Vol. 1 No. 1
The meeting has been convened for consideration of Committee Stage of the Children (Reporting of Alleged Abuse) Bill, 1998. I welcome the Minister of State at the Department of Health and Children, Deputy Fahey, and his officials to the meeting.
SECTION 1.
I move: "That section 1 be deleted".
I wish to make a short statement to the committee to put my amendments in context. As I said on Second Stage, I compliment Deputy Shatter on the introduction of his Bill and reaffirm the Government's acceptance of its principle and commitment to improving its provisions. Since Second Stage, Deputy Shatter and I have had two constructive meetings to tease out a number of issues and I am pleased to report we have reached broad agreement on most issues bar one. I believe these additional amendments will strengthen the Bill and ensure it provides a comprehensive protection for people reporting allegations and neglect and that it also acts as a safeguard against false allegations. I know Deputy Shatter has serious difficulties with my proposal to introduce measures to protect against malicious reporting and I regret we could not agree on this issue which is the one substantive one to be resolved between us. However, I assure Deputy Shatter that I respect his position on the issue and that it is a reflection of his concern to ensure that the best possible legislation is achieved. I further assure him that his opposition in this matter in no way diminishes my recognition of his efforts in bringing forward this Bill.
Before addressing my amendments directly I sincerely hope they will be accepted by the select committee in the same constructive, non-political spirit in which they were discussed and, in the main, agreed by Deputy Shatter and myself and that the Bill will be allowed to proceed to Report Stage.
Amendment No. 1 deals with the list of definitions outlined in sections 2 and 5. I now intend to deal briefly with those which are not self-explanatory. The term "the Act of 1994" refers to the Terms of Employment (Information) Act, 1994. It is proposed to use certain provisions of that Act in this legislation to cover the procedures for an employee taking a complaint where he considers he has been victimised for reporting suspected child abuse. The definitions of "employee" and "employer" are also taken from the same Act.
Is the Minister of State dealing with section 1?
No, I am dealing with amendment No. 1.
We are dealing with the question that section 1 be deleted.
I propose to take that at the end of our proceedings if that is agreeable.
It is not possible to do so.
Section 1 deals with the short Title to the Bill which the Minister of State and I agreed to restructure. It is merely a question of the Minister formally proposing that and the short Title will then be dealt with at the end of our proceedings. I believe the Minister of State need only propose the deletion of section 1.
I propose that section 1 be deleted.
I move amendment No. 1:
In page 3, lines 15 to 26, to delete subsection (1), and substitute the following:
"(1) In this Act, unless the context otherwise requires-
'the Act of 1994' means the Terms of Employment (Information) Act, 1994;
'appropriate person' means a designated officer or a member of the Garda Síochána;
'child' means a person who has not attained 18 years of age;
'designated officer' means an officer of a health board appointed under section 3 of this Act to be a designated officer for the purposes of this Act;
'employee' and 'employer' have the same meaning as they have in the Act of 1994;
'health board' means a health board established under the Health Act, 1970;
'welfare', in relation to a child, comprises the moral, intellectual, physical, emotional and social welfare of the child.".
As already stated, the term "the Act of 1994" refers to the Terms of Employment (Information) Act, 1994. It is proposed to use certain provisions of that Act in this legislation to cover the procedures for an employee taking a complaint where he considers he has been victimised for reporting suspected child abuse. The definitions of "employee" and "employer" are also taken from the same Act. Use of the terms "appropriate person" and "designated officer" is intended to ensure that reports are channelled to the relevant personnel in the health boards or the Garda Síochána as these agencies have statutory responsibilities in this area.
I am concerned that the definition of "appropriate authority" used by Deputy Shatter is too broad. There are sound policy reasons people should be encouraged to report to the health boards and the Garda Síochána. The definitions of "child" and "health board" remain unchanged.
With regard to welfare, Deputy Shatter has used the definition of "welfare" employed in the Guardians of Infants Act, 1964, with the addition of the word "emotional". Emotional abuse is an accepted category of child abuse and I consider this a worthwhile addition. However, I am proposing to delete the word "religious" from the definition of "welfare" as it is inappropriate in a Bill which deals effectively with the reporting of child abuse.
I am not sure whether we are discussing this amendment in conjunction with amendments Nos. 2, 3 and 6. How does the Chairman propose to proceed?
We are dealing only with amendment No. 1.
I thank the Chairman for that clarification. I am pleased that we are taking Committee Stage. I thank the Minister and his officials for the constructive and forthright meetings at which we teased out a number of issues which will result in the work of the committee being shortened. There were a number of useful exchanges from both points of view which resulted in the tabling of amendments in the Minister of State's name and with which I agree. I was concerned that we should deal with this Bill in a co-operative fashion and take on board any constructive proposals put forward by the Minister of State. In fairness to him, the Minister of State has taken on board many of the proposals I put forward. The essential principles of the Bill remain intact and there are merely a number of issues of detail that remain to be debated. I hope these can be resolved.
In principle, the amendment before us interacts with amendment No. 2 which proposes the inclusion of a new section 3. We should set the record straight in terms of what is being done in amendment No. 1 for the benefit of Members. I propose to raise one issue under which they may wish to express their views.
Under the terms of the Bill as originally drafted, anyone acting reasonably and in good faith who reported a child at risk to an appropriate authority was immune from civil liability or civil suit. As originally drafted, the Bill would have ensured immunity for a person making a report to a health board or the Garda Síochána - in the context of their making such a report to an individual employee of the Force, a member of the medical profession, a social worker or a public health nurse. It went beyond that by providing that if such a report was made to a non-statutory body concerned with the welfare and care of children by a person acting reasonably and in good faith, the individual in question would be immune from civil liability.
The Minister of State's view is that, effectively, if it comes to bringing child care proceedings under the 1991 Act, the health board should bring such proceedings. The case made to me in the context of amending this provision is that we should put in place a structure which will ensure that people who report abuse to those individuals or that body with the statutory powers to take action are encouraged to so. Having reflected on our discussions, I do not believe that is unreasonable. However, it will only be successful if we update the guidelines relating to child abuse which are being drafted at present and if health boards put in place the necessary responsive structure. This is relevant to the new definition of the term "appropriate person" in section 2 and also to section 3.
I am concerned that if we agree that people should be encouraged to report to the body that can take action where it is required, it is important that a number of things happen. If the appropriate person is confined to either a member of the Garda Síochána or a designated officer of a health board, it is important that, by the time the legislation comes into operation, the health boards should indicate who are their "designated officers". The identity of these individuals should be generally known to staff within the health boards and that information must also be made available to professionals working with children, such as teachers, members of the medical profession to whom reports of abuse may be made, and those working in the nursing profession, such as public health nurses who are frequently given such information.
It is also important that the health boards put in place a communication system so that any Member of the committee, as a member of the general public, or another member of the general public who is genuinely concerned that a child is at risk will know who to contact to report their concerns. People must not be allowed to become lost in a bureaucratic web when they contact a health board to report a child at risk. An information function must be put in place because such a function is essential if the legislation is to work properly. However, we will return tothis matter when dealing with amendmentNo. 2 which proposes the acceptance of a new section 3.
On a personal level, I still have some reservations about excluding from this immunity people who might contact an organisation such as the ISPCC to report a concern about abuse. When they make such contact in good faith I feel there are certain organisations which are identified in the public mind as having a function in the protection of children, even though the statutory function rests with the health board.
