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Seanad Éireann debate -
Tuesday, 12 Jun 2012

Vol. 215 No. 15

Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Committee Stage

I welcome the Minister for Justice and Equality, Deputy Alan Shatter.

SECTION 1

I move amendment No. 1:

In page 3, subsection (1), between lines 27 and 28, to insert the following:

""reasonable excuse" shall include for the purposes of this Act consensual, non-exploitative sexual activity where there is an age difference of not greater than two years between the parties;".

I welcome the Minister back to the House. I also take the opportunity to welcome his decision to raise the minimum age of entry into the Permanent Defence Force to 18 years. It is a hugely positive step in terms of children's rights in Ireland. It will be welcomed on the international stage, given that we are advocating against the use of child soldiers.

I commend the Minister for initiating this extremely important legislation and engaging with and listening to the concerns of Members during the Second Stage debate on 10 May. I commend the Minister on initiating this extremely important legislation and the clear commitment he showed during the Second Stage debate on 10 May to engaging with and listening to the concerns of Senators. As I stated in that debate, I fully understand and support the purpose and intention of the Bill. I have tabled only one amendment on an issue about which I wrote to the Minister on 29 May, namely, consensual, non-exploitative sexual activity involving parties where there is an age difference of not greater than two years. This is a highly sensitive area and one which should be debated. As someone who does not have a legal background, it took me a long time to draft the amendment and I remain open to discussing the possibility of finding a more appropriate means of addressing this issue.

My main concern relates to sections 2 and 3 of the Criminal Law (Sexual Offences) Act 2006 in Schedule 1, which deals with offences against children for purposes of an offence under section 2 of the Bill. The Criminal Law (Sexual Offences) Act 2006, in sections 2(1) and 2(2) and sections 3(1) and 3(2), creates two offences of engaging or attempting to engage in a sexual act with a child, the first of which relates to the defilement of a child under 15 years of age, while the second relates to defilement of a child under the age of 17 years. The Bill creates an offence of withholding information on certain offences against children and explicitly includes the two offences of defilement of a child. Neither the 2006 Act nor the Bill before us makes a distinction between underage consensual peer sexual activity and child sexual abuse. However, section 5 of the 2006 Act provides that a girl under 17 years of age "shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse". The Children First guidance and proposed Children First Bill take a different approach, chiefly by making a distinction between consensual peer sexual activity and child sexual abuse and they provide specific and welcome guidance on the treatment of the former category of cases. Notwithstanding that the Minister has made clear that the Bill before us and the Children First Bill form part of a suite of legislative reform to strengthen child protection and the protection of vulnerable adults, the two Bills are at odds with one another on this specific issue. If a conflict were to arise between them, it is likely that the Bill before us would take precedence over the provisions of the Children First Bill. It is, therefore, critically important that this issue be resolved and the Bills made compatible.

Although the average age of first sex is 17 years, a significant minority of teenagers — approximately 15,500 young people aged 16 years and below — are having sex before the age of consent. The scope for negative sexual health outcomes, including unplanned and crisis pregnancy and sexually transmitted infections, is serious. If this Bill is to impose a mandatory reporting obligation to the Garda on all persons in respect of consensual and non-exploitative peer sexual activity between minors, as distinct from suspected cases of sexual abuse between minors, it will negatively impact upon the right of a young person to access sexual health services, advice and information owing to fear of investigation and possible criminalisation.

In respect of teenage pregnancy, it is both worrying and significant to note that between 2000 and 2010, 7,224 babies were born to girls aged 17 years and under. Many of the girls aged 17 will have conceived at the age of 16, which is below the age of consent. While it is not possible to decipher from the CSO figures the age of the father in each case, we know from the report, The Irish Study of Sexual Health and Relationships, that the majority of underage sexual activity in Ireland is among peers. The Minister spoke on Second Stage about people having an obligation to report to the Garda where they have knowledge of "material evidence" that a serious offence has been committed against a child. In this specific context, what greater "material evidence" can there be than the birth of a child? Are the parents of the boys and girls affected statutorily required under the Bill to report to the Garda the birth of a child as evidence of an offence? Would such a requirement be practical or in the best interest of anyone involved? I was alerted to this issue by anecdotal evidence provided by a number of sources that many young fathers are being advised by solicitors and others not to enter their names on the register of births or apply to become their child's legal guardian for fear of prosecution. In such cases, children may be deprived of their right to identity and to have a relationship with their father and the family life of the young couple may be discouraged.

