I thank the committee for the invitation to address it in my role as special rapporteur on child protection. Much progress has been made in the area of child protection over recent years and we have been made aware of other positive changes that are to come. The adoption by the people of a new Article 42A of the Constitution concerning children and children’s rights is a development I hope will remove several roadblocks that remain in the legal system that stand in the way of children having the best possible family life. It is one for which the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, deserves particular credit. In April 2012, the Government announced its decision to end the practice of detaining 16 and 17 year olds in St. Patrick’s Institution which is also to be welcomed. I reassure members that it is not my intention to read my entire script that I have prepared. It is a roadmap on the key issues. Given the length of my report, I felt my script might be a resource and might prove helpful. I will ensure ample time is set aside for questions.
One of the biggest challenges facing society is the adverse consequences for the welfare of many children posed by alcohol. Recent reports have identified alcohol as a contributing factor to children being exposed from their earliest years to poor parenting, neglect, abuse and psychological trauma. The failure on the part of society to address the alcohol problem comprehensively leaves the child protection system to deal with insurmountable consequences. In this regard, it is my opinion that we should impose a complete ban on alcohol sponsorship of sporting events. It is incumbent on the Oireachtas Joint Committee on Health and Children to show leadership. As the person who chaired with my colleague and good friend, Ms Norah Gibbons, the child death report, one of its striking features was a prevalence of alcohol and alcohol abuse. We need to send out a strong message to society that alcohol can have profound implications and can place very significant burdens on the child protection system. It is an issue to which I hope the committee will give serious consideration.
Inter-agency communication and co-operation continues to be an obstacle in ensuring care is provided to children at risk. I hope the Children First Bill will resolve the issue and provide a much-needed framework for the identification and reporting of child abuse. The Bill is to be welcomed because it reflects a commitment by Ireland to comply with its international child protection obligations.
The Minister for Justice and Equality has indicated recently that the issue of the disclosure of counselling records of child complainants in sexual abuse cases will be incorporated into the forthcoming sexual offences Bill. I hope the Bill will provide a legislative basis upon which judges, in limited and defined situations, may order counselling records of child complainants to be disclosed.
The establishment of Ireland’s first child and family agency is to be commended. I hope it will serve to harmonise the sometimes disparate aspects of the child protection service here. It should be used as an opportunity to review current practice, think imaginatively and question whether existing practice serves the best interests of a child. For example, should we consider other models of support for the large number of foster parents caring for children in long-term foster care? Should we consider whether it is necessary, given resource constraints, to allocate a social worker to every foster family where a child has an allocated social worker. The issue is whether we should have multiple professionals involved. I think we need to stand back and examine the objective of having multiple professionals involved given that we are in a period of a decreasing availability of resources. I suggest the establishment of the agency is an opportunity to review these practices. I am a person who has a long history of working with the Irish Foster Care Association and has been involved with IFCA for more than two decades. I know we have foster parents who are ordinary people who do extraordinary work on behalf of the State. I would prefer if we re-imagined how we provide the service and ensure the people who benefit from the service are the foster children and foster parents.
As a society we have a mandatory positive obligation to prevent harm to the most vulnerable sector of our society - children. Prevention, as always, is better than cure. It is imperative in all child protection and welfare situations to intervene at the earliest possible opportunity. The right service at the right time is crucial and we must get it right for every family and every child. For example, the provision of a public health nursing service to all families provides immeasurable support by working upstream with families experiencing difficulties to prevent serious problems emerging later. We sometimes forget the role of the public health nurse. If we want early intervention, we must invest in the public health nursing service because if we manage to identify problems at that stage, we will save the Exchequer a significant amount of money downstream. When problems occur later, invariably they are more entrenched and more difficult to solve. Investment not only makes sense in terms of the right thing to do but, in my opinion, it makes financial sense that we continue to invest in the service.
When we look at the new child and family agency, we should not lose sight of the fact that the public health nursing service performs extraordinary work on behalf of every family in the State. Links between extremely vulnerable individuals and the appropriate professionals, forged at the earliest possible opportunity, provide invaluable support. Adequate housing for families in difficulty goes a long way to ameliorating or preventing other difficulties that may arise when accommodation is uncertain or in some cases non-existent.
