Dáil Éireann - Volume 601 - 21 April, 2005
Commission to Inquire into Child Abuse (Amendment) Bill 2005: Second Stage.
Ms Hanafin Ms Hanafin
Ms Hanafin: I move: “That the Bill be now read a Second Time.”
I am pleased to introduce to the House the Commission to Inquire into Child Abuse (Amendment) Bill 2005. The Bill amends the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002 and establishes a statutory body to administer a €12.7 million education fund for former residents of institutions and their families.
Before outlining the purpose of the Bill, it is important to highlight the general background and context of the legislation. In recent years Irish society has been confronted with the reality that many people were subjected to serious abuse as children. This occurred in homes and in institutions charged with the care and protection of  children, many of which were orphanages, industrial schools and reformatories owned or managed by religious orders and funded in whole or part from State funds.
There are many victims of this abuse in our community who have grown into adulthood carrying the emotional and psychological scars of abuse. I know that, like me, many Deputies will remember the occasion on 11 May 1999 when, on behalf of the State, the Taoiseach, Deputy Bertie Ahern, apologised to all victims of abuse for the suffering they endured as children and for our failure as a society to provide the care, attention, love and support to which all children are entitled. On that day the Taoiseach announced a range of Government measures to redress the abuse.
These measures included the establishment of the Commission to Inquire into Child Abuse, amendments to the Statute of Limitations and the establishment of a national counselling service. This initiative was followed up subsequently by the announcement of a financial redress scheme for victims of abuse and the establishment of a statutory Redress Board to administer such a scheme.
The Commission to Inquire into Child Abuse was formally established in May 2000. The broad terms of reference were:—
To afford victims of abuse in childhood an opportunity to tell of the abuse they suffered to a sympathetic and experienced forum.
To establish as complete a picture as possible of the causes, nature and extent of the physical and sexual abuse of children in institutions and in other places during the period from 1940 to the present.
To compile a report and publish it to the general public, on the activities and the findings of the Commission, containing recommendations on actions to address the continuing effects of the abuse and actions to be taken to safeguard children from abuse in the future.
The commission through its confidential committee provides a forum for victims of abuse to recount their experiences on an entirely confidential basis. The purpose of this committee is to meet the needs of those victims who want to speak of their experiences but who do not wish to become involved in an investigative procedure. This committee will provide the commission with a general report on the issues encountered in its work. The commission also has an investigation committee. This committee facilitates victims who wish to both recount their experiences and to have allegations of abuse inquired into. This committee will also report to the Commission. During 2002 my Department became concerned as to the apparent lack of progress by the investigation committee and, following a request for a virtual doubling of resources in June 2002, the Department began to explore with the com mission the difficulties being encountered by that committee.
Following much consideration the Government decided, on 3 December 2002, to engage in a process of reviewing the operations and remit of the commission and in particular the investigation committee.
The intention behind the original legislation envisaged that the commission would proceed on an informal basis as far as possible. However, as the commission began its investigation process, this proved not to be possible and the hearing process became adversarial. This gave rise to the possibility of legal costs rising to a magnitude of €150 million to €200 million and if the work of the investigation committee were to continue in this format, it would take the commission an estimated eight to 11 years to complete its work. The age profile of many of the survivors was also borne in mind. Many people, including survivors, were justifiably concerned about this lengthy time frame. Accordingly, a review of the commission was carried out by the office of the Attorney General.
Following the resignation of Ms Justice Mary Laffoy as chairperson of the commission, the Government, on 26 September 2003, appointed Mr. Justice Sean Ryan, then senior counsel, as chairperson-designate of the commission. The Government requested Mr. Justice Ryan to immediately undertake his own independent review of the working of the commission. The terms of reference of the review were as follows:
To carry out a review of the working of the Commission and to make all necessary recommendations having regard to the following:
a) The interests of the victims of abuse;
b) The completion of the Commission’s work within a reasonable period of time and in a manner consistent with a proper investigation; and
c) To achieve the above objectives without incurring exorbitant costs.
Mr. Justice Ryan’s report was published on 15 January 2004 together with the review completed by the office of the Attorney General. Mr. Justice Ryan concluded in his report that a combination of legislative amendments to the original Act and alternative procedures being adopted by the investigation committee would result in the commission being in a position to conclude its work within a reasonable timescale and without incurring exorbitant costs. The Government accepted Mr. Justice Ryan’s report. Following publication of the report the investigation committee held meetings with all interested parties and representative groups, to facilitate them in expressing their views on the content of both reports and to enable them to make suggestions on the future operation of the investigation committee.
