I welcome Ms Emily Logan, Ombudsman for Children, Mr. Bernard McDonald, assistant Ombudsman for Children and Ms Sophie Magennis, head of policy and research at the Office of the Ombudsman for Children. Members have received a copy of the formal submission submitted by the ombudsman.
Constitutional Amendment: Discussion with Ombudsman for Children.
Ms Emily Logan
I thank the Chairman and the members of the committee for their invitation to attend today's meeting. I understand they are working under extreme pressure and I appreciate the complexity of the issues they will work through over the coming months. I appreciate the opportunity for an open exchange with the committee and my request for some time in private session to enrich the discussion. I hope our discussions in the consideration of my submission will be of assistance. If any individual member wishes to have further discussions with my office, we are willing to make ourselves available.
The proposed constitutional amendment presents a great opportunity to enhance the protection of children's rights in our Constitution. This opportunity was a long time coming and it is imperative we make the most of it. My input to the process to date has included advice to the Minister of State at the Department of Health and Children, with responsibility for children, a report on the Twenty-eighth Amendment of the Constitution Bill and meetings with several Oireachtas committees with dedicated time for children's rights. I am aware of the contributions of individual members of the committee to the process and the range of expertise in children's rights and child protection that exists within the committee. With this in mind, I hope we can complement the process.
The Ombudsman for Children Act 2002 provides for three main functions for my office, the first which many are familiar with — independent complaints handling. The other two functions, with which people are less familiar, are the review of the operation of legislation affecting children and providing advice on any matter relating to the rights and welfare of children. The office is also mandated to include the principles of the UN Convention on the Rights of the Child. I have a role in encouraging the development of policy practice and procedures on children's rights. Uniquely, we are the only office to have a mandate to highlight issues relating to the rights and welfare of children that are of concern to children themselves.
Our submission to this committee is quite unlike previous ones. We deliberately took a different approach to our previous advice and report. On this occasion, we have chosen to focus on the experiences of our office and our growing understanding of the reality of children's lives. My aim in taking this approach is twofold.
I hope to complement the submissions already made to the committee. I also would like an opportunity to reflect the breadth of real situations in which we have witnessed children being adversely affected. I am conscious the committee is assisted by many legal advisers. We want to focus on the issues that come under our mandate. It is about the balance between the orders of reference of the committee and our mandate.
My recommendation for the amendment to the Constitution is set out in the submission. The Constitution is the place for setting out what we describe as first principles. These are the inclusion of an express statement of the rights of the child; the inclusion of the best interest principle, the inclusion of the State's duty to support families while responding in a proportionate manner and the inclusion of a provision to enable the sharing of soft information. We must get the message right in the State's primary legal document. The rules and principles it contains define our cultural values about children and provide direction to decision makers at all levels in public life, whether members of the Judiciary, schoolteachers, social workers or people who work in local authorities. I fully appreciate that this decision is about law, but it is also about policy, practice, procedure and a custom which we hope will affect the day to day lives of children. Central to that decision must be the need to provide for all children, not just some. In my report to the committee I aim to bring to its attention concerns expressed by children and their families, either through our complaints function or by direct contact with children.
My office was established in 2004. Our experience in recent years enables us to believe we can now speak with considerable confidence about the issues, in terms of obstacles, that some children face. To date, we have received 1,710 complaints. In this context, it should be emphasised, we are not an advocate to the child. Sometimes that is misunderstood because it is the Ombudsman for Children's office. People assume we take on the advocacy role for the child, but we do not. We apply the principles as any other ombudsman institute would, in terms of impartiality. In that context we are neither an adversary to the public body nor an advocate to the child.
It is relevant to point out that there are three distinct provisions in the legislation in this regard. The first is that children can make a direct approach to the office, so we can take a complaint from anyone under the age of 18. We are obliged to consider the best interests of children when we make decisions. We are also obliged to consider the wishes of the child and his or her participation, in the context of an investigation. The vast majority of complaints are made by parents, at 69%, or extended family members, at 6%. This means 75% of the complaints come from immediate or extended family members. Parents are the principle advocates for children's rights and welfare. It is worth noting that not one of these complaints has a conflict between the best interests of the child and the rights of parents being the subject of a complaint.
In reviewing the complaints, my office actively uses the first principles which we have recommended in the inclusion in the report. My recommendations are therefore underpinned by the office's experience in this regard. In selecting these principles, we have focused on the core principles set out in the United Nations Convention on the Rights of the Child. Sometimes I am asked why we have chosen to use the UN convention as a tool to do this. It has a particular significance to our office, given that the legislation which established it, provides that we shall promote the awareness of the convention and how its rights may be enforced.
In my submission, I have illustrated why the inclusion of express rights for children, the best interests principle and family support provisions are required. I have tried to include practical examples which demonstrate the lack of protection some children currently experience. For example, with reference to the best interests principle, oftentimes it is not applied, not because an individual chooses not to, but rather because decision makers have been given no direction to take such an approach. My office's experience of working directly with children has made us aware of the value that they attach to being afforded opportunities to voice their concerns and wishes. Our experience suggests that for children, being heard is in part about being included in processes that are important to them — about being afforded the opportunity to contribute their perspectives when decisions will have an effect on their lives, sometimes profoundly. I commend my submission to the committee as an overview of why change is needed — and the type of change we are recommending.