I am very confident that the intention of this Bill is to protect children, but I feel this particular provision has the potential to jeopardise seriously their safety and well being. I know that the issue of the age of consent for sexual intercourse is divisive, and I am certainly not advocating for the reduction in the age of consent. I would like to believe that no children were engaging in sexual activity, but we need to ensure that the legislative basis accounts for the reality of what is happening and the evolving nature of our society. Our priority must be the welfare of the young people in question, who are traversing their way into adulthood.

I understand that the Garda Síochána and the Director of Public Prosecutions use their discretion and tend to look at the overall circumstances of a relationship before deciding whether or not to prosecute. I wonder whether the discretionary powers of the DPP for such decisions should be placed on a statutory footing, for example, no prosecution of a child under 17 shall proceed without the consent of the DPP.

I would welcome any guidance or advice from the Minister on my amendment if there is a more appropriate way to deal with it. However, I feel we need to make a clear distinction so that this Bill is in line with the Children First guidelines and that we are not sending out messages to young people not to go to a health practitioner for fear that they may be reported.

I welcome the Minister back to the House. I commended him for bringing forward the Bill on Second Stage as it is long overdue. It is a complex issue that throws up many problems that are difficult to resolve through legislation. That is a problem the Minister faced when framing this Bill. This is one of those issues, but I have purposely not tabled any amendments because I will use the opportunity afforded me to speak on the sections and tease out some of my concerns. Members have an opportunity on Report Stage and in the Dáil to table amendments.

I support Senator van Turnhout's amendment, but this issue could be resolved if we reduced the age of consent to 16, which is something I would like to see happen. It is interesting that peer-related consensual sexual activities between two teenagers aged 16 is illegal in this State. It should not be a criminal offence for two teenagers of that age to engage in sexual activities, whatever one's view might be on it. They should not be ostensibly criminalised for that practice. The Ombudsman for Children dealt with this in a mature way in her report, and I would like to quote her. The report states:

Sexual relations at such a young age are undesirable and to be discouraged, [which I would support] but this office does not believe that this is best effected through the criminal law. Indeed criminalising such relations may make it harder to deal with other consequences of such relations, for example, in accessing health services.

Senator van Turnhout gave a number of examples of that. If a pregnant 16 year old presents to a GP, must the GP presume that a crime has been committed? The situation throws up these anomalies and the way to resolve many of my concerns in this area would be to reduce the age of consent.

The Ombudsman for Children advocated that section 4 of the withholding information Bill be removed. She states the following:

It should be clarified that professionals working with children under the age of consent who have engaged in non-abusive sexual relations should not necessarily have to report such incidents as instances of child abuse to the relevant statutory authorities. It is important that medical professionals in particular have clarity on this issue and are supported in providing their services to young people in a manner that is consistent with their best interests. However, if the professionals in question have any concerns regarding risk factors that are apparent or suspect that there may be an abusive element in the case under consideration, the matter clearly can be referred in the usual way.

There are issues here that need to be clarified. I would welcome a response from the Minister. We purposely did not table any amendments on this Stage because we will tease out our concerns during discussions on the section, and reserve the right to table amendments on a later Stage.

I support the sentiments behind the amendment tabled by Senator van Turnhout. We recognise the issue is complex and it is difficult to deal with many of the issues. I will present many more scenarios on a later Stage on issues such as defence. We accept this is a difficult way to deal with the matter through legislation. We commend the Minister on what he has done and the efforts that have been made but we have concerns about the sentiment behind the amendment, which we support.

