The Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012 has been published today by Minister for Justice and Equality, Alan Shatter TD. Minister for Children and Youth Affairs, Frances Fitzgerald TD has today published the Heads of the Children First Bill. Both of these form part of a suite of legislation to protect children.
This Criminal Justice Bill 2012 makes it a criminal offence to withhold information in relation to serious specified offences committed against a child or vulnerable person including sexual offences and offences such as assault causing harm, abduction, manslaughter or murder.
The Bill updates the Offences Against the State (Amendment) Act 1998 to include sexual offences. The offences are subject to a minimum penalty of five years imprisonment.
The Bill also outlines a number of potential defences where a person may rely on a defence of failing to disclose the relevant information in circumstances where the child or vulnerable person who was victim of the offence and who revealed the information requested that the information would not be further disclosed. Defences will also be in place for those such as a parent or guardian or medical professional who is acting in the interests of the health and well-being of the child or vulnerable person.
Children First Bill
Minister for Children and Youth Affairs, Frances Fitzgerald TD has also published the Heads of the Children First Bill today. This Bill will establish Children First: National Guidance for the Protection and Welfare of Children on a statutory basis.
According to the Heads of the Bill the current Children First Guidance will be strengthened in three key areas. Firstly, organisations covered by the legislation will have to ensure that they are safe places for children, and that they work in co-operation with the statutory authorities. Organisations and named professionals will have statutory responsibility to report information about abuse or significant neglect to the HSE, whether it occurs in the organisation or elsewhere. Additionally, the HSE will have obligations to support organisations and professionals but will also have the power to take action where they have reason to believe that the organisation is not operating in compliance with the legislation.
The Children First National Guidance has operated on the basis of voluntary compliance since it was first published by the Office of the Minister of Children in 1999. “The recently revised guidance and the legislation build on over a decade of practice experience. The intention is that this legislation will reinforce critical aspects of current policy to assure compliance and co-operation for the protection of children”, the Minister stated.
The Bill will be sent to the Oireachtas Committee on Health and Children for consultation with key stakeholders to take place before the Bill is finalised. The Minister added, “I am eager that the Oireachtas Committee on Health and Children will hear as many detailed views as possible from key stakeholders, because this legislation must be effective if it is to protect children. Legislation to protect the well-being of children is as important as it can get.”
Both Ministers have been working closely on these matters and will continue to do so on over the coming months.
In the December/January edition of the PAI monthly Journal, Diane Duggan, barrister, reviews the law surrounding child protection in Ireland and the issues surrounding mandatory reporting of child abuse. The article is available below. To view past editions of the PAI Journal, click here.
PAI Journal Issue 81 December/January 2012
Developments in Child Protection: Towards a system that works
In July of this year, the Minister for Justice Alan Shatter announced two new bills aimed at strengthening child protection laws in Ireland. Mandatory reporting of suspected child sexual abuse is proposed in the Criminal Justice (Withholding Information on Crimes against Children and Vulnerable Adults) Bill 2011. Provision will be made for the exchange of soft information in the National Vetting Bureau Scheme 2011. These laws signal the beginning of another chapter in the beleaguered tale of Ireland’s efforts to protect children. The past two decades alone have been punctuated by scandals followed by reports, followed by scandals.
The laws were announced in July of this year on the same day that the Cloyne Report was published. Cloyne demonstrated how there was a failure to implement guidelines on identifying and reporting child protection issues. This was also highlighted in the Ferns, Dublin Diocese and Ryan reports, but Cloyne was all the more devastating because the failings were so recent and occurred when assurances were given that child protection guidelines would be followed.
The case for Mandatory Reporting
The Cloyne report however was not the only impetus for the new government proposals. The Law Reform Commission had recommended in 1990 that failure without good reason to report suspected child sexual abuse should be made a criminal offence for particular categories of person, such as teachers or health board workers and examined implementing mandatory reporting in a controlled way. In 1993 Ms. Justice Catherine McGuinness recommended that mandatory reporting be legislated for in the aftermath of the Kilkenny Incest case. It was debated, proposed and rejected by the government in the late 1990’s, but the same debates gave rise to the Children First Guidelines originally published in 1999, and the Protection for Persons Reporting Child Abuse Act, 1998 which came into law in January 1999.
Interestingly, a law did exist until 1997 which made it an offence not to report a crime to the gardaí. The offence of misprision of felony was an old common law offence where when a person knew that a serious crime had been carried out by another person, but they concealed the carrying-out of that crime or failed to report it to the gardaí, they were then prosecuted. The Criminal Law Act 1997 abolished the distinction between misdemeanors and felonies and with it abolished the misprision of felony offence. Sections 7(2) and 8 of the 1997 Act provided that if an arrestable offence is committed and a person impedes the prosecution or fails to disclose the offence for some benefit, they will be liable to prosecution. Neither go as far as making it an offence to simply omit to report a crime.
Children First Guidelines
Mandatory reporting requirements in the Criminal Justice Bill 2011 will be complemented by placing Children First Guidelines on a statutory basis. This measure has been long awaited by voluntary children’s organisations. The guidelines provide a framework for protection for HSE, Social Workers and other frontline staff dealing with child protection, abuse and neglect. When the guidelines were published in 1999, they were recognised as the strongest expression of commitment to child protection on a practical level by any government, but as many agencies and practitioners in the area have claimed since 1999, guidelines were not sufficient and what was actually required is a statutory basis for child protection. In July 2008, the guidelines were reviewed by the then Minister for Children Barry Andrews, who concluded that they did not need to be placed on a statutory footing. This position was departed from in July of this year when the current Minister for Children, Frances Fitzgerald announced that they would be put on a statutory basis. Prior to her announcement, it was argued that at best, Children First Guidelines operate simply as Government recommendations as how to properly deal with child protection issues at a uniform level throughout state agencies.