Following that consultation process, on 7 May 2004 the investigation committee hosted an open meeting at which it presented a position paper  entitled Identifying Institutions and Persons under the Commission to Inquire into Child Abuse Act 2000, and a document entitled Background to Events Surrounding the Re-constitution of the Investigation Committee. This document set out proposals to enhance the workings of the committee. A formal hearing of the investigation committee took place on 24 May 2004 to receive submissions on the matter. Representative groups were also given an opportunity to express their views subsequent to the hearing. Following the conclusion of this process, Mr. Justice Sean Ryan, on 16 June 2004, stated that the commission had decided to proceed in accordance with the position paper published in May 2004.
The confidential committee of the commission continues to operate as normal and by 19 April 2005 it had heard evidence from its 1,060th witness, leaving approximately 35 witnesses waiting to give evidence. The confidential committee will continue to hear evidence in the coming months from the remaining witnesses after which it will prepare its report and present it to the commission.
The investigation committee has held a series of hearings into the emergence of child abuse. In this regard the Taoiseach, former Ministers for Education and Science, Deputies Martin and Woods, and officials of the Department have all given evidence to the committee regarding the background to the establishment of the commission. The aim of these public hearings was to establish on an historical basis how child abuse as an issue emerged in the State. The committee has also called witnesses from other State Departments, the religious congregations and the various survivor groups.
In addition to the public hearings, the investigation committee has commenced its inquiries into specific institutions, commencing with St. Joseph’s Clonmel, in September 2004. Hearings on St. Patrick’s Industrial School, Upton took place in October 2004; on Our Lady of Succour Industrial School, Newtownforbes in January 2005; on St. Patrick’s, Kilkenny in February 2005 and on St. Vincent’s, Goldenbridge in March 2005.
Mr. Justice Ryan in his programme for work for 2005 has said that the investigation committee will interview everyone — approximately 1,300 — who decided to continue participating in the inquiry by the investigation committee. This process has commenced and is being conducted by members of the commission’s legal team. Information obtained in these interviews will be collected and produced in report format which will then be distributed, as appropriate, to the relevant bodies for comment and discussion. If there are material areas of dispute, the committee will arrange for further investigation, including full hearings if appropriate. In the interview process, witnesses whose experience is required to be investigated further by the committee will be chosen for later appearance before it in full  session with cross-examination taking place. While not all witnesses in the largest institutions will go to full adversarial hearing, everybody will be interviewed. Many will have both adversarial hearings and interviews.
The scheme the commission is putting in place has several functions. The investigation committee will have an opportunity to gather a body of evidence at first hand from all people who want to continue with the committee, ensuring that every single person has a role in the work of the inquiry. It will enable the committee, through its legal team, to ensure witnesses put forward for participation in the formal hearing process represent the full range of experiences across time in a particular institution. It will reduce the likelihood of those less able for adversarial hearings being subjected to examination and cross-examination before gatherings of lawyers and other interested parties. It will yield information across institutions under investigation. This will be gathered in a formal process of interview to enable topics to be examined and comparisons between institutions will be made easier. The commission’s 2005 investigation committee programme will include interviews with all witnesses, expert investigation and public and private hearings. It is the commission’s intention to complete its report prior to the end of its extended remit of May 2008.
The Bill will implement the main recommendation of both the Attorney General and Mr. Justice Seán Ryan to remove the obligation on the investigation committee to conduct full hearings into each allegation of abuse made to it. Instead, the committee will be able to call witnesses to give evidence of abuse suffered by them, to the extent the investigation committee deems it necessary for the purposes of the inquiry. This key amendment is provided for in sections 4 and 7. Persons not called to give evidence to the investigation committee can opt to apply to transfer to the confidential committee of the commission. The Bill also removes the requirement for a two phase process whereby the commission would first have to determine whether abuse occurred before proceeding to consider the causes, nature, circumstances and extent of such abuse. This amendment, provided for under sections 4 and 5, will make the process more effective, less time consuming and less costly.
Sections 4 and 7 extend the remit of the commission and the investigation committee to examine the manner in which children were placed in residential institutions and the circumstances in which they continued to be resident there. This is important to get a full understanding of how and why child abuse occurred and the historical and societal context in which it arose.