I welcome the Minister to the House. I join Senator Cullinane in very much welcoming Senator van Turnhout's initiative in tabling the amendment for debate. I agree with her sentiments although, as Senator Cullinane has said, the issues raised are so complex I am not sure about the wording that has been used. The amendment is welcome because it gives us the opportunity to debate a couple of issues. The amendment tabled by Senator van Turnhout raises the issue around what she has described as consensual, non-exploitative sexual activity, essentially between teenagers where there is an age difference of not greater than two years. This issue concerns the age of consent, which like Senator Cullinane I believe should be lowered to 16, not least because that is the age of consent to medical treatment under the 1997 Non-Fatal Offences Against the Person Act, so it would tally with that.

I was also very much encouraged in that view by a recent seminar on the age of consent that both the Minister and I attended. The seminar, which was hosted by the Royal College of Physicians, was held a couple of weeks ago during the first sexual health awareness week. At that meeting the issues Senator van Turnhout seeks to address were central to the debate which was led by young people in transition year who participated and who had mixed views about lowering the age. Many of those present seemed to think 16 would be a more reasonable age. That is somewhat different from what Senator van Turnhout seeks to do, but it is similar. One of the difficulties with the wording is to say that this is consensual activity where in fact it is not legal currently if the teenagers concerned are younger than 17. There are complex issues at play.

A second issue that is raised in the amendment, which again is useful in terms of debate and which we debated on Second Stage and in the Joint Committee on Justice, Equality and Defence, is that of reasonable excuse. In section 2 the offence of withholding information provides that it is an offence to fail to disclose information without reasonable excuse. One of the points the committee made in its report to the Minister is that many of those who had given evidence to the committee hearings had submitted that there should be a detailed list of what constitutes reasonable excuse. In a sense, section 4 sets out a range of circumstances, essentially of defences, but what Senator van Turnhout is doing is showing us that there is not a definition of reasonable excuse itself currently in the legislation. She has suggested one definition. It is a complex area as to what should constitute reasonable excuse. I raised a number of points on it on Second Stage. I was reminded of it again this morning at a conference on mediation organised by the Legal Aid Board at which I was speaking about the heads of the mediation Bill that we are also dealing with in the Joint Committee on Justice, Defence and Equality. The Minister will be aware of the issues as he has great experience in this area.

One of the points raised with me is that frequently in the course of family law disputes and in mediation on family law issues is that there is disclosure of abuse during the proceedings and the negotiations and that it can place practitioners in a difficult position, especially if they believe the disclosure is made for particular reasons. I do not wish to press that point because I do not suggest that should be included within the definition of reasonable excuse, but for me it illustrated the practical difficulties the legislation will face in its implementation by such a wide range of people, not just counsellors and doctors who deal directly with children but also people who deal at arm's length with the parents of children where disclosures are made.

These are complex issues and I do not have an answer, but Senator van Turnhout has done us a service in raising the issues around age of consent and the definition of reasonable excuse. I would ask the Minister perhaps to consider whether there can be any way of constructing an amendment on Report Stage that would take account of some of the concerns that have been raised.

I congratulate Senator van Turnhout on this amendment. I also congratulate the Ombudsman for Children's office on the excellent advice it has provided Senators concerning the Bill. Would it be possible for the Minister to consider the spirit of the amendment and table an amendment on Report Stage?

The first of a number of important points is that the law should not be an ass. This is not a debate on what constitutes good sexual practice. As any parent knows and regardless of whether we like it, children under the age of 17 years are engaging in sexual practices. This is the bottom line. Even if we pick 16 years as a reasonable age for consent, there will still be 15 year olds having sex with 16 year olds. We need a wider consideration of the matter.

We do not want a situation in which a vulnerable young person will not access health services because of a law that is archaic and out of sync with the societal reality. I do not know whether the answer lies in amending the Criminal Law (Sexual Offences) Act 2006, in which respect the advice from the Ombudsman's office was given. Irrespective of whether the amendment should be considered in terms of the Act, this legislation or both, we should not put in place legislation that places requirements on people that will not be upheld.

