The Government position on these amendments remains consistent. The amendments, which seek to include civil proceedings arising out of solely physical abuse in childhood within the compass of this Bill are opposed. I have made my position on this issue clear on previous occasions but it may not be any harm to set out once again where the Government stands.
The Government, when considering the whole question of how to address the question of limitation periods in cases of abuse in childhood, formed the view that as far as sexual abuse was concerned the case for change was unanswerable. Sexual abuse of children has always been regarded with particular abhorrence by the community, all the more so when such abuse is perpetrated by the very people charged with the care and nurturing of children. It is universally recognised that the abuse of a person of tender years in a sexual way can result in trauma which can prevent the victim from seeking help or redress for the abuse suffered, in some cases well into adult life. It was clear to the Government that special provisions regarding limitation periods to take account of that lasting effect should apply to civil actions where sex abuse is an element. That is why the Government, on my recommendation, decided that the Statute of Limitations should be amended in order to reflect that view and decided to accept the principle of the Private Member's Bill now before us, to the extent that it dealt with child sex abuse cases as a means of bringing that amendment about.
The question of how limitation law should apply to other forms of abuse in childhood, including physical abuse, is by no means as straightforward. It is universally accepted that any form of sexual activity with young children is of itself abusive, no matter what the circumstances. As far as physical contact of a non-sexual nature is concerned, there has been historically a very much wider spectrum of degrees of acceptability or unacceptability. Such contact can range from the rough and tumble of contact sports which may result in injury to a child through the administration of what society regarded until not so long ago as legitimate physical chastisement to activity which, by any measure, would be clearly abusive. The link is clear and well recognised between sexually abusive acts – remembering that any sexual act by an adult in relation to a child is of itself abusive – and the psychological effects on the victim which, among other things, deter the victim from seeking legal redress through the civil or criminal justice process.
The link between physical abuse and that sort of psychological effect is by no means as clear. There are instances of physical abuse which, though unacceptably severe, did not cause the type of lasting trauma which sexual abuse regularly induces and where the victim would not be inhibited from pursuing civil redress within the normal limitation period. Of course, there can be other cases where such lasting trauma occurred and which would affect the person's ability to commence court proceedings.
The Government is anxious to ensure that any amendment of the law on limitation of civil actions as it applies to cases alleging physical abuse in childhood is drafted having regard to the best advice available. That is why it referred this aspect of the matter, which Senators will recognise is very much less clear-cut than the child sex abuse question, to the Law Reform Commission. The commission is an independent body established by statute and chaired by a High Court judge. It has broad experience in many areas of reform of the law and its recommendations have formed the basis for much significant reforming legislation during the past 25 years. Its report on latent personal injuries led to the 1991 legislation amending the Statute of Limitations which introduced the concept of the discoverability of personal injuries to that code of law. Its report on child abuse gave rise to significant reforms of the law incorporated in the Domestic Violence Act, 1996, and the Children Act, 1997. The commission is ideally placed to offer recommendations to the Oireachtas on this issue which has a considerable technical legal dimension but also one which is firmly anchored in the day to day lives of many people.
The Government is of the view that before we legislate in this delicate and legally complex area, we should have the benefit of the commission's research facilities, well established consultative processes and, most importantly, independent and considered advice as to the way forward in this area of the law. Some commentators have characterised this decision to seek independent expert advice as an attempt by the Government to "park" this issue or as a means for the Government to shirk its responsibilities in relation to the victims of child abuse. Such suggestions are not only offensive but also nonsensical. The Government's whole approach to the questions that face Irish society arising out of childhood abuse in the past has been one of openness and acceptance of the legacy of responsibility arising from misdeeds perpetrated in the past against young people.
I will point up some of the more salient features of that broad-ranging approach, announced in the context of the apology offered by the Taoiseach last May to those who had suffered abuse in childhood. They were the establishment of the Laffoy commission to inquire into child abuse and legislation to make that commission more effective in its work, based on the Laffoy commission's recommendations, has been before the Oireachtas since February; the expansion of the counselling services provided by the health boards for victims of abuse in childhood is well under way, with the help of funding provided by the Exchequer; priority advancement of legislation to include a register of sex offenders; and safeguards against the employment of sex offenders in jobs involving contact with children – this legislation has been before the Dáil since early January. In the context of these and the other measures put in train by the Government, it is clear that suggestions of a reluctance to act on the real issues involved are completely without foundation.
Inquiries made of the Law Reform Commission indicate that it expects to publish a consultation paper in the very near future. I understand the commission is aware of a high level of public interest in the forthcoming publication and I have no doubt that the consultation process will be a fruitful one to which many of the interest groups which have emerged in regard to this matter will be able to have an input. I reiterate my undertaking, already given in this House and elsewhere, that I will act promptly and proactively on the commission's final recommendations when they become available. It simply would not make sense, having asked the commission for its advice, to pre-empt that advice by pressing ahead at this stage with the change which the Senators seek to make with these amendments. While I appreciate the depth of the concerns which gave rise to these amendments, I ask Senators, in return, to acknowledge the Government's sincerity in seeking to ensure that whatever amendment may ultimately be made in relation to past cases of physical abuse of children, it will be made in a fully informed fashion with the benefit of the Law Reform Commission's indepth consideration of all aspects of the matter. In the meantime, it is my earnest desire that reform of the law on limitation periods in cases of child sexual abuse encapsulated in this Bill should become law as soon as possible and I urge the House to deal with the Bill on that basis.
As I have often stated, this is not a simple matter of defining "physical abuse". It is possible to recognise what constitutes physical abuse, but the levels of physical abuse differ. It could be said that it might not prove too difficult to describe or define various levels of physical abuse. The difficulty which presents itself in this matter is what level of physical abuse gives rise to a psychological disability, what level of trauma induced as a result of physical abuse would inhibit a person from taking an action. That is an extremely difficult and complicated question. If there were a simple answer to that question, I respectfully submit that we would be aware of it by now.
I submitted this question to the Law Reform Commission for its consideration. If the members of the Law Reform Commission were of the view that this was a simple matter, I have no doubt that, with all the expertise available to them, they would have produced a report in a short time. Far from considering the matter to be as simple as some people would like to think it is, the commission has decided to publish a consultation paper prior to producing a final report. Surely, people can recognise that if the members of the Law Reform Commission, a panel of experts whose expertise has been acknowledged and acted upon over many years, find it necessary to publish a consultation paper prior to producing a report, this matter cannot be a simple one. This is not a simple matter. If it were, I would have legislated for it long ago.
I again request Senators to accept the Government's sincerity in this matter. I must ensure certainty in the law and when the commission produces its report, I will act on its recommendations in a proactive manner. I cannot go beyond that and do the impossible. I have asked those who can assist me in formulating the law in a proper manner, which would allow people who have concerns to be in a position to take action, to do so.