JOINT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY debate -
Wednesday, 30 Nov 2011

Criminal Justice (Withholding Information on Crimes against Children and Vulnerable Adults) Bill 2011: Discussion

Chairman

The purpose of today's meeting is to have discussions with some of those who made written submissions on the draft scheme of the Criminal Justice (withholding information on crimes against children and vulnerable adults) Bill 2011.

On behalf of the committee I welcome everyone here today and thank them for giving of their valuable time and expertise to help us in our work in bringing the legislation forward. This is the second time we have conducted such an exercise and the last one on the vetting Bill proved to be useful and worthwhile. Most of the recommendations at that stage have been accepted by the Minister. We will see what happens today.

This is a relatively new process for the Oireachtas to examine the heads of a Bill before the legislation is published. It gives individuals and organisations an opportunity to have an input at an early stage. I welcome the following: Ms Caroline Counihan, legal director and Ms Clíona Saidléar, policy and communications director, Rape Crisis Network Ireland; Dr. Niall Muldoon, national clinical director, and Ms Mary Flaherty, chief executive, CARI Foundation; Ms Maeve Lewis, executive director, and Ms Deirdre Kenny, director of advocacy, One in Four; and Mr. Paul McLoughlin. I thank them for their attendance and for their submissions. The format of the meeting will be that each organisation will make a brief opening statement which will be followed by a question and answer session. I ask everybody to switch off their mobile phones as they interfere with the inhouse recording system. My comment is also directed at members.

I shall read an important statement on privilege. Before we begin I draw the attention of witnesses to the position regarding privilege. They should note that they 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 in relation to a particular matter and they continue to do so, they are entitled thereafter only to a 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 are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any persons or entity by name or in such a way as to make him, her or it identifiable.

Members should be aware that under the salient rulings of the Chair Members should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

I call on the Rape Crisis Network Ireland to make its opening statement and ask them to confine it to around seven minutes.

Ms Caroline Counihan

I will do my best. The Rape Crisis Network Ireland is the national representative body for the rape crisis sector. RCNI broadly welcomes the legislation with certain reservations. It sends a clear signal that the withholding of information on crimes against children without reasonable excuse will incur potentially severe legal consequences. The welfare of children and vulnerable adults is paramount here. However, we must all do our best to ensure that legislation to protect vulnerable people does not have any unintended consequences which could make these very people even more vulnerable. It sends a clear signal that the withholding of information on crimes against children without reasonable excuse will incur potentially severe legal consequences. The welfare of children and vulnerable adults is paramount here. However, we must all do our best to ensure that legislation to protect vulnerable people does not have any unintended consequences which could make those very people even more vulnerable.

RCNI works from the position that effective primary prevention of sexual violence is best achieved with a survivor centred approach. RCNI recognises that one of the greatest supports to a perpetrator of sexual violence is silence, which this legislation seeks to remove. The legislation must take into full consideration that the continuation of silence regarding sexual violence rests on a number of factors which ensure that breaking the silence often has negative consequences for victims. The RCNI therefore strongly submits that to break a victim's silence without due consideration for how to support and protect that victim from negative consequences would be ultimately self-defeating. My colleague Ms Saidléar will briefly outline some statistics.

Ms Clíona Saidléar

Regarding why victims do not disclose and keep silent, we know from the Sexual Abuse and Violence Ireland report, which was conducted in 2000, that 50% of people who had experience of sexual violence chose to tell nobody at all. In terms of how we as a society, as a community, as agencies and as legislators can respond to that and can make for a climate that supports survivors in disclosing, there is something very important in that statistic.

The latest statistics we have are from the RCNI national database and are not representative of the population but only representative of people who come to rape crisis centres around the country. Of those, 17% of survivors in 2009 told nobody else before coming to a rape crisis centre. In 2010 that number dropped to 13%. These are self-selecting people who choose to come to rape crisis centres, but still a significant proportion of these people do not tell anybody apart from the rape crisis centres. From that we can deduct there is a significant amount of silence on the issue.

The SAVI report indicated that approximately 10% of people who experienced sexual violence report formally to the Garda or the HSE. In the latest statistics for clients of the rape crisis centres, that number is 30%, which is the highest it has ever been. That number has been rising - although it is a bit early to be talking about trends. People disclose for two reasons. First, their symptoms become so severe that they come to the attention of agencies or the authorities, for example, through addiction, homelessness and mental health issues. The SAVI report found at the extreme end that one in seven survivors of sexual violence will at some point become psychiatric inpatients as opposed to one in 50 of the non-abused population. At some point the symptoms, if not addressed, will bring these people to the attention of various agencies.

The second more positive way that we would encourage is that survivors will disclose when they feel safe to do so and where they are supported to do so. The statistics indicate that child sexual abuse is more difficult to disclose than adult sexual abuse. There are many reasons for this and one may be that the relationship to the perpetrator is closer within the circle of trust, which makes the consequences of disclosing for survivors more severe and the risk greater. There are lessons there for what we can do to make the environment safer for disclosure in order to tap into essentially what is the resource for child protection - the children we failed in the past who are a resource for protection in the future. We have to support them to disclose in order to do that.

I will hand back to Ms Counihan to deal more with the legal issues behind it.

Ms Caroline Counihan

RCNI submits that it is appropriate to limit the effect of this section to those offences which are known or believed to have been committed, as issues surrounding a person's knowledge or belief that such offences might happen in the future will be covered once the current Children First guidelines are given statutory effect. On a different point, we assume that the obligation not to withhold will apply regardless of whether the victim was a child, or vulnerable adult, that is, it covers historical child and vulnerable adult sexual abuse as well as more recent crimes. RCNI submits that it is also appropriate to limit criminal liability for withholding information to what a person knows or believes as opposed to surmises, suspects, conjectures or assumes. Is it intended that this legislation would create a strict liability offence and, if so, would there not be a constitutional difficulty with that?

The language must be clear to avoid the risk of numerous unnecessary reports clogging the criminal justice system. RCNI submits that the language of this subsection needs to be much simpler and clearer to be understood by the people who must comply with it. The two phrases "material assistance" and "securing the apprehension" would not have any clear meaning for most people. Another difficulty with the phrase "might be of material assistance" is that it implies that the person passing on the information must weigh it up to decide whether it really might be helpful to the Garda. Should he or she not simply report it anyhow, just to be sure that he or she has done all that the law requires? The safest answer to this question would appear to be "Yes".

RCNI submits that it is vital to clarify what exactly is meant by failing to disclose to the Garda. Does it mean passing on intelligence to the Garda which is known or believed in good faith to be useful or possibly useful to enable arrest, investigation, prosecution and-or conviction, or does it mean making a formal statement which may involve him or her as a prosecution witness in criminal justice proceedings? Assuming that the new provision requires the passing on of information only, it would be useful to clarify what steps exactly must be taken by the holder of the information in order to disclose such information. For example, should it be in writing only? A statutory definition of the term "disclose" might be useful in this context.

RCNI would be very concerned to ensure that potential supporters as well as victims themselves, are not put off seeking support whether from a trusted friend or family member or a service such as a rape crisis centre to share their experience of sexual trauma and-or seek much needed specialised support, for fear of becoming entangled in the criminal justice process where neither victim nor supporter has any wish to engage with it. We would submit therefore that it is not in the interests of justice to impose criminal liability on any person receiving a report of a crime for failure to make a formal statement to the Garda or other prosecuting authority which may involve him or her as a prosecution witness in criminal justice proceedings.