I wish to make a supplementary point, as I forgot to raise the issue of reasonable excuse. The Bills Digest made an interesting point, in that a number of submissions called for a detailed list of what constituted reasonable excuse. Rape Crisis Network Ireland, RCNI, stated: "The phrase "reasonable excuse" needs more elaboration generally, with an open list of situations which do provide a reasonable excuse, such as instructions from the victim that he/she does not want the information to be given to the Guards." Concern was expressed about the lack of a definition of what constitutes reasonable excuse. Perhaps the Minister might allay our concerns.

I support Senators' comments and look forward to the Minister's response to the amendment. The amendment provides us with useful debating space. The purpose of any legislation or proposed change is to improve the situation, in this case, children's lot in life. In our efforts to bring about improvement, we must not cause further difficulties or doubts. For this reason, our debate on reasonable excuse is interesting. We may not be able to resolve the issue raised by Senator van Turnhout today, but it is worthy of serious consideration. As Senator Hayden stated, we cannot legislate with our eyes shut. We must take note of problems. We are not meant to impose or propose a moral or code of the best way to live. We are supposed to try to put in place a law that works and can be used to protect children. At a minimum, will the Minister try to take the spirit of Senator van Turnhout's suggestion on board? There will be a short amount of time before Report Stage in which we can reflect further. I will be interested in the Minister's initial observation, as the amendment raises a genuine issue. We must deal with it in the best possible way. I would be interested in the Minister's expert response to our amateur efforts in this regard.

I would be interested to hear the Minister's views as he took part in a discussion of this matter at some length at an Oireachtas joint committee in the previous Dáil. While Senator van Turnhout's amendment raises issues of profound import for society, I do not believe I would be carving out exceptions to this legislation unless we are making the policy choice in the general law. That is not to say I do not agree with the Senator's amendment. We have profound choices in society to make. I am listening to this debate with some interest and to the views expressed on this issue. I do not have fixed views on the age of consent issue.

While it is well made, I do not accept the point that just because it is happening means it should be accepted by society. Although I can see the rationale for that point of view, society needs to come to a decision as to what age and what circumstances are correct for consent. It is not just about the age as is reflected in the amendment but about the difference in ages. A 15 year old and a 24 year old having consensual sex is a different matter to a 15 year old and a 17 year old. It raises more profound questions and we should be consistent with this in reporting legislation. It should not interfere with the obligations of reporting. The better course of action would be to change the general criminal law.

I thank Senator van Turnhout for tabling this amendment and all of the Senators who have contributed to this important issue. It was discussed at great length at the Oireachtas joint committee that examined children's rights. In addressing the sexual offences area, the committee recommended that the Government should consider decriminalising consensual sexual activity between young people of approximate age. The approximate age that was suggested was two years. The alternative, as opposed to simply changing the law, was that it should be left to the Director of Public Prosecutions to exercise a discretion not to prosecute where an individual over age has sexual relations with an individual under age. For example, in the case of a 16 year old boy having sexual relations with a 15 year old girl, the girl cannot be prosecuted but the boy could be. It was recommended that where it is consensual and there is an approximate age, there should not be a prosecution.

I share the view that young people are sexually active, whether we approve or not. When I was 15, young people of 15 and 16 years were sexually active. I do not think the world has greatly changed since. The older we get as adults, the more we tend to think we live in a world that is somewhat detached from reality.

As I have informed the House previously, legislation is being prepared to consolidate our sexual offences legislation. It has regard to the very detailed recommendations made by an Oireachtas committee in 2006 and recommendations made by a variety of groups and organisations. I will shortly be bringing before the Government proposals in this area with regard to how we address the law and what reform may be required. It is appropriate we deal with this issue in the context of sexual offences legislation, not in the context of this Bill before us. There is a need to avoid criminalising our young people where they engage in consensual and non-exploitative sexual behaviour with members of their peer group as part of the normal process of growing up. I emphasise my belief this issue would be dealt with more appropriately in the sexual offences Bill which I hope will be published before the end of the year. There are decisions to be made on a number of issues relating to the Bill, while a suite of measures are being brought forward, including legislation being processed by my colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. That Bill deals with a particular aspect of these issues and is before an Oireachtas committee. The suite of measures to deal with issues pertinent to young people and sexual conduct will include a sexual offences Bill, although that legislation will not be confined to issues relating to children.