To be clear, when I raised my concern as regards focusing on specific cases, while I support the attempts being made to provide for the adoption of children in long-term care, it is really important to stress it must not be assumed that this is in the best interests of every child in that situation. I consider the measures we have suggested possibly offer a broader or global look at children's rights and may provide the opportunity in terms of the specificity of the document. Our interest is in ensuring that all children, not just some, will benefit from that.
The committee will notice the issue of strict liability in the submission, which I believed we could not omit. It was in our previous advice, but we have included it as an appendix in this submission. For this session, I would really like to focus on first principles and our office's experience in this regard. I look forward to a discussion with the committee and remain at its disposal. I am conscious that some members might not have been here at the start and reiterate that we are happy to make ourselves available to anyone on an individual basis, if clarification is needed.
I thank Ms Logan. The trio, including the Ombudsman for Children, will now take questions.
I welcome the Ombudsman for Children and her team, and thank them for their submissions — both the written submissions to this committee and their involvement in the work of its predecessor.
To some extent the work of this committee is a continuation of the work of its predecessor. I have a couple of questions. I probably dealt with this the last time Ms Logan appeared before the previous committee. She makes a recommendation as regards what we should include in the constitutional provision. She has obviously seen the Minister's proposal as regards the Twenth-eighth Amendment of the Constitution Bill, as published, and is critical of the first part of that. She takes issue with the affirmation of children's rights in the manner proposed in this Bill, to the effect that the State acknowledges and affirms the natural and imprescriptible rights of all children. She says her office wants an express statement of the rights of the child and the inclusion of the best interests principle.
We are grappling with how to deal with those issues. It would be very helpful if we had a form of words. I know we have dealt with this previously. Ms Logan is saying that form of words is not satisfactory. What proposal would be better so that we might take that into our consideration? She might tell me she is not a constitutional lawyer, but ultimately, she has a wealth of experience and I welcome her approach in terms of the work of the office of the Ombudsman for Children since it was created.
Has she given any thought to a form of words that would capture the first two issues she put out in her recommendations to the committee? If not, would she be willing to? On the body of the report in her submission, a number of issues there will not be the bailiwick of this committee. This is a constitutional amendment committee, with notionally a short remit and a finite existence. However, many of these issues have been touched on in the report of the previous committee. I am interested to hear whether she has had the opportunity to read the report of the previous committee and in the event, whether she has any observations to make, in general terms. I am probably pushing the boundaries of this committee's remit in this, but much of what Ms Logan is proposing was included in the 60 or so recommendations of the report of the last committee, including her suggestions on process and procedures to be adopted in cases. Does she have any observations to make on that report or is there any particular area we have omitted in those previous deliberations?
Ms Emily Logan
In answer to the Deputy's first question, it is probably more constructive to say we will be happy to make ourselves available in that regard. I am particularly anxious to be clear on the relationship and accountability of the State to children and families. In the last committee I believe I said "No" in this regard, but it has been quite difficult. We are absolutely clear about our remit, but I am happy to have that discussion. Although my office does not have the authority to provide a wording, we do have authority to provide advice to the committee. So in that regard, "Yes" is the answer.
As regards the child protection committee, that was a very good report. I was particularly interested in the issue of strict liability and the potential for children to be exposed to give evidence in court. A number of good strong recommendations were made by that committee and I can see that these overlap, somewhat, with the terms of reference of this committee. We were very happy with that report and its recommendations. I would be more interested in seeing the implementation of the recommendations of the child protection committee.
Does it strike Ms Logan from her experience of the cases she has dealt with that there are areas she has not touched upon or to which she needs to return?
Ms Emily Logan
There were issues with regard to the age of consent and child witnesses, and a number of issues that were comprehensively dealt with in that child protection report. From our experience in the context of the broader issues of child protection, we were satisfied with that committee's recommendation but we would like to see implementation.
I welcome the ombudsman, the assistant ombudsman and Ms Magennis. I would like to tease out a couple of issues. The first relates to radio interviews given by the ombudsman and on-the-record press statements where she explicitly stated she would prefer if the issue of strict liability and the age of consent was not decoupled — this is the term we are using in the committee — and was kept as one so the wider implications and wording on children's rights would be joined together. Is this due to concerns of an undue delay or because the ombudsman feels that one piece of constitutional amendment will benefit the other? The feedback I am getting is that the decoupled issue of strict liability and the age of consent could be dealt with quite quickly in the coming weeks but the more substantive issue will take a while. I would like to know where the ombudsman is coming from in this regard.
