JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Tuesday, 12 Jun 2012

Children First Bill 2012: Discussion (Resumed)

Chairman

We are in public session. I remind those who have mobile telephones that they must be switched off rather than set to silent mode. Apologies have been received from Deputies Seamus Healy and Michael Colreavy and Senators Marc MacSharry and John Gilroy. The purpose of the meeting is to continue our deliberations and hearings on the Children First Bill 2012. I welcome Ms Emily Logan, the Ombudsman for Children, and Ms Deirdre O'Shea, an investigator with the Office of the Ombudsman for Children.

I remind those present that witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or persons or an 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, or ruling of the Chair, to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Ms Logan to make her opening remarks.

Ms Emily Logan

The most recent findings of the national longitudinal study on children confirm that the majority of children in Ireland are developing well without significant social, emotional or behavioural problems. In short, Ireland is a good place to be a child. Childhood should be a positive, happy and carefree time and it is important, as adults, that we do all we can to protect the qualities of childhood, including immaturity, innocence and being trusting and fun loving. It is also important that in our efforts to protect children we do not stifle or deny any of the positive benefits that normal interactions with children bring. In legislating for the protection of children we must seek to find the correct balance between safeguarding children and protecting all that is good about childhood.

I welcome the opportunity to comment on the heads of the Children First Bill. It is important to acknowledge the approach the Minister for Children and Youth Affairs and staff of her Department have taken to the development of the heads of the Bill. It is one which has been characterised by a very open engagement in terms of exploring the genuine complexities of this legislation.

As the joint committee is aware, the Office of the Ombudsman for Children is an independent, national human rights institution with statutory responsibility for promoting and monitoring the rights of children living in Ireland. In this regard, I function independently of government and report directly to the Oireachtas. My role and functions are set out in primary legislation, the Ombudsman for Children Act 2002. Section 7 of the Act provides that the Ombudsman for Children may give advice to Ministers of the Government on any matter relating to the rights and welfare of children, including the probable effect on children of proposals for legislation. In accordance with this statutory function, I have set out a number of observations and recommendations on the proposals put forward by the Government for the Children First scheme and Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012 which I bring before the Oireachtas today. It is in the context of these advices that I will make my comments.

My office is in a position to come before the joint committee with a significant level of expertise and body of evidence which I hope will be useful to the committee. Ms Deirdre O'Shea who accompanies me today is a senior investigator at my office, qualified social worker and former principal psychotherapist at St. Clare's child abuse unit, one of the national child-abuse centres, and brings significant expertise to this area. In 2008, my office undertook the only independent, national systemic investigation into State compliance with the Children First guidelines, for which Ms O'Shea was the lead investigator. This was an own-volition investigation and both the Health Service Executive and then Office of Minister for Children and Youth Affairs were its subjects. Following the investigation, I made 11 findings of unsound administration against the Health Service Executive and then Office of the Minister for Children and Youth Affairs. In accordance with the Ombudsman for Children Act 2002, I made 22 recommendations to improve the system. We include a review system or mechanism of review when we carry out an investigation. In this case, we have subsequently undertaken a review and I am pleased to note that many improvements have been made since the commencement of the office's investigation. However, while there have been significant changes in the area of child protection, there remain areas that continue to require attention.

A number of points which I raise in my advice on the Children First scheme relate to our Children First investigation and include the following recommendations. All necessary resources need to be put in place to ensure social work departments can respond effectively to any increase in reporting consequent on the Children First scheme and Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. I expressed concern about the potential for unnecessary multiple reporting of the same child protection incident. I recommend that efforts be made to prevent such a scenario, to reduce the administrative burden and to avoid duplication of the reporting mechanisms provided for in the Children First and Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. An effective mechanism for monitoring should be established to monitor the effects of the legislation on child protection services. This could be done, for example, by the social services inspectorate of the Health Information and Quality Authority.