It is important to ensure that there is more co-operation in the future than there has been in the past between some of the statutory and non-statutory bodies which, on occasion, seem to be at odds with each other because the non-statutory bodies feel free to voice criticisms which might upset the statutory bodies. We have to ensure that if someone makes contact with an organisation such as the ISPCC, whether an adult reporting a concern about child abuse or a child reporting that they are abused and not just seeking telephone counselling but intervention and help, there must be a direct line of communication between such voluntary organisations and the persons appointed as designated officers by the health boards to act as the appropriate authorities. I will return to this point when dealing with the amendment to section 3. It may be that the Minister may wish to respond at this stage.
Work has been done on the Bill since its publication dealing with the somewhat less difficult and less contentious area of persons in employment and the concern to ensure that someone who makes a report on child abuse does not find that difficulties are created for them in their job. We have substantially advanced the protections in the original Bill to cover an additional area.
There are one or two aspects with which I will ask the Minister to deal for the purpose of ensuring that we understand how this will work. The amendments being made by amendment 1 in the context of what we refer to as section 2, but which will, ultimately, be section 1, are to allow for this. I am not opposed to this provision but it is important that, even if the committee is in agreement on some aspects, we tease them out so that we have a record of the discussion and if difficulties arise we can return to that record and know where changes need to be made. It will also be important to tease out these issues when the Dáil considers the Bill on Report Stage.
It would be helpful if the Minister addressed why it is his view that reports of child abuse to organisations such as the ISPCC should not entitle the reporter to the immunity which is included in this Bill. That is one aspect about which I am uneasy while fully accepting that under the Child Care Act it is only the health boards and, to a lesser extent the Garda, who could formally intervene to provide protection for children.
I have already welcomed this Bill on Second Stage and I welcome the Minister's approach to dealing with unresolved issues in a co-operative way with Deputy Shatter. However, I wish to express my dissatisfaction at the timing of the circulation of the amendments. They were only made available late last evening and that is unsatisfactory from the point of view of Members. Many of us were busy last night and had engagements this morning. It is unfortunate that sufficient time was not given for consideration of the amendments. For that reason I reserve my right to raise further amendments on Report Stage.
The mechanics of reporting covered by the amendments require further scrutiny. I have concerns about the term "designated officer" and how it will operate in practise. If a neighbour or teacher has concerns about suspected abuse the most common procedure is to call the local social service. I will go into this in more detail on section 3. As I said, I still have some concerns. A person reporting a suspected abuse will have to speak to many people before reaching the designated officer, what immunity is being offered to that person reporting to these people? It is all very well to talk about publicising the procedures, and there is a need to do so. However, in a huge health board region such as the Eastern Health Board which serves 1.3 million people, a person living in Tallaght or Ballymun would not necessarily be aware of designated officers for the entire Eastern Health Board region.
A great deal of work must be done examining procedures which will be followed. Last night I attended a meeting in a local school at which teachers expressed considerable dissatisfaction about the reporting systems currently in place and the fact that written or oral reports are made to the health board and they do not hear any more about them for two or three years. They do not know whether the file has been lost or the case has been closed. There are many such issues which need attention and the Minister should review procedures when he is reviewing the guidelines. There is a need for clear procedures on reporting and reporting back to the reporter.
The reference to health boards in the Bill defines them as health boards established under the Health Act, 1970. In light of the promised legislation for this year to restructure the Eastern Health Board, is there a need to insert a cross reference? Perhaps this could be done in the 1988 health legislation. Would it make more sense to do so in this Bill or any amending legislation so that we do not find ourselves in a situation where, when the three new health boards are set up in the east, we have to amend this legislation again? If not, can the Minister give an assurance that this matter will be dealt with in the 1998 legislation?
It will not be necessary for us to impact on legislation which will already deal with these developments in the Eastern Health Board. There is sufficient legislation which will allow for the full implementation of the three new divisions so it is not necessary to deal with this matter in this Bill.
One of the main objectives of this Bill is that reporting procedures are as efficient and foolproof as possible. Therefore, direct reporting procedures are vitally important. One of the major difficulties with reporting child abuse heretofore has been that proper procedures and protocols did not exist or, if they did exist, they were not followed. People were not trained to operate those procedures adequately. We have decided to identify a designated person with responsibility - the child care manager, a new post - in each community care area.
I accept Deputy Shatter's point that there is some desirability to having other organisations included. However, there are many more organisations involved than I had imagined. For example, there are 50 organisations involved directly in this area, and possibly more, and these are not just the high profile organisations such as the ISPCC. However, I am satisfied that the existing situation is covered under the defences which exist with regard to common law. For that reason I do not feel it is in the best interest of efficient reporting to expand that. In addition, the more layers we insert into the reporting procedure the more mistakes we are liable to have.
I accept the Deputy's comments regarding co-operation between the voluntary and statutory organisations. I have gone to great lengths to develop stronger links and to have the voluntary organisations take on new roles in child protection. I will encourage that with the ISPCC, Barnardos and the other organisations. That they are critical of public policy and institutions - and rightly so - in no way reduces my interest in working with them and using their great resource of volunteerism. I will deal with that in further detail on the next amendment. In the interest of efficient and effective reporting, I think we should confine this to employees of health boards and the Garda.
Amendments Nos. 1 and 2 to amendment No. 2, and amendments Nos. 3 and 6 are related and all may be discussed together.
I move amendment No. 2:
In page 3, before section 3, to insert the following new section:
"3.-(1) The chief executive officer of each health board may appoint one or more officers of the board to be a designated officer or designated officers for the purposes of this Act.
(2) In this section 'chief executive officer' includes a person acting as deputy chief executive officer in accordance with section 13 of the Health Act, 1970.".
Provision is made in section 3 for the chief executive officer of a health board to appoint specific personnel as designated officers to receive reports under the Act. This is to ensure that the reports are channelled to the appropriate officers of the health boards rather than to any officer of the board, which would be inappropriate.
Deputy Shatter has proposed an amendment to amendment No. 2, in the proposed new section 3(2), which would delete "may" and substitute "shall immediately upon the coming into operation of this Act". In practice the chief executive officers have to do this for the Act to come into operation and I am prepared to accept this amendment.
He also proposes the insertion of a new subsection 3(3), providing that the Minister for Health and Children shall publish guidelines prescribing the category of persons who may be appointed to be a designated officer as provided for in the new section 3(1). We have given much consideration to this amendment. The point has been well made by the Deputy that there may be cases where people report to social workers. I would like an opportunity to discuss this matter further with the chief executive officers as it is the health boards which have the statutory responsibility for the care and protection of children under the Child Care Act, 1991. I therefore ask the Deputy to defer consideration of this part of the amendment until Report Stage to allow us an opportunity to discuss the matter further with the health board chief executive officers. What I said with regard to the last section still applies but I am conscious of the reasonable point he has made and I would like the opportunity to consider it further.
I move amendment No. 1 to amendment No. 2:
In subsection (1), line 1, to delete "may" and substitute "shall, immediately upon the coming into operation of this Act,".
This provision is fundamental to the protection offered by the Bill; the Minister and I have privately discussed this approach and we will now debate it publicly. It brings us back to an issue to which Deputy Shortall properly drew attention earlier. I agree with the Minister that it is important clear procedures are in place for the reporting of abuse and that there is a clear line in each health board as to where the responsibility lies for ensuring, first, the reports are received and properly recorded, and, second, they are responded to speedily and properly.
Different types of people will report that children are at risk of physical or sexual abuse or are victims of neglect. The first type are those who work professionally with children. Among those are school teachers who may be genuinely concerned that a pupil is the victim of abuse and who feel that a health board should be so notified. It is desirable that those who work in that position should know specifically who to approach and who will take responsibility for ensuring that reports made are followed up properly.