While the ombudsman suggested she does not have the authority to suggest a wording, if she were to get consensus from the committee that it would be beneficial, for her to even suggest a possible wording would be very helpful. For example, at present the Schedule to the Twenty-eighth Amendment of the Constitution Bill 2006 "acknowledges and affirms the natural and imprescriptible rights of all children." What would the ombudsman change in that? Is that not open to legislative interpretation? Is it not a function of the legislation that goes alongside it, rather than the constitutional protection? It is possible that no matter what wording is included, unless one wants to try to tag on the entire UN convention, which it will not be possible to put before the people and would perhaps not be desirable, it will still have to be backed up by legislation. Does the ombudsman see the constitutional provision as being of the utmost importance or, rather, a general protection with strong legislative proposals alongside? I would like feedback on this issue. Would the ombudsman go so far as to suggest amending Article 41 and stating that this amendment is no use without Article 41 and, possibly, other articles of the Constitution? As it stands, does she think it is a sticking plaster?
Ms Emily Logan
On the question of strict liability, I have brought a case to be discussed in private session to try to illustrate what is behind that comment. It is a fair question. My concern is that there are broader child protection issues beyond strict liability. I have no concerns with regard to delay. In fact, I have been clear in stating that this is not an issue of time but more one of completeness and comprehensive provision for the child. I have brought a case to the committee to explain in particular the issue of soft information and some of the cases brought to my office. As Ombudsman for Children, I feel I have a moral responsibility to impart this information to the committee to explain my comments in that regard. That is what is behind it. It concerns the limitations of the Constitution rather than time.
Is the question of the exchange of information the ombudsman's particular concern or is it—
Ms Emily Logan
No. When I talk about decoupling, I am talking about decoupling between the criminal aspect of the Bill and the general rights issues. People have described decoupling as even more specific to strict liability and child protection so that is not what I mean by decoupling, which is bringing in all of the issues together.
I do not want to be unhelpful or to jump in ahead of anyone else but this is an issue I want to pursue. The ombudsman should not take this badly but I genuinely do not understand what she is saying.
If the Deputy feels that, perhaps other members—
I genuinely—
The Deputy has got in ahead of the next member.
This is an important issue and has contributed to much public discussion in the past ten days. I will say no more until I come back to the issue but, without wishing to be difficult, I do not understand what the ombudsman has just said.
Ms Emily Logan
Fine.
Ms Logan may want to give some concrete examples of where the difficulties will be caused. I am not sure if this is the right time or whether we should wait until the rest of the questions are asked.
Ms Emily Logan
I need to be clear at this point. When we were in the child protection committee, we were drawn into the criminal aspect of this. I am conscious that I do not want to do that this evening. I am very happy to meet Deputy Shatter and give him as much time as he wants to debate this and talk about the broader issues, if he likes. However, I do not want the entire discussion to be about that.
Excuse me. We cannot let this get out of hand. The meeting is open to the members of the committee whom I will call in the order set down. Is Deputy Gogarty finished?
I have finished asking my questions. I am sure the ombudsman—
Is the Deputy waiting for further answers?
Is the ombudsman suggesting the exposition of the legal position behind her stance will take time? Can she provide it to us in written form later?
Ms Emily Logan
It is in the report of 6 March 2007 and is also included as an appendix in the document before the committee.
It is on page 22 of the submission.
I have to draw breath. I do not want to draw the ombudsman into an area she may not want to address. I welcome Ms Logan and her colleagues, Ms Magennis and Mr. McDonald, and thank them for their input. I am sorry I missed the opening contribution. I presume the text of the address is reflected in the document that has been circulated, which is more comprehensive and which we will have the chance to study in time. I also welcome the ombudsman's contribution in terms of the wider public debate around the issues that this committee has been tasked to address.
Only last week, representatives of the Children's Rights Alliance were guests of the committee and made a presentation. Unfortunately, that presentation was interrupted during a questioning opportunity such as this by a vote in the House, but, nonetheless, the alliance sent us a further missive elaborating on its position on the strict liability issue, which indicated it is not convinced that it is the most appropriate approach.
Without wanting to draw the ombudsman into an area that she is not keen to address today, would she like to elaborate on what she has already said in this area? Does she have a similar analysis to the Children's Rights Alliance with regard to stating this goes much further and deeper than the proposition to decouple the whole issue with regard to strict and absolute liability from the wider brief of this committee, which is not only about protections but about the affirmation of children's rights within the Constitution? This is much more than just protection. Can the ombudsman further elaborate on her publicly expressed view in this regard? What if the committee in its recommendation to Government took the decision to proceed to address the issue of strict and absolute liability independent of the other very important areas that must be addressed? Just a week ago, I outlined to the committee a whole series of areas of protection in the first instance, when I made the point that this is about far more than protections. I presume the ombudsman's concerns about any separation of the issues is that it would significantly delay address of all that would not be included in the first referendum. The concern is that the treatment of those issues could be delayed beyond even the current Dáil, an extremely undesirable scenario but one that has been affirmed, on the floor of the House, as a possibility.
Can the ombudsman give us a sense of the vulnerability that might be perpetuated in this context in respect of the affirmation of children's rights? I do not expect her to go into great depth but I would appreciate her view on the seriousness of the outworking of what the committee has been considering. What are we deferring into an unknown period of time? I will be grateful for any information she can provide in this respect.