A number of other recommendations on this legislation that I wish to bring to the attention of the committee today include the following. In the course of the office's investigation it became clear that consistent definitions of abuse were not being employed across the country. I am concerned that the same definitions of abuse be used in the Children First guidance and relied on in the Bill. It should be clarified that professionals working with children under the age of consent who have engaged in non-abusive sexual relations should be able to use their discretion to decide whether, given the facts of the case and any risk factors present, a referral to the statutory authorities should be made. Any discrepancies between the Children First scheme and the scheme of the forthcoming National Vetting Bureau Bill need to be addressed in the latter Bill. While I understand considerable discussion has occurred in respect of the sanctions set out in the Bill, we should seek to introduce non-criminal sanctions for failure to comply with Children First and criminal sanctions currently in the scheme should be removed. There also should be consistency between the Children First scheme and Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. . While I am conscious that the two relevant Departments are making considerable efforts in this regard, it is important to have consistency across Departments in respect of legislation affecting children.

The Irish State has an obligation under Article 3 of the UN Convention on the Rights of the Child, to which it is a signatory, to ensure that in all actions concerning children, whether undertaken by public or private institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This principle is undisputed. There is no disagreement regarding the fact that children's best interests must be at the heart of our child protection and welfare services. This provision of the UN convention articulates a basic principle and is a minimum standard of sound administration in the design and provision of child care and child protection services. Standards governing the provision of those services must be set; services must comply with those standards; and the State must provide for adequate supervision and monitoring.

We all share a collective responsibility for child protection, but I am aware that legislators have an additional duty to act in the public interest and ensure that confidence is inspired in our child protection services. I strongly recommend that this committee should proactively monitor the legislation underpinning Children First, and I have recommended that this should include a requirement on the Minister for Children and Youth Affairs to review the effects of that legislation on child protection practice no later than three years after its commencement. This review should then be considered by the Oireachtas Joint Committee on Health and Children.

I remain, as always, at the disposal of the committee should members have any questions on our work. I would recommend three key documents. The first is our Children First investigation, the second is a summary document of the most recent review of those concerns, and the third is today's publication of the Bill on Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012.

Chairman

Thank you for your presentation today and for the immense amount of work you have done as Ombudsman for Children. I welcome your recommendations and your remarks.

Deputy Caoimhghín Ó Caoláin

I join with the Chairman in welcoming the Ombudsman for Children and her colleague. In her later points, she reflected on some of what Mr. Geoffrey Shannon said here only last week, especially in respect of non-abusive consensual sexual relations between underage people and the fear they may have in engaging with medical practitioners. The ombudsman recommends that a discretion should be allowed in given situations, otherwise we could be creating a very unhealthy situation. The ombudsman also made the point that three years for a review seems reasonable and I think there has been a very positive reaction to the points made.

The ombudsman's report in April 2010 dealt with the implementation of Children First. It focused especially on the transition period when the powers of the health boards were being transferred to the HSE. One of the conclusions of the report stated that the transition period allowed for "some unsound administration". We are facing yet another transition period and we all know that in passing on the baton, there is a weakness and a greater risk of things not being done as they should be. Would Ms Logan like to offer a view on the transition from the HSE to the new child and family support agency?

Is Ms Logan satisfied that the HSE is now adequately ensuring that all local health offices have local procedures that are not contrary to the sound administration laid out in section 8 of the Ombudsman for Children Act 2002? Concerns have been expressed about that before. Is Ms Logan happy that the current situation meets the standards outlined in that Act? Can she comment on the failure of the HSE to ensure 24-hour external access to the child protection notification system? That is not present in most parts of the State. It is a major deficiency in my view and is clearly contrary to section 8 of the Act. It again equates to the unsound administration to which Ms Logan referred earlier.

Will placing Children First on a statutory footing herald a State-wide national child protection notification system, rather than the current dependency on a local and often disparate system, perhaps working to different standards and practices? Will we have a uniform and universally recognised code of practice? Many of us have concerns that enshrining Children First in legislation will not be the panacea for our problems. The provision of resources is critically important, while Mr. Geoffrey Shannon highlighted the training issue last week. I invite Ms Logan to offer a further comment on those key areas.