For our member centres' staff and volunteers, an obligation to make a formal report to the Garda would mean that every aspect of therapeutic work would be overshadowed by the criminal justice process. This would damage the integrity and confidentiality of the counselling process to an unacceptable degree. The counselling process is built on trust. Rape crisis services work from a principle of the empowerment of the survivor in recovery. If this legislation required a supporter or a counsellor to disregard survivor wishes and needs, it would compromise fundamentally a survivor's right to support and healing. If the unintended consequence of this legislation were that significant numbers of survivors would decide never to disclose the sexual violence to anyone, for fear of uncontrollable consequences to themselves and to those around them, then this legislation will not only have failed in its principal objective to protect children, but will have caused harm. Furthermore, the 2011 draft European directive on establishing minimum standards of rights, support and protection for the victims of crime does not support a position of compelling victims to report crime. Article 7 of that directive proposes a right to access victim support services, which will apply regardless of whether the crime has been reported.

In addition to adverse consequences for survivors' psychological recovery, there is likely to be a dramatic effect on reporting rates to the Garda if survivors had to make a formal statement to the Garda. The available research suggests that with support, survivors are more likely to make and maintain a formal complaint to the Garda, and our national statistics have shown a dramatic upward trend in reporting to the Garda in recent years. It would be a great shame if this were to change as a result of this legislation.

RCNI submits that it is appropriate that there should be a detailed, clear and open list of situations which would constitute a "reasonable excuse" whichever interpretation of failure to disclose is the correct one. What about situations where the victim herself or himself says that the matter has already been reported to the Garda? Does the duty to disclose remain where the victim has given assurances to the person receiving the information that the crime has indeed been reported to the Garda? How could the person receiving the information be sure of that? We submit that the phrase "reasonable excuse"should include situations where a parent or guardian, other than the alleged perpetrator, and indeed any person or organisation acting in loco parentis in good faith, decides notto make a formal report to the Garda Síochána about the crime in the best interests of the child victim. As repeated several times in the written submission there should be strict compliance with Children First guidelines in relation to the dangers to otherswhichis a separate matter.

Rape Crisis Network Ireland, RCNI, submits that it is entirely right and appropriate that the list of what constitutes "reasonable excuse"should include the situation where the victim does not wish to make a formal report to the Garda Síochána on their own account. This "reasonable excuse"does not mean of course that existing administrative and eventually, statutory Children First obligations, should not apply to the person and-or organisation hearing the information. RCNI submits that it would be helpful if this was spelled out in the Statute.

On subsection (2),RCNI welcomes this subsection as we think it entirely wrong in principle to impose criminal liability for withholding information on any child, vulnerable adult, or, in particular, any victim of sexual crime. On subsection (3),RCNI submits that there are circumstances in which a higher maximum penalty than five years would be justified, namely, where the person withholding the information was in a position of trust, authority and had responsibility over children and-or vulnerable adults. This would reflect the higher penalties adopted under section 176 of the Criminal Justice Act 2006 in respect of the offence of reckless endangerment of children, which offence applies to person in authority or with control over the child or abuser. It is appropriate that such persons would have greater liability than persons who obtain such information in other less proximate situations. The penalty under section 176 is ten years whereas the draft provision proposes a maximum term of five years. Consideration could be given to the creation of a separate offence of instructing others to withhold the same or similar information. This offence should attract a higher penalty than does failure to disclose such information.

RCNI submits that it is important this legislation dovetails appropriately with other forthcoming legislation on the protection of children and vulnerable adults, such as the National Vetting Bureau Bill 2011 and the children first Bill. We are likely to submit further observations in the future.

Chairman

I thank Ms Counihan for her submission. I now invite the representative from Children at Risk in Ireland, CARI, to make her submission.

Ms Mary Flaherty

This is my second appearance on this side. It is different over here.

Senator Paul Bradford

Seats are safer on that side.

Ms Mary Flaherty

We broadly support the thrust of the legislation and are happy the Government is proceeding apace with a variety of legislation to improve the situation for children. CARI is unique among the organisations present today and throughout the country in that it specialises in services for children. Our clients are from 2 to 18 years. We also see some vulnerable adults over 18 years for whom services are appropriate.

We are concerned about the inadequacy of services in the country for children. Most Members will be surprised to hear - my colleague, Dr. Muldoon will come back to this - that services for children lag well behind those for adults. It is important to note, in the context of this legislation and the general thrust of legislation seeking to change the reality for children, that each year there are 2,300 new allegations of child sexual abuse. The reality for children is harrowing and the place of danger is the family home. Another series of reports on the church are to be published today. Sadly, they may distract from the work we are doing here today, namely, considering what should be done for child victims. Most abuse, as confirmed in the rape crisis statistics and in CARI's annual report, occurs within family and familiar settings. There has been inadequate focus on the level of danger within families. Dr. Muldoon will address that issue further.

CARI has been in existence since 1989 and provides a therapeutic service for children who have experienced abuse. As such, post assessment, when all the legalities have been taken care of, children come to our centres to heal the hurt of child sexual abuse. This is largely done through play, art and drama or conversation and talking therapies such as those used by other organisations dealing with 16 year olds and upwards. Many of our children are under that age.

All children will have had their crimes investigated by the statutory authorities and the Garda and social services will have been involved with the families. We offer child and adolescent psychotherapy, which is our core service and a helpline which is helpful from the point of disclosure to making a report to the health board and being assessed. It is an important service which as acknowledged is unique in the country in helping people through those traumatic times. We offer support to intellectually challenged persons, whom we can see up to their early 20s if their development level is such that they can still appropriately use our services. Dr. Muldoon will outline from where we come from a philosophical point of view in terms of ensuring that families are looked after and what we can do to make them safer for children. The culture of secrecy in this regard is as strong as it has been in the institutions. The desire to protect and hence the inadequate protection of children exists here too.

Dr. Niall Muldoon

The Irish public, following the many recent reports into historic and institutional abuse, is now very aware of how systems such as the church operated to protect the institution ahead of the child. The public will be less aware that families react in much the same way when disclosures of intrafamilial abuse are made. The highest level of abuse is usually intrafamilial. Research shows that abuse within families is the most common form of abuse. Often there is denial, silencing and a continuation of abuse.

Family systems are still very much weighted towards silence in cases of abuse, be it emotional, physical or sexual and neglect. CARI is, therefore, always eager to work toward more open systems. Openness is enhanced by the knowledge that there are appropriate supports in place for those who break the silence. As the sole NGO working directly with children who have been affected by sexual abuse it is difficult to say that sufficient support is currently available. We have always advocated the need for critical information to be brought forward to the appropriate authorities and have always had a policy of passing on any new information we receive from our clients, even if the case has already been assessed by the HSE. This might involve circumstances wherein a child has been assessed as having suffered abuse and at a later stage comes forward with new information.

This Act needs to encourage those who are ready to speak out and to force those who are reticent to do so. Without facilitating both types of people we are not maximising the security and safety of our children. In smoothing the passage of information on crimes against children and vulnerable adults from families and professionals to the appropriate authorities we are reducing the number of children and vulnerable adults who have to endure the long term ill effects of maltreatment and abuse.