Sections 5 and 8 respectively provide that the commission and the investigation committee will only name individual abusers who have a criminal conviction for child abuse or those who have admitted or pleaded guilty to charges of child  abuse. The primary purpose of the commission inquiry is to determine the causes, nature, circumstances and extent of child abuse. Given the rights of persons to due process, it is necessary to place certain limitations on the naming of individuals alleged to have carried out abuse. Several other changes proposed include a provision to allow for joint hearings to take place to allow complainants with a common alleged abuser to have their complaints heard simultaneously, provided for under section 6. Section 6 also provides for a division of the committee to operate under a single member of the commission.
Section 8 enables the commission to issue fact-finding interim reports. Section 9 extends the powers of the commission to require persons giving evidence to it to swear the matter in an affidavit and make admissions to, and to answer written interrogatories, under oath so that matters can be dealt with more speedily and at less cost. Section 14 allows a complainant to withdraw a complaint being made subject to the consent of the committee.
Part 3, sections 22 to 33, inclusive, and the Schedule provide for the establishment of an education finance board to administer an education grant scheme for former residents of institutions and their families. Amendments to the Residential Institutions Redress Act 2002 are contained in Part 4. Under the terms of the indemnity agreement concluded with the religious congregations, a sum of €12.7 million is to be used for educational programmes for former residents of institutions and their families. The agreement was concluded in June 2002 after the enactment of the Residential Institutions Redress Act 2002. As the Act predated the agreement it was not possible to have any legislative provision for the operation of the €12.7 million fund. In view of the urgency of making funding available to former residents wishing to undertake further education, a grant scheme funded by the Department of Education and Science was established on an administrative basis in September 2003, pending the introduction of a statutory scheme. This scheme is administered by the National Office for Victims of Abuse with the assistance of the City of Dublin VEC, with approximately €1.4 million already spent on the scheme.
The Bill establishes an independent education finance board to administer an educational grant scheme for former residents and their families. It also provides a legal basis for the management and investment of the €12.7 million fund provided under the indemnity agreement for this purpose, after taking account of interest accruing on the €12.7 million fund and expenditure incurred to date on the non-statutory scheme. Section 26 provides for the fund to be managed by the National Treasury Management Agency which will make an annual payment from the fund to the education finance board to meet the ongoing costs of the grant scheme. The principal functions of the board, set out in section 25, are to pay grants to former residents of institutions and their families,  to determine and publish the criteria by which it will make decisions on applications for grants and to make available to applicants information on the educational services for which grants are available.
Section 29 provides for the board to consist of a chairperson and eight ordinary members. To ensure that survivors’ interests are adequately represented, four of the ordinary members will be former residents of institutions. Section 31 provides for the board’s annual audited accounts to be laid before the Houses of the Oireachtas while section 32 provides for the publication of an annual report on the board’s activities. The Schedule deals with the membership, meetings and procedures of the board.
The proposed amendments to the Residential Institutions Redress Act are mainly of a technical nature and have been requested by the redress board and the review committee in light of their experience of the redress application process over the past two years. Established on 16 December 2002 under the Residential Institutions Redress Act 2002, the board’s primary function is to make fair and reasonable awards to persons who, as children, were abused while resident in industrial schools, reformatories and other institutions, subject to State regulation or inspection. The redress scheme provides an alternative to survivors having to pursue traumatic civil court cases to obtain compensation for their injuries. While the civil courts operate on the basis that a plaintiff must prove their case beyond reasonable doubt, the redress board operates on a generally lower threshold of proof and does not make a finding of guilt of an individual or an institution. The board, which is wholly independent, is chaired by Mr. Justice Sean O’Leary and has nine ordinary members.
This legislation was enacted for the many people who as children were committed by the courts to industrial and reformatory schools and who suffered abuse while resident there. In addition to children committed by the courts, significant numbers were also committed to industrial and reformatory schools by parents and the schools often operated as orphanages. The redress scheme is designed to address how the State and the institutions concerned failed while having responsibility for the care of the child. It acknowledges that because of this, some people who were in institutional care have, through much of their lives, carried serious psychological scars. The scheme seeks to provide reasonable financial compensation for that injury. The Act provides that where a person makes an application for an award to the board, he or she is required to establish proof of identity that he or she was resident in an institution during his or her childhood, that he or she was injured while so resident and that the injury is consistent with any abuse that is alleged to have occurred while so resident.