Senator Jillian van Turnhout

I thank the ombudsman and Ms O'Shea for attending. The Children First investigation initiated by the ombudsman is a must-read for everybody, and I must read the updated version of it. The concern we have heard expressed in this committee about the heads of the Children First Bill is that all paths lead to the HSE at a time when confidence in the HSE is at its lowest ever. The HSE is given an advisory role under head 12, but at a later stage it is given a more regulatory type of role. Does this explain the ombudsman's proposal that the Minister review the effectiveness after a certain period of time? Does she have any suggestions on how we ensure that what is happening operationally within the HSE is monitored? We need to have a consistency of practice throughout so that the geographical location of a child does not matter and he or she will get the same response, support and services. Did the ombudsman give any consideration to that?

I welcome the ombudsman's proposal on the consistency of definitions. This committee has heard from the departmental grouping about the difficulty involved in defining emotional abuse. That is why it has been excluded from the heads of the Children First Bill. Most testimonies here have suggested that it should be included. Can the ombudsman specifically comment on that? I also welcome the ombudsman's proposal that the sanctions should be non-criminal. Does she have any guidance on how the role between the accountability for organisations and individuals responsible within organisations can be balanced on a legislative basis? Is it that the organisation would be responsible and it would be up to it to have sanctions? How do we get that balance? Should there be a distinction between a paid professional and a volunteer role in respect of the designated officers? Should there be a definition of a difference between them?

Does the ombudsman have any comment on the exclusions from the Bill, such as child minders and leisure facilities like swimming pools? How should local initiatives be handled, such as when somebody sets up a local group for the summer?

I thank the ombudsman for her comments on the issue of the age of consent. We will be dealing with the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012 later today in the Seanad. Unfortunately both Bills will not be able to go through the House at the same time, but I have taken her advice and have already tabled an amendment. Hopefully we will address some of her concerns in that area.

Ms Emily Logan

That is seven questions. If the Chairman does not mind I will respond to them now as it is difficult to recall them. Is that okay? Committee members will have to go easy on us.

Chairman

Sure. We would normally group speakers in threes but Ms Logan should go ahead.

Ms Emily Logan

That is fantastic. I am delighted there is such interest. I just want to ensure I do justice to the questions.

Chairman

Ms Logan should proceed.

Ms Emily Logan

The first question from Deputy Ó Caoláin related to medical practitioners. It is important to get a balance between the capacity of a child and protecting children. I understand the Minister for Justice and Equality has made comments on additional legislation that will deal with the age of consent so I do not wish to make this an age of consent issue. The point I wish to make is to allow medical practitioners to use their discretion in making good professional judgments about whether a child who is, let us say, 16 and who is in a sexually active relationship that is non-abusive requires that level of intervention or if it is something else. That is not to say children should not have access to assistance or counselling. Many sexual health clinics operate in Dublin, for example, St. James's clinic, and it is important that young people who are sexually active have access to services. The issue is not the age of consent but more the discretion used or afforded to medical professionals in that regard.

Reference was made to a three-year review and the amount of transition. In 2010 when we investigated the implementation of Children First, my observations at the time were that the HSE was going through enormous transition and that it took its eye off the ball on child protection and the area did not get the adequate level of oversight it deserved. In the investigation, we went so far as to question whether the HSE was the right organisation to continue providing child protection services. In this situation the Deputy is absolutely correct. I would not underestimate the task that lies ahead of the Minister for Children and Youth Affairs in this enormous transition because to effect this change and to take child protection out of the HSE requires significant organisational change. The big difference is that there are now a number of people who are focused on child protection to make the transition. I would not have the same concerns I might have had back in 2005 because at that time it was about health services. Now the transition is about dedicated time and effort to child protection and I would not have the same concern about the transition. That is not to underestimate how difficult it would be and the challenge that lies ahead. There were a couple of questions about the child protection notification system on which Ms O'Shea has probably the most up-to-date information.

