Dáil Éireann - Volume 486 - 04 February, 1998
Private Members' Business. - Children (Reporting of Alleged Abuse) Bill, 1998: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Dr. Upton Dr. Upton
Dr. Upton: The timing of this Bill is appropriate as public concern about child sexual abuse is at an all time high. There has been a series of cases which have been very shocking in the extent of the awfulness of the abuse and the period over which it took place. The Bill is a welcome measure as it provides an important step towards the protection of those who might be inclined to report cases of sexual abuse where they have reasonable suspicion that such abuse is taking place.
The reporting of abuse to the relevant authorities is obviously important as it allows those responsible agencies investigate valid suspicions that children are being sexually mistreated. While sexual abuse is exceptionally traumatic and painful for the children involved, it is fair to say that it is also a traumatic and disturbing experience for adults by virtue of their becoming aware of an occurrence of child sexual abuse. The Bill will at least remove one concern of adults who become aware that child sexual abuse may be taking place and who might hesitate because they are exposing themselves to legal risk by reporting such a case. It will remove a barrier which might act as a deterrent against reporting cases of abuse, and that in turn may be relevant to some sections of the public.
The Bill is an important statement of intent on the part of the Oireachtas to do what can reasonably be done to eliminate this menace from Irish  society or at least reduce it to the lowest level possible. The Bill will also encourage a culture of openness, of being more frank about this dark and dismal part of Irish life. This problem was brushed under the carpet for far too long. It was an unmentionable which had to be avoided at almost any cost. It is good that it is now coming into the open because it will facilitate the public in confronting the problem and help them come to grips with the extent of it so that solutions can be found.
I sometimes wonder why so many people in Ireland are unaware of the extent of these problems and why they seem to have gone along with the brushing of this problem under the national carpet. If people had listened to some of the older folk they would have become well aware of the extent of the problem. Some of the older people I encountered in my youth left one in no doubt about the existence of such matters, even if they were not explicit in relation to the nature of them. Nobody was left in any doubt about the fact that it was imperative to avoid having anything to do with certain types of people. Indeed many of these older people, while remaining vague about the specifics of these matters, were well able to get the message across to young people that there was an element in society they should keep away from for reasons that related to sexual abuse.
In combating this problem it is extremely important that we become aware of its full extent and of the modus operandi of the people who engage in this practice. That is fundamental to addressing the problem and either eliminating it or reducing it to the lowest possible level that can be achieved.
The Law Reform Commission, in its 1990 report on this matter, indicated that the reported incidence of child sexual abuse in Ireland was low by international standards. It reached the conclusion that there was a significant level of under reporting of this problem. The commission indicated, with some reservations, that it favoured a proposal that reporting of child sexual abuse should be made mandatory.
On the Order of Business yesterday the Taoiseach assured the House that there was no conflict between the Tánaiste and the Minister of State at the Department of Health and Children, Deputy Fahey, on this matter. To the extent that there is any difference between the Minister of State and the Tánaiste in regard to the emphasis they place on the best way to address this problem, I agree with the attitude adopted by the Minister of State in this regard. He is being responsible in that approach and in sounding a note of caution in relation to the resources needed which are in the order of £100 million. It is important that we provide the resources and there is little point in believing this problem can be solved without any cost. It is fundamental also that the appropriate professional back-up, which seems to be extensive, is put in place and that an undue burden is not put on health boards and  various agencies which are not equipped to cope with the problem.
Resources must be provided as quickly as possible but we must not pretend that there is an instant solution to this problem. It will take some time to build up the levels of expertise and infrastructure needed to address it in the manner it deserves. I fully agree with the attitude of the Minister of State in that regard and I have no doubt about his good intentions in reaching a solution to this dreadful problem.
On the question of mandatory reporting, I sound a note of caution in relation to the enthusiasm with which this strategy appears to be embraced by some elements. It is worth pointing out that a majority of the professionals — nurses, psychologists, doctors, social workers and various other professionals engaged in dealing with child abuse — are opposed to mandatory reporting. That is something of which we must take note. I accept the Law Reform Commission is in favour of mandatory reporting but I would be slow to disregard the reservations of those professions who seem to be speaking with one voice on this matter.
It is worth mentioning the public position taken by some people in the medical profession and in particular by Professor Denis Gill, Professor of Paediatrics in the College of Surgeons, who must know a great deal about these matters. One presumes he deals with this type of problem in his daily practice. He has sounded a strong note of caution on the question of mandatory reporting. He pointed out, with some validity, that some of the worst cases were known to the agencies including the Kelly Fitzgerald, the Kilkenny and the McColgan cases. Mandatory reporting would not provide a solution to those problems as they were already known to the agencies.
In the course of a letter he wrote to The Irish Times last Friday, Professor Gill asked, where is the evidence that mandatory reporting prevents child abuse? That is a valid question. I do not know whether that evidence exists because I am not expert in that area, but it is an appropriate question to ask. Before we enshrine this in law, it is important that such evidence is presented and debated.
Ms Cooper-Flynn Ms Cooper-Flynn
Ms Cooper-Flynn: I am delighted to have this opportunity to speak on the principle of this Bill. In light of recent serious developments we have been shocked and scandalised by the terrible cases of abuse that have gone undetected dating back 30 to 40 years. The issue of abuse is of concern to everyone, particularly the people in my constituency who witnessed the terrible circumstances of the Kelly Fitzgerald case, the case involving the Western Health Board, the Brendan Smyth case and more recently the Derry O'Rourke case. Ordinary people find it difficult to understand how such serious levels of abuse occurred and went undetected.
In the general election campaign last year a commitment was given by the Fianna Fáil Party  in its programme for Government that it would introduce mandatory reporting of abuse within the life of this Government. That important commitment will be honoured by the Government and it has cross party support in the Dáil.
The Government ratified the UN Convention on the Rights of the Child. The child is also protected under our Constitution. While recognising that the child has rights, when discussing this issue it is also important to recognise and bear in mind that parents have rights. This is a sensitive area and we must tread carefully. The definitions in the Bill are important in terms of future consequences which will affect children, parents, statutory and non-statutory bodies. It is important to consider them in light of the serious problems in this area today and not to rush to introduce legislation which might be wrong for the future.