The early identification by teachers in schools of difficulties facing children is vital. In many cases, teachers may be better placed to identify problems than family members, friends or neighbours. Inter-agency communication and co-operation is essential to ensure children do not slip through the cracks. What I mean by early intervention and inter-agency co-operation is a broad-based multi-agency response involving social services, health and education. They all play a vital role in ensuring the welfare of children.
The failure to recognise mental health issues at an early stage can have a profound impact on a child. Warning signs need to be treated with sufficient seriousness and referrals need to be timely and appropriate. Greater links between child welfare and protection services and child and adolescent mental health services are required. Proactively supporting parents is key to the vindication of the rights of the child. If we support parents, we support children. Parents are the best advocates for their children and that is why I am a strong supporter of family support. It is my view that for too long family support has ranked as a poor third to child protection and alternative care in the battle for resources and professional time. I hope the new agency will provide us with an opportunity to invest strongly in family support. The hope for the future is for a robust family support service. It is my view that when we talk about early intervention in this country, we are really talking about crisis intervention. We need to re-examine and re-imagine what early intervention is about, and that is why I have talked about public health nursing services and identifying mental health issues at an early stage. It is not just the mental health issues that affect children but more profoundly the mental health issues that affect parents. That is why the agency has a key role to play in ensuring we tackle these problems.
I turn to the problem of homelessness. Progress has been made in the area and it would be disingenuous to suggest it has not. Further work remains to be undertaken to ensure young people do not get trapped in a downward spiral from which they cannot be released. Many young people leaving the care system do so equipped to live as independent adults. A small number of young people emerging from the care system, however, represent a particularly acute sector of homeless people. These are young people who may have spent their whole life, or part of it, in care and are ageing out, so to speak.
When a child reaches 18, he or she is no longer technically deemed to be in care. The Health Service Executive is empowered, should it see fit, to make continuing provision for persons formally in its care. Section 45 of the Child Care Act 1991 allows the HSE to assist such persons until they have reached the age of 21 or until they have completed a course of education, should it be satisfied that such assistance is needed. The provision is discretionary and not mandatory.
Young people who have spent time in care, be it voluntary or court ordered, are by nature extremely vulnerable and in need of support and protection. When those same young people reach the age of 18, they are sometimes faced with an often daunting and isolated future. Evidence has shown that young people need information and support in advance of independent living.
Recently the Government approved a policy proposal to strengthen legislative provisions for aftercare. The Child Care Act 1991 will be amended to incorporate a statutory right to the preparation of an aftercare plan. In my opinion, the development is to be welcomed and should be met with action.
The right to aftercare needs to be put on a legislative footing. In so doing, Ireland should take the opportunity to incorporate the right to housing into domestic law and place special emphasis on this right for children because it is about joined up thinking. When we talk about child protection, we look at it in isolation but family support, proper housing and child protection are all linked and need to be reviewed together.
Article 27 of the Convention on the Rights of the Child sets out the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Although the Convention on the Rights of the Child has been ratified by Ireland, mechanisms should be put in place to ensure this right housing implemented in practice. A holistic reappraisal of the causes of homelessness is required. Services need to be put in place or expanded on to support very poor or homeless families so as to avoid the need to take children into care in the first place. A targeted response is required to deal with those who are highly represented among the homeless - for example, lesbian, gay, bisexual and transgender, LGBT, young people and migrant children. Services need to be put in place to support young people emerging from the mental health system or care system to ensure that the necessary help is available to these particularly vulnerable young people.
A study should be undertaken by the Department of the Environment, Community and Local Government of the approach of other jurisdictions to the problem of homelessness. I was particularly struck by the experience of the Supported Accommodation Assistance Act 1994 in Australia which legislates for the provision of transitional supported accommodation and related support services to help homeless people achieve the maximum possible degree of self-reliance and independence. The Department of the Environment, Community and Local Government should examine the feasibility of introducing a similar system in this country.
Prevention services must be examined and implemented to address the root causes of homelessness. Supports such as mediation, family support and financial assistance can alleviate certain difficulties at an early enough stage to prevent homelessness occurring. An early intervention and preventative spending approach has as its objective the finding of long-term solutions.