Ms Deirdre O’Shea

On the comment about the local heath offices and implementation of the local procedures in terms of child protection, in the 1999 Children First guidelines there was a requirement that the local offices would have their own local procedures. That is no longer a requirement in the 2011 guidelines. Essentially, the 2011 guidelines should be implemented consistently across all of the areas which are now the integrated service areas. Our experience is that there was not consistent implementation, as members are aware from the report. We found that across a number of different issues.

On the HSE's response when we carried out the review, it has looked at it in a number of different ways. It has put in a number of mechanisms in terms of the roll-out of the implementation of the 2011 guidelines, which covers a number of different strands within both children and family social services but also other Department of Health services that are provided to children and families or which will have contact with children where there may be risk issues. The Department of Children and Youth Affairs is also looking at the interdepartmental liaison that needs to occur. One of the things that was an issue for us at the time we did the Children First investigation was that concerns were being raised about difficulties with implementation but which were not being addressed adequately. Those concerns were raised consistently, from the time Children First was rolled out, over a period of years and without any resolution.

One of the things the HSE has been implementing is a standardised business process which aims to look at consistency of practice across the executive. It has also indicated to us it will carry out a form of internal audit. It is developing that and it is due to roll that out. We also recommended that inspection needed to commence with the social services inspectorate and the department within HIQA. Our understanding is that it is to commence shortly. We are seeing progress but we must be mindful of the fact that there was progress when the 1999 guidelines were first rolled out. The issue is managing to continue to pursue that and follow it through. The inspection will be key in that regard. The HSE's own audit processes will be important.

In terms of the child protection notification system, the committee will also be aware that we raised a concern about that when we carried out the investigation. What we found is that there was really only one area where there was 24-hour access. For us the key was people such as the Garda and hospital accident and emergency departments being able to access information out-of-hours or at weekends in order that they would understand whether there was a concern about a child.

Our understanding when we carried out the review was that the HSE was implementing a new IT system called the national child care information system. It is not currently in place but it is at an advanced stage of planning. It will enable access nationally to the child protection notification system, provided clear protocols are put in place from a data protection point of view in terms of who has access to the information. There is no plan at the moment to roll that out on a 24-hour basis or for it to be accessible by external agencies. That is a concern we highlight in our review and we are still strongly of the view that there should be 24-hour access, that it should look at external agencies and that there needs to be appropriate mechanisms in place and appropriate agencies identified in terms of who could have access to the information.

Ms Emily Logan

I will move on to Senator van Turnhout who referred to reviewing the effectiveness of child protection. When we carried out our investigation we recommended two things. One was an internal audit and the second was an external monitoring mechanism. When we investigated the only region that had carried out any type of internal audit, namely, the Cork-Kerry local health office, the outcome was poor, but in fairness to the office, it carried out the review of its own volition. We would encourage a better internal audit mechanism for child protection.

HIQA is the place for the external monitoring to happen. It is in the process of writing the standards for the monitoring mechanism. That should satisfy our standards for reviewing the effectiveness of the system. In terms of public accountability, it is important the Minister is given an opportunity to attend before an Oireachtas committee to inspire public confidence in child protection. Members might recall that the establishment of our office was based on the fall of the Government in 1994 on a child protection issue. Child protection has been in the public mind for many years. We see a direct correlation between the number of contacts and complaints received by our office. It does not necessarily have to relate to our work. It may be someone making a public comment on child protection. It is important to ensure we communicate and bring the public with us through this significant transition. The Oireachtas should be mindful of the role it could play in that regard.