There are provisions in this Bill that have some relationship with the important issue raised by Senator Jillian van Turnhout. For example, section 2(3) provides that the child against whom an offence is committed cannot be guilty of an offence of withholding information. This means the child engaged in sexual relations cannot be deemed to be guilty of an offence of withholding information on the sexual relations in which he or she is engaged.

Senator David Cullinane's comments are relevant to section 4(1), which is important. Where the child makes known his or her view that the offence should not be reported to the Garda, this section provides a legitimate defence for any other person who does not report the offence. The Senator raised the issue in the context of a very interesting analysis of the legislation carried out by the Oireachtas Library and Research Service. There was a reference to this issue, but it seemed to miss the fact that this provision was expressly included in section 4(1).

Since the behaviour referred to in Senator van Turnhout's amendment is consensual, the child would not wish it to be reported to the Garda Síochána. A person who knows this is the child's view on the matter will have the specific defence included in section 4(1). By way of example, a 15 year old girl may have sexual relations with a boy aged 16 and a half years. The girl may not want to have it reported to the Garda by her parents because, although they may not approve, they are girlfriend and boyfriend. The legislation is about making it a criminal offence not to inform the Garda, but if the young person does not want the offence to be reported, there is no offence under the legislation. There may be an issue under current legislation and the boy in my example would be open to prosecution. It is at the discretion of the Director of Public Prosecutions whether a prosecution should take place.

There was a recent prosecution which involved the proximate age issue and there was a judgment of the Supreme Court upholding what was alleged to be discrimination between boys and girls; it indicated that the boy could be prosecuted, even where the girl was exempt, because girls became pregnant. That was a reasonable issue to be taken into account by the Houses of the Oireachtas. Under this legislation, where the act is consensual and we talk about the offence being "non-reporting", the girl will make her wish known that the act is not to be reported. In other circumstances the boy may be the under-age partner and may not want to have the act reported. No one can be prosecuted for not reporting the act in such instances. That is substantially the answer to the issue raised by Senator van Turnhout.

The issue as to what constitutes a reasonable excuse was raised by some and is dealt with in the next section of the Bill. Senator Cullinane raised the issue in the context of the report from the Library, which had received a submission making the point that it might be a reasonable excuse if the victim does not want it reported. Again, section 4(1) addresses that.

The Ombudsman for Children raised the other issue of spelling out all the reasonable excuses, but that is not possible. There could be a litany of reasons it is reasonable not to report abuse, so it would be impossible to produce a definitive list. This operates in the context of a possible criminal prosecution. For example, I am being prosecuted for not reporting that a sexual offence has been committed and I have a reasonable excuse. I could have a range of excuses. My reasonable excuse might be that my life was threatened or the life of a member of my family was threatened if I reported the abuse. Would a court regard that as a reasonable excuse if I managed to establish on the evidence that someone genuinely threatened to shoot me?

There might be some other reason a person would not report. I may be a 17 year old in a family who knows that someone has had sexual relations with my 15 year old sister. My sister might not have told me that she does not want that reported but has said other things to me that make me conclude that I cannot report that. Those other things may or may not be a reasonable excuse, but if we went round this House, we would probably have at least one excuse everyone could think of that had not been thought of by anyone else.

The reasonable excuse provision exists in other, similar legislation and it has not given rise to difficulty, but it ensures an injustice is not perpetrated and someone is not convicted and at risk of a term of imprisonment in circumstances that would be grossly unjust and unfair. It is a protective measure that exists in the 1998 legislation that deals similarly with a failure to provide information but which did not apply to the sexual offences we are addressing here. That is why we did not spell out definitively what are reasonable excuses. There was no point in producing legislation that states a reasonable excuse includes the following list. That would be meaningless because there would be a range of others and it could just well be that something was spelled out that seemed reasonable in abstract but in a particular case should not provide a defence.

