As much of what I am going to say has already been covered, I hope members will not be too bored. It is important to reiterate the arguments, however.
The Government's efforts to strengthen the legislative base in the area of child protection and welfare is long overdue and welcome. As we all agree, it provides an opportunity to build confidence in the system as a whole and to create a foundation for adequate structures, systems and resourcing. This last is important and I will revert to it.
As an organisation that represents those in constant contact with and who have a duty of care to young people in post-primary schools and other education settings the Bill is remiss in that it fails to note a range of settings in which people will have responsibility. This must be corrected. The Teachers Union of Ireland is aware of the importance of clear and comprehensive guidance in respect of child welfare and protection. To this end and as others have noted, we have engaged extensively with the Department of Education and Skills and other education partners in preparing the child protection procedures for primary and post-primary schools, which were activated by a departmental circular in 2011. Some of the Bill's provisions seem to challenge and undermine a number of these procedures and will place duress on the system in terms of lack of clarity.
The forthcoming legislation must be fit for purpose, responsive and instill confidence among those affected, including those charged with responsibility for implementing and monitoring. In this regard, I have concerns with a number of the draft Bill's provisions, first of which is the area of policy alignment, definitions and interpretation. A close relationship between this legislation and other policy contexts and documentation is assumed. The overlap in the suite of documentation, guidelines and legislation that will be relevant to child welfare and protection is inevitable, given the range of players and the number of agencies involved. However, the alignment of policy and clarity of message are essential if the legislation is to work in the best interests of children and young people. Definitions and language must provide coherence, but the heads of this Bill undermine the level of clarity created by previous work in the sector.
Discrepancies and inconsistencies are inevitably obvious at this stage. Proofing is justified if we are to avoid confusion and resolve the lack of clarity. The example of emotional abuse has been mentioned and we advocate that it be re-included in this Bill. The TUI notes the complexity of emotional abuse and teachers' reported difficulties in being able to identify it. Therefore, we call for a commitment to a high level of resourcing and training to support teachers and schools in their future functions.
A number of other inconsistencies have been mentioned. For example, the term "concern" is ambiguous and needs to be reconsidered. Head 9 indicates that reports will be made in writing to the HSE. Under the Children First guidance, however, reports can be made in person, by telephone or in writing. Under these heads, a designated officer is to maintain all relevant records, but the relationship with data protection requirements is not clear. We must keep in mind that the people who will be activating the Bill's provisions locally will need to be supported in understanding and delivering their functions.
There is a clear overlap in functions and requirements under existing child care legislation and regulations, the Children First guidance and associated agreed procedures, Garda vetting, data protection and the forthcoming legislation. Numerous references are made to the role of a number of agencies and the policy documents and guidelines they may issue. This calls for clarity in respect of recording and reporting approaches and the assignment of general functions to agencies, organisations and individuals. The duplication of administrative effort must be minimised where possible.
Explicit reference is made in a number of sections, for example, head 7, to the titles of new guidelines that have not yet been made available to us. This is inadvisable. At this stage, it is important that base legislation maintain and keep references general so that people can understand how it might pan out. As Mr. Ruddy stated, referring to documents that have not yet been issued or to which we do not have access adds an unhelpful level of confusion.
The word "organisation" needs to be clarified further. We understand that it refers to schools as organisations but some schools are not stand-alone managing agents, in that they fall under the remit of vocational education committees, VECs. Clarity is needed concerning which aspects of the Bill's provisions will apply to VECs as managing authorities.
Teachers work in the best interests of children and recognise that their duty of care is central. They are committed to working in a professional and ethical manner and are guided by the code of professional practice adopted and issued by the Teaching Council. The TUI broadly embraces the aims and principles espoused in the draft Bill. However, we consider that the child and young person could be more holistically and centrally positioned in future legislation. For example, there could be a clearer statement concerning the best interests of children in general and the need for them and their representative organisations, for example, student unions, to have a voice. It is important that other children and young people not feel excluded. They must be enticed into engaging with the Bill and using it as a tool.
The TUI has consistently highlighted the need for adequate resources and structures to support schools in delivering their child protection and welfare responsibilities. The Education for Persons with Special Educational Needs, EPSEN, Act 2004, with which members are familiar, is an example in this regard. The Act set ambitious targets for providing for the educational needs of children, some of whom were vulnerable. It has become clear, particularly since budget 2008, that delivering on the Act in full is not possible. Many would acknowledge that a review would be important if the area of special needs education is to be adequately addressed. Further iterations of this Bill need to bear in mind the current context in terms of resources and set out realistic targets that will not be undermined by a lack of resources.
All teachers, including principal teachers, must have access to appropriate professional development to enhance their knowledge and expertise and to the external support required to deliver the functions expected under the Bill. This will enable them to direct their attention, depending on role, in a timely and effective manner towards supporting young people whom they consider to be suffering or at risk of abuse.