Ms Emily Logan
I am convinced that the Criminal Law (Sexual Offences) Act 2006 provides protection. We articulated in our March report that we have two outstanding concerns. The first relates to the exposure of children when giving evidence in court and how protection can be provided in this regard. The second is the possibility of children being prosecuted for engaging in consensual sexual activity together. I will ask my colleague, Ms Magennis, to outline our position.
Ms Sophie Magennis
We indicated in our submission the problems as they are presenting to us, based on a consideration of 1,710 complaints that have come to the office to date. They point up significant difficulties in terms of whether the best interests of children are being taken into consideration in decisions affecting them, children's ability to have their say in decisions affecting them and non-discrimination provisions.
Our position on the strict liability proposal is to emphasise that this opportunity to reform the Constitution should focus on getting it right in terms of first principles. Our concern with the splitting away of the strict liability issue is that it refers only to a small number of children and young people in specific circumstances. We acknowledge that the objective is to offer some protection to children in the courtroom. However, only some children in certain circumstances will be protected under this proposal. We seek full implementation of the report of the Joint Committee on Child Protection such that all children coming before the courts, for whatever reason, are protected. Strict liability will deal only with consensual acts. What about those children who are over the age limits currently provided for in the Criminal Evidence Act 1992 and thus do not benefit from protection in regard to cross-examination and video evidence?
Our position on the question of strict liability is that we certainly must introduce protection to ensure children in the courtroom setting are protected but that we must also, above all, seek to protect all children. We have an opportunity to get this right in terms of first principles, via the constitutional amendment, for the benefit of all children rather than just a small number in specific circumstances. We are concerned that too much focus is being placed on the symptoms of the problem. The underlying imperative is to ensure that children's rights are respected in all situations and that children are not discriminated against. If we lose sight of this bigger picture, we focus merely on the specific problems that have been highlighted in the media, such as strict liability or the possible adoption of children in long-term foster care.
We ask members to step back and listen to the experience of the office of the Ombudsman for Children, which has been in place since 2004, and take into consideration the fundamental issues as we see them. We ask for the debate to be refocused on those issues. We do not accept the urgency to deal only with the strict liability issue if we can, instead, deal quickly with all the issues in regard to express rights and best interests at this stage.
What do the delegates say to the argument that not decoupling will place most of the emphasis in the debate on constitutional change on the issue of strict liability and that it is a distinct and separate issue that must and can be dealt with quickly without prejudicing any other work?
I am unclear whether the delegates are opposed to proceeding with proposals on strict liability.
Is the Office of the Ombudsman for Children opposed to strict liability simpliciter whether on its own or incorporated in the entirety of a children’s rights amendment?
I remind members that we must maintain some structure on this meeting. Deputy Ó Caoláin is in possession.
Will the Chairman allow the delegates to answer my question?
If the Chairman does not object, that is fine with me.
I ask the delegates to respond to Deputy Howlin and, by implication, Deputy Shatter.
Ms Emily Logan
We indicated our position in our submission to the committee.
May we have a simple "Yes" or "No"?
Ms Emily Logan
We are not in favour of introducing a strict liability provision. We explain our rationale in the submission.
We understand that.
Does that apply in any circumstances?
Ms Emily Logan
Yes, we explain in the submission our view that it is a blunt instrument, legally speaking.
I understood that was the ombudsman's position and I welcome her affirmation. This is the same position as that articulated by the Children's Rights Alliance in its second submission to the committee. It is an extremely important point.
Will the ombudsman elaborate on the distinction between protection and rights? She and her colleague emphasised the latter in their responses to my last question. There is a significant difference to be emphasised here. We can enumerate the protection needed for children at risk, not only in terms of sexual abuse but also physical abuse, emotional abuse and so on. The list goes on. Will the ombudsman elaborate on her view on how children's rights can be enshrined in the Constitution in the context of the referendum proposal we have been tasked to prepare and present? How does she see the affirmation of the rights of the child being effected in a way that goes beyond protection? I welcome her insight on this point.
Ms Emily Logan
I will offer the Deputy an example where the wording of the legislative provision is very specific. In regard to adoption, the objective of the legislation is to provide for and care for children in contexts where they are vulnerable and may be without parental care. I have spoken to two children about this. One is 11 years old and was fostered at the age of eight months. She is happy with her foster family and would like nothing more than to be recognised as an official member. The second child to whom I spoke is 13 years old, is engaged in some particularly challenging behaviours and is in residential care, seeing family only at weekends. This individual asked me to communicate to the committee total opposition to the notion of adoption in current circumstances.
In terms of child protection, there is a triangular relationship between the State, child and parent. We seek to ensure the State supports the family in the best way it can. However, if we only take a patriarchal approach to protecting children by doing as we see best, we ignore and negate their evolving capacity to contribute. In other words, we do not acknowledge their inherent value as individual human beings and their right to express their view on what they think is important in terms of the realisation of a particular right. Protection is one of those rights but I am concerned about the philosophical separation of child protection and children's rights as two competing or different considerations. We are trying to effect change. We are trying to encourage people to think of and respect children as people with capacity, if that is appropriate, and to involve them in decisions about themselves.
