Speech by Ms Frances Fitzgerald, Minister for Children and Youth Affairs

The aim of the Children First Bill 2014 is to improve the care and protection of children by raising awareness of child abuse and neglect.  

I want to make it clear that this Bill represents a national change – a quantum shift – in child protection.

This Bill moves the issue from one where ignorance was bliss – except for suffering children – to a position where ignorance is no longer tolerated.

It moves the issue from one of good intentions to one of concrete obligations.

It moves the issue from vagueness to precision. 

And it moves from a culture of ‘should report’ to one of ‘must report’.

This is a child-centred Bill which delivers on a key Programme for Government commitment.

Children First, the National Guidelines for the Protection and Welfare of Children were first published in 1999. For twelve years they operated as the over-arching national Guidelines for individuals and agencies that come into contact with children.  In 2011, following a national review of the Guidelines, I launched the revised Children First National Guidance. The decision to place Children First on a statutory basis is a commitment in the Programme for Government and arose from a recommendation in the 2009 Ryan Report Implementation Plan.

The Children First Bill 2014 will, for the first time, provide for key elements of the Children First Guidance to be put on a statutory basis.

The Bill will operate side-by-side with the existing non-statutory obligations provided for in Children First: National Guidance for the Protection and Welfare of Children.

This Bill also forms part of a suite of child protection legislation including the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

The Bill has three key elements.

The first element obliges certain professionals and others working with children to report child protection concerns to the Child and Family Agency and to assist the Agency in the assessment of a child protection risk, if requested to do so.

I can state with a confidence based on the best thinking, nationally and internationally, that the Bill strikes the right balance. The right balance between a high quality reporting system by mandated persons on the one hand, while not overwhelming the system with the over-reporting that has happened in other countries. This balance, I would suggest, is central to making Ireland a safer place for children.

The second key element of this Bill obliges providers of services to children to undertake an assessment of any potential for risk of harm to a child while that child is availing of their service, and to prepare an appropriate child safeguarding statement in accordance with the Bill.

The third element provides statutory underpinning for the Children First Interdepartmental Implementation Group which will promote and oversee cross-sectoral implementation and compliance with Children First.

This Group, which includes a representative of each Government Department, will be required to keep the implementation of this legislation under review and to report on an annual basis to the Minister for Children and Youth Affairs. This will ensure a continued focus on the implementation and compliance task until best practice becomes the absolute norm.

That’s the objective: to move from the horrors of where we were twenty years ago, to a situation where – let me repeat it – best practice is the absolute norm.

In the whole, this Bill represents an important addition to the child welfare and protection measures already in place and will help to ensure that child protection concerns are brought to the attention of the Child and Family Agency without delay.

This Bill reflects the outcome of significant consultations over the past two years including hearings on the previous Heads of Bill conducted by the Joint Oireachtas Committee on Health and Children. The Bill I am bringing forward today has benefitted considerably from the report of the Joint Oireachtas Committee’s hearings and significant changes have been made to the earlier Heads of Bill.

Provisions of the Bill

I will now turn to the provisions of the Bill itself:

Sections 1 to 4 of the Bill provide for the short title and commencement, definitions, regulations and expenses.

Section 5 provides that the Minister may issue and publish guidelines for the purpose of providing practical guidance in respect of the protection and welfare of children and any such guidelines in force at the time of commencement of this section shall be deemed to be guidelines issued by the Minister under the Act.

Section 6 provides that the Child and Family Agency shall, in performing a function under the Act, regard the best interests of the child as the paramount consideration.

Section 7 provides for definitions of ‘contract of employment’, ‘personal relationship’ and ‘provider’ in Part 2 of the Bill.

Section 8 provides that Part 2 of the Bill, regarding child safeguarding statements, is not applicable to an individual who undertakes any work or activity in the course of a family relationship where: the work or activity is undertaken solely for the benefit of his or her child or a family member; or where the work or activity is undertaken in the course of a personal relationship; or where assistance is given on an occasional basis for no consideration. This is a practical arrangement given that many of the requirements of the child safeguarding statement have to do with the recruitment, selection, vetting and training of staff, and the procedures in place for the reporting of harm by staff and the listing of mandated reporters. 

Section 9 provides that a provider of relevant services is to ensure that, as far as practicable, a child, while availing of its services, is kept safe from harm. ‘Relevant services’ includes work or activities mainly involving access to or contact with children. ‘Harm’, in relation to a child, means ‘to assault, ill-treat, neglect or sexually abuse the child and may be caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances or otherwise’.

Section 10 provides that where a person proposes to operate as a provider of relevant services he or she shall, within 3 months of the commencement of the service, carry out a risk assessment and prepare a child safeguarding statement. A person operating as a provider of relevant services immediately prior to the commencement of the Act shall carry out a risk assessment and prepare a child safeguarding statement not later than 3 months from the date of commencement of the Act.