The board commenced operations in December 2002 and, according to the latest infor mation available, it has received more than 5,900 applications to date and has made awards in more than 3,000 cases. The average award made by the board is €78,000 and total payments to date amount to some €229 million. The amount of award payable in each case will depend on the severity of the abuse and the severity of physical and psychological injury as well as loss of opportunity resulting from the abuse. The board may grant awards up to €300,000 and in exceptionally severe cases it may award an amount higher than this. There is also provision to award additional aggravated damages of up to €60,000 in certain specified circumstances.
Originally, 128 institutions were listed on the Schedule of the Act and section 4 of the Act allows the Minister for Education and Science to make an order for the inclusion of additional institutions. In November 2004, I signed an order allowing for the inclusion of 13 additional institutions. It is possible that a further small number of institutions may be added to the Schedule in the near future as a result of the inquiries still being conducted by my Department.
The proposed amendments to the redress Act are contained in section 34 and include allowing for a two week cooling off period once an applicant has made a request to the review committee for it to review an award offered by the redress board. Survivor groups requested this change and the chairperson of the review committee agrees with it. The proposed amendments also include allowing the Courts Service to administer arrangements for the payment of awards in instalments — the Courts Service has confirmed that it is willing to do so but cannot until a legislative basis is provided and providing that anyone who gives false information to the board may be liable for prosecution for perjury — currently, only applicants to the board can be so prosecuted.
The amending legislation before the Dáil today fulfils three important functions. First, it will greatly assist the commission in completing a comprehensive inquiry into child abuse within a sensible timeframe and at an affordable cost. Second, it sets up an independent statutory scheme of educational support for survivors and their families. Third, it makes a number of legislative amendments to enhance the effective operation of the redress scheme.
Molaim an Bille don Teach.
Ms Enright Ms Enright
Ms Enright: I welcome the opportunity to speak on this Bill. The Minister said it will greatly assist the commission in completing a comprehensive inquiry into child abuse within a sensible time frame and at an affordable cost. While I agree with the Minister’s sentiments, it should be clarified that while justice should be delivered in the most timely and effective manner, the priority must be that it is delivered.
When Ms Justice Laffoy resigned from the Commission to Inquire into Child Abuse in September 2003, the work of the commission and its relationship with the Government was brought  under the spotlight. What was uncovered exposed the Government to valid criticism as to how it had failed to support Ms Justice Laffoy in her approach to the investigation of abuse and how persistent mishandling of the situation led directly to her resignation. In fact, the Government approach to the Commission to Inquire into Child Abuse led Ms Justice Laffoy to write that since its establishment “the Commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas”. This was a damning indictment of a Government that on one hand established the commission to investigate the most dreadful case of mass abuse to occur in the history of the State and, on the other hand, failed to give the same commission the support it needed to carry out its functions.
I do not wish to rehearse the significant failings of the Government at that time but it is important that some of the most serious failings are noted. Ms Justice Laffoy listed the ways in which the Government thwarted the work of the commission: compensation for the survivors of abuse was raised in July 2000 but was not dealt with until 2002; the issue of the payment of legal costs of persons involved in the process of the investigation committee was also raised in July 2000 but was not dealt with until 2002; the decision to review the commission’s mandate, which effectively stalled the work of the commission, and the slow and contradictory way in which commission requests for additional resources were handled.
These issues were clearly matters for the Government to resolve but the delay in dealing with requests from the commission and the often contradictory responses that Ms Justice Laffoy received regarding requests for assistance frustrated the work of the commission and led to her resignation. As I said previously, there is a conflict of interest in the Department of Education and Science sponsoring an inquiry when the Department is part of what is being investigated. That is a mistake and it is a pity the opportunity to rectify it in this legislation was not taken.
The actions of the Government stymied the work of the commission and delayed proceedings that are vital to the search for truth, acceptance and healing that so many victims of past abuse seek. I sincerely hope Mr. Justice Ryan is receiving the co-operation and assistance he needs from Government to conduct this important work. We must now ensure that we enable the Commission to Inquire into Child Abuse to work for all victims of abuse.