We must ask ourselves what we are trying to achieve. We all recognise the objective of this Bill and the Government's commitment is that any child abuse should be reported to the appropriate authority. That appropriate authority is the statutory authorities, the health boards and the Garda Síochána. We want to ensure that when abuse has been reported, adequate services are available in the health boards to provide for those concerned. An individual worried that a child may be suffering some level of abuse wants to know that if he or she reports it the child concerned will receive the necessary attention and that adequate resources are in place to provide for that. That cannot be emphasised enough.
People should report abuse cases to the statutory bodies, in particular the health boards and the Garda Síochána. That is important for a number of reasons. Officials in the health boards and members of the Garda Síochána have the necessary experience and expertise to deal with sensitive reports and to make judgments on the action that should be taken. It would be helpful if people could report cases of child abuse centrally as there might be many reports relating to one child or family. Reporting incidents to statutory and non-statutory agencies would involve many people receiving reports which may not be co-ordinated or centralised. From the point of view of confidentiality, it is important that alleged cases of abuse are investigated by the proper authority. Therefore, it is necessary that the people to whom reports are made have the necessary expertise to deal with the sensitive issues in this area.
Regarding the definition of abuse and what we are trying to achieve in this area, I draw Members' attention to the problems the Law Reform Commission envisage in the definition of abuse and the possibility that there could be a problem with over reporting in this area. The report of the Law Reform Commission states that, if people are obliged to report potential, as opposed to actual, cases of abuse, or if the definition of abuse is vague or uncertain, professionals  may seek to protect themselves and avoid prosecution or penalty by reporting every possible case of abuse leaving it to the health board to distinguish between fact and fiction. That is an important statement. Where there is a relationship between a doctor and a family and one parent brings his or her child to the doctor and the doctor suspects everything is not 100 per cent correct, the definition of abuse in the Bill, if enacted, would force the doctor, even if he or she has the slightest doubt about the case and without investigating it further, to immediately report that case to properly protect himself or herself. I am not convinced that is the correct way to deal with this matter.
The general principles put forward by the Law Reform Commission state that the law should be specific enough to discourage over reporting. That cannot be emphasised enough. Many people are over zealous and that can be unhelpful but it is regrettable that more people were not over zealous in the past. However, if there is over reporting of cases, the health boards and Garda Síochána will be inundated with reports and the children with serious problems could well be passed over because of the glut such over reporting would create in the system.
The definition of child sexual abuse should lay down a minimum rather than an optimum standard of care for children. The Law Reform Commission states that derives from the need to recognise that methods of child care may properly vary between different families and that the capacity of the child care services to respond to reported abuse is limited by finite resources. We all recognise that although we would all like adequate resources to be channelled into every health board to enable them to deal with the problems associated with various areas not only the areas of child abuse. It is important to ensure serious cases of abuse are dealt with properly by the appropriate agencies.
I question the definition of a person reporting an abuse on the grounds it is “reasonable and in good faith”. That wording is a little loose and requires further examination by the Government before legislation is introduced. It is important to recognise that there are many professionals doing an excellent job, such as teachers and nurses, who report cases of abuse that occur in the classroom or of which they might become aware in a hospital. They consider there is an adequate system of reporting in place and that their professional ethos would encourage them to report such abuse. It is important to recognise that professionals have done a good job in the past when they saw evidence of abuse, but we have all learned in recent years that many matters have been hidden and many people in our society were afraid to report cases of sexual abuse for one reason or another. We must recognise the need to report such cases and the serious consequences for children of remaining quiet. The Derry O'Rourke case, which has been reported extensively in recent weeks, has shown that in many  cases people were aware of problems that existed but unfortunately remained silent.
I accept the principle of the Bill and know Deputy Shatter when introducing it to the House was well motivated in light of the recent tragic cases. However, rather than rush to introduce legislation that may not be in the best interest of everybody in the long run, it is important to examine the definitions in the Bill and, more importantly, to ensure adequate resources are made available to the health boards and every assistance is given to ensure that when an alleged abuse is reported the proper treatment is given and a proper investigation is carried out.
An Leas-Cheann Comhairle Rory O'Hanlon
An Leas-Cheann Comhairle: Is Deputy Cooper-Flynn sharing her time with another Deputy?
Ms Cooper-Flynn Ms Cooper-Flynn
Ms Cooper-Flynn: I wish to share the remainder of my time with Deputy McGennis.
Ms McGennis Ms McGennis
Ms McGennis: I congratulate Deputy Shatter on continuing his fine record of introducing legislation from the Opposition benches and the Minister on his openness in accepting the Bill. I join in expressing sympathy to those who have suffered abuse and courageously taken action in the courts. We saw how difficult it was for them. I congratulate them because their actions will affect those who have suffered abuse and have misgivings about going further. Justice has been seen to be done, at least in the sentence given in last week's case.
The Kilkenny incest report was produced around the time I was appointed to the Seanad in 1993. I said then if Members of both Houses paid lip service to reports on the Kilkenny incest case and Kelly Fitzgerald, we were not only doing a disservice to those who suffered — and in one case, died — but we had no right to speak unless we could match our words with deeds. This legislation and the Minister's approach to the issue are positive proof we are coming of age and are prepared to match our words with deeds.
This Bill is part of legislation which needs to be enacted to ensure children are protected by the State. This was not the case in the past. There is no guarantee we can close every loophole but we can make it easier for children to come forward and more difficult for perpetrators to get away with it. If we do nothing else, what has happened in the past few years sends a message to adults who have suffered and children who are suffering that we believe them and will believe them when they come forward with allegations.
Recent press reports on the swimming coach case and one other case highlighted the perpetrators' lack of remorse, despite the fact that they had embraced religion. The perpetrators of these crimes continued to block investigations and thwart Garda efforts until they were cornered. This feature of the crime is thoroughly sickening. The announcement today by the Minister for Tourism and Sport, Deputy McDaid, of  an inquiry into the swimming cases may help to ensure our children know we believe them when they allege someone has done something inappropriate. The Minister referred to the stay safe programme and I congratulate the teachers involved.
