Dáil Éireann díospóireacht -
Wednesday, 13 Mar 1996

Vol. 463 No. 1

Adjournment Debate. - Child Sexual Abuse Victims.

Mr. O'Dea

I am grateful to the Chair for allowing me to raise this important matter. Arguably, the biggest crisis facing this State is the sexual, physical and psychological abuse of a significant proportion of its children. This phenomenon is now accepted by most people as a fact of Irish life. It was not always so. We know that for generations many people in authority — parents, neighbours, the law or other responsible community members — were effectively complicit with actual abusers simply because they would not speak out or act on their suspicions. A conspiracy of silence surrounded this awful crime and allowed its perpetrators to escape justice. Thankfully, that has changed.

However, this change in attitude has forced us to face the awful reality of the widespread extent of this problem. Last year, the Childline service received 10,348 calls about child abuse. Each year, the number seeking help for sexual or physical abuse has continued to climb inexorably. Last year was the busiest year ever for that confidential telephone line, with more than 2,000 children ringing every week. Sexual abuse calls topped the list, followed closely by calls about physical abuse of children.

The difficulties of bringing criminal prosecutions for incidents which happened many years ago are well documented. These are accentuated by the fact that the standard of proof in a criminal case, beyond reasonable doubt, is an extraordinarily high one. However, many of these abusers could be made liable in a civil action. In civil cases the standard of proof is less. Many of these abusers are in a position to pay if a successful civil action could be taken against them. However, the sad and unacceptable fact is that Irish law has allowed insurmountable barriers to stand in the way of the victims of child sexual abuse who wish to seek some vindication through the courts.

The principal barrier arises from the Statute of Limitations, 1957, which provides that a claim must be brought either within three or six years of the alleged act or acts of abuse. That means that victims of child sexual abuse who wish in adulthood to bring a civil action against the abuser will find their claim is effectively, statute barred. If this situation is allowed to continue it is likely to reawaken the powerlessness and betrayal felt by the victims, leading inevitably to immense frustration and hopelessness. The 1957 legislation was changed in 1991. However, the bulk of legal opinion now is that that change will not assist the victims of child sexual abuse in the past who wish to bring a civil action. The 1991 Act must be amended to allow them to do so as a matter of urgency. I invite the Minister to state tonight whether he proposes to do that.

There are other issues which need to be addressed as a matter of urgency. The principal among those is the issue of vicarious liability. This issue concerns the liability of a principal, for example, an employer or an institution, for the acts of its servants or employees. For example, it is quite unclear in what circumstances the Church will be liable for child abuse perpetrated by an individual cleric. The attitude of the Government seems to be to allow this to be dealt with by judges on a case by case basis. Inevitably, different opinions and judgements will emerge, and the net result will be a legal land-mine, similar to the incomprehensible maze into which occupiers' liability law had descended before it was clarified by a statute introduced by this Minister. If the law on this vital matter is left to individual judges to make on a case by case basis, each judge will be ruled by his or her predilections and prejudices. No lawyer will be able to clearly advise a victim as to whether, in the particular circumstances, he or she has a good case or a reasonable prospect of success.

Legislation is now urgently needed to remove these barriers which the law has placed in the path of victims of child sexual abuse to enable the courts to place responsibility for this awful crime where it truly belongs and ensure that past abusers can be made liable if a case is brought today.

Minister for Equality and Law Reform (Mr. Taylor)

Child sexual abuse is a heinous matter which society and our law condemns in the strongest terms possible. As a crime it can be prosecuted and punished by means of heavy fines and imprisonment. In that context, the distinction between criminal law and civil law is stark. In criminal law the aim is the prevention and control of the abusive conduct by putting away in prison if necessary the perpetrator, whereas the civil law is largely concerned with the question of damages. We generally think of child sexual abuse as a crime and the criminal law aspects have received a good deal of attention by our Law Reform Commission and in legislation. Recent reforms have addressed problems such as the giving of evidence in child sexual abuse cases and provision has been made for the criminal courts to order the payment by offenders, including sexual offenders, of compensation for injury or loss resulting from their offences.

However, considerable attention in our laws has also been given to the civil aspects of the subject by way of implementation of the 1991 Child Care Act, and at the end of this month the Domestic Violence Act, 1996, will come into force. That 1996 legislation increases the remedies available for acts of abuse against adults and children and strengthens the power of the Garda and health boards to act in such situations.

