scars do not heal nearly as quickly as a physical scar. I am of the view this must be fully brought into the legislation. I made a point earlier relating to my concerns about the categorisation of the Children First guidelines. The witnesses made a point about the Protections for Persons Reporting Child Abuse Act 1998 and why it is not here, and I echo the point.

My last question is not a question at all. My colleague, Deputy McConalogue, asked the witnesses to elaborate on resourcing. I share the views expressed and I welcome what the witnesses have said. Naturally, this is not the panacea. The witnesses referred not only to the need for additional resources, which are essential if the implementation of the legislation is to be successful, but they also added the phrase "and training". This is equally essential and I concur fully with the witnesses' analysis. I thank them for the time they have taken.

Deputy Denis Naughten

I will be brief because I realise we are under pressure of time, as are the two witnesses. I welcome the contributions of both witnesses, which were thought provoking. It is interesting that both witnesses are here together because both have highlighted issues relating to mandatory reporting. Dr. Shannon has taken a different approach from Professor Buckley and I am directing my concerns to Professor Buckley. It is important a clear message is put across in legislation that particular issues are not acceptable and that the community in which people live has a responsibility to act. I have personal experience of some of the cases to which Professor Buckley referred. The approach was taken by leaders within these communities that it was not their job to make a complaint about certain matters since it was for someone else to do. While the HSE failed to act appropriately and while there were resource issues, the greatest problem in many cases was the lethargic approach of the professionals because people were not asking why certain events were not acted upon through the reporting mechanism.

Dr. Shannon has raised several issues that must be addressed relating to the way the legislation is constructed. We can send out a clear message in respect of how we want this issue to be approached in future.

Deputy Catherine Byrne

I will be brief. I thank both speakers. The discussion has highlighted several issues which have been in the back of my mind. I agree with Professor Helen Buckley that, in the past, agencies did not respond quickly enough. The church and the State have a role to play when they are called on to make decisions.

I thank Dr. Shannon for his report. He has opened the window to other countries and to the way they deal with and legislate for child protection. I agree with Deputy Ó Caoláin with regard to emotional abuse. I have had experience of emotional abuse in my family. One of my children was scarred through an organisation. It is important we take emotional abuse seriously. It lasts a lifetime and it scars people whether they go through school or work. It can leave them with certain fears throughout their life. This should be addressed as part of the package for the future.

Senator Jillian van Turnhout

I apologise for having to leave earlier. Seanad business had to be attended to. My colleague, Deputy Naughten, addressed some of the issues I wished to raise. The approach to the Children First guidelines is related to the wider response of society. The Amnesty International report, In Plain Sight, referred to the societal role. It is all too easy for us to examine one institution but, as a society, we have a role as well. I was interested in the issues relating to the age of consent. The Seanad is dealing with the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill at the moment. Perhaps I will explore the matter offline.

I have not yet raised at the committee the issue of the message being sent out to caution people about reporting. I am concerned about this and I have tried to explain the issue to friends. To me it is the equivalent of saying that one should not present to the hospital unless one is really having a heart attack. We need to be careful. People have been reluctant to report. We need to have the systems in place and we need to hold people accountable. My experience as a youth work leader in the Girl Guides suggests that often one will know about one distinct aspect of the child's life and there may be a related concern. One should be able to report that concern. One need not necessarily use the word "abuse". It may relate to the concern for the well-being of the child and one must report it. I am aware of a case where a youth work leader had a concern but did not have enough to go on to make an abuse allegation. The person reported it and at the same time the school reported it. When these two dots were joined, they were able to investigate the matter and realise the child in question was being abused. We need to ensure this works. Too often we simply look at figures in reports. One could have ten reports about the same child because different professionals, including health care workers, teachers and youth workers, come into different parts of a child's life and are aware about that aspect of the child's life alone. We need to calibrate a system that will allow me to report a concern as I see it and not to investigate it.

Professor Helen Buckley

I will respond to the questions of Deputy McConalogue and Deputy Ó Caoláin at the same time. They asked about the impact of reporting legislation at the moment in the current context. Let us consider the statistics referred to in the previous session. Some 30,000 reports are made annually to the HSE, of which 5% are confirmed, an extraordinary figure. In my written submission I noted that I have seen this confirmation figure dropping over the years and I have always been surprised there has not been some formal or official comment on it. It is extraordinary that 95% of the reports made to the HSE are not confirmed. This could be because the thresholds are high or because multiple reports are made. We simply do not know. It could be because reports are made mistakenly as well. One way or another it suggests a degree of activity in the HSE child protection services that is going nowhere and a preoccupation with responding to reports at the cost of resources being poured into work that should be done with children and families after the reporting stage.

I have said elsewhere that if we had a system in which we and the public could have confidence then reporting would not be an issue. If this were the case I would not be concerned about the impact of reporting and people would not hesitate to report. In the current context, the system is clearly not coping and, therefore, the impact of any additional reporting will have a negative effect. Earlier, Mr. Gordon Jeyes referred to building filters into the system. Filters are part of the system but they are not added on extraneously to stop reports from coming in. Filtering is done at the moment and, as the committee is aware, many cases are filtered out too early. The evidence to which I advert for reporting increases comes from what we know to have occurred in others jurisdictions. These include the jurisdictions Dr. Shannon has referred to in Australia. I happen to know a good deal about New South Wales because I spent some time there on a study visit. I know that the people involved there have spent the past two years trying to mitigate the impact of previous mandatory reporting laws which were so broad in their scope that the system virtually collapsed in on itself. They have now managed to reduce the reporting rate by 53% by significantly raising the threshold and removing the penalties. I realise this is a different country with a different culture, but this is evidence of what can happen elsewhere.