Although the Minister said the legislation needs to be amended, I support Deputy Shatter and I am pleased the Bill does not only refer to sexual abuse. While it is traumatising and a dreadful abuse of any vulnerable child, the area of neglect and other areas covered by this legislation are important. In the Kelly Fitzgerald case, neglect was the cause of her death.
The area of sexual abuse is the only one where there are accepted definitions. Neglect and other areas covered by this Bill do not have such clear definitions. The Minister said he could not accept section 3(c) of the Bill which refers to circumstances where “a child's health, development or welfare is likely to be avoidably impaired or neglected”. However, he indicated his willingness to accept section 3(b) which refers to cases where “a child's health, development or welfare has been or is being avoidably impaired or neglected”. Social workers say that because of the horrific nature of child sexual abuse and the impact on the victim, responses to such cases are quicker. Perhaps psychological abuse and neglect are not receiving such immediate attention.
On the rights of children, I am at loggerheads with my colleague, Deputy Cooper-Flynn. I agree the family has rights which must be respected. However, this has been abused. In the Kelly Fitzgerald report, it was obvious that the social workers and agencies involved felt the rights of the family superseded the rights of the child. I have grave misgivings about that.
On page 326 of the report of the constitution review group, section 5 refers to the expanded constitutional guarantee of the rights of the child. It states:
There is no express reference in Article 41 to the child. As already indicated, the focus of this Article is on the rights of the family as a unit and on protection of it from intervention by the State rather than on the rights of the individual members of the family. Only Article 42.5 refers to the rights of the child and imposes any specific obligation on the State. The Report on the Kilkenny Incest Investigation, chaired by Judge Catherine McGuinness, observed that “the very high emphasis on the rights of the family in the Constitution may consciously, or unconsciously, be interpreted as giving a higher value to the rights of parents than to the rights of children” and went on to recommend the amendment of the Constitution to include “a specific and overt declaration of the rights of born children”.
As a member of the constitution review group, I support this. I have not heard as much lobbying for the rights of born children as for the rights of  the unborn. We need to ensure a balance in terms of the rights of born children. I support any review which enshrines that in our Constitution.
Perhaps Deputy Shatter will be responsible for protecting me from myself as, on foot of information passed to me by grandparents, neighbours etc., I regularly report cases to health boards where children are at risk of abuse or neglect. The Minister of State, Deputy Fahey, has responded very well to cases I have asked him to deal with. I was not aware I was leaving myself open to possible litigation, from which this legislation would protect me and others.
I want to draw the Minister's attention to the over-emphasis by health boards on keeping a child in a family situation. This seems to be presumed to be the right thing in cases where there has been abuse, not necessarily sexual. It is seen as the best way to deal with the problem if health boards can put resources behind the family unit to keep it together. I am not sure that is the best way to deal with cases of abuse. At least the perpetrator can be removed where there is violence in the home. In cases of neglect and sexual abuse, whoever is responsible should be removed from the family home. I know from experience that health boards have tried to support families where both parents are involved in neglect or abuse. It may be safer to place children with foster parents in the interim.
Health boards seem to have to protect themselves because all these cases have consequences and there are implications if they make a wrong decision. I heard of a case where a young boy was in care and a couple, not registered foster parents, offered to care for him. Because of the particular circumstances the social worker recommended that the boy should be placed in care and not with foster parents. We must be careful to ensure that health boards and carers do not see themselves operating entirely to the letter of the law. In one of the interviews after the case last week, a social worker was asked why he thought it had reached the situation it had and why the abuse had continued for so long. In response he said it was because the parties involved, leaving aside the abuser, simply took legal advice. They did not follow their gut instinct which might have been to ensure that the allegation was dealt with, including the removal of the person responsible. They took legal advice which was that if they took course A they might leave themselves open to further legal challenge by the person involved.
If we go too far down that road we may leave health boards hamstrung in that everything they do is based on the letter of the law and options available to them may not be taken on board.
The 1988 report of the inquiry into the operation of Madonna House stated:
“Child abuse is so central that as a society we choose to reject our knowledge of it rather than make the changes in our thinking, our institutions and our daily lives that sustained  awareness of child abuse victimisation demands.”
It is ten years since that was written and I hope the situation is changing. Societal attitudes have changed; children are no longer being told to be seen and not heard. Their voices should be heard loudly and clearly. All our legislation should be child centred. I commend Deputy Shatter on his Bill and I welcome the opportunity to deal with it further on Committee Stage.
Ms McManus Ms McManus
Ms McManus: I wish to share my time with Deputies Neville, Clune and Barnes.
Acting Chairman (Mr. McGrath) Acting Chairman (Mr. McGrath)
Acting Chairman (Mr. McGrath): Is that agreed? Agreed.
Ms McManus Ms McManus
Ms McManus: I welcome this Bill and commend Deputy Shatter for presenting it to the House. It deals with a serious aspect of reporting child abuse and it is clearly an important element in the response necessary to tackle it.
Yesterday, I listened with interest to the speech of the Minister for Health and Children, Deputy Cowen. As far as I am aware, it was the first time the Minister made a comprehensive statement on any issue relating to the rights of children. A name change does not make a Minister and it is clear from the record of this Government that we do not have what is actually needed. We do not have a Minister for Children whose focus and authority are sufficient to the task. All we have is a Minister of State whose brief has been too narrow to make any real impact.
This lack of leadership in relation to the rights of children has led to considerable confusion, particularly on the issue of mandatory reporting. A commitment to the mandatory reporting of child abuse is clearly outlined in the Government's programme, yet on 9 October 1997 in this House the Minister of State, Deputy Fahey, urged against “proposals that apply a simplistic, prescriptive, legal solution to a very complex problem”. He then assured the House that he did not intend to introduce legislation on the issue.
Subsequently, we have had a number of statements from Progressive Democrats Ministers stating a contradictory view to that of the Minister of State, Deputy Fahey. On television last Monday, for example, the Tánaiste flatly opposed his approach. Last night the Minister, Deputy Cowen, presumably in a definitive statement, indicated the Government would proceed with legislation. However, he then proceeded to outline all the reasons he could not proceed, or at least he defined the hurdles that had to be overcome before he could do so.
During the last general election there was no evidence of such reflection or thought being given to the subject by Fianna Fáil. That party operated as it always does. Simply put, their line is to tell lobby groups what they want to hear and when the election is out of the way they do what you want. Is it any wonder that voters are cynical?