It must also be noted that public perception, as a consequence of all the uproar following publication of the various reports into institutional and clerical abuse, including the Ferns, Ryan, Murphy and Cloyne reports, is that there is a strong and vibrant response from the State. People assume this response allows children to be protected and cared for appropriately following the reporting of crimes or suspicions of crimes against them. This is far from the truth. While adult survivors of childhood abuse have a free national counselling service and adults who suffer terrible sexual crimes have available to them a network of rape crisis centres, the children of Ireland, who are the targets of this Bill, continue to search for a co-ordinated and equitable service to cater for their needs. The level of support for adults who have survived sexual crimes is nowhere near adequate but it is still very far ahead of that provided to children across the country who are suffering here and now from all the different forms of abuse.

The SAVI report of 2002 showed that 19% of men and 27% of women abused as children went on as adults to become victims of sexual crimes, suggesting that early intervention with children can help prevent further victimisation in adulthood. However, this early intervention can only come about if more people break the silence and speak up on behalf of the child once they have information that can help. This Bill will go a long way towards making that a reality.

CARI also urges the committee to build in time and resources to properly publicise this Bill and the responsibilities it will thrust on all citizens in order that there can be no cries of ignorance in the future. There should be no statements like "I did not know I had to do that", "We were only learning about the issue and so delayed doing anything" or "I did not think it was my job to report it".

As CARI does not have a legal expert on board, we made a number of submissions on the general scheme of the Bill. The items I wish to highlight have been mentioned in more articulate legal arguments put forward by RCNI and others, including the Ombudsman for Children. The level of overlap with the offence of reckless endangerment of children must be considered. As a ten-year sentence is provided for in the offence of reckless endangerment of children, we think a similar sentence should be considered in this legislation as well. One question we had concerned the scope of the legislation. We are aware that sexual abuse is being mentioned and are delighted with that. We also are concerned that information should be brought forward about neglect and physical and emotional abuse in the same way. As was evident from the most recent case from County Roscommon, which reported last year or early this year, many of those indications would have prevented ongoing sexual abuse, had the information been brought forward in a more appropriate manner. Consequently, we seek consideration of the Bill's scope in this regard.

I refer to the interpretation of the legislation. Again, not being a legal expert, one point that stood out for me was the idea expressed in section 1(a), which states, "it is an offence for which a person of full age and capacity and not previously convicted may be punished". Does this suggest that in the case of someone with a conviction for any offence, might that provision allow them out of it again? While that is a layman's question, I put it forward for clarity from our viewpoint. Another issue that it will be important to consider as this Bill is being put forward concerns resourcing. Obviously, CARI is aware that social workers, the Garda and therapeutic services are under-resourced. However, while this issue should be brought to the fore of any Government decision as the Bill is being put forward, it should not delay putting forward the legislation as a result. The two can be done in tandem.

As for public education, it is crucial that the system and people in general are made aware this is a protection measure and not a criminal chasing down of people. The idea is that measures are being put in place that will allow members of society to know it is their responsibility. As Gordon Jeyes noted when he launched the Children First national guidance, the answer to the question as to whether children are put first is always. We believe this Bill will allow one to say that children are always put first, regardless of the implications for adults later on. Finally, education also should be extended to professionals because obviously this will have huge indications for policies and procedures within many spheres of work, including counselling, therapeutic, legal and medical settings, as well as many others. This will be a crucial part of the follow-through.

Chairman

I now invite One in Four to make its submission.

Ms Maeve Lewis

I thank the Chairman for the invitation to speak. My name is Maeve Lewis and beside me is my colleague Ms Deirdre Kenny, who is our director of advocacy. Everyone present in this room shares a common objective, namely, to ensure this legislation in its final form helps to make Ireland a safer place for children. At present, Ireland does not have an effective child protection system. Research shows that in cases of adult rape, one in 40 instances of rape ends up in a conviction. In the case of child sexual abuse, we estimate that one in 80 cases of child sexual abuse ends up in a conviction. If one thinks about this, this means that out of every 80 sex offenders, one person ends up convicted of the crime. This means many very dangerous people are walking around this country with impunity, who are free to continue abusing children. The current system of criminal justice simply does not work as a child protection measure. This makes the work undertaken by the joint committee this morning very important indeed.

At One in Four, we work with all aspects of sexual violence. We provide counselling and advocacy services for adults who have been sexually abused in childhood and we also offer a treatment programme to sex offenders. Each year, we work with almost 1,000 people. The majority of our clients have been abused within the family and in their neighbourhoods. Fewer than 30% of them were abused within the Catholic Church. Through our clients, we have learned a great deal about sexual abuse. We know the impact of sexual abuse reverberates right throughout a person's life and we understand the suffering that lies behind all the statistics we produce. Therefore, child protection is at the centre of what we do and we are deeply committed to ensuring that today's children are not abused but are safe from sexual harm. We always work within the Children First guidance. We have developed a wide experience in helping clients to negotiate the complex terrain between their personal experiences of sexual abuse and engaging with the statutory services, which they often must do. We hope our observations this morning, based on that experience, may be of value.

As have the other organisations, we broadly welcome this legislation. First, we are pleased that victims of sexual crime will be excluded from the requirement to report to the Garda. We believe this would place an intolerable burden on an already vulnerable population. Second, we welcome the fact that a victim's wish that a report not be made is included as a "reasonable excuse" not to report. However, we suggest that an exception to this should be if the victim still is a child. We do not believe any child is in a position to make an informed choice about something so serious.

Any adult who is in possession of information about a child who currently is being abused should be obliged to make that report. The possible exception to this may be when abuse is occurring within the family. We know from our work with sex offenders that the non-offending family members often are extremely torn between their loyalty to the sex offender and concern for the child. A disclosure of sexual abuse can go off like a bombshell in such a family, perhaps further endangering the children. Consequently, we wonder whether criminalising the wife of a perpetrator, who wonders about reporting her husband to the Garda, would be in the best interest of the child. We suggest that in that instance, perhaps the HSE expert services may be the people to engage first with the family and provide the support that may ultimately allow the Garda to become involved. We also are anxious to ensure this legislation will encompass abuse that has taken place in the past. Many of our clients have been abused ten, 20, 30 or 40 years ago but the man who may have sexually abused his daughters may still be abusing grandchildren and we suggest the passage of time does not mean the offender is no longer a risk to children.

We believe that introducing legislation that will make it a crime to withhold information from the Garda will not make a major contribution to child protection unless the implications of increased reporting to the Garda are considered and taken into account. At One in Four, we operate a mandatory reporting policy. All allegations and concerns are passed to the HSE child protection services. However, we work with a group of people who are distressed and vulnerable and who have reached out for help to deal with the effects of sexual abuse on their lives. We must balance the needs of that group to access resources with the need to protect children and I am sure the last thing anyone present wishes to do is to make people afraid to come forward and to further silence victims. Our clients usually are initially reluctant to make that report to the HSE. They fear, with good reason, the reaction of their families, neighbours and so on. Ultimately, however, with the skilled support we offer, 95% of our clients agree to engage with the HSE, to make that report and be interviewed by a social worker. Moreover, we believe that reporting concerns without the co-operation of the victim is next to useless because they rarely can be investigated.