Another group in this category are general practitioners. There was a recent public and tragic case involving the McColgan family in which a general practitioner was criticised for allegedly not responding properly to the circumstances of the children in that family who were patients of his. He has publicly denied that he did not respond properly and it is not for me to comment on where the blame lay in that context. It is important that GPs who conclude that a child is at serious risk have a proper line of communication with health boards, but it goes beyond that.
GPs are not the only members of the medical profession who may be concerned that a child is at risk or to whom reports may be made of a child at risk. Parents or a parent or a third party attending with a child at the accident and emergency department of a hospital may report to the doctors there, or a doctor examining injuries a child has suffered may have these concerns. I would extend that to members of the nursing profession, either within a hospital to which a child is brought or public health nurses who are often catalysts in alerting social workers within a community care team that a child is at risk.
For all these people, having a designated officer to whom they may report, who is identifiable to them and has a responsibility to respond in turn, is a useful procedure and needs to be complemented by proper guidelines. However, when it comes to members of the public the matter is much more complex. They will not necessarily know who is the designated officer, no matter how much publicity is given by the health board. The designated officer may not always be available - there is a problem within health boards about to whom one reports at weekends, when no one is available for 48 hours, that a child may be at serious risk, Child abuse does not occur only from Monday to Friday; it happens on Saturdays and Sundays also. Members of the public - such as a parent who is concerned about possible sexual physical abuse of his or her child, a next door neighbour or a person working in a sports club - who are concerned that children are being abused will not always go to a person who is simply the child care manager.
A large number of reports of child abuse currently received by health boards are made by individuals to social workers within the boards, to members of the community care team, to public health nurses and to general practitioners. It is important not only that the professional who makes a report to a health board is granted immunity but that the members of the public who see social workers and members of community care teams and public health nurses as representing the health board, as being caring individuals who know what to do when a child is at risk, are also granted immunity by this legislation. In this context, I believe it is very important that it is not only reports of child abuse made to the child care managers or heads of community care teams which are granted the protection provided for in this Act; I believe it would be wrong to restrict protection in that way, although guidelines should clearly encourage professionals to report to child care managers, heads of community care teams and social workers who are responsible for ensuring that reports on children at risk are properly addressed.
I appreciate the Minister's acceptance of the amendment to amendment No. 2. However, in regard to amendment No. 3, I believe it is not only the director of community care who would be a designated officer in the context of providing immunity. I specify the director of community care because, as I understand it, child care managers are not yet in place. It is important that people who make reports to social workers, GPs, hospital doctors and nurses or public health nurses would also be granted immunity. The guidelines will clearly ensure that reports made to such people would subsequently be reported to the child care managers. However, the system currently envisaged does not guarantee this.
If we are to adopt the structure which the Minister has outlined and which he considers to be working efficiently in the context of the development of the new guidelines, a number of essential issues must be considered. It would be important to ensure that the same protection would be afforded to children throughout the country, irrespective of the particular health board areas in which they lived, and it would be important to ensure a uniformity of approach by the chief executive officers of each health board in regard to the appointment of designated officers. We do not want the Western Health Board, for example, to say that the only designated officer in its region is the child care manager while other health boards might include public health nurses, social workers and GPs.
We must remember that the designated officers have different functions. We are seeking to provide a system of immunity from civil liability to people who report child abuse in good faith. The designated officer structure is, in a sense, intended to facilitate the health boards to respond efficiently to reports and to ensure these matters are reported to the people with responsibility to deal with and respond to them. I am concerned that, by trying to make the health boards more efficient, we will deprive people who, in my opinion, should be entitled to it, to the immunity which the Bill, as originally published, provides for.
I would like to facilitate the Minister's adoption of the structure he has outlined and I believe amendment No. 2 is very important in that regard. Amendment No. 2 to the amendment No. 2 would allow him to publish guidelines which would ensure a uniformity of approach by health boards. It would allow for the development of an overall departmental policy to determine who, within the health community, falls within the ambit of immunity. I would certainly envisage that immunity should be granted in regard to reports made to public health nurses, other members of the medical profession and health board social workers.
I will not be satisfied if that matter is not clarified as I believe it will create an artificial situation in which some reports of child abuse would be granted a degree of immunity not granted to others. The granting of immunity would set people's minds at rest about the possibility of their being sued in the courts in the event of their concerns not being validated or proved correct. I appreciate that the Minister wants to give amendment No. 2 further consideration but I do not think amendment No. 2 to his amendment is a matter on which the chief executive officers of health boards should have a determining view. What the chief executive officer of a health board may regard as comfortable or convenient may not necessarily represent desirable public policy. Public policy, in my view, should be that reports of abuse made to any of the health board employees I have outlined, with whom the public has dealings on a daily basis, should be assured of the immunity provided for in the Act unless, of course, reports are not made in good faith and have no basis in fact. Deputy Shorthall touched on this issue without realising it was one about which the Minister and I have been engaged in discussions.
I am anxious that the Minister would take amendment No. 2 to his amendment on board and that he would do so in the context of assuring the committee that the guidelines he will issue will ensure the personnel to whom I have referred would be granted immunity. It may not be appropriate to do so immediately but it might be possible to do so as an interim measure until such time as the new child care guidelines are issued which will properly provide that reports made to public health nurses, social workers and other members of the medical profession should be passed on by them to the director of community care or the child care manager if they believe they give rise to genuine concern.
I am anxious to ensure that people who make reports on children at risk in good faith to health board professionals, other than child care managers, are not deprived of the protections provided for in the legislation. The Minister may say they will have some protection under common law but that is precisely the issue which has caused such a degree of disagreement and which has necessitated this type of legislation. The same argument could be applied to reports made by teachers and members of the medical profession and if it were, there would be no need for this legislation.
In 1991, the Law Reform Commission expressed the clear view that this kind of legislation was necessary and that view has been reiterated by the report of the inquiry into the Kilkenny incest case, among others. We have passed the point of wondering whether this kind of legislation is required. My view is that it is. If we agree to grant immunity to people who report child abuse concerns in good faith, that immunity should not be confined to circumstances where a report is only made to a director of community care or child care manager.
Deputy Shatter pointed out that there has not been a great deal of case law in this area which would seem to indicate that common law has proved to be adequate. If one considers the issue of qualified privilege, one could make the argument that people who make reports to social workers, teachers and so on are adequately covered. However, I would like to outline the current law in respect of civil liability for persons who report abuse.
Fear of exposure to civil liability for the reporting of abuse relates mainly to the actions in defamation. It would be helpful, therefore, to expand on the defence of qualified privilege. Defamation is the publication of a false statement about a person which exposes that person to hatred, ridicule or contempt or causes that person to be shunned or avoided, or which tends to injure in his or her office, calling or business. The test applied is whether the words complained of tend to lower that person in the estimation of right thinking members of society.
Defamation may take the form of liable or slander. One of the defences to an action in defamation is that the statement was privileged. Privilege is absolute or qualified. When it is absolute the defendant is completely protected irrespective of spite, ill will or knowledge. When privilege is qualified the defendant is protected except for statements made maliciously. Malice will, therefore, destroy the defence of qualified privilege. Persons who may be under a legal duty to report abuse should be protected by qualified privilege as long as they act reasonably and in good faith. Persons who are not under such a duty to report suspected abuse of children, neighbours for example, could be considered to be under a duty which, although not legal, is a moral and social one and, therefore, sufficient to attract the protection of qualified privilege as long as they act reasonably and in good faith.