The section provides that a child safeguarding statement shall include a written assessment of risk including an outline of the procedures in place to manage any risk identified, and an outline of the procedures in respect of an employee who is the subject of investigation in respect of any act or omission with regard to a child.

The section also provides that a child safeguarding statement shall include an outline of procedures in place for reducing any identified risk including procedures for the recruitment of staff; for the provision of information, instruction and training in relation to the identification of harm and for the reporting to the Child and Family Agency by an employee or by the provider. The child safeguarding statement shall also include a list of persons in the relevant service who are mandated persons.

Section 10 also provides that a child safeguarding statement is to be made available to members of staff, to parents or guardians, to the Child and Family Agency and to members of the public and the child safeguarding statement or a review of the statement is to be displayed in a prominent place related to the relevant service. The section also provides that the Minister may make regulations in relation to child safeguarding statements.

Section 11 provides that certain professionals and other persons in specified occupations – as listed in Schedule 2 of the Bill – are mandated persons for the purposes of the Act.

The persons who have been identified as mandated persons are those whose professional education, training, expertise, or the nature of their specific role in certain organisations prepares them to be aware of the risks to children and their responsibilities.

This section sets out the circumstances whereby a mandated person is required to make a report to the Child and Family Agency. The section 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, as soon as practicable, report that belief or suspicion to the Child and Family Agency. 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. Mandated persons will not be required to assess the veracity or credibility of such disclosures.

A mandated person shall not be required to make a report to the Child and Family Agency where a young person aged 15 years or more but less than 17 years is engaged in sexual activity with a person who is not more than 2 years older than the young person and where the mandated person knows or believes that: 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. This section does not apply where the child has made a disclosure of harm to a mandated person. Also, 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.

A mandated person is only required to make a report if he or she becomes aware of the information after the commencement of this section (irrespective of whether the harm occurred before or after the commencement of the section). However, the Children First National Guidance will continue to apply in parallel to the legislation, and under the Guidance all reasonable concerns regarding harm to a child should be reported to the Agency.

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. A report may be made other than on the mandated report form where a mandated person has reasonable grounds to suspect that a child may be at risk of immediate harm. However, the mandated person must, within 3 days, provide the report to the Child and Family Agency on a mandated report form. The Minister may make regulations regarding the procedures for the making of reports to the Child and Family Agency.

The section also provides that reporting obligations under this section are in addition to and not in substitution for any other obligations that the mandated person has to disclose information to the Child and Family Agency.  This does not give rise to a requirement to make more than one report (other than where there is considered to be a risk of immediate harm). The section also provides that 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 or to any other person or under any other enactment or rule of law is not affected by the provisions in the section.

Section 12 provides that the chief executive officer of the Child and Family Agency shall authorise a member or members of staff for the purposes of receiving reports made by a mandated person. The section also provides that an authorised person shall be deemed to be a designated officer within the meaning of the Protections for Persons Reporting Child Abuse Act 1998 for the purposes of that Act.

Section 13 provides that a mandated person may be requested to assist the Child and Family Agency and to give such information and assistance to the Agency as is reasonably required by the Agency and the section also provides that a mandated person shall comply with such a request. Assistance to the Agency by a mandated person includes the provision of verbal or written reports, attendance at meetings arranged by the Agency and the production to the Agency of any document. It is envisaged that only information which is relevant and necessary to assess the child’s need for care and protection should be sought.

The section also provides that the Child and Family Agency may share information concerning a child who is the subject of a report with a mandated person who is assisting the Agency but the sharing of that information shall be only as considered by the Agency to be necessary and proportionate in the circumstances of the case.

The section provides that, for the purposes of carrying out its functions under this Part, the Child and Family Agency shall have the same powers as it has under the Child Care Act 1991 or under any other enactment in respect of children who are not receiving adequate care and protection.

Section 14 provides that information shared with a mandated person by the Child and Family Agency during the course of an assessment shall not be disclosed to a third party by that mandated person unless in accordance with the law or in circumstances where the disclosure is authorised in writing by the Child and Family Agency. A person who fails to comply with this section is guilty of an offence and liable to a class A fine or imprisonment for a term not exceeding 6 months or both.

Section 15 provides that the Child and Family Agency is a specified body for the purposes of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

Section 16 provides that section 9(4) of the Child and Family Agency Act 2013 is amended to include a reference to the Children First Act 2014 to provide for the views of the child to be taken into account by the Child and Family Agency in performing its functions under the Children First Act.

Section 17 provides for the establishment of the Children First Inter-Departmental Implementation Group to perform functions assigned to it under this Bill. The placing of this existing Group on a statutory basis will ensure a continued focus on the implementation and compliance task until best safeguarding practice becomes the absolute norm.

Section 18 provides that the membership of the Implementation Group is to consist of a chairperson and not fewer than 17 ordinary members including an official from each Department of State, a member of An Garda Síochána and an employee of the Child and Family Agency.