We welcome the intention of the Minister for Children and Youth Affairs to place the Children First guidance on a statutory footing. We estimate that at present, approximately 10% of the notifications we make to the HSE are investigated. In view of their historic nature, they do not take priority. On the other hand, when we report to the Garda, those allegations are investigated seriously. However, if the numbers reporting to the Garda rise on foot of this legislation, we wonder whether the same thing will happen and whether many allegations will not be investigated at all. At One in Four, we understand it is a very serious decision for our clients to report to the Garda. People typically are afraid they will not be believed and of the public exposure that might ensue. We see absolutely no point in reporting allegations to the Garda against the wishes of the victims. Each year at present, approximately 30% of clients make that report to the Garda.

The feedback our clients give us about the criminal justice system may be of interest. The vast majority of our clients find their engagement with the Garda and the Office of the Director of Public Prosecutions to be respectful, sensitive and professional, even when the clients are not happy with the outcome of the case. However, most of our clients tell us that had they known the ordeal they would face in the criminal justice system, they would never have made a complaint in the first place. We know that prosecuting sexual crimes presents formidable legal challenges, particularly where the cases are historic. However, when the trial process itself becomes a barrier to reporting, I suggest it is beyond time for the criminal justice system to be reviewed with regard to sexual crimes.

We know from experience that the HSE child protection services can often intervene where there is a substantial allegation but insufficient evidence to substantiate a criminal prosecution. This makes it vital that the Garda and HSE work closely together so a genuine safety network that means something is created. Therefore, we believe the Criminal Justice (withholding information on crimes against children and vulnerable adults) Bill and the proposed Children First legislation must intersect seamlessly and we urge committee members to take this into consideration in their deliberations and recommendations.

If we have learned anything from the various reports of the past decade and the reports that are due later this morning, it is that silence and secrecy have endangered children. Everybody wants Ireland to be a place where children grow up safe from sexual harm. Therefore, we welcome the Bill and see it as a very important element of the child protection framework that is being created. We hope this Bill, together with the Children First legislation, will create and foster a culture where every adult in this country will see it as being his or her responsibility to ensure children grow up without being victims of sexual abuse.

Mr. Paul McLoughlin

I am here as an individual and am not representing any body or organisation. I wrote a letter regarding the seal of confession of the church. My concern about this was basically answered by being invited here today and by the fact the Government would examine this issue objectively and not in the way the media are reacting to all of this. Just by being invited here today, I can see that the issue is being taken seriously.

I was a nervous child and I used to love to speak to a priest. The vast majority of priests, as we know, are not child abusers. Unfortunately, a small minority have committed all these terrible crimes. The vast majority of priests are there to help the community and also children. If people felt that priests would have to report matters to the Garda, there might be confusion in that people might think they would report anything. Children might feel afraid to go to a priest and we might be miss out on having the resource of vast number of priests who could help rather than hinder matters in regard this issue.

Criminals who have perpetrated abuse would not tend to go to confession. Therefore, such reporting would not be enforceable and it would help children. However, I support, in general, the reporting of crimes.

Chairman

The submissions have been fascinating from my point of view. These deal with very serious issues and give us cause to reflect on many of the aspects. I invite Senator Bacik to start the questioning session by putting questions to the witnesses from the RCNI.

Senator Ivana Bacik

I thank the witnesses for their submissions which were most thoughtful and will give us a great deal of assistance in making our comments on the Bill. I also thank the others who made written submissions to us, which were also very helpful. Some general themes emerged, including the need for consistency with other legislation, with the vetting Bill that we have seen, the Children First Bill that is to come in later, other legislation such as the Protections for Persons Reporting Child Abuse Act and legislation setting out sex offences. The RCNI in its submission rightly highlighted difficulties with the definition of sexual offences. I have always argued, as the witnesses will know, for a codification of sex offence law. The Minister is working on that and that may assist. Certainly, consistency is a major issue in all the submissions.

Another theme is the need for clarity on definitions. That comes out in all the submissions. I have a few specific points on that. To deal with the point CARI raised on head 1 of the Bill, they need not be concerned about that. It is just a phrase saying that if it is an offence for which a person who has never been convicted before for anything could still be imprisoned for up to five years, then it is an offence covered by this. It does not refer in general to persons not previously convicted, it is just a reference to a sentence that on a first conviction, one could be convicted for five years, which emphasises the definition of the offence. This applies not only to sexual offences but to arrestable offences, which would include the offence of reckless endangerment, which covers to some extent CARI's concern about persons not reporting serious neglect of a child or abuse other than sexual abuse.

To return to the RCNI submission, in regard to reckless endangerment, I would agree with CARI's point that it is good to have a scheme of offences. Reckless endangerment is more serious. As there is a higher level of mens rea , it is appropriate, therefore, that it would carry a heavier sentence of ten years and that withholding information, which is the lesser mens rea, carries a sentence of five years. I do not believe it is strict liability. Because there is the defence of reasonable excuse, that saves it. I would be confident about that, but it is certainly a lower level of mens rea requirement than reckless endangerment.

My two specific questions for the RCNI and more generally concern some of the clarity of definition issues that it has helpfully raised. The first is the definition of "failure to disclose". The RCNI rightly pointed out that people may not wish to make a formal statement to the Garda. Obviously, that is their choice. Disclosure does not require that level, but it does specify currently disclosure to the Garda Síochána. My concern, which has arisen from some of the submissions, is that this may not comply with the Children First guidelines because under those the contact can be to the children and family services in the HSE. Could the RCNI give its view on this? Could some of the concerns all the organisations have raised be dealt with under head 3(1)(b) in terms of a reasonable excuse not to disclose to the Garda Síochána? We have already got one point about a reasonable excuse where the victim does not wish it, to which I will return. Would it be helpful to include the words “where the report is made instead to the HSE in accordance Children First guidelines”? It strikes me that would be a way of ensuring consistency with the Children First guidelines. It does not rule out responsibility to report to the Garda but it just states that a reasonable excuse may cover a circumstance where the person has instead communicated with the HSE. It strikes me that is one way of resolving the issue. A witness from the organisation does not need to give me an answer on that straight away. I just want to put that forward as something we may consider as a committee.

My final point is again on a clarity of definition. The words "without reasonable excuse" have been raised in all the submissions, including that of the RCNI. Currently, reasonable excuse may include circumstances where the person does not wish the offence to be disclosed. One in Four has made the important point that the burden of decision to disclose or not to disclose should not be placed on children. Barnardos has a clear suggestion that where there is an ongoing risk to that child or others, the victim's wishes should not amount to a reasonable excuse. I would like to hear the witnesses' views on that. That would be in compliance with the Children First guidelines. Should a risk to that child or person or to other children or persons be specifically included as an exception to the victim's wish issue?

Chairman

Does Ms Counihan wish to reply to some of those points?

Ms Caroline Counihan

I am not sure I can reply to that on the spot. Can I think about that and get back to the Senator? The Senator's point that reporting to the HSE would provide a reasonable excuse is a useful suggestion. When I think about that, however, I am very concerned to hear from One in Four that one may report everything that the Children First guidelines, in their current form, tell one to report and be clear that one has disclosed everything one should disclose in a timely manner and so on, but it may not get anywhere at the end of the day. That makes me very anxious. If there was a duty to report somewhere else as well, perhaps that might be better.