As I have already stressed in outlining my amendments, the new statutory immunity provided for in the Bill does not change in any way the defences already provided for under common law. Amendment No. 6 is a saving amendment inserting a new section which emphasises that statutory immunity provided for in the Bill does not change in any way the defences available under common law. The section allows for a person to use whichever defence would be most appropriate and beneficial, taking account of the circumstances of each individual case. In other words, the new statutory immunity provided for in this Bill does not limit people in any way in regard to defences available under common law. For that reason we feel that the expansion is not as necessary as Deputy Shatter says. We are prepared to consult with the people who have the statutory responsibility and get their views.
I detect some confusion in regard to the procedures and the legal situation. I agree with what Deputy Shatter says about the procedures but that is the question which is being considered by the working group, which I established a number of weeks ago, made up of the professionals dealing with the area of practical procedures and the reasons a person may go to a social worker or to a doctor.
There is a great need to improve the procedures and to train the professionals involved who do not have the training to deal with the reporting of abuse and be able to recognise it and pass it on. One of the problems which has bedevilled the system is that there were not clear procedures, there were not people with responsibility. Until we have clear lines of communication and clear responsibilities, then we are not going to get to grips with the problems we have in regard to reporting. That is why I am slow to widen the spectrum too much. I accept the point made by Deputy Shatter and accept, given the common law, that it is not necessary. From a practical point of view it would not be in the best interests of efficient reporting.
Regarding the importance of people knowing how and when to report allegations in voluntary, sporting or other organisations, considerable progress is being made in many organisations to ensure their members are aware, informed and educated on how and what to report. Sports clubs have the new ethics in sport regulations, in schools the reporting regulations are being updated and our officials are engaged in that exercise and we have the working group dealing with protocols among the professionals. This legislation will encourage people to make reports to the relevant statutory authorities and in all the guidelines the whole thrust is that there must be clear lines of communication. Someone must be able to answer as the one receiving the reports and the one who is going to act on them quickly and effectively.
There are fundamental issues arising under section 3. This underlines the problems associated with circulating amendments at such a late stage and insufficient time being given to consider them.
I apologise for that but we had the same problem. Deputy Shatter was anxious to see this legislation before Easter. I can assure the Deputy that my staff have worked day and night to get to this point. I appreciate Deputies received the amendments late but I will be happy to accept amendments from Deputy Shortall or any other Deputy on Report Stage.
My own preference would be that we adjourn Committee Stage and resume in a couple of weeks when we have had more time to consider the amendments.
Is the Minister suggesting that the report would have to be made personally to a child care manager? If that is the case I would have serious difficulties with it. We are all aware of the crisis basis on which the child care social service operates at present. The recent report from the Eastern Health Board and IMPACT underlined the fire brigade nature of the service and its complete inadequacy. Most of that inadequacy arises from the fact that the service is severely under-funded and needs a substantial injection of cash to bring it up to an acceptable level to deal with the scale of the problem.
In addition to under-funding there are major problems relating to the lack of clarity on procedures to be followed in this area. I welcome the initiative of appointing child care mangers. In each community care area there are ordinary social workers, team leaders and head social workers, all working in a frenzied manner trying to deal with an emergency on a crisis basis with no adequate management of the service. I was glad to see the initiative last year of the appointment of child care managers for that reason. The service needs good management, people who are not involved in operational matters on a day to day basis but who will oversee the service, ensure quality standards, see that proper procedures are followed and do the management job the service requires.
I would be concerned if these managers were required to take reports of allegations of abuse in addition to managing the service. If under the Minister's amendment, they would be required to deal with that matter personally, a substantial amount of time would be devoted to meeting people and taking details of their reports. Child care managers need to devote all of their time to managing the service rather than being involved in operational matters. I welcome the proposal to consult with the chief executive officers of the health boards on this matter and how the service might operate in practice. I take the point made by Deputy Shatter that we should not go purely on what the chief executive officers say. We should be advised by them but the proposals need to come back to us so that we will have an input and resolve the matter to everybody's satisfaction.
I am talking about a strategic management system that is structured properly. If a report is made to a social worker they will obviously facilitate the reporter in getting the report to the designated person. That is not to say the designated person is the only one who will deal with the report. In terms of strategic management, the designated officer is the person with the responsibility. The internal organisational set up will be for the health boards and that is the reason these matters and their efficiency are procedural.
I am anxious to discuss the matter with the chief executive officers but I do not suggest we just take their word. It is not the case that a person would have to literally hand a report to the designated officer because, under proper strategic management, the organisation will have its own procedures and structures in place. Under legislation, however, one person must be responsible and that is reason we have designated it in this way. We have, however, an open mind on broadening this issue. We received Deputy Shatter's amendment at noon today and rather than make a quick decision I believe it is better to reflect on the matter and consult with the experts in the field.
As the Deputy said, the proper procedures should be in place in the health boards and I take the point made. We, as local politicians, know the problem is that the resources and structures are not in place in health care departments to enable health boards act as effectively and quickly on reports as we would wish. The challenge is to get those resources and structures in place.
I return to something the Minister said when he went into the laws on defamation which I found interesting and which, in the context of this matter, is something he might further consider. He referred to the fact that where somebody was under a duty to make a report, the current law was quite clear. He said that if somebody is under a legal duty to make a report, the qualified privilege which would apply to a defamation action would attach to that report or to the person making it. He went on to say that if persons were not under a legal duty to report, such as a neighbour, they could be regarded as having a moral and social duty and that it, in some way, gave rise to qualified privilege, which it does not.
I challenge the Minister and his advisers to produce a judicial decision which confirms that people under moral and social duties to report something in good faith, which turns out to be wrong and lowers somebody's reputation, cannot be sued for defamation and held liable for damages. Perhaps there are such judicial decisions of which the Minister might inform the committee but I am concerned they do not exist.
I return to the objective of the legislation because there is a danger we could get lost in detail when trying to address a series of different concerns. The objective of the legislation is to encourage people to voluntarily report concerns of child abuse where they have good solid grounds for making such a report. We should encourage people to report their concerns - I fully support the Minister in this regard - to the body which has a legal obligation to take protective action where required and which has the personnel and skills to carry out assessments.
A member of the public would see themselves as behaving properly when making such reports, whether they report to whoever we appoint as a designated officer, a general practitioner, social worker or public health nurse. If the objective is to provide those people with protection, which does not involve legal debate or theorising on how a defamation action might or might not work out if somebody does something about it, there is no particular reason the protection contained in the original Bill and which will be contained in the newly reconstructed section should not apply to such reports.
Deputy Shortall made a valid point in that we originally saw child care managers as providing a co-ordinating point of authority for social work personnel and others within the health boards in ensuring that issues relating to children, including reports of child abuse, are dealt with efficiently and responded to in a particular way. Considering the number of reports of child abuse the health boards get, if every report had to go to the child care manager as opposed to reports perhaps coming from other health board professionals or workers, the only function the child care manager might have in the future would be to deal with these reports. We face a real problem in this regard.
The Minister said he wanted to consider this issue further and talk to chief executive officers in the health boards. My amendment was tabled this morning after the Minister's amendments had been circulated and this is an issue which he and I have debated privately. It is not only the chief executive officer of the health board who needs to be consulted but also social workers working in the health boards as opposed to those with that expertise in the Department, public health nurses, who are represented by the INO, and the IMO, who may all have a view on this matter. It is vital we get it right and do not create a structure which does not give the protection which the original Bill as published was designed to provide.