From the moment the Taoiseach made his apology to the victims of child abuse in 1999, the victims expected that they would have access to the commission and that their stories would be heard. Following the resignation of Ms Justice Laffoy and the appointment of Mr. Justice Ryan to the commission, a detailed report on the commission was published in January 2004. In his report, Mr. Justice Ryan outlined the difficulties  that have faced the commission, in particular the problems associated with the work of the investigation committee. Mr. Justice Ryan made a clear statement with regard to the issue of “sampling”, the random selection of cases to proceed to inquiry, when he stated:
While there was a readiness all round to acknowledge the problems facing the Investigation Committee, the idea of “sampling” the cases was seen as an unacceptable attenuation of the entitlements of victims of abuse to bring their experiences to the Commission via the Committee of choice. And it has to be accepted that this proposal would indeed have deprived a large number of complainants of the opportunity to participate directly in the inquiry process.
However, Mr. Justice Ryan also stated in his report that he believed the commission should have a wider discretion regarding which cases go to a full hearing and stated:
The [Investigation] Committee requires a capacity to come to a conclusion in respect of a particular complainant that it would be impracticable or unfair or unreasonable to put him or her to the ordeal of being examined and cross examined in respect of allegations that were of such a nature as to be unlikely ever to be able to ground a finding of abuse. This is naturally a sensitive and difficult issue.
Certainly, this issue is one that has caused most considerable debate and concern among the victims of abuse in recent years. It as of paramount importance that the commission on child abuse is statutorily empowered to fulfil its vital remit but it must also be of real assistance and benefit to each victim who seeks access to it.
There are aspects of this legislation that are welcome but there are also aspects that cause concern. I welcome the broadening of the definition of abuse that now includes not only the result of abuse but also includes what “could be expected to result”. This is a change that eases somewhat the burden on the victim and acknowledges, whether intentionally or not, that different people are affected in different ways.
Section 4 of the Commission to Inquire into Child Abuse (Amendment) Bill 2005, amends the Act of 2000, removing the obligation on the investigation committee to hear all complainants and gives it discretion as to which witnesses it considers should be called to a full hearing. However, in balance to this change in legislation, the commission will meet all victims and conduct interviews with each one before making a decision as to the cases that should progress to full inquiry. Mr. Justice Ryan, in his report of January 2004, was clear that he was not suggesting that the category of complainants whose allegations of abuse would not proceed to full inquiry would be large in number. This point is of some concern. Obviously, the amending legislation being discussed cannot indicate the number of  cases that might not proceed to inquiry. However, it is important to insist that if this legislation is passed, and discretion is given to the child abuse commission, it would only be applied in cases where the intention was to use it, in the January 2004 report.
The chairman of the commission, Mr. Justice Ryan, wrote to the 1,712 outstanding complainants, asking them whether they wished to proceed with their complaint. We would have a better idea of what we are dealing with here if we were told how many have replied to say that they are continuing. It would allow us to debate this issue with a clear grasp of the level of complaint. When Fine Gael contacted the commission, it informed us that it is not making this information available but that replies are still being received. It is a pity we cannot have this information. I will examine this section in detail and consider the best way forward for the victims of child abuse before Committee Stage of the Bill.
Section 5 represents a sea change from the original Act of 2000. The alleged abuser will now only be identified if he or she has been found guilty of an offence in respect of the abuse. I can only assume the reason for this is to speed matters up and that it will mean the abuser will not have to be afforded legal representation. However, I would like to hear further explanations from the Minister on this issue as it represents a considerable turnaround which is difficult for victims to accept.
Section 6 appears to allow for the opportunity of meetings being held in public, but I would like to see greater clarity on what will guide the commission in reaching its decision on this issue. I endorse the opportunity being given to the commission by this Bill to act in divisions, which is broadly similar to the last Act. The difference is in allowing the divisions to consist of only one member rather than members. While the previous commission technically had this power, resources and the awaiting of responses from the Department of Education and Science for clarifications and commitments in this area effectively rendered this power useless. The commission can only work with the resources allocated to it by the Department, which to date has shown a spectacular disregard for the work of the commission.
A sweeping change is proposed in section 7. Up until now, the function of the commission was to provide “for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and make submissions to the Committee”. Under this proposed legislation we are:
to provide, as far as is reasonably practicable, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and other relevant experiences undergone by them in institutions.
 What does the legislation mean by “reasonably practicable”? No definition is offered to enlighten us further and I ask the Minister for clarification on this point. If people are asked to accept such a change, which runs contrary to all their expectations, they are at least entitled to know how the commission will be guided on this.