Senator Ivana Bacik

If I may, I would like to make one final point. The clear presumption is that one should report to the Garda and this is what the legislation is about. I would not want to water this down. However I feel there could be a way of dealing with this through the reasonable excuse defence. I take the point about the difficulty with HSE.

I wish to make a point that arose when submissions were made on the national vetting bureau. Many of the organisations submitting to us have already implemented a policy ahead of the legislation in terms of mandatory reporting and this has come across again today. We should emphasise this.

Ms Clíona Saidléar

The Senator spoke about the recommendation by Barnardos on making a judgment as to the ongoing risk to the child. We are introducing the judgment of the person reporting. In the draft legislation we have tried to work around this so it does not become inappropriate. It is tricky.

Deputy Dara Calleary

I thank the organisations and Mr. McLoughlin for coming before the committee. I am concerned the legislation will introduce qualifications whereby family members or volunteers working for organisations will be exempt. If one is the only point of contact for a victim and is the person in whom a victim has placed trust and goes to for treatment, therapy or services but nothing gets done afterwards, does this leave a perpetrator in place and cause somebody else to become a victim? I know this is not the intention but I am concerned about this.

Chairman

Perhaps we should to get a reaction to this before we move on.

Ms Caroline Counihan

We do not suggest a report should not be made to the Garda. We suggest it might not always be appropriate for the person receiving the information to make a report that becomes a formal statement which becomes part of a prosecution case. Passing on the information is a separate issue. I understand the person receiving the information has an obligation to pass on the information to the Garda. We are concerned that if the victim knows a person receiving the information has a duty to make a formal statement to the Garda which may become part of a prosecution case, it may deter the victim from going to the third party, support, rape crisis counsellor or whoever else. The obligations under the existing Children First guidelines are different. Passing on information is different from making a report and not necessarily the same thing as making a formal statement. Of course I take the point; we do not want perpetrators to go through the net. I will reflect a little more on what the Deputy stated.

Deputy Dara Calleary

With regard to the One in Four statistic on one in 80 children, was this with regard to allegations or actual cases?

Ms Maeve Lewis

Allegations, obviously, but cases which have substance from our perspective and which are reported to the HSE.

Deputy Dara Calleary

I have a similar question for CARI. Ms Flaherty made the point that 2,300 allegations are made annually. Are these allegations of child abuse?

Ms Mary Flaherty

They are allegations of child sexual abuse. The most recent figures we have are the HSE review of adequacy of services figures for 2008. Of those allegations, perhaps 700 or 800 would be confirmed and concerns would remain about another significant number which remain unconfirmed. Quite a small number would be ruled out as not of concern. It is a significant number each year. We must then take into account the amount of silence and the fact we know many people do not disclose until adulthood. It is an enormous area and I share the Deputy's concern that we retain as much strength in this as possible because we are pushing a boulder up a hill. CARI's point is that the systems we saw in action in the institutions, whereby people stayed quiet and left the victim in place, also exist in families. The Deputy made a very important point. The worst consequences for a child are when there is disclosure and no action. This is why so many stay quiet; they instinctively know. It is important that action is taken when there is disclosure and knowledge.

Deputy Dara Calleary

One in Four made a point about family members being treated differently. I agree with CARI and perhaps Senator Bacik has given us a solution with regard to including other information about physical abuse. The Roscommon case was horrific. The experience of all of these cases shows the wall of silence is stronger in families. If we exclude any member of the family from obligations we put on other members, will we not strengthen this wall of silence? Is there a danger we will do this?

Ms Maeve Lewis

It is a danger but sexual abuse in a family is a complex situation and the last thing we want to do is for family members to retreat behind the wall Deputy Calleary described. We suggest from our experience of working with sex offenders and their families that what non-offending family members need is support, education and the intervention of the HSE to help them understand how it could have happened and what needs to happen to protect those children. I do not suggest for a minute there may not be criminal convictions; there may well be. However, if the Garda is brought in prematurely, our experience is that the family shuts down, nobody says anything and the very situation Ms Flaherty described emerges. I am concerned we will put in place legislation that looks very good on paper but does not work for families struggling with this type of situation.

Dr. Niall Muldoon

Perhaps the suggestion made by Senator Bacik, that there would be no criminal conviction if a report was made to the HSE, would allow support to come forward. What is key is that the information gets out. We are not necessarily looking for criminal convictions as a result of this information. The key is that the child is supported. We know there should be automatic referral from the HSE to the Garda, which takes care of the idea that one does not necessarily have to make a formal statement to the Garda as the social worker will take it in charge. We are trying to support the family in coming forward in the best way possible. A slight amount of information could be enough for the HSE to get involved and provide support. It is about ensuring the information comes out rather than criminalising family members. The idea of an alternative excuse might fit into this.

Senator Paul Bradford

I welcome the witnesses and this discussion. In a sense I am following up on the line of questioning pursued by Deputy Calleary. I must concede I am far from an expert in this field. There has been much public comment and script on this matter in recent years. We must all acknowledge that much of the comment, perhaps including my own comments, is very much ill informed and often emotive and in response to the most current crisis.

If there was no legislation before us this morning and if the witnesses were writing a new Bill, what European country has best practice and how does this best practice differ from what is before us?

Further diocesan reports will be published today and the issue of clerical sex abuse in particular will be will be on the front pages tomorrow. Very fairly and helpfully, CARI and One in Four have put in print that research shows abuse in families is the commonest form of abuse and the majority of clients are abused in their own families. Accordingly, I wish to reflect again on the issue of reasonable excuse. It is suggested that this concept must receive grave consideration, and the best interests of the child come into play as perhaps certain exemptions would apply in family structures. We all acknowledge and know the majority of abuse happens in families, and Deputy Calleary has raised this. Must we not be careful about putting in place structures within the legislation under this reasonable excuse formula to allow that almost to continue? I appreciate that the witnesses have attempted to answer those questions but I am not entirely sure about, or happy with, what has been said. I read here that: "We would therefore submit that it is not in the interests of justice to impose criminal liability on [a] person ... [who fails] to make a formal statement to the Garda". It then goes on to talk about a reasonable excuse in the best interests of the child victim. There is an almost total contradiction in those statements and in what the man or woman in the street would believe this legislation is about. I apologise that my question is so vague, but I find it difficult to accept that we are having this debate after months of a lead-in, where people may have been a bit sidelined about the whole church issue and may have failed to reflect on the fact that, from a majority view, it is a family issue. We are talking about a reasonable excuse being in the best interests of the children, but generations of children have been abused and their parents have always decreed that it is in the best interests of everybody to stay silent.

Chairman

I have two questions. First, what countries have the best practice in Europe? If the witnesses know of them, maybe they can say what their views are. My second question concerns the legislation itself and how it is balanced. Who wants to take those questions?