I welcome the Ombudsman for Children and those with her. I number the submission received from the ombudsman in respect of the original papers on 6 March 2007, together with the submission from the Children's Rights Alliance, as two of the more helpful submissions members have received in trying to tease out the wording of the constitutional provision. At the first meeting of the joint committee I expressed my wish to have a true children's rights amendment that would incorporate real rights for children as individuals and that would reflect our obligations under the United Nations Convention on the Rights of the Child, not simply a piece of constitutional window dressing. My perspective is that of one who, as long ago as 1977, wrote on the need to change the Constitution to improve children's rights.
Based on some of the public comments I have heard, as a member of the joint committee, I consider it right to tell the ombudsman that all members representing all parties, despite the issues on which they argue occasionally, are absolutely sincere in the work they are doing. There is a real political commitment, perhaps for the first time, both to include a children's rights amendment in the Constitution and to rebalance it in a manner that is valuable and does not constitute mere political camouflage, that is, the making of statements that ultimately are constitutionally meaningless. This is a joint committee with serious intent that has two Ministers attached to it who also have serious intent, albeit who, from my perspective, are in the wrong party.
We could say the same about the Deputy.
That is appreciated. It is important that the Ombudsman for Children knows from where the joint committee is coming. I make this point because I have a genuine concern. Although it is important that the ombudsman makes public comment on issues relating to children, as someone who has worked for many years on children's issues in respect of children at risk and in the adoption context, I found her intervention in the discussion last week extraordinary. I had hoped members would receive an explanation for it because it is highly relevant to the wording with which they are dealing.
Members should not be obsessed by the strict liability issue as, ultimately, most of their other work will be of greater importance than that issue. In respect of subjects including family breakdown, children in care and those families incapable of caring for their own children and which have children in fosterage who are not available for adoption, there is a great need to amend the Constitution in the context of our rights under the United Nations Convention on the Rights of the Child. I do not believe our constitutional provisions and some of our court decisions are compatible with our international obligations. This issue has been highlighted.
I make this point as someone who probably has a mindset similar to that which obtains within the Office of the Ombudsman for Children. During the years politics has taught me that if one has an opportunity to introduce a piece of social or constitutional reform that would provide for recognition of a change in Irish society or which would provide some additional protection for people, be they adults of children, one should do so. When a group of children are at risk and a constitutional and legislative intervention could provide them with additional protection, one does not think to hell with it, they are a minority and one does not need to do anything for them and will postpone it for another year.
I found the comments made last week to be more about political judgment than the protection of children. I say this with great caution and regret being obliged to say it. It was about a political judgment to the effect that were a limited constitutional amendment to allow for absolute liability in respect of adults who had sexual intercourse with young children to be put to a referendum, we would not deal with the full issue of children's rights within a reasonable period. It was about political judgment rather than child protection. Everything I have heard today has confirmed this point.
I listened carefully to the ombudsman's comments on her reasoning. Essentially, the reasoning centred on a concern that were the issues to be split, given the existence of so many other issues that must be dealt with in respect of children, members should not deal with the single issue. However, if I see a car heading down the road that is at risk of killing or doing serious injury to someone, I do not decide not to intervene because I know better road traffic regulations will be introduced next year. That is not my perspective on the world. Although I will come back to the ombudsman's submission, there was a major error of judgment in this context.
The error consisted of a judgment that members were obsessed with the issue of strict liability, which they are not, and that were this matter to be dealt with, there would be no urgency. From my perspective, there is huge urgency. For example, what transpired in the Baby Ann case was illustrative of difficulties in our law in respect of the courts reflecting on the reality of children's rights and seeing them as independent of the constitutional perception of the marital family. It may be that had the court in that case regarded the child as having individualised rights, the result may have been the same or may have differed. While I do not want to overly individualise the case, it highlighted an issue.
In this area members agree on and the ombudsman's very helpful submission highlights the great complexity associated with the wording to be adopted in the context of the overall children's rights amendment. It is easier to criticise the wording presented than to come up with an alternative. It is easy to explain the deficiencies in the existing wording and I have done so. However, if one considers the myriad submissions received, hardly a group campaigning on behalf of children's rights has been able to put forward a consistent alternative wording with which other groups agree. Ultimately, it will fall to members to work on such a wording and this will not happen before the end of March. Based on the huge number of submissions received, members have recognised that if, before the end of the year, the joint committee can complete its work and come up with a consensual alternative wording to that published to address many of the difficulties the ombudsman has highlighted very well, it will have done good work. I hope a constitutional referendum will then be held early next year.
However, one issue will remain. The issue does not pertain to soft information because members have recognised that it is much more complex than may have been envisaged when the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, in his former capacity as Minister of State with responsibility for children, published the wording under consideration. He did so in good faith. All members know they cannot rush into dealing with the issue of soft information because the constitutional provision being suggested is broad and creates certain dangers. Moreover, there also may be a need to examine the substantive legislation needed to implement it in order that people will know on what they are voting. However, I want to return to this issue, as there is a need for clarity due to the level of public debate and comment on the subject.