On the consistency of definitions, during our investigation it was clear there are certain definitions or categories of child protection that are responded to or fast tracked, which is appropriate. One might have sexual abuse at the top of the list and neglect at the bottom. Our concern about the lack of consistency is that if one introduced legislation that omits something such as emotional abuse or that does not share the same definition of physical abuse across the guidance and legislation, arguably one might get a different response on the ground with the possible development of a hierarchy of abuse. We do not want to do that. We do not say we have seen cases in the public domain - in the court - of emotional and physical abuse. We do not want to disregard the effects they have on children.

The last question related to accountability - individual versus organisational - and whether we see the individual or the organisation being accountable. We should try to evoke a sense of professionalism and provide leadership, support and training to individuals and professionals, regardless of whether they are volunteers. I would not necessarily make a huge distinction between volunteers and professionals. The difference is that I would expect those working within the system and the HSE to have a better and stronger knowledge of legislation as against volunteers, but we should encourage people and make them feel empowered to do their job, to work with children and to uphold the fun and the great interaction children in this country have with adults. Senator van Turnhout knows about the Irish Girl Guides. The Irish Sports Council, the GAA and thousands of people play an important part in the fun-loving side of children's lives. We want to retain that element. It is important that we get the balance right between ideologically wanting to aspire to protect children and being pragmatic so that we do not create an impediment to the simple fun-loving aspects of children's lives. Have I answered the Senator's question?

Senator Jillian van Turnhout

Yes.

Deputy Caoimhghín Ó Caoláin

The ombudsman overlooked a question on resourcing and training. I finished on that question and asked for a comment.

Ms Emily Logan

I beg the Deputy's pardon. When we carried out our investigation, we made specific reference to those issues. Our 2010 experience was that there was little evidence-based budgeting for social workers and case loads in the HSE. We found a significant difference between the number of social workers in one region as against their case load. This matter was covered in our review. The HSE has committed to budgeting in a different way, in that it will use evidence and produce better methods of distribution. From a social worker's point of view, the budget is not fairly distributed. One might not have as large or as complex a case load as a worker in another region.

Ms Deirdre O’Shea

The HSE is in the process of improving its data sets. Part of managing the allocation of resources is the consistent collection of data in terms of what constitutes a report or referral and whether a child is counted individually or as a family. To be of assistance to the HSE, this information needs to be collated more consistently. The HSE examined different mechanisms for allocating the additional social worker posts that were provided following the Ryan implementation plan, but the issue about matching resources to need is an ongoing one for the HSE and a number of factors need to be considered. The HSE is also undertaking some work on preventative services, for example, the right type of family supports. We need to be able to determine which child protection referrals require child protection responses and which require child welfare and family support responses.

Deputy Charlie McConalogue

I welcome the ombudsman, Ms Logan, and Ms O'Shea. I apologise, as I was delayed and missed the presentation. My two colleagues have covered many questions.

I will address the issue of resources. In the ombudsman's role, she has seen situations that have gone wrong and gathered much experience from them. She referred to a geographical imbalance in the resourcing setup under the HSE. Is there an under-resourcing of social workers and will this legislation impact on the issue? During the hearings, the committee has discussed the impact that imposing criminal sanctions on those with an obligation to report might have on the number of reports submitted to the HSE. In some cases, responsibility might be passed on prematurely, increasing pressure on the HSE system's front door. We need to create a culture in which everyone takes responsibility and issues are reported and addressed at the appropriate level. How much of the resourcing issue could be handled through a restructuring of how matters are dealt with and acted upon? Should there be also an increase in the number of personnel?

How will the age of consent provision work? This issue feeds into the need for a reasonable defence in terms of there being a rationale for professionals not reporting. At last week's meeting, giving some discretion to medical professionals was mentioned. Regardless of whether the age of consent is set at 17 or 16 years, there will still be situations in which medical professionals meet young people on a daily basis. We have seen reports to the effect that up to one third of young people under the age of consent are engaging in sexual activity. This issue must be grappled with if we are to introduce this legislation. Will Ms Logan elaborate on her opinions in this regard?

Deputy Robert Dowds

I welcome our guests and thank them for their presentation. As someone who has worked with children, I do not doubt that Ms Logan's appointment and work has improved the situation for children generally, even if it is only that people might think twice about behaving inappropriately. I wish to tease out a number of points.