All schools have lost a considerable number of teaching and middle management posts since 2008. They will lose further posts in September, given the withdrawal of the ex quota provision for guidance teachers. This diminishes the capacity of schools to engage in additional work. It is important that the designers of the legislation bear this in mind. There is a capacity deficit, in that schools and teachers are stretched to capacity.
The TUI has particular concerns about the expanded and more demanding role of the designated liaison officer. We support the other witnesses in this regard. In most cases, this role will fall to the principal or deputy principal. An internal TUI survey this year noted that these managers have increased their workload by ten to 15 hours per week and are struggling to compensate for the reduced number of teaching and middle management posts. The question of how they can be expected to undertake a significant workload that is pertinent to the safety and welfare of children needs to be addressed by legislators.
Head 4 addresses the issue of expenses but fails to make any reference to the resources required. Formal provision for the resource implications of implementation needs to be made somewhere in the Bill.
We welcome that the Bill comprehends a wide number of organisations, notwithstanding my point that it fails to acknowledge the fact that there are more educational settings than primary and post-primary schools. However, a number of services, such as out-of-school services and childminders, are excluded. This should be reconsidered, notwithstanding the difficulties involved in meeting the legislation's provisions in terms of childminding and the voluntary nature of some of the services in question. In the interests of children, it is important that this matter be considered.
The TUI has a number of issues with the way in which the roles, responsibilities and duties have been framed. An inconsistency returns to the document, particularly in terms of the role played by certain guidelines in the delivery of functions by designated officers, teachers, etc. With reference to the designated officer, as stated by others, the tasks and work involved appear to be more onerous and much more demanding than in the past. The TUI would advise that serious consideration be given to how this will be provided for in terms of the resources that will be required on a number of different levels.
The TUI also has concerns around the role of the designated officer, which presents as a much more expanded role with a wider level of function and responsibility. For example, while assisting employees or volunteers to make and provide a written report is implicit in previous guidelines, other new responsibilities, including oversight arrangements around policy and assisting the HSE with investigations, will result in an increased workload. This work will inevitably fall to the principal or deputy principal because they are the people who hold a supervisory role. The Bill provides that the designated officer must be a person who has a supervisory role with staff. As such, it is not a function that can be delegated to other people. While this role may be fully merited, what is expected needs to be reasonable and possible. It will undoubtedly involve more onerous work and will add to the already demanding list of responsibilities of senior management. As pointed out by representatives of the INTO, members of boards of management will also inevitably come under pressure, in particular in schools in which a number of voluntary people work in that capacity.
The TUI represents more than 15,000 teachers and lecturers. We respect and seek always to vindicate the rights of children. However, those acting in the role of designated officer and others involved in implementation will not be able to deliver on their functions and responsibilities without adequate supports in terms of resources, training and time, much of which will need to be made available on an external basis. In this regard, note must be taken of the number of posts lost and the reduction in the professional development support service, which has contracted significantly in size while the role has expanded, which will be expected to deliver some of the external support, advice and training to schools. What is provided for does not appear a viable and reasonable expectation.
The role of the HSE is set out in terms of public awareness, guidance, inspections and examinations. We accept it is reasonable that one core agency should have a lead role in this area to minimise confusion and to ensure people have a strong reference point. We would advise, however, that unrealistic expectations of other players be omitted. We are concerned this legislation could generate in the wider public an unrealistic set of expectations in terms of the role which teachers, principals and other professionals can play. People have core responsibilities and want to respect and protect the rights of children, but there is a limit to what they can be asked to do.
On the proposed development of guidelines by the HSE, as stated by previous speakers, there is a need for consistency in this regard to ensure there is no confusion in terms of who is responsible for what, which set of guidelines apply to a person, how they will be interpreted and who will ensure a person is adhering to the correct guidelines and so on. We note, as have others, that the HSE will have the power to examine organisations, establish compliance, identify breaches in implementing legislation and to take action in this regard. In most cases this will not result in major issues. However, in a number of cases, an improvement plan will be required, depending on what the HSE finds. The TUI notes that this is a shift in the relationship between HSE and school staff which needs to be accommodated and teased out further. Schools are already subject to a number of different inspections and there is a need for a realistic approach in terms of monitoring people conducting inspections. There is also a risk that HSE staff time will be deflected from individual cases if there is an excessive concentration of their time on examining organisations and so on. There is a sense of contradiction in this regard in terms of the resources that might be available to the HSE in terms of its expanded function in oversight arrangements which cut across a range of organisations, in our cases schools, and other sites for education. The TUI welcomes the proposal that the HSE will have to appoint a person or persons to manage the administration of HSE child protections obligations. We have identified deficits in this area in the past. There has been a lack of response to reporting and a lack of feedback to schools and teachers making reports, which has been unhelpful in terms of confidence in the system and teachers and schools feeling comfortable and confident in making reports.
I have mentioned the national guidelines in terms of the number of agencies involved, including the Department of Children and Youth Affairs, the HSE, DSE and others. It is important that this be addressed. Comprehensive national guidance underpinned by clear, coherent messages is essential for effective implementation by organisations and individuals. The TUI believes that teacher organisations and other stakeholders should be involved in the design of any emerging guidelines. In this way, there will be a sense of reality at local level and a minimisation of overlap resulting in consistency around what emerges.