The proposed Article 42(A).5.2° states "no provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age". That proposal reflects a recommendation contained in the report published in November 2006 by the Joint Committee on Child Protection, a report with which the ombudsman agrees. It only deals with a small section of that report. I agree with what has been said by both speakers today that there is a need to implement a myriad of the provisions recommended in that report that do not require a constitutional amendment. There is unanimous agreement within that committee, with which this committee does not disagree, that a series of new procedures and legislation is needed. One of the proposals is that there should be a specific criminal offence of sexual abuse. That requires ordinary legislation instead of constitutional change. It is the responsibility of the Government to bring that forward.
It is a mistake to confuse the two issues. All that needs to be done on the one side, which does not require constitutional change, and because we want and must have a child-centred rebalancing of the Constitution with a very detailed article that is an amended version of what the Minister brought forward, a referendum on which will probably not be held until 2009, does not stop and should not have stopped a constitutional referendum to deal with the strict liability issue, as recommended by that particular committee.
With all due respect and in the context of what is an extraordinarily helpful and good submission by Ms Logan, there has been enormously confused thinking on that. The confusion has been compounded today. When Deputy Howlin asked whether Ms Logan was in favour or against strict liability and I butted in, her answer was that she was against it. I refer her to page 12 of what I have described as a very good submission dated March 2007.
Ms Emily Logan
We say that we welcome the attempts to provide for it and in the next two paragraphs, we talk about concerns about it.
The submission talks about how it should be delimited and I agree with this. The document said that:
The aim of this provision is to facilitate the restoration of the law on statutory rape similar to that which existed prior to the Supreme Court's judgment in the CC Case. I welcome this provision as the reintroduction of an offence of absolute liability in relation to sexual activity with children under the age of consent would limit the possibility that child victims could be exposed to potential damaging court proceedings — a possibility which exists under the current Criminal Law (Sexual Offences) Act, 2006.
This was the Act referred to a short time ago as being the reason we do not need this. She then went on to say something with which I agree entirely, which is why her submission was so helpful. She said that—
Because the Deputy agrees with it.
Yes. She points out that this particular constitutional change is not limited to sexual offences and appears to be broader. She may not realise this but this is an issue which the committee has already teased out with our counsel and has explored whether, if this is included in the Constitution, we should delimit it to sexual offences or simply refer to offences. An explanation has been given why it needs to be broader because of the technical definition of sexual offences in various statutory measures which could exclude common law rape. There is a particular technical issue here about which we ultimately must make a decision.
The Ombudsman for Children then goes on to say that this provision does not exclude children from its ambit. At the moment, we do not know what legislation might be enacted pursuant to this provision because no agreement has been reached on it. This provision is an enabling provision that allows for the restoration of absolute liability and for the provision of strict liability in respect of children under 18 in the context of sexual relations, but it is merely an enabling measure. It allows the Oireachtas to enact legislation which does not criminalise sexual intimacy between teenage children and does not require the Oireachtas to criminalise that type of conduct by teenage children. I would be opposed to criminalising intimate relations between teenage children of proximate ages. If a 17 year old decided to have sexual relations with an eight year old, that should be a matter of absolute liability. If a 16 year old had sexual relations with a 15 year old, I do not think we should criminalise that. The committee has not yet debated this issue. However, there was an assumption in the Ombudsman for Children's report that—
The previous one did so at length.
Yes. I know it is an issue about which there are differing views and none of us have a monopoly of wisdom on it. Perhaps we are all wise enough nowadays to know that it is a very bad idea to criminalise intimate relations between teenage children of proximate ages and that, in so far as society or parents have concerns about that, there are better ways of addressing those concerns than using the criminal law. There is a need to protect young children against sexual predators. A law of absolute liability has a very specific beneficial role in protecting children, particularly in respect of protecting young girls against older men who decide to induce them to engage in sexual intimacy or intercourse with them.
Reading the Ombudsman for Children's submission, it would be my understanding that she agrees there is a role for absolute liability. There could be a debate whether it should be in respect of children under 15 or 16. It has been in existence for many years in respect of children under 15, while strict liability has been used thereafter. In the context of where we are at the moment, we do not have absolute liability in respect of any child. At the moment, a 22 year old who has sexual intercourse with a 13 year old can use the defence that they had a mistaken belief that she was over 17. If it happens to be the case that the 13 year old is 5 ft. 6 in. and a very tall girl, the court might not convict that individual. There is a role for absolute liability. I apologise for speaking so long and will conclude.
I am conscious that there are other members on the committee.
With all due respect, the public comment made last week lost sight of the fact that we had a golden opportunity to address what is a small area that must be addressed by way of a referendum within the short term without doing any damage to the ultimate children's rights amendment. I do not understand why the Ombudsman for Children has said that we should postpone providing protections for the small number of children for whom that referendum would provide real protection if it was successful because it would enable the Minister to enact the legislation for absolute and strict liability.
Ms Emily Logan
This is an opportunity for change for more than the small number of children described by Deputy Shatter. We are responding to matters we know about. There are many things that are not in the public domain. We have met families and children on a number of occasions where things are not all right. I cannot say in all honesty that this is the only problem about which I would be concerned. I would not be doing—
I am not suggesting it is. Ms Logan is missing the point. I am saying that there is a broad range of issues with which this committee must deal. This is not the only problem. It is not probably the greatest problem but it is a real issue for some children who could be at risk and could be better protected.