 In this instance the fact that Fianna Fáil is in coalition does make some difference, although I would not hold my breath about seeing legislation. I happen to agree with both the Minister, Deputy Cowen, and the Minister of State, Deputy Fahey, on this matter. I believe caution is warranted on the introduction of mandatory reporting, but I also believe in being straight with the electorate when it comes to election time.
What concerns me about the debate is not the issue of immunity from liability or the issue of confidentiality, important as these are. What concerns me most is the lack of any clear, overarching policy from this Government. The care of children is a much broader issue than that of simply reporting abuse or protecting those who report it. The requirements to meet the needs are complex and demand resources.
Any incoming Government should have seen that the process of co-ordinating services is a difficult one, but it had been begun by the rainbow Government. It should have been made more effective, not less so, yet the Taoiseach rolled back on efforts towards more effective co-ordination. What is now glaringly obvious is that nobody is taking charge and that, in Dr. Anthony Clare's words, “the current situation is in a shambles”.
The reforming work started by Deputy De Rossa in supporting children living in poverty was not continued or completed by this Government. Instead we got payback time for the well-off. The Celtic tiger reigns but the care and support services for children at risk are either overloaded or non-existent. However, if we cannot deal with these issues now when will we ever be able to do so?
The submission from the Children's Rights Alliance to the UN Committee on the Rights of the Child showed that 1,242 children were waiting for in-patient procedures in two public hospitals in Dublin alone. From 1995 to 1997, however, 135 children who were not sick were kept in hospitals because there was nowhere else to put them. Others were accommodated in bed and breakfast establishments and even adult psychiatric hospitals have been asked to take in psychiatrically sick children. Prison has also been used to accommodate children who are non-offenders.
Recently the Government was represented at the UN Committee on the Rights of the Child. I fully accept that many of the issues I have outlined and that need to be addressed are long-standing and cannot be resolved overnight. What I find unacceptable, however, is the dismal lack of any serious, organised commitment on children's rights. There is no strategic approach, no vision and no plan. The crisis management that characterises services at home was presented without much grace as policy abroad.
The UN Committee report stated:
Eventually the Government replied to the reasonable question put by the Committee on the adoption of a comprehensive national strategy for children. Eventually it would be our intention to draw a wide range of individual  developments together in the context of a national strategy.
How abstract, vague and incredible it sounds. The lack of a clear strategy is the single greatest need in relation to children at risk. They need early prevention before crises occur, along with residential care, family support systems and alternatives to secure facilities, such as new models of open residential care.
Many homeless children end up exploited as child prostitutes because they were originally victims of abuse at home. When we discuss mandatory reporting I hope we might also talk about a mandatory, comprehensive and effective strategy that would transform the current situation from one of crisis into one of care, capability and compassion.
Mr. Neville Mr. Neville
Mr. Neville: I welcome the decision of the Government, the Minister for Health and Children and his Ministers of State to accept Fine Gael's legislationentitledthe Children (Reporting of Alleged Abuse) Bill, 1998. I congratulate Deputy Shatter on bringing the Bill forward and on his work on family issues over the years. Our children are the most precious part of our society and the State must protect them. Everything must be done to ensure that children are protected from abuse or neglect. Barriers or obstacles which prevent the reporting of suspected child abuse or neglect to the appropriate authorities must be removed.
The Bill before the House removes one such barrier. It protects those who have reasonable grounds for believing a child is at risk and report it to the appropriate authorities from civil litigation or dismissal from employment. This is an important proposal to facilitate the reporting of child abuse and neglect. Recent court cases have outlined in graphic detail the level of child abuse in our society. Both the McColgan and O'Rourke cases exposed a level of cruelty and abuse which has shocked society. Those and other cases, such as the Fr. Brendan Smyth case, has exposed to the public the level of abuse which takes place and the consequences of such abuse for the victims.
Some of the destruction of self-esteem experienced by victims of child sex abuse stems from the fact they may not have been believed in the first place. Describing the abuse in court, especially in a case where an abuser is convicted, can end in the vindication of the plaintiff. The McColgan family and the young women abused by Derry O'Rourke expressed the need for victims of abuse to regain publicly the dignity and sense of worth of which they were robbed. The State should facilitate this opportunity for expressing such a need. The Minister should examine the statute of limitations with regard to taking civil cases relating to sex abuse in childhood. This limits the time lapse in which such cases can be taken. A guilty plea means the victims do not have to give evidence or be cross-examined by defence lawyers for the accused  which could prove painful. However, it also robs the victim of an opportunity to confront their abuser. Recent cases outline the importance of this to victims.
We must recognise that the victim of calculated violence is likely to suffer deep and serious effects as a child, teenager and adult. Many suffer from multiple personalities, bouts of alcohol consumption and some have suicidal tendencies. They suffer from depression, elation and nervous breakdowns and they spend long periods of life in self-imposed isolation due to a mistrust of and a disbelief in humanity. They discard friendships and are unable to see the difference between reality and fantasy.
Evidence in recent cases justifies a change in the law to allow victims of abuse to confront in court their abusers or those who, directly or indirectly, protected the abusers. Where an abuser pleads guilty in a criminal trial, the abused victim should be allowed to describe the abuse, as happened in recent cases. This could be done after the conviction but before sentencing. It could supplement the victim impact statements used in some cases to assist the judge in sentencing.
It is ten years since the Law Reform Commission reported that fear of being sued for defamation is a barrier to reporting abuse. In 1989 the commission stated that legislation should be enacted to confer immunity from liability for bona fide reports of child abuse made with due care. This Bill will improve and facilitate the reporting of child abuse and create an environment which will help to facilitate such reporting. It will also facilitate co-operation between professionals and agencies dealing with children who are suspected of being at risk. I welcome the fact the Government is prepared to accept the Bill and address this fundamental gap in the law.