I sought to deal with this matter in a way which will ensure uniformity in health boards and allow this committee and both Houses to reach agreement. I am conscious that, if I table an amendment asking the Minister to publish guidelines and if he is not in agreement with other Members of the committee as to what they should contain, pressing this amendment in this form is a relatively futile exercise because the guidelines ultimately published may provide that child care managers are those to whom reports should be made, which will not resolve the difficulty I see. In those circumstances, we may need to return to this matter in greater detail on Report Stage and for the Oireachtas to designate, in a Schedule to the Bill, who the designated professionals should be to whom reports can be made and this will ensure the immunity granted by the Bill extends to those who make those reports. There is little to be gained by my pressing the amendment to require the Minister to publish guidelines because I am not sure I would be particularly happy with their content. I will not press the amendment. I will resubmit it on Report Stage or it may be appropriate if a more detailed amendment was tabled which specifically designated the categories of individuals. Interim reports can ensure people making reports get the amenity the Bill is designed to provide.
We have received advice from the Attorney General and I stress that he said it applied once people acted reasonably and in good faith in regard to qualified privilege. There is no doubt our advice is sound in that respect. We are equally anxious for a workable solution and nothing that has been said convinces me that people will not be adequately covered and immunity will not apply in the most proper way. The biggest problem I have is that Eastern Health Board spends 81 per cent of its resources on investigation and, as Deputy Shortall knows, many of them lead to nothing. Deputy Shatter put his finger on the pulse when he said we want to encourage people where they have solid grounds for making a report but the major difficulty is that there are social workers running around the city following reports which are not based on solid ground.
I am most anxious to change the balance from 81 per cent of resources on investigation and 19 per cent on the welfare of children through intervention and prevention and to at least increase resources so that we intervene, prevent and provide for the welfare of children and families who are at risk. That is my most critical challenge in this job. Social workers travel around Dublin investigating cases but I would prefer if they spent more time preventing abuse and if the thrust of our policy was to get back to prevention and intervention and to work with families at risk before abuse becomes the outrageous problem it has. Everybody will agree a fortune can be spent investigating but we must prevent and it is for that reason we must have the best structures of reporting and the most efficient response to it.
The child care managers will not have to sit down all day and deal with reports. Under strategic management, they will have organisational and managerial procedures to deal with those reports. Our objective is that there will be a straight line of command and one individual will have responsibility, as happened in the North-Western Health Board. It has reports but nobody knows why action was not taken. While I am most anxious to accommodate the Deputy, we will talk to the chief executive officers and discuss it further. There is a degree of confusion between the procedural issues and the necessity to protect people and give them immunity.
The Minister of State referred to the 80/20 split on spending on child care services. It is easy to get the impression that he is suggesting too much is being spent on investigations and that people are running around needlessly.
I wish to clarify my comments. If we can prevent and intervene, there will be no need for so much investigating. The Deputy has the statistics which show that a large percentage of investigations end up with nothing.
I agree the split is wrong and we should aim to spend equal amounts on prevention and investigation but the funding available for investigative work is totally inadequate. There is also a complete lack of clarity in regard to how cases are handled. This is the Minister's responsibility and as well as drawing up new guidelines in this area, he must, as a matter of urgency, look at the proper procedures which should be followed by social work services.
That is being done.
The Minister is looking at guidelines. Is he looking at procedures?
We are looking at procedures and protocols.
For example, there are no agreed guidelines on the validation and prioritising cases, which is a huge issue in the Eastern Health Board. Social workers have the unenviable task of trying to prioritise child abuse cases. It is an awful job but it is the reality because the service is under-funded. There are no agreed procedures on the closure of cases, some of which may be still live after three or four years. Who decides the file is closed? This needs urgent attention.
The Minister said the new child care managers would be ultimately responsible and would not personally have to take the reports. They would be passed up the line to them, but on the basis of the management structure within health boards they would be ultimately responsible. That is fine from the point of view of having clear procedures in place and tightening up on reporting within health boards but the purpose of the Bill is to provide immunity to people who report in good faith. It is not just a question that on the basis of the management structure the child care managers will be ultimately responsible. The Bill states a person will be granted immunity if he or she reports to the designated person - the child care manager. That implies the report would have to be made to the child care manager. This a grey area which needs to be teased out further. There should be more consultation with the professionals.
It is a bit much to expect to consider the proposal in section 5 overnight and to respond to it in a considered manner because it raises fundamental issues and we need to consult with people working in the field who know the difficulties that exist and would have time to think through the implications of what is proposed. Everyone is anxious to pass the Bill as quickly as possible as there is a major void in this area that needs to be addressed. Deputy Shatter is to be commended in introducing this Bill but it is important that we get it right. We are rushing the Bill and before Report Stage we should meet representatives of the professional groups involved so that we have an opportunity to consult them on both sections.
I am concerned about the Minister's comments but I accept his good faith in wanting to put in efficient and workable structures. Everyone is anxious that this works properly but I am gravely concerned about the Minister's remark that 79 per cent of the work undertaken by social workers involves pursuing and investigating abuse and not all reports are validated. That is true and it will always be so. In every other country there are large numbers of reports of children at risk, some of which turn out to be correct. In certain circumstances, it may transpire that a dysfunctional family is involved but it cannot be established in legal terms that a parent is responsible for a child or is guilty of abusing a child or if there is neglect due to a general family malaise. Work needs to be done with the family. It is not necessarily something that gives rise to a care order being made. I am concerned that by putting a designated officer structure in place - I am sure it is not the Minister's intention - there is a danger it will mean only those reports made to the designated officer will result in a health board conducting investigations and carrying out assessments. The Bill to some degree in its operation may be turned on its head so as to delimit the number of reports that are followed up to redress the balance to which the Minister referred.
My concern about social workers investigating large numbers of cases which end up with no solid base is that there are no up to date statistics from the health boards. I have put down a series of parliamentary questions to try to find out the position on 31 December 1997, for example, in regard to how many reports had been made and investigated or were outstanding, confirmed or rejected. That information still had not been received six weeks ago when I put down my latest parliamentary question. I recall a Minister advising the Dáil that there was a problem in the manner in which the Eastern Health Board compiled information and statistics. If we are concerned about the number of reports that lack substance, will the Minister inform the committee on the position as of 31 December 1997? Health boards should have put together the relevant information by now. I am not happy with the manner in which this is being dealt.
The principal objective of the legislation is that people who make reports on a solid basis in good faith should be immune from the possibility of legal proceedings. It flies in the face of the 1991 report of the Law Reform Commission to say certain people can have immunity under the Act while common law will apply to others. The commission queried whether there was a need for legislation in this area but, ultimately, recommended it on the basis that the legal position was not certain. We will not make progress on the amendment but Committee Stage will not be completed today which is good as we will be able to reflect on other aspects of the Bill. I will resubmit the amendment on Report Stage if this issue cannot be resolved to my satisfaction, that is, that people who properly report children at risk are granted the immunity the Act provides. Immunity should not only apply to reports made to a small number of people within a health board while other reports made to public health nurses or medical practitioners or social workers fall outside that provision.
Section 4 is a reconstructed version of section 3 in the original Bill and makes provision for the reports to designated officers. It states a person who apart from this section would be so liable shall not be liable in damages in respect of the communication whether in writing or otherwise by him or her to an appropriate person of his or her opinion that a child is at risk of abuse or otherwise. A communication must be made to the appropriate person which will be those designated by the chief executive officer of the health board or to a garda.