Ms Clíona Saidléar

In terms of the committee grappling with the legislation, we are also grappling with it because it is incredibly complex. There are a number of various interests, although I will not say they are competing, but it is one of the things we are struggling with. For us, the very best practice is the carrot rather than the stick. The best practice we know is that people disclose sexual violence when they are supported and when they feel safe. That is not necessarily through legislation, but legislation is appropriate, has its place and is very important. When we examine the legislation to be put in place, one of the measures we can bring to bear on it is to what extent we are enhancing, supporting, being neutral towards or perhaps damaging the environment within which a survivor of any form of sexual violence feels safe and supported to disclose. That question begins to tease out the confusion around it. We know that one of our best child protection resources are the children we have failed in the past - the survivors of sexual violence and what they can tell us. This legislation is trying to get at that and break that silence. In doing so with the best of intentions, however, we must not end up making survivors feel less safe to disclose. We are not just talking about disclosing to services like ours. We are talking about disclosing to one's partner, mother or friend. We are talking about how safe people feel to disclose to anybody at all. We are already getting reports in rape crisis centres around the country from people who are deeply concerned about their safety in terms of disclosure. How this legislation is communicated to the public will determine whether fear will become the principal outcome. I am not sure whether that reply answers those questions directly. It will probably give the committee more questions than answers.

Ms Deirdre Kenny

When we first engage with a person we ask them to commit to reporting their offender. That is often the first time someone will have raised that question with them. We ask them to make that commitment in order to engage with our service. That takes a long time for them to digest and process through therapy and support from our colleagues. That is where the best work happens and how we can support them to engage with the HSE. If we leave them isolated in that respect, it is likely they will never do it. As Ms Saidléar described, they will be further silenced. We can give them that support but it does not happen very often unless they engage and feel safe to make that commitment. We do not make reports to the Garda Síochána unless it is the person's request that we do so. That empowers them and we often find that once they have made the report to the HSE and can see the value of that in their own journey getting through these issues, they will often decide to report to the Garda Síochána themselves. They are then in a much healthier position to do that and follow through the criminal justice system.

That support is key and legislators must understand the dynamics that happen within a family. Silence is one of the issues, but the non-offending family members with whom we work do not always understand what is going on within their own family. It takes time for them to realise what has actually happened. That is the support that agencies like ours can provide. As Senator Bacik said earlier, measures whereby people can report firstly to the HSE and then be supported to go to the Garda Síochána will probably be very helpful.

Senator Paul Bradford

As regards the countries with best practice, if we were starting with a blank sheet, where is Nirvana?

Ms Mary Flaherty

We do not have such a picture regarding this particular legislation. In terms of child protection generally, however, we always look to New Zealand and Canada, which are the two jurisdictions on which we try to model our programmes. There are many issues concerning adult survivors but because we work entirely with children, we would only deal with adults as parents. The operation of Children First is almost universal for us and is the first thing with all our clients. I know the other organisations operate that also. We are talking here about offences against children and vulnerable adults. We have been able to operate that programme. We deal primarily with the HSE which handles referrals to the Garda Síochána. It works and has not inhibited us. It is a difficult thing to get through but it is there from the beginning, so I hope it could work. We see this adding not quite a stick but an extra measure for somebody within a family who is considering disclosing. It is an extra strengthening of their position in that there are possible legal consequences for them if they allow it to go on. It is another piece of weaponry to encourage a safer place for children and taking action earlier.

Let us remember that if we allow children to progress to adulthood before disclosing, there are a huge amount of long-term consequences for that child and possibly for a whole system because another generation could be abused. There is an intergenerational impact on the victim and for the perpetrator to continue and victimise the next generation. Because we work entirely with children, we have a sense of urgency about this and are in a slightly different position.

Chairman

I call Deputy Creed and ask again for focused questions, please.

Deputy Michael Creed

Yes. First of all, this approach a complex legislation is essential. The previous arrangement, whereby we went through the legislation line by line without getting this prior consultation process, was flawed. This new procedure is very welcome. I think it was Ms Maeve Lewis who said that silence and secrecy endanger children. The more I struggle with the complexities of this issue, the more I keep coming back to that fundamental issue - that silence and secrecy endanger children. It is probably wrong to have a fundamental approach in terms of complex legislation, but at the end of the day it is a black and white thing. Children are put at risk because of secrecy and silence, which is the issue we need to address. The question is how best we can we address it.

There is a line going round in my head from a poem I learned once upon a time. It went: "If you can bear to hear the truth you've spoken/Twisted by knaves to make a trap for fools". I do not wish to describe myself as a knave, but I can only reflect on the revelations that will be made later today concerning the diocese of Raphoe. In that context, if the church authorities were to say they felt it would have been premature to bring in the Garda at that stage, they would be taken out and stoned. There would be no tolerance for that approach from the church. It begs the question as to what the view is of the witnesses here this morning in the context of the church's own guidelines, which is mandatory reporting, and whether they comply with it. Is that an inappropriate approach? Where the church is informed of allegations of abuse, are its guidelines wrong to place an obligation on it to report it to the HSE and the Garda prematurely? Should it reflect, consult or should be obliged to report it immediately? The RCNI comment on failure to disclose states: "For our member centres' staff and volunteers, such a law [an obligation to make a formal report to the Garda] would mean that every aspect of therapeutic work would be overshadowed by the criminal justice process". If the church was to plead that, it would be unacceptable.

The point was made by Ms Saidléar that it should be left to the subjectivity of the person reporting. In terms of the legislation is it better that it should be a subjective issue or are we best going back to a fundamental approach, that secrecy and silence endangers children? Should we look at it in a black and white context, in terms of the church's own guidelines of mandatory reporting which are ahead of where the State is at, whether the church complies with it or not? Is that the right approach? Do we have a double standard in respect of allegations of abuse in that we look at abuse in the church differently because it is the institutional church? If this quote from the RCNI was a published response by the church in Raphoe today, we would take a completely different approach to it. I will go back to my opening point. I think it is enormously complex. I am inclined to the fundamental approach that the position should be - report, report, report.

In the context of the guidelines under which the church operates, are they inappropriate in light of what has been said?

Ms Deirdre Kenny

We absolutely support the church in its mandatory reporting policy. We have a similar policy in our organisation. The reality, however, is that one needs the victim of the crime to come forward before the authorities can do anything useful with that information. That is the support we would give to somebody in that position. It would be interesting to see statistics where the church can take a priest out of ministry and can control that situation because if he is working in a parish, he can be taken out of harm's way when there is an allegation. It is really important that the victim in that situation gets the support so that he or she can, in turn, bring about an investigation by the HSE and-or a criminal investigation by the Garda. That is the work we do with people. The church's notification to the Garda and the HSE does not go anywhere unless the actual victim of a crime is able to support that allegation. That is very often the problem. That is why we would work with people towards supporting them to make a worthwhile notification. That is the key difference. One can imagine that dynamic in a family. A person can kick her husband out if she feels that he is a risk to children but it is really important that the family gets support to come to terms with the bombshell of abuse.

Deputy Michael Creed

Is one allowed to kick one's wife out if she is a risk?

Ms Deirdre Kenny

Absolutely. Be it neglect or any of those case scenarios, the key would be that the support is there. I think that is what everybody is saying.

The risk with this Bill is that we will further silence people if we do not truly understand the dynamics that happen in a family and we do not offer that support. That is why we claim that other legislation that could be put in place needs to be properly resourced. The HSE and agencies need to be properly resourced to provide that support. I am referring to the agencies that understand the dynamics that play out within the family.

Chairman

In one sense this legislation could do more harm than good.

Ms Deirdre Kenny

That is the fear if it does not truly address the issues. If we do not truly see the position of the victim and the vulnerability of the situation, that would be our fear.