I welcome the recent announcement that the Minister of State of the Department of Health and Children will have a comprehensive brief for children which will not only include his Department but the Department of Justice, Equality and Law Reform and the Department of Education and Science. I am pleased the Government recognises that the old system of fragmenting responsibility for children's legislation and services is no longer suitable and that one Minister will now have responsibility for this area. The fact the Government was forced to correct this situation at a hearing of the UN committee on the rights of the child speaks for itself. I welcome the announcement at that meeting by the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, who was questioned for a gruelling six hours by the international members of the committee. She listened to considerable criticism and acknowledged that much of it was valid. She accepted that there was a lack of co-ordination between different Departments and a piecemeal approach to child care in Ireland.
 The UN committee made it clear to the Government that signing the convention on children's rights involved obligations. In its interim submission, the committee said that the Government reacted to specific situations rather than acknowledging that children had rights, including that of having a safe childhood. Will the Minister for Health and Children present the report from the UN committee to the Dáil when the Government receives it? It is important that there is a full and detailed discussion on the findings of the committee which was established to monitor the implementation of the 1989 UN convention on the rights of the child which Ireland signed in 1993.
One committee member said the Government adopted a patronising approach to children and he was not alone in his comments on two profoundly different philosophies of children's welfare. He believed that children did not feel they were full members of Irish society. The chairperson stated that the Irish submissions lacked the sense of the children as people. He said there was much talk of the protection of children but not enough of their empowerment. Children did not seem to participate in the formation of these policies. The Minister of State, Deputy O'Donnell, acknowledged the problem and promised to press the issue with the Minister for Health and Children.
This morning on RTE radio a victim and the mother of a victim outlined the horror story of sexual abuse caused by Derry O'Rourke. The Minister must ensure that all the information in the case is made available. The role of the Irish Amateur Swimming Association must be fully examined. The mother outlined that her 16 year old daughter had been abused by Derry O'Rourke in November 1992. She was completely devastated. In the six days before she told her family about the abuse she was ill with migraine headaches and could not go to school. She had an open relationship with her family which facilitated discussion of the matter.
The family immediately contacted the committee of the club who confronted O'Rourke. However, he denied everything. The committee then asked the child to put the complaint in writing and the family met three of the committee members. The mother explained on the radio that this meeting was a difficult and stressful experience. They were asked if they were overreacting and one of the committee members asked if they were aware that children in the US swam naked to increase their times. Guarantees were eventually given that O'Rourke would not be allowed on the side of the pool on his own, he would not bring the girls to the board room and he would cease measuring the inside legs, hips and busts of girls.
The parents subsequently saw a copy of a letter which was sent to the Garda Commissioner which stated that “there was only one incident in the last 22 years of coaching to this Committee's knowledge from a family regarding their  daughter, which might be construed as sexual, which was investigated by three Committee members who were in unanimous agreement that the claim was mistaken and the incident without foundation”. O'Rourke, however, pleaded guilty to this offence in court. I outline this incident which is in the public domain to highlight the need to ensure that a full investigation is carried out into all matters in this case.
During Question Time last week the Minister stated that the appointment of an ombudsman, which was identified as being necessary by the Children's Rights Alliance and the United Nations committee on the rights of the child, had been put on the long finger. Last December it was announced that the Government would not establish such an office but I am glad the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, changed that decision in Geneva.
Much work needs to be done in this area. Children must feel part of society; they must be consulted. This Bill is an important step in ensuring that children's rights are upheld. I congratulate Deputy Shatter for his initiative in introducing this Bill and I look forward to Committee Stage.
Ms Clune Ms Clune
Ms Clune: I congratulate Deputy Shatter for introducing this Bill. There is such a contrast between his efforts and those of the Government to address this complex issue. I welcome last night's announcement by the Government that it intends to accept this Bill. It is welcome whether or not mandatory reporting of child abuse is implemented, because it addresses the real problems of professionals working with children in the area of child care. It will give protection to teachers, nurses, doctors and community workers who may wish to report their suspicions of child abuse to the health boards or to the Garda Síochána. The Bill specifies that people who make reports in good faith cannot subsequently be sued or dismissed from their posts. Conversely, the Bill will not provide shelter for those who make malicious or false allegations.
I know from professionals in the field that fear of legal proceedings, although such fears are often unfounded, is usually the reason people hesitate to report their concerns to health boards. People are often unwilling to give their names when making a report. This is evidenced by the large number of anonymous reports to the health boards each year. Clearly an anonymous report will not be given the same weight as a report that someone is willing to stand over by giving their name.
I welcome the fact that this Bill will offer protection to professionals such as teachers who report their concerns in good faith to the health boards. Before making such a report professionals would have to have reasonable grounds for believing that a child has or is being assaulted, ill-treated, neglected or sexually abused or that his or her health or welfare is being avoidably impaired or neglected. Teachers spend a large  proportion of time with our children and get to know them very well, and they are often the first to pick up on a child who is troubled or distressed for whatever reason. I know of a teacher who was very concerned about one of her pupils. She followed the relevant Department of Education guidelines and the matter was referred to the health board. This teacher was subjected to a barrage of harassment and abuse from the child's father, and she lived under the threat of legal proceedings for quite a long time.
We should not forget that the purpose of our debate is to try to protect children. Enough abuse has been reported lately to make us all stop and think about how this could happen in our country and how we could let children be abused, physically, sexually or mentally. Who was responsible for those children? Why was the abuse not reported, and who should have reported it?
In 1993 an IFPC survey asked Irish adults about their experience of sexual abuse in childhood. Sixteen per cent reported having been sexually abused, and 12 per cent reported having been contact sexually abused in childhood. Only 2 per cent of those abused said they had reported this abuse to a social worker or to a garda. I am not surprised at the low level of reporting. Children depend on adults to guide and protect them, and they are physically as well as emotionally threatened in this situation. They live in their own small world, in their own immediate surroundings, and have no competence or even knowledge of how to deal with an abuser. They do not even recognise that what is happening to them is wrong or that someone should be helping them.
For some people childhood has not been as carefree and happy as it should have been, and many of these people are adults today carrying that burden. Their lives have been irreparably damaged. They did not get the help they needed. That creates further problems for themselves and for others with whom they come into contact, and the cycle continues. How often do we hear that a person in a position of trust with children abused those children physically, sexually, emotionally or through neglect, and that the reason for the abuse stems from the fact that the abuser was abused as a child? If that abuse had been recognised and proper help and professional counselling given, the situation might have been rectified, although it is quite possible that victims of childhood abuse never recover from the wrongdoing, carrying the burden through life and, perhaps, suffering from personality disorders and bouts of alcoholism.