Whatever is put together as a strategic management initiative it is not open for the designated officer to put in place a series of other people to whom reports can be made; it is open to the chief executive officer to designate a number of people as designated officers and go beyond the child care manager but if it does not go to the child care manager it seems the communication must be made to the appropriate person. It cannot be made to other people to communicate to the appropriate person. In those circumstances if this is not further addressed on Report Stage, we will end up with legislation which will ultimately water down the protection contained in the original Bill. It is in everyone's interest to co-operate and I have no interest in scoring political points in the context of legislation. I am anxious it passes through both Houses but we should try to ensure there is not a watered down version of the protection which the original Bill gave to people who in good faith report their concerns that children are at risk of child abuse.
I am glad Deputy Shatter qualified his misrepresentation of what I said in regard to social workers and investigation.
I move amendment No. 3:
In page 3, before section 3, to insert the following new section:
4.-(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to an appropriate person of his or her opinion that-
(a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, or
(b) a child's health, development or welfare has been or is being avoidably impaired or neglected,
unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.
(2) The reference in subsection (1) of this section to liability in damages shall be construed as including a reference to liability to be the subject of an order providing for any other form of relief.".
The revised wording of this section reflects the advice of the Attorney General and the parliamentary draftsman in regard to protection from civil liability or persons who have reported abuse. Subsection (2) is to ensure a person will not be liable to any form of relief apart from damages under this section. It is still designed to provide further protection to a person who reports child abuse reasonably and in good faith.
As regards the grounds for making reports, which are covered under subsection (1)(a) and (b), I omitted the third category proposed by Deputy Shatter, which is that a child's health, development or welfare is likely to be avoidably impaired or neglected. This category is too subjective a basis for making reports by the general public. The deletion reflects the views of the Law Reform Commission which was opposed to potential, as distinct from actual, cases of abuse being subject to a reporting requirement. I am satisfied that the current definition conforms to the objective of being specific enough to discourage over-reporting and broad enough to facilitate identification of children who are genuinely at risk.
The original provision in what was section 3, which will now become section 4, essentially reflected the circumstances under the Child Care Act, 1990, where the health board can initiate care proceedings and obtain, if necessary, one of the different types of orders available in the District Court to provide protection for children.
During the preparation of the Bill, I had some reservations about including the third category mentioned by the Minister which deals with the potential impairment of a child's health, development or welfare. It is an area where professionals, not necessarily non-professionals, will make a judgment. It is a judgment call whether the Minister includes that section.
I am willing to accept that in the vast majority of instances where there is a concern that children may be at risk, those of real substance fall under subsection (1)(a) and (b) which reflects the provisions I had in the original Bill. Under the previous third paragraph, it is tenuous that reports would be made which would give rise to the need for this Bill's protections.
I accept the Minister's amendment is reasonable. This new section provides, in substance, all the protections I want to provide under section 3. I am concerned that the new confined definition of an appropriate person is where the problem lies. The Minister is proposing to restrict the immunity the Bill grants to people who make reports to designated officers. The concerns I have expressed as regards the new section also applies in substance to section 4. I presume we will return to that on Report Stage. I will not delay the committee by repeating what we have been saying for the past 45 minutes.
Acceptance of this amendment involves the deletion of section 3 of this Bill.
I move amendment No. 4:
In page 4, before section 4, to insert the following new section:
4.-(1) An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 4 and communicated it, whether in writing or otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.
(2) In proceedings under this section before a rights commissioner or the Employment Appeals Tribunal in relation to a complaint that subsection (1)of this section has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.
(3) If a penalisation of an employee, in contravention of subsection (1) of this section, constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this section and under those Acts.
(4) An employee may present a complaint to a rights commissioner that his or her employer has contravened subsection (1) of this section in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.
(5) A decision of a rights commissioner under subsection (4) of this section shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with subsection (1)of this section,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employees employment,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention for which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(6) For the purposes of this section-
(a) subsections (3) to (6) and subsection (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this section as they apply in relation to a complaint presented under subsection (1) of that section 7,
(b) sections 8 to 10 of the Act of 1994 shall apply as they apply for the purposes of that Act, with the following modifications, namely-
(i) the substitution in those provisions of references to a decision for references to a recommendation,
(ii) the substitution in section 9 of the Act of 1994 of-
(I) references to the Circuit Court for references to the District Court, and
(II) the following subsection for subsection (3):
'(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.',
and any other necessary modifications.
(7) For the avoidance of doubt nothing in subsection (6) of this section operates to confer on the Minister for Health and Children any of the functions of the Minister for Enterprise, Trade and Employment under the Act of 1994 and those functions shall be performable by the Minister for Enterprise, Trade and Employment for the purposes of the provisions of the Act of 1994, as applied by that subsection (6), to the like extent as they are performable by him or her for the purposes of the Act of 1994 and the provisions of the Act of 1994 (including section 11) shall apply accordingly.".
I welcome Deputy Shatter's efforts on Second Stage to provide a shield from dismissal and discrimination against employees who report abuse. In this regard, my colleague, the Minister for Health and Children, pointed out on Second Stage the view of the Department of Trade, Enterprise and Employment which has responsibility for the administration of unfair dismissal legislation. While sympathetic to the objective of Deputy Shatter's proposal to extend the terms of the unfair dismissal legislation, there were doubts about the effectiveness of his proposals in achieving their stated intention.
Accordingly, since Second Stage, my officials have had a number of meetings and discussions with the relevant officials in the Department of Trade, Enterprise and Employment. I am pleased to bring forward what I consider to be a comprehensive protective shield for employees. This proposal, for which I should express my gratitude to my colleague, the Tánaiste and the Minister for Trade, Enterprise and Employment and her officials, will ensure that the full range of employment appeals procedures are available to a person who alleges he or she has been victimised by their employer in any way because they reported child abuse.
This proposal goes far beyond what was initially proposed by the Deputy and is a comprehensive measure designed to give full security to employees who report abuse in good faith from all discrimination, up to and including dismissal by their employer.
I welcome this amendment which extends protections in the area of employment contained in the original Bill. Perhaps the Minister will clarify one aspect. One of the difficulties with the unfair dismissal legislation is that an amount of it does not apply to people in State employment. In the amendment I tabled dealing with that issue, I was conscious of a case where a former official of the Department of Education expressed concern a number of years ago that children in St. Laurence's in Finglas were being abused. At the time, that person was not believed and her perception is that she was eventually forced to leave her employment as a result of her persisting with allegations which were not properly followed up at the time. Some Members of the committee will be familiar with this person as she appeared before the Committee of Public Accounts some years ago stating her concerns and views, which even at that time did not get the deserved response from this House. I have been informed that, in the context of the greater realisation we now have of the extent of child abuse in our institutions, the serious allegations she made are the subject of investigation.
I suggest, Deputy Shatter, that we not speak about people who can be clearly identified. We have to be careful on that issue.
That person was done a serious wrong many years ago and the issue may have to be addressed by this or a future Government. It is hopefully the case that someone working in a Department who makes such reports in the future will no longer find themselves disbelieved in the manner in which this person was. I am anxious to ensure that the new protections we are putting in place in the context of the Minister's amendment, cover civil servants working on behalf of the State in Departments who report a problem to the appropriate authorities and are, in effect, whistle-blowers. We should ensure that no person employed by the State will ever again be confronted by the difficulties encountered by the individual I mentioned who will, ultimately, be fully and publicly vindicated for something she did which has had an extraordinarily detrimental impact on her life.