Deputy O'Dea, in bringing forward his motion on the Adjournment, framed the subject matter in general terms but the understanding has been that he would address two aspects, namely, the law concerning the time within which persons must bring civil actions and the law which imposes civil liability on a party other than the actual wrongdoer. I will now deal with those two matters.

The Deputy postulates that there are barriers in so far as those civil laws apply to child sexual abuse cases. I welcome the Deputy's intervention in highlighting these areas and in putting them forward as matters which may require further analysis and attention. However, that is not to say I accept his apparent assumption that the law has somehow placed barriers in the way of court actions in child sexual abuse cases.

As regards the law on time limits, an important point to bear in mind is that while such periods do not generally apply to criminal actions, it is recognised that the longer the passage of time the more difficult it is to get a successful conviction. This may simply be because of difficulty in getting together witnesses or because of the difficulties of witnesses in recollecting the facts. Many other evidential aspects or links in the case may also have been dissipated or lost in the meantime.

Where civil actions are concerned, the general rule by virtue of legislation of very long standing is that the action must be brought after the expiration of six years from the date on which the cause of action accrues. There are important exceptions. In the case of actions, for example, for damages for negligence when the damages are claimed in respect of personal injuries the period is three years, instead of six. Where children are concerned that three year limitation period does not begin to run until the injured person is 18 years of age.

The law on limitation periods was reviewed by the Law Reform Commission only a few years ago, following on which legislation was enacted in 1991 to provide, largely, that the three year period that applies generally in personal injuries cases may run from the date of knowledge of the facts relevant to the injury. The 1991 Act makes clear if the person having the right to bring an action was a child, either at the time when the right accrued or at the date of knowledge, the three year period does not start to run until the person reaches 18 years of age.

In this whole area of the law there are, inevitably, competing interests and because of that not everyone will regard the law as being perfect. Further changes would require careful study by any Government. I am happy to take the Deputy's contribution to the debate into account in my Department's ongoing review of this area and if changes are found to be feasible and warranted, I shall be glad to consider them for legislation.

Deputy O'Dea questions, also, the civil law which allows not just the actual wrongdoer but someone else to pay damages to the victim. For upwards of two centuries an employer has been "vicariously" liable for the wrongful acts of his employee committed in the course of his or her employment. The employer is not, of course, liable in the place of the employee — the employee remains liable as well and vicarious liability applies to practically the whole range of civil wrongs. A justification for that liability is that the employer gets the benefit of the service of the employee and should, therefore, shoulder the losses when they arise. Some argue that the employer is made a mark because his or her means are usually greater than that of the employee. In any event, vicarious liability has been enormously extended over the years by the courts so that it may apply even where no formal relationship exists between the parties in question — it may on that basis be sufficient that a person had control over the acts of another.

However, the law does not impose liability on an employer for all the wrongs committed by his or her employee and the question as to whether the wrong arose out of or within the scope of the employment is very often one to be resolved in litigation. Relevant also is the question of whether the employer ought reasonably to have known or foreseen that the injury might take place. It is plain that there can, in the nature of things, be no golden rule for determining the boundaries of a person's employment or control, as the case may be, over another. Every case must turn upon its facts. Again, the feasibility of possible changes in this area of the law has to be questioned closely. If changes were to be contemplated the law would require very careful examination as to the implications. There are, as the Deputy will appreciate, no ready-made answers. What is important is that Governments have in recent years proceeded with a combination of sound legislative and administrative reforms to tackle the problem of child sexual abuse. That also continues to be the policy of the Government on this subject.

The Government's programme of action in relation to children includes a Bill in course of preparation in my Department on the giving of evidence by children in civil cases. The programme includes proposals for the establishment on a statutory basis of an inspectorate of social services within the Department of Health with responsibility for aspects of child care practice and undertaking inquiries. Mandatory reporting of child abuse is, of course, the subject of a discussion document recently initiated by the Minister of State at the Department of Health. A special Cabinet sub-committee on children has been established to oversee all matters in relation to children. I assure the House that the Government is committed to a structured approach to all aspects of the law and of administration in relation to children.