Fear and mistrust are the reasons we do not get voluntary reporting of child abuse. Consider a mother whose husband abuses their children. Because she cannot be confident that the State will support her emotionally, physically and financially, she thinks she is doing the best she can for her children by letting things rest, perhaps believing that the situation will rectify itself. It is difficult for family members to bring outsiders into their home. Often this is because of fear of the perpetrator of the abuse and the knowledge  that if they upset the status quo the abuser is likely to become more violent and more abusive and those living with him will suffer more.
I congratulate my colleague, Deputy Shatter. I emphasise the need for more support for the health boards, financial and otherwise, in implementing the reporting of child abuse.
Mrs. Barnes Mrs. Barnes
Mrs. Barnes: I also welcome the fact that the Government has accepted the Bill and that we will have an opportunity to discuss it further and perhaps talk about resources to back it up when it comes to Committee Stage. I thank Deputy Shatter for using his legal and legislative expertise in bringing this Bill before the House because we all share a sense of horror and guilt at what seems to be an endless saga of suffering and long-term fundamental damage caused to victims who have the courage to make a statement, whether in the courts or before a health board, and convey to us the enormity of what was done to them and the extraordinary sense of injustice they live with. What should galvanise us is that this Bill and the support services we hope to put in place will not and cannot help those victims, but they can give us a sense of their pain and suffering and allow us as a society to ensure that the loneliness, the isolation, the guilt and the incredible personal responsibility heaped on vulnerable children who had to come through this dark tunnel by themselves will never be allowed to be repeated and that we, as the elected members of our society, will ensure that, regardless of where the money comes from, resources will be put in place.
I remember hearing and taking on board a long time ago that all real learning is painful. It has not been more painful for anybody than for the victims, but something we, who saw our society as child-centred, have to face up is the sense of wanting to block off what we felt was unacceptable, that is, that vulnerable children under the authority of an all-powerful adult should have felt there was nowhere they could turn and that there were no support services if they voiced the horrors of what was happening to them. Let us use the pain of the victims but also the painful realities we have had to face up to. Constitutionally we have said we will protect our children, that we will protect the family unit because without the family unit the common good cannot be served. Despite that, it is in these areas that people have to beg, plead and almost scream for resources. We have to get our priorities right. In the light of the painful experiences of these victims we need to use the expertise of people like Deputy Shatter. We need more enlightened and more sensitive judges. We all need to be aware of people's need to tell their story. Having told their story, there must be adequate backup, counselling and support services available for victims.
The only way we can ensure total confidence in the service and adequate expertise and resources is through the appointment of an  ombudsman to whom victims can go in the knowledge that he is independent and will act on their behalf regardless of where they come from or what type of abuse has taken place. Children still do not have rights and we must move away from a cultural mindset where children are seen and not heard and where the adult is always correct. We also need to move away from authoritarian educational, church and parenting systems, meet the challenges and try to make up for what has happened. Above all, the Minister must be given the necessary resources to enable him to protect children's rights. If we fail to do this then we cannot call ourselves civilised, Christian or family orientated.
Mr. Fleming Mr. Fleming
Mr. Fleming: I support the Children (Reporting of Alleged Abuse) Bill, 1998. Any measure which seeks to protect children is good and no right thinking person should oppose it.
The large increase in the number of child abuse cases reported in recent times is due to the increase in the level of reporting. We are lifting the veil on what has been happening for many years and showing that we are more open and mature and are willing to face up to the difficulties in society. Child abuse is not a new phenomenon and the increase in the number of cases reported does not mean the problem is getting worse.
I compliment Deputy Shatter on bringing forward the Bill and the Minister of State, Deputy Fahey, and the Government on accepting it. While I support its objectives, I have a problem with section 3 which refers to “no person acting reasonably and in good faith”. The term “no person” can refer to anyone and it would be better if it was more specific. Having listened to Opposition Deputies one would get the impression we are talking only about health professionals. It is important to make this term more specific. Who will decide whether a person is acting reasonably and in good faith? There must be some way of measuring this. I am worried this could lead to unnecessary reporting. I am happy to support this section provided these terms are clearly defined. The Bill refers to children under 18 years. The age of consent is 17 years and this ambiguity must be addressed.
The Bill must be balanced. While there is nothing worse for a child than to be abused and be unable to report it, there is nothing worse for an adult than to have a malicious report made against him. The Bill should provide for the imposition of severe sanctions against people who make reports for malicious reasons. If a report is made for malicious reasons a person's reputation, life and marriage can be destroyed.
What constitutes abuse? I live in a rural area where many teenagers work on the family farm or help out in the family business. I do not consider this abuse but someone else might believe these children are being worked to the bone. The terms used in the Bill should be more specific. There has been a reference to the need for  resources. It is not merely a question of providing adequate resources; there must also be a change in attitude and culture. We can allocate all the funding we want to this area but if we do not have a right attitude then it will not solve the problem.
Many of the cases which have come to light recently have involved people from rural areas. I would like to know if there are factors in rural areas which give rise to more cases of this kind or whether it is simply that these are the cases which have been reported. Has the Department a view on whether there are certain factors in rural areas which give rise to more of these cases?
Minister of State at the Department of Health and Children (Mr. Fahey) Minister of State at the Department of Health and Children (Mr. Fahey)
Minister of State at the Department of Health and Children (Mr. Fahey): I thank Deputy Shatter for introducing the Bill. While I agree with the principle of it, there are some problems which need to be ironed out on Committee Stage.
I pay tribute to the victims of child abuse for their courage and resilience. The cases which have come to light in recent days highlight two fundamental truths: first, child abuse is an enormously complex area where professional, objective, trained personnel must be available to recognise cases, to take appropriate action and to have the resources to do so and, second, society has changed forever and will no longer tolerate nor keep hidden such callous, heinous corruption of the young. In so far as the Government and my Department are concerned, there is no hiding place for the perpetrators of child abuse. Whatever we have to do to root them out and deal with them will be done.