Perhaps the Minister will comment on that because, in the context of many our discussions, we have dealt with other sections. This section covers a number of areas which my original section did not. It deals not only with unfair dismissal but with people being unfairly penalised in their employment. I am anxious such provisions apply to those employed by the State and semi-State bodies.
It is important we do not discuss individuals when dealing with these matters.
The legislation encompasses all employees of State and semi-State bodies and the private sector. A Garda investigation is ongoing as regards the case mentioned.
I welcome and support this section. It was important I stated the effect of it across the board so that it is fully understood.
A minor drafting error has been identified and I would like to deal with the question of the time limit in section 4 at a later stage.
Acceptance of this amendment involves the deletion of section 4.
Amendments Nos. 5 and 7 and amendments Nos. 1 and 2 to amendments Nos. 7 and 8 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 5:
In page 4, before section 5, to insert the following new section:
5.-(1) A person who states to an appropriate person that-
(a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, or
(b) a child's health, development or welfare has been or is being avoidably impaired or neglected,
knowing that statement to be false shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable-
(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both,
(b) on conviction on indictment, to a fine not exceeding £15,000 or to imprisonment for a term not exceeding 3 years or to both.
(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.".
There is a basic and fundamental requirement for any proposed legislation to be seen to be balanced. Deputy Shatter's proposed amendments are an honourable, but flawed, attempt to provide that balance. My officials and I have given the measures I am introducing more consideration than any other amendment because it is a serious matter to introduce a new offence to the Statute Book and also because in our discussions with Deputy Shatter he voiced his serious concerns about its introduction.
We have given careful consideration to his views and have consulted with as wide a range of people and interests as was possible in the time given to us by the scheduling of this stage and I have decided to proceed with my proposed amendments. I am bringing forward a new section introducing a new offence of malicious or false reporting. My earlier amendments were based on the requirement to get the balance right between channelling appropriate reports to the correct people and protecting employees who make them.
This measure, which carries a high burden of proof, requires that someone accused of false reporting must be shown to have known that the report was false. This mechanism will introduce redress for a person falsely accused of child abuse. It is important to stress a number of points in this regard. In the current climate, the accusation of child abuse carries an unparallelled odium and disgust in the public mind. At present a person only has recourse to civil law through the claim of defamation if they have been falsely accused of child abuse. For many people this renders redress inoperable as resources are required to take a case and the person sued may have no assets.
The Garda, who will have a lead role in prosecuting any cases -and I believe there will be few cases under this section - are already likely to be deeply involved in any investigation in accordance with the provision of the health board-Garda guidelines for co-operation and notification in such cases. The health boards and my Department have recently received a number of complaints alleging that false reports of child abuse have been made and complaining that no avenues of redress are open to the person who says he or she was wrongly accused.
This is the first time that immunity from civil liability for the reporting of child abuse in good faith will be introduced and it is right and proper that this measure should be balanced by provision to ensure that malicious reports are not encouraged due to the lack of any realistic penalties.
My proposed amendment No. 7 reflects much of what we already discussed today and is a more accurate reflection of the purpose of the Bill as amended than the name of the Bill as it stands at present. It is a small but important matter that the short Title of the Bill as it will be called in everyday use should reflect as accurately as possible the purpose and meaning of the Bill. My amendment does this in a succinct yet logical manner.
As regards the date for the commencement of the Act, I took on board Deputy Shatter's initial suggestion of one month following its passing and I have no difficulty with his proposal. In these circumstances, and bearing in mind what I said already in outlining our cogent arguments for introducing the provisions relating to protection from false reporting, I will not accept either of Deputy Shatter's proposed amendments to my amendments. There is a need for balance in the Bill and postponing the coming into force of an essential balancing mechanism is unacceptable and inappropriate.
In recommending acceptance of this amendment, I stress that anyone acting reasonably and in good faith has nothing to fear from it. It is an essential balancing measure in this worthwhile legislative initiative.
I have the gravest of reservations about the advisability of the Minister's proposed amendments. I wish to express those reservations in detail and I tabled my amendments as a point of discussion in the context of this Bill. I intend to put them to a vote because I feel so strongly about the issue. However, I would prefer if the Minister dropped this section rather than accept my amendments which merely ameliorate matters and give an additional period of time to the Minister to think about his position on this issue.
I have no truck for any person who might maliciously accuse someone of child abuse or placing children at risk in circumstances where the person making that statement knows it to be false. It is evil to accuse someone of this knowing the accusation is false, for the purpose of embarassing them or placing them at a disadvantage in some way.
It is important to look at where we start and where we are going as regards this issue. At the moment people make reports to health boards alleging that children are the victims of abuse and those issues are investigated. The health board will determine whether the report is accurate but the health board and social workers may be uncertain whether children are at risk. At the moment, if a report is made and not confirmed and the view is that children are not at risk, the person who made that report is not criminally liable, except in the context of the somewhat esoteric offence of criminal libel, which rarely arises in practice.
If the identity of the person who makes the report is known to the alleged abuser, and the report turns out to be malicious and false, the person who makes at present that report is liable in civil law to be sued for damages. No matter how malicious or false the report, the liability is in the area of civil law. On the face of it, what the Minister is suggesting could make some sense. Of course we want to discourage people from making malicious and false reports. It might appear to make sense to state that if someone makes a malicious or false report they should be criminally liable but there are many instances where an allegation might be made and, if investigated, the Garda might reach the conclusion that someone made a bona fide report in good faith. If the Garda do not draw that conclusion or if the Director of Public Prosecutions has to decide whether someone is to be prosecuted, he may take the view that there is not enough evidence to warrant a prosecution.
I am concerned about the dynamic of what is proposed and the way it will impact on the situation. In this context the Minister has got it seriously wrong. We are trying to encourage people to make reports where they have solid reasons to believe that a child is at risk. We know from a number of published reports that there is a general view that, on occasions, teachers and doctors have been inhibited from making reports because if their reported concerns prove wrong they could end up being defendants in a court case and they do not wish to get themselves into that sort of difficulty.
What would be the position if we were to tell teachers and doctors that if they make a report to the designated officer they will not be liable in civil law? However, if the report is not confirmed the person who feels themselves to be the victim of that report, perhaps the father, can ask the Garda to conduct a criminal investigation. The Garda will interview the reporter who might say they have nothing to say, I do not know. The Garda would also interview the social worker. At this stage the Garda are not pursuing the issue of whether a child has been abused, that issue is foreclosed. They are pursuing the issue of whether a false report has been made and, ultimately, the Garda might prepare a report which is sent to the DPP. Are we going to create the risk that in every instance where a report is made to a health board which is not proven correct, those who are bitter because reports have been made about them demand criminal investigations and insist that teachers, gardaí or members of a religious order become the focus of an investigation because they made a report? I fear that we will create such a situation.
The Minister may say that the Garda would be involved anyway and if they investigate a matter and it is clear that someone acted in good faith, the matter would go no further. That may be true, and I believe it is true. However, the difficulty is deciding the circumstances in which the Garda will commence such an investigation. On how many occasions will teachers and doctors allow themselves to be interviewed by a garda who has been told by his superintendent or inspector to conduct an investigation in circumstances in which a report has not been validated and to determine whether an offence has been created under section 5? This is not providing balance. The balance in the Bill is that if one makes a false report the civil liability which one would otherwise be immune to is otherwise revived. This is a draconian proposal that seriously unbalances the Bill and it is completed counterproductive. It is criminalising an area of law for which there is no basis for criminalisation.