Section 19 provides that the functions of the Implementation Group are to —

•        promote compliance by Departments of State with their obligations under this Act,

•        monitor the implementation of this Act and any guidelines issued by the Minister under section 5,

•        provide support to Departments of State in respect of the preparation and publication of sectoral implementation plans,

•        promote a consistent approach by Departments of State in respect of the preparation and publication of sectoral implementation plans,

•        report to the Minister, when requested, on the implementation of this Act and any guidelines issued by the Minister under section 5, and

•        provide information or advice, or make proposals, to the

Minister on matters relating to the functions of the

Implementation Group.

Section 20 provides that the Minister may give a direction in writing to the Implementation Group requiring it to comply with a policy of the Government as specified in the direction.

Section 21 provides that the Minister may determine the terms and conditions for appointment of membership to the Implementation Group and for cessation of such membership. The section also provides for the filling of vacancies to the Implementation Group.

Section 22 provides that the Implementation Group shall hold meetings as necessary for the performance of its functions and make arrangements for the conduct of its meetings and business as it considers appropriate. The quorum for a meeting of the Implementation Group shall be 8.

Section 23 provides that the Implementation Group shall submit an annual report to the Minister to include such information and regarding such matters as the Minister may from time to time direct. The Minister may also require the Implementation Group to supply a report on any matter connected with its functions as may be specified by the Minister.

Section 24 provides that each Minister of State shall publish a sectoral implementation plan concerning relevant services provided by the Department concerned and concerning relevant services provided by a body that is in receipt of funds from that Department, to include the measures taken or proposed to promote, review and report on compliance with the Act and other matters as the relevant Minister considers appropriate.

The relevant Minister shall cause copies of the sectoral implementation plan to be laid before each House of the Oireachtas as soon as may be after the preparation of the plan. The relevant Minister shall also publish a revised sectoral implementation plan not later than 3 years (or such other period as may be determined by the Minister) after the date of publication of that plan.

Development of policy and implementation activity since earlier Heads of Bill

It is very important to emphasise that this Bill forms part of a suite of child protection legislation including the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. By revising the Heads of the Children First Bill in July 2013, my Department was able to take cognisance of the provisions of both of these pieces of legislation which were enacted in 2012 to ensure that all three are interacted in a complementary manner.

The earlier Heads of Bill provided that a mandated person who, without reasonable excuse, did not report a concern of harm was guilty of an offence and liable on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months and in addition that person was to be reported to his or her relevant regulatory body. Although there was not a consensus on this issue, the Joint Oireachtas Committee in its report, did express concerns that criminal sanctions could  result in over-reporting thereby potentially delaying the prioritisation of higher risk reports and placing the child welfare and protection system under undue pressure.

Consideration of international comparisons also suggested that this is an area where a careful balance is to be struck. There are diverse approaches to who is mandated; what they are mandated for; and what kinds of sanctions apply.

Finally, having regard to the other legal constitutional considerations, it was clear that there was a need for a reasonable and proportionate approach.  While it is envisaged that persons mandated to report will meet their statutory obligations without the necessity to impose criminal sanctions for non-reporting, there are criminal sanctions for withholding information from the Gardaí under the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012. In addition, there are a range of other potential penalties including:-

·       Passing of information to the National Vetting Bureau Act where following an inquiry a view is taken that a mandated person put a child at risk by not making a report to the Agency under this Act;

·       Complaint to the Professional Body including Regulatory Bodies Fitness to Practice Committees for any regulated professional;

·       Report to an Employer and resultant disciplinary measures.

The Bill will operate side-by-side with the Children First Guidance which will continue as the basis for all citizens to report concerns. The Guidance is being revised to provide clarity and to ensure consistency between the proposed legislation and the existing non-statutory obligations which will continue to operate administratively for all sectors of society.

Government Departments have already developed sectoral implementation plans to drive implementation across the relevant sectors and this work has been proceeding well. Through the existing Group, the Child and Family Agency has been working with the individual sectors to assist them in developing an information and training needs assessment process.  This work and the provision of information and training have been on-going in many sectors over the recent period in anticipation of the legislation.  There will be, just as there has always been, a requirement for information and training across sectors.  This will now be managed strategically by all sectors in the context of existing Departmental sectoral plans with the advice of the Child and Family Agency.

Conclusion

I want to make one final point, and it’s this.

We must never, ever, even with the best legislation and radically improved systems, think of child protection as something that happens “over there” and is dealt with only by mandated persons, by experts.

Each and every one of us has a responsibility to safeguard children – to cherish more than our own sons and daughters. That will never go away. That should never go away. The Child and Family Agency is there to offer support to anyone with child protection concerns as to how to deal with those concerns.

I commend this Bill to the House and I look forward to hearing the views of the Deputies.