Since the work of the Kilkenny incest investigation team huge advances have been made in terms of child protection and in the development of an infrastructure which was non-existent a few years ago. However, there is no room for complacency. Even though 900 extra staff have been employed in recent years and an extra £43 million has been spent — the total expenditure in this area, excluding certain areas of child welfare, is approximately £80 million — there is still a need to make significant strides forward. I have put in place a strategic plan. While Deputy Shatter criticised me in a fairly trenchant manner last night, I take that criticism on the chin as I know it is well meant. However, I have to say in my defence that the situation I inherited last July was not perfect. I am aware of efforts made by my predecessor in memoranda to Government to get extra resources, which were refused by the Department of Finance. I have made efforts to get a significant increase in resources and, while I got an extra £13 million, it is far short of requirements.
The constructive approach adopted by all speakers in this debate is welcome. Deputy Barnes summed up the real problem in this area. Up to now the whole issue of children has not been significantly dealt with. The previous Government, particularly my predecessor, Deputy Currie, is to be complimented on giving special attention to this issue. In recent years a number of Governments have put in place  increased resources. Deputy McManus is incorrect is saying that there is no strategic plan and no vision. Just because the Deputy and others are not aware of it does not mean there is no plan. My Department has worked on a three year co-ordinated millennium plan for children and it was put to Government in recent months. I have no doubt about the priorities and how they should be met. Massive resources are needed to put the plan in place.
All Governments in recent years have failed to recognise the major issue of the welfare of our children. Debates such as this are of significant importance in outlining to the House, the Government and the community at large that a new approach must be adopted to the welfare of our children, and that assists me in my job.
There are difficulties to be overcome. There is a first class staff in the Department of Health and Children, but only ten or 11 people are doing a job that rightfully should be done by perhaps three times that number. The budget is far short of that required to deal with the vast expanse of difficulties that exist for thousands of children. Let us not make a political football of our children. I will respond always as honestly as I can. I will outline the difficulties and hope we will assist one another in overcoming them.
One of my priorities is the establishment of a social services inspectorate, a critically important resource needed to respond to the reports of recent weeks and months. We are proceeding with speed to set up that inspectorate and I have provided £300,000 in this year's budget for that purpose.
I have been criticised for lack of co-ordination. I have continued in exactly the same way as my predecessor, Deputy Currie, in the Department of Health and Children, a Department with improved status for children. I have had ongoing meetings with officials in the Department of Justice and on many mornings on my way to Dublin I spent time in the Department of Education and Science in Athlone dealing with officials about this matter. It is incorrect to say there has been no co-ordination and that there is not an important role for all three Departments involved. Under the strategic initiative of 1997 those Departments work together on this matter, and I reject criticism of that nature. I welcome the decision by the Government to bring together the three Departments in dealing with this matter.
Significant progress is being made in this area. Child abuse is not about mandatory reporting — that is a red herring. Mandatory reporting is not the panacea for success in tackling child abuse. Major resources must be put into this area and I am committed to work hard to get those resources. New structures must be put in place. There are thousands of children who are vulnerable and seriously at risk of abuse, physical, emotional and sexual, and until such time as we put in place the necessary resources we will be unable to deal with that problem. If the people  knew how bad the position is in terms of physical and emotional as well as sexual abuse, there would be an outcry.
I am happy to move this Bill into Committee and I hope to get the resources in terms of new legislation and initiatives in all health boards to give every child the lifestyle he or she deserves.
Mr. Shatter Mr. Shatter
Mr. Shatter: Before I conclude the debate I would like to give five minutes of my time to Deputy Ó Caoláin.
Caoimhghín Ó Caoláin Caoimhghín Ó Caoláin
Caoimhghín Ó Caoláin: I support this Bill and commend Deputy Shatter on bringing it forward. It is an indictment of legislators that it is almost a decade since the Law Reform Commission recommended “the conferring of immunity from liability for bona fide reports of child abuse made with due care”. This legislation is thus long overdue. In the nine years since the Law Reform Commission report the issue of child abuse, sexual and otherwise, has moved to the top of the political agenda. It is a horrific reality that children have had to live in secrecy and in silence. This issue more than any other demonstrates that the most vulnerable section of society is also the most abused.
Child sexual abuse was for a long time an unspeakable issue. The victims and survivors of sexual abuse were rendered voiceless because of the unwillingness of society in general and those in authority in particular, those in Church and State, to confront this most serious and fundamental problem. Far from confronting it those authorities often protected the abuser, hid the abuse and abandoned the victims.
It is only in recent yeas the full extent of the problem has been highlighted. The shameful regimes which existed in institutions run by religious and State bodies have been exposed. Individuals of authority, supposedly people of trust and responsibility, have been found guilty of the most heinous abuse of vulnerable children. There is much wider appreciation of the tragic reality that it is most often in the home, at the hands of parents and other close relatives, abuse occurs. There can no longer be doubt that this problem is widespread and deeply ingrained in society.
It is necessary to monitor continuously the reactions of the various State agencies to child sexual abuse and the preventative and interventionist programmes that are being developed. It is imperative that the safety of the child is a priority, and that must be ensured with proper consultation and the co-operation of the nonabusing parent. There is much to be done in legislative terms to tackle this problem and, as Deputy Shatter pointed out, much more than legislation is required. This Bill, however, provides a necessary reform to protect those who are in a position to report suspected abuse. Any obstacle which might prevent the rescue of children from the horror of abuse should be removed. The Bill does  that. I again commend its mover and am happy to record my support of it.
Mr. Shatter Mr. Shatter
Mr. Shatter: I thank those on all sides of the House who spoke on the Bill and made kind remarks about it. I had two objectives in bringing forward the Bill. I had hoped we would join across the floor of the House in order that, without acrimony of a party political nature, the Bill would pass through Second Stage, and I am pleased that has proved possible. The winners in that outcome are not the Fine Gael Party or any party in this House; they are children in this country. There is a need for us to deal with this type of concern in this manner in this Chamber when we can. That does not mean that this Chamber should not be used to raise other issues of concern in relation to children, to tease out from the Opposition benches, as is our duty, our concerns about what we see as failures in the policy of the Government and to set out areas which we believe should be addressed. We have used this debate as a vehicle to do that.