The Minister will not be able to give us yearly statistics indicating in how many cases a conclusion has been drawn by each health board that reported cases of children at risk were made falsely and maliciously. Do we have research which, as opposed to folk history, specifically tells us that there is such a large volume of false and malicious reports that we need to introduce a criminal offence? I do not believe we have that information. What is being proposed is dangerous because it will be used by persons who are under the spotlight and accused of abuse to try to manipulate individuals investigating allegations of abuse and to create pressures to prevent people reporting concerns that children are at risk. The dynamic social impact of this provision will seriously undermine the effectiveness of this Bill and its central objective.
Let us take an example with which we are all familiar. I do not wish to talk about a specific case. However, we would all be familiar with a large volume of cases where children have been abused for a number of years and have not made reports because they have been threatened or physically assaulted by both parents or, more usually, just the father, as to what the consequences would be if they tell a GP, social worker, teacher or, perhaps in the future, the designated officer. Abusing adults have an extraordinary ability to manipulate their victims, to put them under pressure and endure feelings of guilt to ensure the abuse is not reported. What if it becomes public knowledge that one might be criminally investigated and liable to a fine of £15,000 and three years imprisonment if one reports a case of child abuse which is not confirmed? How many abusive fathers will tell their daughters that they will go to prison for three years if they report the abuse and it is not validated? This applies to anyone who makes a report. It is supposed to be a report which is known to be false. Proving that will be almost impossible so this section will create an ethos about this Bill which creates the possibility of criminalising those who make reports.
This section is going to be used to put the victims of abuse under pressure not to report that abuse; the threat of criminal prosecution will be waved at them by those who are guilty of abuse. This is a seriously misconceived section. It is also riddled with anomalies. The Minister's objective is to criminalise those who make false statements of abuse but let us look at those people to whom the section does not apply. The Minister is telling us that under this legislation, the only immunity which should be granted is when reports are made to designated officers. He currently envisages those officers as child care managers or the heads of community care teams. This is a very select number of people. If I make a false allegation of abuse to someone who is not a designated officer it will not create a criminal offence. It would not be a criminal offence if I tell my neighbours that my next door neighbour is physically or sexually abusing his children but never bother telling the designated officer and, by so doing, destroy the reputation of my neighbour. The most discreet person one can tell will be the designated officer who, presumably, will operate within the privacy of social practice.
What if a person wants to make an allegation to somebody else? If a woman's marriage has broken down and she goes to her relations and friends to falsely allege that her husband is sexually abusing her daughter or if a husband falsely alleges that his wife is physically battering his son or daughter, none of that would be criminalised because the person would not have made the report to a designated officer or an appropriate officer within the meaning of this section.
This section creates the possibility of criminal investigations into a small number of people who make reports to appropriate persons where the reports do not ultimately result in a conclusion being reached that a child is at risk.
There was agreement that we would adjourn at 4.30 p.m.
It is very appropriate that we adjourn now. We should stick to that agreement.
I urge the Minister to consider between now and the next meeting withdrawing the section. I know he is sincere in what he is proposing but I believe it is ill conceived. It unbalances this Bill and should be withdrawn. I have not heard a public demand to introduce the criminal law to this area. I have seen no report published with anything to do with the child care area by any major body, such as the Law Reform Commission, the Kilkenny Incest Inquiry or any of the other inquiries, which suggests we need this type of provision.
In moving the adjournment I urge the Minister to withdraw this proposal by the time we sit again.
With regard to how we might proceed, I am strongly of the view that there is a need for balance in this Bill. While it is already a criminal offence, which carries a penalty of £1,500 to waste Garda time by making false reports, there is an argument for making a separate criminal offence of making false reports. We cannot compare making false accusations about child abuse to other types of false accusations when one considers the impact that has on a person's life. In most cases where there is an accusation of child abuse the person is suspended from their employment. Generally it has a devastating effect on their personal lives and it is virtually impossible for that person to resume a normal life afterwards. For that reason, it is important to distinguish this particular offence from other offences relating to false reports.
The point has been raised about the extent to which that might discourage people from reporting, and I accept that is something which needs consideration. In many respects this is a judgment call. We are not in a position to make that decision here today. Although I am inclined towards the Minister's position on this, I reiterate my suggestion that, before we decide on this particular section, it is only right and proper that we should consult with professionals working in the field. Before we resume consideration of this Bill we should invite representatives of professional organisations to discuss both aspects with the committee.
We cannot invite people at this stage.
Deputy Shatter is completely over the top on this. One can go around the neighbourhood and say anything one likes about a person and it is not a criminal offence. I do not see the relevance of that.
There is not a huge volume of malicious reports; I do not feel we need a huge volume of reports. How many lives need to be ruined to ensure there is a balancing provision in this Bill? We have reliable information from the health boards that there have been a number of these cases and the effect on the individuals who have been falsely accused has been devastating.
Before we meet again the Minister might give the committee the statistics so that we will know the extent of the problem.
This is the third time Deputy Shatter has brought up this matter today. Deputy Shortall will vouch for the fact that the people in the health boards are so stretched that they do not have time to compile statistics. The situation is so bad in the Eastern Health Board that the child care section is not yet computerised. I ask the Deputy not to ask me about statistics. Should we ask social workers to stop the work they are doing to start compiling statistics?
If the Minister is talking about the volume of false reporting, the committee is entitled to know about it.
We are trying to upgrade this; I will deal with this in another section. I and my officials can only go on the reports from the health boards. There have been a number, albeit a small number, of false reports and, as Deputy Shortall stated, the lives of the good people involved have been devastated, never to recover.
We have been careful in this section in stating that the person making the report must know that the statement is false in order to be guilty of an offence. Deputy Shatter has totally overlooked that. Therefore, the burden of proof is very high. Are we to sacrifice persons against whom malicious reports are knowingly made? Anyone - Deputy Shatter mentioned teachers or professionals - who makes a report reasonably or in good faith has nothing to fear in this amendment the standard of proof is so high.
Deputy Shatter has got this one wrong. It is simply a balancing mechanism in very good legislation for which I have complimented him. There is no point saying to somebody "takes a civil case" when his or her reputation has been destroyed because, in the first instance, he or she may not have the money to do so. Even if the person has the money, the vexatious person who has knowingly made the false allegation more than likely may not have the money to compensate for the false allegation anyway.
This is a good balancing amendment in good legislation. We must agree to differ. We have had interesting discussions on this. However, I am happy to revisit the issue in response to what Deputy Shortall said.
We will revisit this issue with the Minister in possession. Will we fix a date for the next meeting or will we adjourn sine die?
We need to fix a date, subject to the Minister's availability. It is useful that we stop at this point so that people can further consider this issue. I suggest we reconvene later this month after the Easter vacation when we should be able to complete Committee Stage.
I suggest we meet in the week beginning 5 May, given that Easter and a bank holiday weekend intervene.
Will we meet on the Wednesday, 6 May?
Wednesday would be a good day to meet.
We need to consult on the two main issues involved.
We had an opportunity for consultation before the Bill came to the committee. Now that we are on Committee Stage we cannot consult further on a formal basis.
With respect, we did not get the amendments until late last evening so we did not know the Government's position. Why is it not possible to consult?
An opportunity was presented to the committee to consult before Committee Stage was taken and nobody indicated a wish to do so at that time. Members were concerned to get on with the Bill. Any consultations will have to be personal and private.
There is nothing to stop Members consulting informally with any groups or individuals. I hoped we would meet in the last week in April rather than the first week in May, but the additional time may afford an opportunity for consultations.
We will adjourn, therefore, until 2.30 p.m. on Wednesday, 6 May.