I now draw members' attention to the issue of the disclosure of confidential records concerning children, an issue I highlighted in several of my reports. Each person who confides in a counsellor or therapist about a certain issue does just that - confides. It would, without doubt, discourage many people from engaging in such a service if they thought that their utterances would be disclosed to a third party. A difficulty, however, arises when it comes to children who have made allegations of sexual abuse and have confided in a counsellor or therapist. Ireland urgently requires legislation to address the worrying gap in the law governing the issue of non-party disclosure regarding confidential records concerning children.
The disclosure of confidential records concerning children is sometimes required to ensure the effective reporting of incidents of child abuse. Equally, however, there is a need to ensure that such disclosure does not cause a chilling effect on the reporting of incidents by victims of child abuse and that such a disclosure is a proportionate interference with the child’s right to privacy.
The disclosure of therapy notes for the purpose of a criminal investigation or trial needs to be regulated by way of legislation and it should be judges alone who decide whether or not it is necessary to do so. The legislation should further specify the criteria or factors which the judge should take into account in reaching a determination and I understand that these issues are to be addressed in legislation proposed by the Minister for Justice and Equality in the Seanad, which is to be welcomed.
Further measures also need to be put in place. For example, a national protocol for the exchange of information in regard to the investigation and prosecution of cases of abuse would be an important development in child protection. This approach has been taken in Canada and the Canadian experience is worth noting. It provides for the appointment of a children's advocate is permitted which can assist the court in balancing the competing privacy rights and public interest inherent in this issue.
When making their determination, judges need to understand the nature of a therapy record together with the fact that, because it may contain hypothetical thinking on the part of the therapist, it is of limited probative value. Accessing therapy notes should be the exception rather than the norm and should only be requested in those situations wherein it is considered that their production is essential to ensure a fair trial of the accused.
The potential negative impact on the child needs to be considered. Disclosure of children's therapy records should never be sought for the purpose of assessing the strength of a case. Such an approach conveys a mind-set that children's therapy notes are regarded as cannon-fodder in the criminal justice system and stems from a wilful lack of understanding of the nature of such notes and the impact on the child if his or her very private material talked about in therapy cannot be afforded the protection it deserves.
The unintended consequences of the disclosure of therapy records need to be considered. Will clinicians be more cautious regarding what they write in notes? Moreover, will children be more cautious regarding what they confide in their therapist? There then results a fundamental erosion of the therapeutic process.
Enough has been done to children who have been sexually abused. If we cannot create a set of responses in all agencies to deal with child sexual abuse victims in a manner that is sensitive to their developmental stages or needs, then, as a society, we are failing them. When child sexual abuse emerged as an issue in the 1980s adult survivors spoke most poignantly about how they were unable to tell about it at the time it was happening. Thankfully, we have now created a climate wherein we actively encourage children to report their abuse. Would it not be a sad indictment of our society if, in another 30 years, an adult survivor were to say "I told about it at the time and I am sorry I did"? The current lacuna in Irish law must be addressed as a matter of priority.
I turn now to the issue of bullying. Bullying has always been an unfortunate aspect of our society and cyber-bullying has grown exponentially in recent years. Cyber-bullying has created a readily accessible forum for bullies to target children and young people with little or no regulation or sanction. While there are some legislative provisions that could potentially be used to tackle this problem, a focused response is required.
The Law Reform Commission has been tasked with examining this issue. A clear system of legal recourse is required to provide for an offence of cyber-bullying and to encourage victims to come forward, anonymously if needs be, without fear of retribution. The UN Secretary General, Ban Ki Moon, in 2011, called homophobic bullying "a moral outrage, a grave violation of human rights and a public health crisis". The programme for Government 2011 tackled this issue and the report of the anti-bullying working group published in January 2013 emerged from that. The working group recommends that the definition of bullying in the new national procedures for schools should include identity-based bullying, such as homophobic and transphobic bullying. Homophobic attitudes begin among children at primary schoolgoing age. If we are to fundamentally change these attitudes, which in turn can lead to homophobic bullying, that is a profound child protection issue and can have devastating effects on LGBT young people, we need to start working with primary school children. LGBT young people are realising their identities and coming out at an ever earlier age - on average at 12 years old but often younger. This means that supports should be put in place to support these young people and their families.