Ms Maeve Lewis

Everybody here supports the legislation. We have to differentiate between the Catholic Church, the GAA, a boarding school or organisations where children are, and the family unit, which is a more complex beast altogether. We would absolutely support the church in its mandatory reporting. We need to be very clear about that. It can cause difficulties for victims at times.

Ms Clíona Saidléar

We echo very much what Ms Kenny said around how we support people to report. Our numbers for reporting go up year on year. We know that survivors report when they are supported to do so and when they feel safe to do so. It is a case of how this legislation works with that dynamic. It is important when looking at the position of the Catholic Church and our position as agencies, that the key difference is that the Catholic Church is the body where the abuse was happening. Our services are for survivors who come to us for counselling. We provide a particular service for survivors. The perpetration has happened within the walls of the Catholic church, that is not to say that it not possible within our agencies and we guard against that very closely.

If one went to that very black and white place with this legislation, the silence is the problem and the silence needs to be broken, which is very clear. The question is whether one can track what possible impact that would have and would one ultimately have a situation where survivors simply choose not to tell anyone anymore. If that happens then one ends up with a greater silence then one started with.

Deputy Michael Creed

Is it the witnesses' view that in institutions where abuse might occur, in sporting organisations or whatever, the obligation is to report immediately but that those who are delivering services and become aware other than through a report from these institutions, would be allowed a higher level of discretion in respect of their obligations? If I am involved in a sporting organisation and I suspect something I have to report it. That report then lands on the witnesses' desk and they make the decision to treat the child but because of the possible consequences, they will not involve the Garda at that stage. Does that not run a risk that the perpetrator remains at large to further abuse others?

Ms Maeve Lewis

At One in Four we absolutely operate a mandatory reporting policy to the HSE but to make those reports effective we will work with people over a number of months to get them to the point where they will engage with a HSE social worker. The minute a person walks in our door and as soon as we have the name of the offender, we would contact the HSE and say this has happened. What will happen then is that our client will refuse to engage. There is nothing the HSE can do and the offender is out there. We will work with the person for a period of months, not for years, to the point where they will engage and give an interview to a HSE social worker, so that some proper information can be put in place.

Deputy Michael Creed

Is it the victim that has the ultimate say in that context? Is Ms Lewis saying that the victim has a veto?

Ms Maeve Lewis

No. Ultimately if the victim chooses not to engage, we will pass on the information anyway.

Deputy Michael Creed

If the victim chooses to engage in respect of the therapeutic services being offered but refuses to cross the threshold of saying that he or she is now able to confront the abuser----

Ms Maeve Lewis

It is not about confronting the abuser, but making that report. Ultimately if the victim will not do that, we will pass on the information, but it is a useless exercise in a sense, because it is impossible to investigate it.

Deputy Dara Calleary

I want to work out at what stage in the therapeutic does a person advocate to the victim to go to the Garda with this information or is that done on a case-by-case basis? Does One in Four not get involved in that?

Ms Maeve Lewis

No. As soon as somebody comes to our service, we let them know that we operate within Children First guidance and if the offender is still alive, that information will have to be passed to the HSE. We require them to sign a consent form committing to that process but we understand they will need support over a period, usually months, before they are ready to engage. We only make a report to the Garda at the request of the client. About one third of all clients do that, which would be similar to the RCNI numbers.

Dr. Niall Muldoon

I want to return to the fundament question that was raised. It has become a great deal clearer within most institutions in Ireland, whether it is church or sporting organisations that the reporting has to happen and it does happen.

The biggest institution is the family and we have not got to the stage where they are aware that they have to report immediately. We have often come across situations where a child has suffered at the hands of a sibling. The parents have dealt with it inhouse and have not gone looking for help for either of the children. The parents felt it was all sorted out but a year or two later they find it has happened again. That is the biggest institution in Ireland and is looked after constitutionally. We need to get our information out there and those people must report in a mandatory fashion, the same way every professional is now trained to. This is a significant step and all organisations are aware of the need for mandatory reporting. We need parents, older brothers and sisters, aunts and uncles to know it is their job to come forward. That is a fundamental issue.

The question that seems to be arising is whether the act of coming forward with information must lead to an official Garda report or information to the HSE, which can then provide the support we want. Marrying those allows us to keep both priorities, the safety of the child and the support of the family, in place.

Senator Rónán Mullen

I welcome the witnesses and apologise for not being present to hear the submissions as I was returning from Kerry this morning. I have studied them with interest and I take a great interest in the issue, having tracked it for some time. I sympathise with Ms Saidléar's comments on the need to distinguish between an organisation within whose agency, directly or indirectly, an abuse issue arises, and that one must understand that there is a duty to get that allegation outside of that agency to a responsible third party. There is also the issue if the agency is one to which people go for assistance, independent of how the abuse took place.

That said, I am not entirely comfortable with the idea that there is only a report made to the Garda at the request of a client. That is if I understand the submission of One in Four correctly. There are two issues in this respect, including the report to the HSE, which is clearly the most important because it goes to the protection of the child and other potential victims. There is also a justice issue. I wonder if we are on the right track if we are back to a stage where a matter is only reported to the Garda at the request of a client. This issue has been teased out, despite its difficulty, by the organisations involved for some time.

In 2002 I was preparing to go on the "Late Late Show" and spoke to people within my former employer, the Dublin diocese. They informed me of a problem they were diagnosing, which was that when people came with a report, they would have taken on a mandatory reporting obligation and often found themselves having to almost work with a victim or survivor of abuse to persuade them to stick with the complaint. Once people heard the diocese had a reporting obligation since 1995, it would have a chilling effect. I was nearly shot when I mentioned on the "Late Late Show" that this issue was arising, as it was portrayed as if I was somehow making excuses for the church. I recognise that this is a very difficult issue but I wonder if we are on the right track and if anybody ultimately has a veto on reporting to the Garda once a serious allegation of this kind is disclosed.

I am teasing out whether this is an issue of law rather than culture. I watched a programme recently which showed advertisements from different countries, and Mr. Chris Tarrant was presenting. Most of the advertisements were very funny but before the break they went to a very serious advertisement from South Africa, which involved a mother doing the ironing in the kitchen as the husband went upstairs for something. There was a device with which the child could be heard upstairs, and the mother heard abuse taking place and started crying. The point of the advertisement is whether a person will be silent or take action. I remember thinking that we have never had anything as forceful, provocative or as important as that within our advertising culture.

I wonder if we are to some extent on the wrong track if we are to introduce a law from which it seems we will exclude the context in which most abuse takes place. In addition to that law, at the very least what would be of more significance would be serious investment in cultural messaging around the importance of reporting. I would not mind getting people's opinions on that.

Ms Mary Flaherty

We would support both of those. As Dr. Muldoon noted, there is a need for public education, and one of the Ferns recommendations led to a series of working groups, with one of the areas being public education. That ran into the ground after one very general piece of communication to all the parents in the country about talking to their children. None of the more specific, hard-hitting and focused pieces of public education took place. It is not a case of either-or.

We are strongly in favour of this because families are a critical nut to crack and focus upon. We have been very frustrated in recent years trying to get attention despite there having been an appropriate focus on institutional and clerical abuse. This is valid and it is important we deal with it as the institutions existed to protect people. There was a double injury. Nevertheless, it has meant we have not continued to focus on families, where the majority of abuse occurs.