According to the bottom of page 3, "we should seek to introduce non-criminal sanctions for failure to comply with Children First and criminal sanctions currently in the scheme should be removed." Will Ms Logan elaborate? Would non-criminal sanctions be appropriate in some cases while criminal sanctions would be more appropriate in other cases?

Deputy McConalogue referred to sex between minors. My understanding is that, in such a situation, the male commits a criminal offence whereas the female does not. Should we do something about this issue?

My third question is more general. To what extent has Ms Logan's appointment improved the child protection situation? To what extent will new legislation add to the situation?

Ms Emily Logan

Deputy McConalogue asked about resources and the number of social workers. During our investigation, we saw that the baseline at which Ireland operated compared unfavourably with other jurisdictions. It is probably beyond my remit to get into the matter and I do not have the expertise to decide on the number of social workers, but I have a role in examining how the scheme is administered. The system's ability to respond when it is so under-resourced presents a considerable difficulty, not only for social workers, but also for those who administer the system on the ground. It is fair to claim that we are starting from a low base.

In terms of criminal liability and the impact on the front line, the jurisdiction we have cited is New South Wales, which introduced individual criminal liability. The response was overly cautious and probably saw over-reporting of child abuse. If people are to be held criminally liable, the likelihood of reporting everything increases. Following a review ten years later, Australia decided to retain the statutory responsibility element minus the criminal liability aspect, as the latter had overloaded the system with complaints that did not meet the authorities' threshold for child protection. For this reason, I do not support the introduction of individual criminal liability.

The question on restructuring and resourcing is probably beyond my expertise. The role of the Health Service Executive, as a statutory authority, is to determine its structure and seek to have it resourced properly.

This morning I received a letter from the Department of Justice and Equality stating it would deal with the issue of the age of consent in further legislation. I know it was dealt with by the Joint Committee on the Constitutional Amendment on Children for some time. As the Minister intends to introduce further legislation on the issue of consent, it might be more appropriate to comment when the draft legislation is ready. My concern is not about the age of consent but more about having a balance between capacity, autonomy and the discretion of medical professionals to provide a service for children who are sexually active but in non-abusive relationships. I do not know if the committee has engaged with general practitioners on this issue, but if one really wants to know what is going on in this regard, they are a key group.

Chairman

We will be bringing them in before we conclude our deliberations on the legislation.

Ms Emily Logan

The Irish Medical Organisation is best placed to tell the committee about the reality of the consent issue.

Deputy Robert Dowds asked about non-criminal sanctions and whether there was a role for criminal sanctions. That issue is dealt with in the withholding of information legislation. I do not believe it will be necessary to deal with it in the Children First Bill. There is a strong legislative provision in the case of an arrestable offence in the withholding of information legislation.

On the question of sexual activity between minors, I refer to our 2006 advice on criminal offences. The Deputy's comment is valid and correct. It is probably not for the committee but relates to the forthcoming advice on the age of consent.

Deputy Robert Dowds

How does the ombudsman consider the situation has changed in the protection of children?

Ms Emily Logan

There are three strands to our work, the first of which is our investigatory work. The investigation we carried out was very large. We examined 32 local health offices over a year and a half. It has been instrumental in stimulating some of the changes. It would be fair to say it has been a stimulus for the HSE too. It carried out work during our investigation. Sometimes it is not the completion but the initiation of an investigation that can stimulate a response to mitigate any adverse effect on children. In this regard, the investigation has been worthwhile. The review we have carried out this year has been worthwhile too. We are not an inspectorate - that is the role of the Health Information and Quality Authority – but we do have an oversight role in terms of legislation and policy, which is useful.

The other role I have is to promote the idea of listening to children. In fact, our child protection legislation is the only law which has includes a provision in respect of listening to children. I have been pushing for the introduction of Article 12 of the UN Convention on the rights of the child on the participation of children and hearing their views. It is critical we have places to which children can go where they can feel safe to make disclosures of abuse.