This was arguably contrary to ensuring in most certain terms that the best possible systems are in place as set out by international standards, where Ireland has frequently been criticised. It is hoped that such a deficit will be addressed by the new legislation. Minister Fitzgerald has stated that for people who already implement the guidelines as a standard best practise, the new legislative measures will make very little difference. It will simply make obligatory what is already done voluntarily. However, she said that those who do not make child protection their primary objective by implementation of the guidelines will be held culpable by the law. In announcing the statutory measures after the Cloyne report was published she said: “Anyone who stands by will stand trial. Any other organisation who decides that child protection guidelines are discussion documents can have that discussion in court”.
Concerns about mandatory reporting
Mandatory reporting has not always had unanimous support, and since the Criminal Justice (Withholding Information on Crimes against Children and Vulnerable Adults) Bill 2011 was announced, there has been some criticism. When mandatory reporting was being debated by the Oireachtas in the late 1990’s, the Irish Times reported that some members felt that mandatory reporting could lead to less cases of child abuse being reported, possibly because formalising the reporting system meant reports wouldn’t be made unless a full set of facts existed.
However, it seems the opposite could potentially be the case, and over-reporting to the extent that resources become flooded and exhausted has been the cautionary tale of other jurisdictions such as Australia. Mandatory reporting was implemented in New South Wales in the 1970’s, originally aimed at medical practitioners to report assault, neglect or ill-treatment. The scope has since widened to other professionals, and over several years, the rate of reporting increased six-fold and overwhelmed the child protection system. The president of the Irish Association of Social Workers, Ineke Durvill, has expressed concerns that the same could happen here, saying that social workers will be required to follow up reports and be overstretched in an already overstretched system, which could take efforts and energy away from cases where children are already at risk. Geoffrey Shannon (Government’s Special Rapporteur on Child Protection) has echoed these concerns by saying sufficient structures, supports and staff will need to be in place to ensure that every concern is investigated and responded to in a timely and appropriate manner.
The New South Wales experience may provide a useful lesson here. After the deaths of two children known to social services, the Wood Inquiry (published in November 2008) conducted an in depth examination of the child protection system. The Inquiry found that much of the reporting concerned the same children, where multiple reports were made in relation to the same cases. The Inquiry rejected the argument that the mandatory reporting laws created an intolerable regime, and instead proposed a filtering system to allow social services focus on the most serious cases. It concluded that mandatory reporting should apply to suspected cases of significant harm, while more minor cases should be referred to community based services.
The need for clear and precise legislation is vital for mandatory reporting to work effectively. Minister Shatter published the heads of the bill on the 13th of July, and the legisation is currently before the Oireachtas joint committee. It is proposed to publish the legislation by the end of October. The heads of the bill state that it will be an offence to fail to disclose information to a member of the Gardaí (without reasonable excuse) that an arrestable offence has been committed against a child or vulnerable adult. The law will not apply to persons under 18, vulnerable adults or a victim of the offence being reported. Former Attorney General and Justice Minister, Michael McDowell has argued that the defence of reasonable excuse is not clear and does not state whether a subjective or objective test would be applied in determining whether it can apply. UCD Lecturer, author and barrister Paul Anthony McDermott has said there could be problems with the constitutionality of the bill because it is not clear why people should have to report child abuse and not murder. He points to the fact that a mandatory reporting law existed before 1997, but was abolished for unknown reasons.
Laws that require a positive act as opposed to laws that prohibit actions can be difficult to implement or prosecute. Ignorantia juris non excusat is a oft cited principle of the law, however proving that a person has knowledge may not be straightforward. The extent of knowledge a person is required to have is not clear, and this has proven to be problematic in Australia.
One aspect of the debate that has ensued since this law was announced has been interesting – whether the requirement to report child abuse will breach the Catholic seal of confession. Ministers Shatter and Fitzgerald have said that they do not refer specifically to it in the legislation, but they also made very clear after the Cloyne report that no organisation or body will be exempted under the legislation. Minister Fitzgerald said: “Nobody will be above the law, no group may plead special circumstances, no organisations’ internal rules will supercede Children First, never again will someone be allowed to place the protection of their institution above the protection of children.” The confessional seal has never arisen as a problem in the area of child protection in any of the previous reports and as such, it is strange that it has arisen now. There are very strong arguments to suggest that the constitutional protection of religious freedoms will protect the seal of confession should it ever be challenged. Although in circumstances where it has never arisen as an issue before, it is unlikely that a challenge would now arise in practice. Nonetheless, the criticism that the legislation is not clear in this respect is a valid one.
The need for precise and carefully drafted legislation is just as vital for the National Vetting Bureau Scheme 2011, which will allow for the exchange of soft information. Soft information is relevant information to be used in vetting persons applying for employment working with children or vulnerable adults. It is information other than records of prosecutions or criminal convictions. It can include reports that have been made regarding individuals, and these reports have either not proceeded to prosecution, or have not yet proceeded to prosecution. This piece of legislation could be a minefield for individuals’ rights and will need to be managed exceptionally carefully.
With the legislation the government now intends to put in place, there is quite an arsenal of measures to address the deficits in child protection that have existed for too long. However, these laws will need to be quite clear in terms of what they are providing and how. Legislation alone will not be sufficient; adequate resources and systems are required if laws are to be in any way effective, and this requirement cannot fall foul of the current economic circumstances – the legislation will be redundant on its own. A robust debate must be had once the bills are published to ensure that they will stand up to the scrutiny of the courts. Children in this nation are long overdue measures that will fail none.