There is a very important role here for the Child and Family Agency to work in partnership with BeLonG To, an NGO which does extraordinary work on behalf of young people and I salute its work. I suggest the Child and Family Agency works with BeLonG To to provide vital supports to LGBT young people and their families.
In the context of homophobic bullying, I draw members' attention to section 37(1) of the Employment Equality Act 1998. In summary, section 37(1) contributes to the invisibility, bullying, and mental health difficulties experienced by LGBT young people and students and, as such, urgently requires to be removed.
The extent of the liability of schools must be examined in order to tackle the problem of cyber-bullying. The most effective means of preventing bullying may be to adopt a whole-school approach. It is not just about the law; it is about everything that surrounds the law. Legislation should be introduced compelling schools to have a strong disciplinary code.
A review of the law on harassment under the Non-Fatal Offences Against the Person Act 1997 must be undertaken to ensure it unequivocally provides for the offence of bullying and cyber-bullying. Currently, there appears to be very few criminal prosecutions under the 1997 Act despite the apparent suitability of that Act.
While issues relating to cyber-bullying may potentially be captured within existing legislative provisions, the fact there is at the very least uncertainty as to whether prosecutions would be successful under these statutes is reason enough to bring clarity to the area and unequivocally provide for an offence of cyber-bullying. In the past number of years, we have seen some very tragic cases. The time is right to look at putting in place robust legislation providing very clearly for the offence of cyber-bullying because the law must keep pace with technology, protect vulnerable young children and must exist as an accessible recourse for those who are victims of abuses such as cyber-bullying.
The law on guardianship is another area I touch on in my report and that has not kept up with societal changes in recent years. Current guardianship law ignores the social reality of modern family life. Even in circumstances where biological parents or guardians are in favour of conferring guardianship on a step-parent or a civil partner, there is no provision for the appointment or recognition of such rights and obligations. Special guardianship rights for step-parents are particularly important. As somebody who has been involved in this area, also in the adoption context, it provides another tool in the child protection tool kit and another option for a child. It should be provided as it offers an alternative to adoption as a child care option where a birth father has an ongoing role in the life of a child. The Government recently committed to holding a referendum on same-sex marriage, which I warmly welcome. A referendum is not necessary to provide for the extension of guardianship rights for step-parents and civil partners. I welcome the decision by the Minister for Justice and Equality to introduce amending legislation in this area later this year or early next year.
I hope the Minister also considers extending certain rights and obligations to members of a child’s extended family in circumstances where that person is in loco parentis in respect of that child. I cite, for example, a situation where a grandparent is looking after a child over a lengthy period of time. That grandparent, apart from getting access rights, effectively is treated as a legal stranger. The family relationships Bill provides an ideal opportunity to update not only our guardianship laws, but also our laws in respect of custody and access.
I have made some public comments on the area of surrogacy, an area that causes me great concern. Currently, surrogacy is unregulated in Ireland and has been the focus of case law and of substantial media attention. The rights and obligations attaching to surrogacy present us with serious challenges in respect of how to adequately protect the human rights of all the parties involved, primarily those of the children born as a result of such arrangements. The challenges are all-encompassing as they involve profound social, legal and ethical issues. The debate to date has focused on the adults. There has been very little discussion on the rights of children and consequences for children involved.
I note the Minister for Justice and Equality has said he intends to develop legislative proposals in the area of surrogacy. Any legislation must address the best interests of the child and the right of a child born through a surrogacy arrangement to obtain information in respect of his or her genetic parents.
If we look at adoption information and tracing rights in that area, there are powerful lessons to be learned. The courtroom should not become the battleground for the vindication of rights for new family law. I hate to say it but the failure to legislate in the assisted human reproduction area is a failure on the part of the Oireachtas to ensure that the law keeps pace with advances in medicine and science.
The right of children to be heard has been incorporated as part of our Constitution as a result of the recent amendment. There are multiple mechanisms by which the voice of the child can be heard in the judicial process. We need to develop these mechanisms to ensure we have a streamlined procedure that works across the board. The current system for hearing the voice of the child is unsatisfactory, with significant variations as to the operation of the provision throughout the country. There is a type of geographical injustice because the outcome for a child will depend on the District Court in which the case is heard. That must be remedied, and we need greater uniformity to ensure that every child gets the same chance, regardless of where the child lives.