Ms Emily Logan
I do not disagree with the Deputy.
How could addressing that issue in May or June of this year get in the way of the ultimate constitutional amendment on children's rights which will take place some time next year, which is probably the timeframe we are in?
Ms Emily Logan
It is because there is a suggestion that it is more important than other things.
No. That has never been suggested.
The committee is not just for the Deputy and Ms Logan. Many other members are very keen to contribute. Deputy Shatter should allow Ms Logan to answer.
I appreciate that but, in fairness, no one has ever said it is more important than anything so it is interesting that this conclusion was reached.
Does Ms Logan wish to respond to that comment or does she feel that she has already done so?
Ms Emily Logan
This is a really important time for us and the committee. It is not that I do not want to talk about strict liability. I am trying to make the case and represent what is going on in the office for the children and families we have met.
We are going into private session and Ms Logan will be more explicit.
Ms Emily Logan
I feel I will not have done that if I come out of this meeting having spoken only about strict liability.
I accept that point.
Ms Emily Logan
I am not a bit reluctant to talk about strict liability. I can talk to anyone individually about it but I do not want to take up the entire meeting with it.
I share that opinion. Deputy Peter Power is next.
I will try to be brief.
Deputy Power was the Chair of the previous committee.
I will put a series of questions to Ms Logan. Some of my questions will depend on answers to my other questions. If the Chairperson indulges me in that respect, I promise to be brief.
I will certainly indulge the Deputy.
I have been over-indulged.
Deputy Shatter covered 80% of what I was going to cover.
It was indulgence.
He teased out some of the issues. The Government made a decision not to hold a referendum in the short term and to deal with all issues together subsequently subject to the committee's advice. Ms Logan's intervention is noted in that regard, but I am confused about several points. It was my clear understanding that, for the purpose of reversing the decision in the CC case, she supported the proposition as a concept that strict and absolute liability was correct. She stated this to the committee 15 months ago, but does she agree with the proposition as a concept? She seems to have an issue with it and to believe that, by adopting it, we may cause problems in terms of the cross-examination of young people and in respect of the issue of consensual sex between young people. Deputy Shatter dealt with these points adequately. Assuming he is right on both counts and our advice is that there are no issues there, will you say now that you accept the concept of strict and absolute liability for the purpose of reversing the CC decision?
Ms Emily Logan
My concern is the duty to protect children in court, which I stated in the March submission and from which I have not strayed.
You accept the concept, assuming the other issues are dealt with—
Through the Chair, Deputy Power. I do not want the meeting to develop like that.
I beg your pardon. Has Ms Logan kept to her position, namely, that she is in favour of strict liability as a concept for the purpose of reversing the CC decision?
Ms Emily Logan
I am in favour of criminalising any sexual offences against children or the engagement in sexual relations with children.
If the introduction of strict and absolute liability is required, would she be in favour of it?
Ms Emily Logan
Have we not referred to this matter in respect of Deputy Howlin's question?
I am asking the question for a reason. The concept of strict and absolute liability was supported. If the issues of cross-examining young people, criminalising them and so on, which Ms Logan was right to raise, were no longer of concern to her and had been addressed by way of legislation, would she be in favour of the concept to stop predatory sexual activity by older persons, predominantly men, against young persons?
Ms Emily Logan
Yes.
If the only way of doing so is to introduce a referendum in these terms, would she support it?
Ms Emily Logan
Yes, I would support the protection of children.
If I may, Deputy Power's question concerns a referendum to protect young persons from predatory activities by older people. Is that not what he is asking?
Exactly. If Ms Logan assumes she no longer had her concerns, would she accept the concept as a valid proposition as she did 15 months ago?
Did Ms Magennis wish to reply?
Ms Sophie Magennis
To clarify the statement in the March 2007 report, it was a matter of weeks from when the twenty-eighth amendment Bill came out to when the reply to the report on the Bill was written. At the time, we welcomed the possibility of a re-introduction of strict and absolute liability with a view to removing children from potentially damaging court proceedings. The two issues were linked. Prior to our subsequent submission to the Joint Committee on Child Protection, our focus was on protecting children in the courtroom.
Deputy Power's question is on a methodology towards a result, but we are discussing the protection of all children in the courtroom setting. The blunt instrument of absolute and strict liability is a way to minimise children's exposure to courtroom proceedings, but it is our understanding that, even in an absolute and strict liability regime, a child may need to attend a court to discuss the facts of the case. He or she would not be cross-examined on a reasonable defence because there is no reasonable defence, but he or she could be exposed to some type of court proceedings.
The 2006 Act, which we have recommended be strengthened, makes it a criminal offence for an adult to engage in sexual relations with a child. The protection exists, but the message is sometimes lost. We are seeking protection for all children in the courtroom setting. The Deputy is asking whether we are in favour of absolute and strict liability as a methodology. We are in favour of protection for all children in all courtroom settings in respect of all cases. We firmly believe the recommendations of the committee the Deputy chaired, such as a ban on cross-examination of a child by an accused, video-evidencing being available to all those under the age of 18, video recording of evidence of those under the age of 18, and are required to be implemented to protect children. This was the position set out in the March report and the position we have reiterated.