The second objective was to focus on the needs which this Bill cannot address, the needs which must be addressed by Government and the gaps which must be filled if we are to have not simply legislation but social services which truly respond to the needs of children and families in trouble. Often the fact that a child is in difficulties is simply a reflection of disintegration within the family unit of which that child is a member. It is all too easy on occasion to see the child who is the victim of neglect or abuse in isolation and not see that child in the overall context of the family.
I want to raise one or two issues with regard to matters brought to our attention by the Minister of State at the Department of Health and Children, Deputy Fahey. Before I do that, I want to refer briefly to some of the criticisms of the substance of the Bill.
I am pleased that we agree on the principles of the Bill. That is of great importance. I know from the public reaction which I received during the course of the day, from people in the medical profession and the teaching profession and from some members of the general public who do not fall into these categories, that the Bill is welcome. I can say something which is not often said to Governments from the Opposition benches, that the Government has done its image among the general public no harm by not opposing this Bill. The approach from all sides of this House is welcome.
There have been some criticisms voiced of the substance of the Bill and I fully accept that is part of the parliamentary process. Every Bill published by a Minister is criticised from the Opposition benches and is often subject to amendments tabled by that Minister. I never take the view that any legislation published by the Opposition or the Government is written in stone and that it should not be amended. However, some of the criticisms are inaccurate and based on misunderstandings. We will have a great opportunity to  tease this out on Committee Stage, but I do not want the view of the Bill as portrayed by some Deputies and by the Minister to gain any credibility or currency.
The suggestion has been made that to some degree the Bill is too broad and that to preserve it as it is could result in irresponsible people being given some sort of licence to make unwarranted reports to the detriment of the individuals who it may be alleged have been abusing children and in respect of whom the allegations are incorrect. The Bill has been drafted very carefully. For a person who reports abuse to be exempt from civil liability, he or she must behave reasonably and act in good faith, and the report must be on reasonable grounds. Some speakers have asked what those phrases mean. Those are well worn phrases which have been teased out by the Judiciary in a variety of different areas of our law and to which the courts have had no difficulty in attaching a meaning. It is the formula to which Deputy Ó Caoláin and my colleagues in the Fine Gael Party referred and which was recommended by the Law Reform Commission. By saying that the person making the report must act reasonably, it is to some degree even more careful than the recommendation of the Law Reform Commission.
The Minister makes the case that reports should largely be confined simply to health boards and the Garda, that he is concerned about reference to other bodies involved with the care and welfare of children. He made the somewhat ludicrous suggestion that this could result in allowing people to make reports to whomever happens to be running the local crèche and sports club. That is not the case and it is not the intention. The formula used in the legislation with regard to non-governmental bodies concerned with the welfare of children is one which actually replicates a provision in the Children Act, 1908, which gave the ISPCC the status to bring child care proceedings from 1908 to the 1970s and 1980s. If an individual reports his or her concern that a child is being abused to an organisation, such as the ISPCC or Barnardos, he or she does that responsibly and in good faith, and he or she seeks advice as to how to proceed further, that individual should not be at risk of civil liability.
It is curious that the Government should disagree with my view in that context because the Minister referred to the fact that the Department of Health and Children has asked health boards to ensure that funding to voluntary agencies dealing with children is conditional on those agencies having procedures in place to deal with allegations of child abuse. He said that most voluntary agencies with responsibility for children in the health area have well developed procedures in place and work closely with health boards when such allegations arise. The Minister is providing funding for voluntary agencies which he acknowledges have roles to play in dealing with child abuse and at the time suggesting that when  people report child abuse to these agencies they should not have immunity for civil liability. That makes no sense. Perhaps when the Minister teases out this aspect to a greater degree he will see that what I am saying makes sense.
There are other issues relating to the phraseology of the Bill which we will deal with on Committee Stage. The Bill is not written in stone. If the Government comes forward with constructive amendments which will improve the Bill I will be quite happy, but l will not agree to amendments which would undermine the objectives of the Bill. That is important.
The Minister of State, Deputy Fahey, will get every support possible from this side of the House to ensure that the resources he needs for the child care services are made available. Our concerns are that it is the Government which prioritises how moneys will be spent, determines what moneys will be raised by taxes and what tax changes will be made. It has been the decision of this Government to date not to provide the resources which are needed for the child care services.
Mr. Fahey Mr. Fahey
Mr. Fahey: More than the last Government.
An Leas-Cheann Comhairle Rory O'Hanlon
An Leas-Cheann Comhairle: Deputy Shatter without interruption.
Mr. Shatter Mr. Shatter
Mr. Shatter: If the child care services cannot cope with the demands being made by the increase in the reporting of child abuse, it is the responsibility of the Government to set as a priority the allocation of the funding needed to ensure that the personnel required are available to the health boards, and that those personnel have the training needed to ensure proper responses. That is an issue of Government priority. One can not say “payback time” out of one side of one's month and say that we do not have the money to protect our children out of the other side. The sum of £20 million per year has been lost to the Exchequer on the Government's calculation, which I suspect is a conservative one, by the change in capital gains tax rates from 40 per cent to 20 per cent. Without that change substantial additional resources would be available for the care of children.
I want to refer briefly to an issue omitted from the speech of the Minister for Health and Children but to which the Minister of State, Deputy Fahey, made brief reference. It is very significant that in the Minister for Health and Children's speech there is no reference to the children's ombudsman. Deputy Barnes is quite right in saying that we need a children's ombudsman to monitor the services in place for children, to independently highlight their deficiencies, and to ensure that the Government is put under pressure to meet its obligations under the United Nations Convention on the Rights of the Child.
I find it curious and difficult to understand why the £100,000 the previous Government proposed for a public information campaign to heighten  awareness of child abuse — which is much needed to ensure proper reporting — is being diverted to moneys to be given to the Children's Rights Alliance to campaign for awareness in respect of the United Nations Convention on the Rights of the Child. I would have thought that money would be better spent in ensuring greater awareness of child abuse. Everyone is aware that the Government has been criticised by the United Nations committee. In that context, I am not sure the diversion of the £100,000 is a proper use of resources.
Question put and agreed to.
Dáil Éireann 486 Private Members' Business. Children (Reporting of Alleged Abuse) Bill, 1998: Second Stage (Resumed).