Children with disabilities are among the most vulnerable young people in society. EU Directive 2011/93/EU prescribes minimum sentence lengths for certain sexual offences against particularly vulnerable children such as those with a disability. It should be transposed into Irish law without delay. I draw the members' attention to General Comment No. 13 of the Convention on the Rights of the Child, the right of the child to freedom from all forms of violence, which should be implemented also. A national co-ordinating framework on violence against children should be formed in Ireland to tackle adequately the matter of violence against children.
Ireland should ratify the UN Convention on the Rights of People with Disabilities without delay. There is a real opportunity for the Government to make explicit in the next budget the way the needs and rights of children were taken into account, in particular, children with disabilities.
The need to ensure that children attend school on a consistent basis throughout their primary and post-primary education is of perpetual importance. Absence from school at early stages of a child’s education has been shown to have significant effects in later years in terms of literacy and numeracy levels of competence.
As the person who chaired the child death report, one of my abiding memories was reading over 500 case files of children who died in State care, many of whom experienced difficulties attending school. School attendance is sometimes linked to mental health issues. Many of those children had problems such as dyslexia or dyspraxia; therefore, we must examine how we can keep children with emotional or behavioural problems engaged in our education system.
I suggest that the ultimate sanction should only be bringing forth criminal proceedings against parents. I advance in the report that there should be an intermediate step of enforcement such as education supervision orders, which have worked very effectively in the United Kingdom, and I believe would have a positive impact in this jurisdiction. We should use the court only as a measure of last resort when all other avenues have been explored. I urge the Oireachtas to consider introducing an intermediate step such as the education supervision order, which would direct parents and the child to co-operate with plans to ensure the child is appropriately educated.
In recent weeks we have seen an increasing focus within the media on cross-border cases. Our increasingly mobile and multicultural society has resulted in a considerable increase in applications for relocation coming before the courts. Nowadays, 13% of marriages across the European Union are bi-national. Where one parent seeks to relocate from Ireland to another country with a child, that can only occur with the consent of both parents. If both parents do not consent, it requires a court application. However, there is no legislative guidance on the manner in which such applications are to be determined save for the guiding principle that the welfare of the child is paramount. Greater clarity would be welcome in the form of legislation which would regulate applications for relocation. Legislation should be enacted, which would include the factors that the court should consider when determining the best interests of the child.
The Minister for Justice and Equality has raised the possibility of establishing a specialised family courts structure. As far as children are concerned, we must consider how we can keep child care cases out of court for as long as possible, and the initiative by the Minister for Justice and Equality provides a real opportunity to do that. There is a need to create an alternative to a formal court hearing, otherwise known as alternative dispute resolution, that can be embedded into the Irish family justice system. The advantages of embedding alternative dispute resolution into the Irish family justice system are very considerable and the savings to clients in terms of cost, time and emotional expense are immeasurable.
The protection of children in the context of business and industry is an enduring requirement. A number of recent publications stress the need to verify the source of goods imported into Ireland to ensure that improper child labour has not been utilised in the production process. By December of this year, Ireland is required to transpose into domestic law EU Directive 2011/93/EU dealing with child sexual abuse, exploitation and pornography. It should do this without delay. I have outlined on page 19 of my presentation the key aspects of that directive which I will leave for the members to consider.
Regarding victims' rights, over the weekend the Minister for Justice and Equality announced the setting up of a victims rights alliance. I warmly welcome that but it must be followed up with legislation to transpose the directive into domestic law. As well as having the victims rights alliance, we need the necessary legislation to implement the EU directive.
The UN Convention on the Rights of the Child has been a core standard setter in the area of children's rights, yet there remains no formal mechanism for overseeing its operation and functioning. An institutional oversight mechanism should be established in Ireland to take responsibility for monitoring the implementation of recommendations of treaty bodies such as the Convention on the Rights of the Child.
There have been very significant developments in recent years, which I warmly welcome. However, many challenges remain that must be identified and resolved before we can say that we live in a society where our children’s rights are fully vindicated.