There is an impact on reporters and families in bringing forward legislation that is too broad while the service is incapable of dealing with reports. Under the Children First guidelines, reporters are required to tell children and families that they are being reported to the system. A common scenario might involve a teacher - I have heard this from many teachers - who has told a family that they are being reported. The same could apply to a nursery, where a nursery staff member tells a family that they are being reported. Families get angry and upset. They become intimidated and are likely to withdraw the child from the service in these circumstances. In the meantime the report goes to the HSE and it could take between nine months and two years for a response to issue. Professionals and families are caught in this divide where a report has been made and nothing happens. This is another likely impact.

Deputy Caoimhghín Ó Caoláin asked about the requirement for a review. There are probably several benchmarks that could be profiled in terms of the impact. One obvious one is the reporting rate. The HSE is producing clearer data because it has introduced a standardised business process for the child protection reporting system. It is likely to be easier to interrogate that data to establish the impact of reporting not only on the reporting figures but also on the capacity and the ability of the services to respond. This is an important development. I remind the committee of what occurred in New South Wales when a broad reporting law was brought in. The reviews show that those responsible had to row back considerably on the conditions and regulations attached to reporting.

Dr. Geoffrey Shannon

I will begin by restating what I said in the conclusion of my presentation. It is important-----

Chairman

Seanad Members should note a vote has been called. Parliamentary democracy is great.

Senator Jillian van Turnhout

I am being exercised today.

Deputy Caoimhghín Ó Caoláin

I am not a Member of the Seanad, but I apologise too because I must attend a meeting in the Ceann Comhairle's office at 2 p.m. where I am due to present a report. The clock is ticking and will beat me. The Chairman will share Dr. Shannon's response with me afterwards, if that is agreeable. Please understand this institution does not work in the way we would wish. I am sorry.

Dr. Geoffrey Shannon

The people whose childhoods were stolen are entitled to a State response. In case there is ambiguity about the issue, I strongly support this legislation as part of the State's response and stand over my comments on mandatory reporting. I have moved from a position where I had profound concerns about mandatory reporting to one where I believe the mandatory reporting component is probably necessary in this legislation because of what I have seen as part of child death reviews. I have no wish to discuss them, but they have had a profound impact on my thinking.

It occurs to me that the Irish system has been almost entirely diverted towards a system of voluntary care. This touches on something to which Deputy Denis Naughten and Senator Jillian van Turnhout made reference and, to a certain extent, the comments of Deputy Catherine Byrne. We need to be clear on the issue of reporting. It should not be discretionary. It is not an excuse for prevarication or a failure to make decisions. The failure to make decisions has a great impact on the lives of children and their families, something of which we should not lose sight.

The success of the legislation will depend on the provision of adequate resources and appropriate training. There will be a steep learning curve in terms of the training not only of those required to report but also of volunteers. We should be careful about the message we send to volunteers. It should be a message of support rather than to the effect that we are going to penalise them. I am sure the committee will hear from several voluntary organisations in this regard.

I regret that Deputy Caoimhghín Ó Caoláin has left because I wish to clarify my comments on the issue of emotional abuse. I wish to leave the committee in no doubt about my position: emotional abuse should be included in the legislation. I suggested that if the committee could not find itself in a position to make this recommendation, at the least, it should seek to have it included in the legislation and defer commencement to a later stage. I have always viewed emotional abuse as being more sinister and enduring in terms of its impact.

I was stuck by Deputy Catherine Byrne's comments. I share her sentiments. I have seen the effects of emotional abuse and they broadly mirror those mentioned by the Deputy. I am altogether of the view that emotional abuse should be included in the legislation. To do otherwise would represent a rowing back on provisions in existing legislation.

I made reference to the Protections for Persons Reporting Child Abuse Act 1998. The fact that it is difficult to calibrate is no reason to exclude it from the legislation. These issues came to the fore following the Ryan and Murphy reports.

A minimum threshold should be set in legislation and it is important that we decide on what should be included in this regard. In my presentation I made reference to what should be included and what should be excluded. My view is that the criteria to be used and procedures involved in reporting should be included, while the details should be included in the guidance given. The guidance should be developed at an early stage rather than later and there should be a national programme of education for all those affected by the legislation. The legislation will affect every voluntary organisation in the country and every professional to a greater or lesser extent. There should also be a public awareness and information campaign.

Professor Buckley made reference to New South Wales and I share her views in that regard. While there has been a rowing back on mandatory reporting in New South Wales, the United States appears to be moving in a different direction. We need to create relevant legislation appropriate to the cultural needs of the Irish child protection system.

Chairman

I sincerely thank Professor Buckley and Dr. Shannon for coming. I apologise for holding them up, but that is the nature of parliamentary business. Members should note that we will continue our deliberations on the heads of the Children First Bill on Tuesday next with the Ombudsman.

The joint committee adjourned at 2.10 p.m. until 2.30 p.m. on Tuesday, 12 June 2012.