There was a range of reasons for not going there, although I thank Senator van Turnhout for tabling the amendment. It was an important issue to draw attention to and the problem that arises is substantially dealt with under section 4(1). When we deal with the sexual offences Bill, which I hope to introduce before the end of the year to be debated next year in the Oireachtas, knowing the burden the Attorney General's office is labouring under at present, it will provide further clarity on the issue of young people of proximate age having sexual relations.

I thank the Minister and my colleagues. This debate has been useful and I agree we cannot give a definition for all reasonable excuses. In moving the amendment, I knew it was not necessarily in the right place but I believed it was important to lay down a marker on the issue. I have a problem that there is a difference between the Children First guidelines and the Bill. The guidelines make a distinction between consensual peer sexual activity and child sexual abuse and this is about a suite of legislation. I am not fully satisfied because I feel there is a distinction.

The difficulty for me is that we can talk about consensual activity, and I have talked to Treoir, which is dealing directly with the issue of young fathers being counselled not to put their names on birth certificates because they will be further criminalised. I do not want the legislation to add to that opinion. While at the time of birth it may be consensual, relationships break down, whether those involved are young or old, and people's perceptions afterwards of whether it was consensual can change. I am concerned but accept the Minister's wisdom on the issue. While I reserve the right to come back on Report Stage, I take on board what has been said on the issue.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 and 3 agreed to.
SECTION 4

Government amendments Nos. 2, 5, 6, 9 and 10 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 2:
In page 8, lines 12 to 25, to delete subsections (12) and (13).

This group of amendments provides clarification on the organisations and persons who may be prescribed under the Bill for the purpose of a defence under section 4. As discussed during Second Stage, it is intended that there would be a defence available for those organisations and persons who provide counselling and other support services to victims of physical or sexual abuse. In submissions to the Oireachtas committee, a number of organisations which provide counselling and support services to victims of sexual abuse made the point that they often have to work with victims for an extended period before the victim can reach a decision whether to report an offence to the Garda. I am anxious that in such circumstances the victims are not discouraged from accessing supports which they need because of concerns that the seeking of such supports will immediately require a report of the crime to be made to the Garda.

Amendment No. 9 introduces a new section 5 which provides for prescribed organisations. This amendment provides additional clarification on the types of organisations which may be prescribed under the Bill and the requirements which they must fulfil to be so prescribed. Under the new section, the Minister for Justice and Equality may, if satisfied that it is appropriate to do so, prescribe an organisation or body for the purposes of section 4. However, only those organisations which provide services to children or vulnerable persons who have suffered injury, harm or damage as a result of the abuse, may make application to be become a prescribed organisation. Subsection (2) sets out the content of the application. It requires the organisation or body to detail the nature and type of services provided by the organisation or body and the numbers of children or vulnerable persons who have received such services from the organisation, and to set out the code of practice, if any, of that organisation or body. Subsection (5) defines the term "services" as relating to the resolution, through guidance, counselling or otherwise, of personal, social or psychological problems or the care of persons in need of protection, guidance or support.

Amendment No. 10 makes a similar provision in regard to prescribed persons. A new section 6 is proposed which is directed at those persons such as counsellors who are within a prescribed organisation and providing the services directly to the clients. A prescribed organisation may apply to the Minister for Justice and Equality requesting that a person or persons within the organisation may be prescribed for the purpose of the defence under section 4. Subsection (2) sets out the information which is required when making such an application and includes information concerning the nature and type of services provided by the persons, their expertise and qualifications, the arrangements within the organisation for training and development of such persons, as well as the procedures and systems for assessing the services provided. Subsection (3) confirms that only persons employed or otherwise engaged by prescribed organisations may be prescribed under the Bill. As with amendment No. 9, this new provision clarifies the types of persons who may be prescribed under the Bill and the requirements which must be met in order to be prescribed.

Amendment No. 2 is consequential on amendments Nos. 9 and 10. It deletes from the Bill the references to prescribed organisations and prescribed persons. Amendments Nos. 5 and 6 are also consequential on amendments Nos. 9 and 10 and update cross-references in light of the new sections. I advise the House that I will propose some further minor amendment to the new sections 5 and 6 on Report Stage to provide a mechanism to revoke the designation of prescribed organisations or prescribed persons, where appropriate.