One of those recommendations was for a constitutional amendment on strict and absolute liability.
The recommendations of the former committee—
It was part of the package.
Allow Deputy Power to continue.
I will only ask a couple more questions, otherwise we could be here all day.
That is all right.
Just so that I know where Ms Logan stands on the individual proposed articles, is she in favour of the first article, which is to the effect that the State acknowledges and affirms the natural and imprescriptible rights of all children?
Ms Emily Logan
I stated in my March report that I was not convinced or did not understand how the article would provide the express rights discussed. At the level of the Supreme Court, there has been considerable debate about the interpretation.
I beg the Deputy's pardon, we are discussing the twenty-eighth amendment. Our concern was that there has been such debate on express rights for children that we were keen to clarify the matter.
Does Ms Logan believe the right should be enumerated in it?
Ms Emily Logan
Yes, but we were more practical. Deputy Gogarty or another committee member referred to the entire convention, but we were more pragmatic and suggested some of its core principles of the convention, such as non-discrimination, participation and family rights.
Touching on the point made by Ms Magennis, the proposed Article 4 states: "Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child." There is a view that this provision would enable legislation to be enacted that would prevent the adverse cross-examination of children. Would Ms Logan agree to such a scenario?
Ms Emily Logan
Yes, I would be agreeable to that scenario.
Regarding soft information, another article states: "Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law." Deputy Shatter has expressed a concern that this may be a broad provision and could give rise to certain difficulties. As a concept, would Ms Logan agree to constitutional protection being given generally to State institutions for the sharing of what is called soft information?
Ms Emily Logan
As there will not be a private session, I have no choice but to say this now.
We will have a private session.
Ms Emily Logan
I am slightly uncomfortable, although I will happily respond. I have a case to illustrate our response.
The ombudsman wishes to go into cases in depth but can only do so in private session. That answers the Deputy's question.
Can the ombudsman answer the question and illustrate the reply later?
Ms Emily Logan
Yes is the answer, in terms of information brought to the attention of State authorities that leaves a concern. I am in favour of it. I refer the committee to Dr. Geoffrey Shannon's comprehensive report. I do not pretend to be an expert. The reality is that the threat remains and poses a risk to children. It must be dealt with.
On that point, does the ombudsman accept that it is a matter for the Oireachtas to tease out the circumstances in which the information should be shared?
Ms Emily Logan
Yes, my understanding is that a recommendation should be put to the people before that happens.
There should be a provision enabling the Oireachtas to do so.
Ms Emily Logan
Yes.
In respect of the articles, I do not understand if it is possible to say in what way there are certain first principles and real problems with which the proposed wording will not deal. Without proposing an alternative wording, what are the real problems that have come to the attention of the ombudsman's office that cannot be accommodated in the provisions of the constitutional referendum? In other words, if the proposal was adopted as it stands, would there be an outstanding problem that could not be dealt with?
Ms Emily Logan
One example would be the threshold for State intervention. We have experience of families with children who have a chronic illness or chronic disability and there has been no early support or intervention. I do not describe the families I have met as having failed to parent their children but they find themselves in unexpected, chronic and difficult circumstances. Their experience is that a long period of State inaction is followed by disproportionate intervention, which is unwelcome. I refer to a briefing document submitted by the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, which refers to a proportionate response by the State. I seek accountability from the State in terms of early support for families. A number of families have approached my office in that regard.
In what way will the referendum not accommodate that aspect?
Ms Emily Logan
The threshold for support is placed at such a high level. It may be worthwhile talking to practitioners in this area. In the context of a family, it is much more difficult to reach that threshold or cross that boundary.
They are not constitutionally prohibited from intervening in a case. It is a matter of resources or administration. Article 2 suggests the State can take the place of the family where it has not made due provision.
Ms Emily Logan
It is articulated in the context of a family failing, a threshold that is so high that the situation must be awful for the child. There are many situations that occur before there is a crisis. In the cases to which I am referring the State intervenes when there is a crisis.
There may be an overlap or confusion between the work of the Joint Committee on Child Protection and this committee. Based on Ms Magennis's comments, is it true that the ombudsman does not want children cross-examined in any situation?
Ms Sophie Magennis
Yes, in respect of the Joint Committee on Child Protection, we referred to all children before the court. I thank the Deputy for the clarification. We refer to global protection for all children. When the Taoiseach announced the referendum, he talked about a need to establish global protection for all children. We refer to protection of children in courtroom settings. We considered much international material in our submission to the Joint Committee on Child Protection.
The delegation is not stating children should not be cross-examined.
Ms Sophie Magennis
No, we are saying there must be protection. There should be an absolute ban on children being cross-examined by an accused.
Earlier I got a different impression. Ms Magennis has clarified the point.
Ms Logan wished to elaborate on some cases before her office in private session. I assure her that it will not be recorded and that everyone will respect her need for confidentiality.
The joint committee went into private session at 6.15 p.m. and adjourned at 6.40 p.m. until 5 p.m. on Wednesday, 20 February 2008.