I move amendment No. 22:
In page 10, to delete lines 31 and 32 and substitute the following:
"(b) he or she knows or believes that—
(i) there is no material difference in capacity or maturity between the parties engaged in the sexual activity concerned, and
(ii) the relationship between the parties engaged in the sexual activity concerned is not intimidatory or exploitative of either party,".
Section 11 provides that certain professionals and other persons in specified occupations, as listed in Schedule 2, are mandated persons for the purpose of the Act. The section sets out the circumstances whereby a mandated person is required to make a report to the Child and Family Agency. The categories of persons set out in Schedule 2 were included on the basis of their professional qualifications and-or their ongoing contact with children. The focus on a small, qualified cadre of mandated reporters will, based on evidence, improve the quality of reports of harm received by the agency. The receipt of better-quality reports of harm by persons who, by virtue of their training qualifications and professional experience, are well equipped to recognise harm is likely to have a positive effect on the process of assessments of risk by the agency.
A list of mandated persons was developed following detailed consideration of both the objectives of the legislation and the research paper on how mandatory reporting is dealt with internationally. The persons included in the list have been selected on the basis that their qualifications, role and professional expertise mean they are aware of risks to children and of their responsibilities in this regard. It is anticipated that reports from these persons are likely to be of a high quality, which will assist the agency in carrying out assessments of risk in a more effective and efficient manner.
Section 11(1) provides that where a mandated person knows, believes or has reasonable grounds to suspect that a child is being harmed, has been harmed or is at risk of being harmed, he or she shall report that belief or suspicion to the Child and Family Agency as soon as practicable. Section 11(2) provides that where a child makes a disclosure to a mandated person that he or she believes that he or she is being harmed, has been harmed or is at risk of being harmed, that mandated person shall, as soon as practicable, report that disclosure to the Child and Family Agency.
Under section 11(3), a mandated person shall not be required to make a report to the Child and Family Agency where a child aged 15 years or more but less than 17 years is engaged in sexual activity with a person who is not more than two years older than the child, where the mandated person knows or believes there is no material difference in capacity or maturity between the two parties, where the child has made known his or her view that a report should not be made to the Child and Family Agency, and where the mandated person relied upon that view.
It is proposed in amendment No. 22 to amend this subsection to add an additional criterion that will require mandated persons to be satisfied that the relationship is not intimidatory or exploitative before deciding not to make a report. The policy intention behind this subsection is that consensual sexual activity between older teenagers, where certain criteria are met, will not be required to be automatically reported to the agency as sexual abuse under this legislation. The rationale for this is that to do otherwise would compromise the provision of services to the young people involved, as they would not be willing to engage with services that would require a report to the agency. In addition, reporting such consensual sexual activity would contribute to potentially overwhelming the child protection system. The provision matches proposals in the scheme of the criminal justice (sexual offences) Bill, published in November last year, in regard to consensual sexual activity. It will be necessary to keep both pieces of legislation under review, as they progress towards enactment, to ensure consistency between them.
Under section 11(4), a mandated person is not required to make a report where the sole basis for his or her knowledge, belief or suspicion of harm is as a result of becoming aware that another mandated person has made a report to the Child and Family Agency in respect of the child concerned. The proposed amendments to this subsection are designed to avoid a situation whereby a mandated person who is carrying out or assisting in an assessment of a child protection concern would be required by virtue of acquiring additional information in the course of that assessment to make a further report to the agency. Section 11(5) provides that a mandated person is only required to make a report if he or she becomes aware of the information after the commencement of section 11, irrespective of whether the harm occurred before or after the commencement of the section.
Therefore, the mandated person is obliged to report harm he or she becomes aware of, whether that harm occurred before the commencement of the Act. The report is to be made on a mandated report form to be made available by the Child and Family Agency and may be made by a mandated person acting on his or her own, or may be made jointly with one or more other mandated persons. It is proposed to amend section 11(6)(b) to provide that a joint report can be made by a mandated person together with another person, whether that other person is mandated or not. Section 11(7) provides that in circumstances where a mandated person has reasonable grounds to suspect that a child may be at risk of immediate harm, they may make a report to the agency other than on a mandated report form. However, within three days, the mandated person must provide a report to the Child and Family Agency on a mandated report form. The policy intention is that in an emergency, the agency should be contacted directly and immediately with the completion of the mandated report form to follow as soon as practicable. Everyone agrees red tape should not be allowed to delay the reporting of a risk. The proposed amendment is intended to ensure the threshold that applies in such circumstances is clearly higher than that which would apply ordinarily to a mandated report as it is not the policy intention that every mandated report that meets the threshold in the legislation will also prompt a personal contact to the agency in addition to, and in advance of, a report on the mandated report form.
A minor technical amendment is proposed to reword section 11(8) in order to address any potential ambiguity in the section as currently drafted. Under section 11(9), the Minister of the day may make regulations regarding the procedures for the making of reports to the Child and Family Agency. Section 11(11) provides that reporting obligations under this section are in addition to, and not in substitution for, any other obligations. Section 11(12) provides that nothing shall affect any other obligation a person has to disclose information to An Garda Síochána under the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012.