Amendment agreed to.

Government amendments Nos. 3 and 4 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 3:
In page 9, subsection (17), line 29, to delete "a psychologist and,".

I want to give some further thought to both those amendments. I want to explain the background to them but I will not press the amendments today. This is an issue that has arisen in other legislation. I have raised this more to note it and, if need be, we will return to it on Report Stage.

There is a very important reference in the legislation which details the various members of designated professions who may determine, in the interests of the welfare of a child or a vulnerable person, that information should not be given to the Garda. That is it in a nutshell. The subsection details that a member of a designated profession means: a registered medical practitioner; a registered nurse; a psychologist and, following the establishment of the register of members of psychologists under the Act of 2005, only a person whose name is entered on that register; or a social worker whose name is entered on the register of members of social workers established and maintained under section 36 of the Act of 2005.

A concern was raised with regard to the fact that the provisions of section 36 of the 2005 Act relating to psychologists have not yet been brought into force. In theory at least, individuals at present who are untrained can claim to be psychologists. That was the reason for introducing the 2005 legislation in the first place. We must remember that what we have here is something that can be utilised as a defence should one be prosecuted. We do not want unqualified individuals self-proclaiming themselves to be psychologists without qualification who may try to utilise a defence to evade a successful prosecution and who should have reported the abuse of a child or a vulnerable adult.

The other side of the coin is that there are many professional, well-trained, very experienced psychologists in the State who can point to their qualifications and who are working with individuals who are the victims of abuse. The concern is that in the absence of this section of the 2005 Act coming into force, a blanket reference to psychologists, in the way we have it in the Bill, may make the Bill vulnerable to someone who is not adequately trained claiming to be a psychologist. On the other hand, I do not want a situation to arise whereby psychologists working in this area would feel vulnerable to prosecutions in circumstances where they should not occur.

One of the ways around this is that a psychologist could be a designated person under the provisions to which we made reference, the amendments we just included in the Bill, which upgraded earlier provisions. On the other hand, psychologists working in private practice may have an individual who comes to them who has been a victim of a sexual offence and they may not be a designated person but may receive information and genuinely deal with the matter, know of the law but conclude it is in the interest of the welfare of the individual at that moment in time not to report. They may conclude that the individual needs support, time and perhaps two or three more engagements before the possibility of reporting can be dealt with. I am merely raising the fact that I am concerned about this because section 36 of the 2005 Act is not in force and this is a form of an amendment to which we may need to give some consideration. I have some personal reservations about dealing with it in a blanket way and I will return to it. I am conscious that, procedurally, I cannot return to it if i do not give notice of that for Report Stage and that is what I am doing. Other than that, I intend to withdraw the amendment and not to press it in any shape or form today.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Government amendment No. 5:
In page 9, subsection (17), line 37, to delete "under subsection (12)" and substitute "under section 5".
Amendment agreed to.
Government amendment No. 6:
In page 9, subsection (17), lines 39 and 40, to delete "under subsection (13)" and substitute "under section 6".
Amendment agreed to.

Amendments Nos. 7 and 8 are related and will be discussed together.

Government amendment No. 7:
In page 10, subsection (17), line 19, after "case," to insert "being".

Amendments Nos. 7 and 8 are minor drafting amendments.

I am reminded of first year criminal law lectures when I was told the difference in the word "judgment" with and without an "e". I was amused by this amendment. When Mr. Justice Gerard Hogan was known simply as Gerard Hogan lecturing in the law school, he was particular about the word "judgment", with "judgment" without an "e" being a court judgment.

It is important not to have the letter "e" missing.

Amendment agreed to.
Government amendment No. 8:
In page 10, subsection (17), line 20, to delete "judgment" and substitute "judgement".
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill".