On reporting, the TUI notes the criteria set out only provide for reporting to the HSE or Garda Síochána. Provision is not made to advise or inform those against whom an allegation or complaint of abuse is made. This is in contradiction with other guidelines which prevail. In the interest of justice and to ensure fair and due process, the TUI advises that this be corrected. Provision for this should be enshrined in the forthcoming legislation.
In regard to who will make reports, sections 10 and 11 of the draft heads of the Bill give strong direction on the onus on employees and volunteers in a range of contexts in respect of reporting. However, there may need to be some revision of this to include certain other categories of staff. For example, the provision as drafted refers to volunteers, employees, professionals and workplaces, which in my view omits a number of other people, for example, contract staff with the State Examinations Commission who are not volunteers or employees of the school but who will have contact with a student group for a period of up to 20 days. The Bill needs to be clear in regard to how such people would make a report if they witness something of particular concern to them. That is only one example. There are, perhaps, others. This could also give rise to a possible gap in the reporting systems and relationships as set out in the draft Bill.
The TUI questions the validity of referring to staff in the child care sector with a FETAC level 7 award, as this is not the uniform qualification of all those working in the early education and child care sector. It is remiss to refer to one particular qualification. People could have a level 5, 6 or 7 FETAC or HETAC qualification. There may be also persons in that sector who do not have formal qualifications. This is underpinned by the fact that people have to be supervised. It is important these nuances are correct in legislation.
Like other speakers, the TUI has concerns around mandatory reporting as set out. In this regard, we note that some jurisdictions in which mandatory reporting and penalties apply have expressed concerns about excessive reporting and the high proportion of cases which later emerge as invalid. Fear of committing a criminal offence can drive people to report, even when they are not convinced their interpretation of abuse or the risk of abuse prevails. To protect themselves from commission of a criminal offence, individuals may make reports. This could be problematic in terms of the time it takes to make a report, the time taken by the body receiving it to investigate and may result in the loss of valuable time in terms of dealing with cases which require to be addressed. The mandatory requirement to report may also push people to report, leading to invalid and false reporting, which will result in great stress for those involved, including teachers, if a false allegation or accusation is made. I acknowledge young people, children and their families would also be in great distress in dealing with such complaint. It is important this aspect of the Bill is got right.
In extreme circumstances, the application of penalties for non-reporting may be justified but in many cases they may prove too harsh. The TUI believes the language used should ensure that non-reporting will only be pursued and deemed an offence in situations where a person has clearly and wilfully not reported a situation of abuse or where he or she has been demonstrably negligent in the discharge of his or her duties. This needs to be properly worded in the Bill if people are to understand that all and sundry will not be pursued for non-reporting.
We note that the draft Bill indicates that the HSE will provide advice but that a person cannot use that advice as a defence against not reporting. There seems to be a contradiction in how that is presented. I understand that it can be useful for somebody to get advice to tease out an issue and that person must ultimately make a decision. The matter is represented poorly in the Bill and would need to inspire confidence in a person seeking that advice from the HSE so that he or she can be guided in the right direction rather than being tripped up. In all these points we note that the provision for adequate training and resources must be enshrined in legislation to enable schools to deliver on their function in a competent and effective manner. The Bill is seriously remiss in not attending to that.
There is another point related to reporting. It may not be entirely appropriate to this area but there may be a way in which it can be addressed. We have experience of Department personnel receiving a complaint from a parent, another teacher or somebody in contact with a school, children or young people. Without any reference to a follow-on report, information or a deliberative judgment, a report would be triggered for the HSE, and it would be on record that a complaint has been made against a particular teacher. That could happen in other organisations as well. That means spurious complaints can be elevated, with formal documentation being generated.
If the complaint is substantiated, it is a justified action but when it is not, the process can cause significant stress and professional damage to the teachers involved. Unfortunately, there is not yet a mechanism for those kind of reports to be expunged when it is genuinely established that there is no substance to them; they may have come from mischievous, false or invalid action. That area must be addressed so teachers and other professionals can have confidence and feel comfortable operating in the system. We accept that this Bill may not be designed in that way but we suggest that a way should be found for it to be factored in.
We welcome the reference to the implementation across Departments and the need for oversight arrangements. However, the Bill only seeks to put in place systems that would collect statistical data and information as opposed to a genuine co-ordinated and integrated approach. There should be oversight arrangements in place that would ensure such an approach to protect children.
We welcome the Government's effort, which is long overdue, although we advise greater attention to consistency of language, definition and coherence in policy across all the relevant documents, legislation and guidelines. We are concerned about the expanding nature of functions for staff at school level and we have deep concerns about the capacity of a school to be able to deliver on those in the absence of additional resources and a very sophisticated level of support, training and access to external support services. I hope the submission clarifies some of the points made by others earlier.