The debate has examined adult survivors but we are trying to ensure that those cases involving children are found so that services can be accessed. That is the focus of this legislation. The Senator was not here when we discussed the HSE earlier, and that is the ideal body to look after children and vulnerable adults. We argue that it may even be overly cautious in its interventions but there may be a way to ensure achievement of all we want. The HSE reports to the Garda but this does not mean a statement must be made. At least the appropriate protection authorities will know and they can act according to their priorities. We know a number of cases end up in court and we know the number of investigations. This will only be a little nudge ultimately and another tool in the armoury so that children will not have to wait until adulthood to access services and look at what happened historically.

Senator Rónán Mullen

I have a specific supplementary question. Is there any position where it might be appropriate to have a "disclaimer" document, although I would not like to call it that? This specifically relates to the interaction between the agency and the person reporting, whether the parties are the church, the GAA or an agency assisting people, like those before us today. The person's wishes with regard to reporting would be ascertained and recorded, perhaps not just once but at regular stages throughout the engagement with the person. There would be a paper trail to show that agencies have advised the person of the importance of reporting for the safety of the person and others, as well as to show that the person has given a specific instruction that for personal reasons the person's wish is for that not to happen. Do people believe, practically speaking, that could ever be an appropriate approach?

Ms Maeve Lewis

With One in Four, when a client comes to us, he or she is required to sign a consent form indicating that the person understands the limitations of confidentiality. That may relate to reporting but equally, if the person became suicidal, we would have to contact a GP etc. That would be signed. If we helped such a person to make a report to the Garda or the HSE, a disclaimer would be signed so that any information we passed over would be properly dealt with and the client would understand what would be said. That is generally part of good practice.

Senator Rónán Mullen

What would happen in cases where people do not want the information disclosed so that the agency is in a position to continue to engage with the person?

Ms Maeve Lewis

Our clients do not have the choice. If there is a child protection issue, it is reported to the HSE.

Senator Rónán Mullen

Yes, but what about reports to the Garda?

Ms Maeve Lewis

It would be discussed but a note would be taken.

Ms Deirdre Kenny

There would be notification that the HSE must pass on the information to the Garda. Gardaí may approach the client and the client would sign a statement indicating an unwillingness to engage with the Garda with regard to a criminal investigation. They would be made fully aware of the process once they engage with it.

Chairman

Thank you. As has been said, this area is extremely complex and there is no black and white solution. The delegates are doing tremendous work. I do not just say that. The support framework is important and helps people to feel safe and protected. We must not do anything to jeopardise the situation and to make things worse which would make it more difficult for people to come forward to seek support in the first instance.

Am I correct in saying that criminalisation and going after the perpetrator is secondary; that the delegates are more interested in protecting the victim whether it is a child or an adult? I would welcome comments on treatment for perpetrators. It has been said that most abuse occurs in families and it has the potential to tear families apart if it is handled incorrectly.

Dr. Niall Muldoon

It has always been part of our policy to support therapy for someone who has committed an offence of sexual abuse. Without doing that we are not closing off the circle and making sure that abuse does not occur again. The State has fallen down in terms of providing sufficient support for treatment of offenders. We find an increasing number of younger adolescents being notified to us and there are not sufficient places to send them. If we can stop them offending in future that would make a huge contribution to child protection. When abuse is perpetrated in a family by a father or older brother or sister if we can help both parties then the system will be much safer in the future for grandchildren and nephews and nieces. It is something we would very much advocate.

Chairman

How successful is such treatment?

Dr. Niall Muldoon

In my experience it has proven to be successful. I do not have the most recent figures but the last time I looked at the figures the rate of recidivism was between 12% and 15% following treatment. It has been successful. Again, there is enough evidence here, in England and in Canada showing it is a fruitful way to spend time and money.

Chairman

In such cases, does the perpetrator stay within the family circle or is he or she removed?

Dr. Niall Muldoon

Usually not. Most of the time it is automatic that they would come out of the system but with siblings it can be slightly different. Most of the time the message is that to keep the family unit safe the person has to move out. Again, it would depend on their age and if there are children with them in the house. The majority of the time they would be outside of the system.

Chairman

Are there many cases of perpetrators coming forward to seek help?

Ms Maeve Lewis

We run a sex offender treatment programme. In fairness, sex offenders usually come for treatment when they have been caught but there is always a small percentage of people who realise they need help for what they are doing and who come forward. Once someone comes to us the HSE is automatically notified and the Garda will inevitably be involved. At the moment we have three people on our programme who are in prison.

I echo what Dr. Muldoon has said; offender treatment is crucial, be it for the person in prison or in the community. It is important that victims have access to a remedy. Our criminal justice system serves victims of sexual crime very poorly. It is often important to victims that there is a statement by a court vindicating what has happened to them; saying it is not acceptable and that the perpetrator will be punished. That is an important part of recovery from a sexual crime. Sadly, very few victims have that experience as only a tiny percentage of people end up with a conviction.

Chairman

The delegates have spoken today about the importance of families and that the vast majority of abuse occurs in families. A considerable amount of attention has been given to the church. The seal of confession has been raised by Mr. McLoughlin. He made a number of points on it. There has been much interest in the area and it has generated headlines, possibly to the exclusion of what we are speaking about today, which is where most of the activity occurs. Does anyone wish to comment on what he said?

Ms Mary Flaherty

It is a difficult issue. We stand firmly behind that approach. I do not see how the confessional could be excluded, but religious persons would have their own ethics and morals on the issue. Regardless of whether people are priests, we must uphold the law of the land. It is for others to make a case for a different set of laws. There is no place to hide in this regard and to be comforted. We must be clear. That is the position of the CARI Foundation.

Deputy Joanna Tuffy

On the Chairman's question, has any research been carried out on societies where they have managed to address the problem and reduce the incidence of child abuse?

Ms Mary Flaherty

There is some evidence in general. The United States is 20 or 25 years ahead of us in acknowledging the issue, which was a taboo. The level of attention and public acknowledgement appears to have contained the problem and there is evidence of reduction. I am not sure that I would like to promote the legal system of the United States because it goes to the other extreme but its level of sentencing also has an impact. What we are doing in focusing on acknowledgement will reduce the incidence over time but there will probably always be an incidence of it in society. However, all those measures help.

Chairman

I thank everybody who attended today's meeting for their valuable contribution. It will be useful to the committee, the Department and the Minister in drafting the legislation. Delegates should feel free to make further submissions or to contact us if they feel they have any other points to make. The same goes for other individuals and groups in society. The process is open. The conclusion of the meeting is timely as a vote has been called in the House. The joint committee is adjourned until 2 p.m. when we will consider two issues. Members should take note. The first issue is scrutiny of EU legislative proposals and the socio-economic and other implications of autumn and spring time adjustment procedures.

The joint committee adjourned at 11.10 a.m. until 2 p.m.

__________

MEMBERS PRESENT:

Deputy Alan Farrell,	Senator Ivana Bacik,
Deputy Tom Hayes,	Senator Martin Conway.
Deputy Seán Kenny,
Deputy Finian McGrath,
Deputy Jonathan O’Brien,
Deputy Joanna Tuffy,

DEPUTY DAVID STANTON IN THE CHAIR.