I wish to raise a number of issues, the first of which relates to privilege. I refer again to the submission made by the Ombudsman for Children who made a number of interesting observations and dealt with two forms of privilege — legal privilege and clergy-congregant privilege, an issue we discussed on Second Stage. She called for section 2 to override legal professional privilege and stated something similar should happen with sacerdotal or clergy-congregant privilege. The Bills digest states, "The Bill makes no specific reference to clergy-congregant or sacerdotal privilege nor does existing Irish law. The privilege between a priest or spiritual adviser and a congregant can take two forms: Confessional privilege . . . and Congregant privilege".

On Second Stage the Minister said that if somebody came forward to a priest or anybody else in whatever setting, he or she was obliged to comply with the legislation and the fact that was not stated did not mean he or she was exempt. That is my interpretation of his analysis, but it is interesting that the Association of Catholic Priests which represents 800 clergymen has stated it will not break the seal of the confessional. The Auxiliary Bishop of Dublin, Raymond Field, stated, "The seal of the confessional is inviolable as far as I am concerned, and that's the end of the matter." We must make it clear to everybody, including the church, that children's rights and the laws of the land come first. This should be crystal clear. If that moves us to a point where people think the confessional seal is more important than dealing with information people might possess on vulnerable children in the appropriate way, as set out in the Bill, that is serious. For the purposes of clarity, will the Minister deal with fears others and I have about this issue to ensure there will be no hiding place for anybody, including priests who may use the confessional seal to avoid coming froward with information? We want certainty on the issue.

On the reasonable excuse defence, I would like to outline a scenario because, as public representatives, we must be clear on what our duty is. As public representatives, we must be clear on our duty in this regard, given that we deal with very complex queries on a range of issues from constituents. In my own case, for example, during the years several people have divulged to me that they were abused in the past. I dealt with one case in which an individual who was dealing with a number of complex personal issues informed me that she had been abused by a parent 20 or 30 years before. This, she revealed, was one of the causes of the psychological distress she was experiencing and for which she was receiving treatment. She did not want me to do anything with the information at that point — she had never informed the Garda and had no intention of so doing. To go down that route, she believed, would cause serious problems for her family. Many who have suffered abuse in this manner take the decision to deal with it on their own, as is their right.

The difficulty arising for me from this encounter was my awareness that the alleged perpetrator of the abuse continued to work with children. Such cases, in which an adult divulges that he or she was abused in the past but does not want to take any action in that regard and in which the public representative is aware that the alleged abuser has ongoing contact with children, point to the complexity of this issue and, as I said, the difficulties in dealing with it in legislation. There must be absolute clarity on the responsibilities of public representatives in this regard. In fairness, the Minister set out very clearly in his closing contribution on Second Stage what the Bill was designed to do. One assumes most of it is common sense, that is, where one has reasonable cause to believe abuse is taking place, one should provide the information at one's disposal for the Garda. This is not about third or fourth party information. However, there are issues to be clarified such as in the case I referred to where one is not in a position to go to the Garda on a specific matter, but one is concerned that a particular individual is in contact with children. What are the guidelines and responsibilities in such instances?

Senator David Cullinane has raised very important and pertinent points and I look forward to the Minister's response.

It was somewhat unfortunate when the Bill was initially published, that the greatest part of the public debate and commentary associated with it was focused on the question of the seal of confession, as it became known. The Minister's contribution on Second Stage was very fair and balanced in this regard, but perhaps he might remind us once more of the status of the confessional seal, as he sees it, following the passage of this legislation. The public engagement with the Bill has mirrored the broader debate on the abuse of children within the Catholic Church following the publication in the past two or three years of such documents as the Ryan report which highlighted some of the horrific abuses that occurred in the past.

This legislation seeks to solve a problem and prevent similar problems in the future. Section 4 provides for a large number of what are opt-out provisions or special exemptions. I agree that these are necessary in respect of health care workers, GPs, social workers, psychologists and parents, where they see fit. On the other side of the equation, we have the seal of confession.

I apologise for interrupting the Senator, but the proceedings must now be suspended in accordance with the order of the House.

Progress reported; Committee to sit again.
Sitting suspended at 4.40 p.m. and resumed at 5.30 p.m.
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