In terms of the impact of my office, it is always better to have an external review than to self-regulate.

Chairman

Ms Logan has stated there are areas that continue to require attention. What are they?

Ms Emily Logan

We have listed them in the presentation. We have stated we do not want a duplication of the reporting mechanisms.

Chairman

Is there a concern we could be too complex in our approach and intimidate people into being proactive in seeking to provide protection?

Ms Emily Logan

That is my concern. I welcome the express intent of the legislation. Other jurisdictions do not legislate for this issue; they do it through policy. It can be asked why we need to legislate for it. We have a strong history of poor management of abuse cases. Perhaps in this context and at this time we need this legislation. However, I do not believe we need to go so far as to provide for criminal liability. That might evoke the wrong response. We want to support professionals in doing their jobs. I do not want to create a system under which people are just reporting because of criminal liability rather than using their own professional discretion.

Chairman

Taking Deputy Robert Dowds's question about the removal of criminal sanctions further, what would the benefit of this be in simple terms?

Ms Emily Logan

There are plenty of other contractual options one would have as an employer in disciplining somebody, up to and including termination of a contract. There are other ways to sanction people without going so far as providing for criminal liability.

Deputy Denis Naughten

On that final point, the difficulty is that there has not been the sanctioning of people employed in child care where there has been gross mismanagement of cases. It is very hard for the victims who have seen gross mismanagement by the health authorities not to see the introduction of some sanction. Clearly, the contractual requirements have not been enforced up to now by the HSE. We know of cases in which people have been encouraged to retire early or move to another sector rather than being reprimanded or sanctioned. Will Ms Logan comment on this?

Ms Emily Logan

I would not have any question about the validity of sanctions. It depends on the sanction applied. We have a poor history in terms of the State's response to children who have been abused. That does not mean, however, that we should now respond in a disproportionate manner. We still need to get the balance right between supporting professionals to do a good job, safeguarding children at the same time and protecting all that is good about childhood. I am concerned that we might overreact and create a system under which professionals would be fearful. That is not good guidance for those involved in the health system. That is not to say, however, I do not believe in sanctions, but there are many other sanctions without introducing criminal sanctions.

Deputy Robert Dowds

Deputy Denis Naughten's point is that in extreme cases it might be appropriate for a professional to be sacked.

Deputy Denis Naughten

Yes. I see where Ms Logan is coming from and it makes much sense. In practical terms, however, the sanctions in place have not been enforced. In an ideal world one would not have criminal sanctions and we have to be careful to ensure we do not overlegislate in this area. The difficulty is that it is hard to have confidence in a system in which sanctions have not been enforced to date; in the future the same system, because of a change in legislation without the inclusion of strong sanctions, may not lead to the taking of responsibility we need to see.

Ms Emily Logan

When we published the findings of our investigation in 2010, the then HSE chief executive officer stated they had not paid attention to the issue of child protection. Should we legislate on the basis of those mistakes or should we look to start anew? I am convinced of the political and policy response, and there is better leadership within the HSE. Our relationship with the HSE as an investigatory body is much more open and co-operative. We should not always look to the past to disproportionately respond to what we might do in future. We meet people all the time who are providing services to children and we are very lucky in Ireland because we have a competent and talented group of people who are overwhelmingly supportive of and care about children in this country. I do not want to damage this and although there is much that we can do to improve the leadership and accountability we have in Ireland, criminal liability is not the answer.

Chairman

I thank Ms Emily Logan and Ms Deirdre O'Shea for the presentation. I also thank them for their ongoing work, which is appreciated by us in the committee. We will be in normal session on Thursday with the Minister for Health and representatives of the HSE, and we will resume our deliberations on Children First next Tuesday afternoon.

The joint committee adjourned at 3.25 p.m. until 11.30 a.m. on Thursday, 14 June 2012.