Proceeding with the work of the commission and reaching conclusions on this shameful aspect of our national history is in the interest of the victims of child abuse and of society. We have a responsibility to ensure the dreadful occurrences of the past cannot happen again. A large part of our response must focus on the need to hear for ourselves about the ill treatment meted out to vulnerable children in the past. When she dealt with the issue of residential institutions redress boards, I was disappointed that the Minister did not take the opportunity to consider the issue of children who were abused in regular day schools. People such as those involved in the Donal Dunne case have always been refused the opportunity of appearing before the redress board. The argument used was that the State was not in loco parentis to those children, which I find difficult to accept. These people may lose their opportunity, under the proposed changes, to have their voice heard.
As there is no redress board, the only opportunity these people would have to get their story told is through the child abuse commission. There have been court cases, and the abuser in this instance was prosecuted. However, there is an issue surrounding the responsibility of the Department and health board officials who should have known what was going on but failed to take action. There is a great degree of concern among the victims that they will not get the opportunity to have their story told. That brings me back to my point about the conflict of interest in having the Department of Education and Science as a sponsoring Department and under investigation at the same time. I would be concerned if there was a feeling that these people were being denied that opportunity.
We often feel that we have only become aware of the abuse in the 1990s. However, in 1957, the ISPCC recorded cases of assault, incest and neglect while the Tuarim report was published in 1966. The commission of inquiry on mental illness was carried out in 1966 and recommended that the problem of industrial schools should be examined. The Kennedy report in 1970 was described by Mary Raftery as one of the most damning indictments of the operation of any State system ever recorded in this country. Unfortunately, it appears the documents gathered for this report were lost. In that same year, Donal Dunne arrived in a school in County Offaly and evidence of his abuse became apparent after three years. He was sacked by the parish priest but was provided with a glowing reference after which he served in six or seven more schools. Instances like that must be investigated by the commission  because it is not just the abuser who bears responsibility — the State does so as well.
According to the third interim report of the commission in 2003, there were 165 complainants from primary and secondary schools, but 93% of these could not be called because there was only one allegation made against 135 individual abusers. That means that only 7% of those who claim to have been abused in those schools are allowed to come before the commission. There are obvious concerns that this 7% would be diluted further. I welcome the fact that section 17 of this legislation, in amending section 25 of the principal Act, now gives discretion to the High Court, rather than to the commission, to decide on whether court directions on the performance of its functions should be held in public.
Provision in the legislation for the establishment of an education finance board for the former residents of children’s institutions also represents an important development. For those denied the type of support and education that is now taken for granted in most families, this support is overdue. The composition of the board will be one chairperson and eight ordinary members, four of whom must be former residents of institutions. All are to be appointed by the Minister for Education and Science. I would appreciate further clarity on the manner in which these people will be appointed, and how the former residents of institutions will be selected. It is important that people from different institutions, with different experiences, have the opportunity to serve on this board. I must question the delay of one year for the establishment of this section of the Act. Justice has been delayed and denied long enough for those involved. I appreciate the necessity to establish a board, but there is no reason that these preparations cannot be made now.
As it is not clear from section 30 of the Act, the Minister should clarify whether the cost of running the board will be borne out of the €12.7 million granted to it. Section 30 allows the Minister for Finance discretion on the number of employees on the board. There was a clear impression among those involved that the money would be ring-fenced for them and not spent on administration.
Ms O’Sullivan Ms O’Sullivan
Ms O’Sullivan: I welcome the opportunity to contribute to the debate. The fact we have not debated this until April 2005 is an abysmal indication of the record of the Government in dealing with this issue. We all welcomed the apology by the Taoiseach in 1999, which was given on behalf of the people. It was long overdue to those children who suffered terribly in the care of the State and directly in the care of a number of religious institutions as well. After that apology, there was a hope that things would happen quickly for the survivors. In 2000, the original legislation which set up the commission gave the hope that survivors would have the opportunity to tell their  story and that the State and others would take responsibility.
Unfortunately, the timeframe in between is very long. It is not as if that was not brought to the attention of the Government. Ms Justice Laffoy, who was the chairperson of the original commission, told the Government on a number of occasions exactly what was wrong. Yet it has taken until now for us to get some answers. She pointed out many of the issues that were subsequently pointed out by Mr. Justice Ryan and are incorporated in the legislation before us. She was ignored by the Government to such an extent that she resigned from the post in frustration. It became obvious that the number of people who wanted to tell their story was more than 1,700 and the legislation entitled the people to a full hearing. It was then clear that unless some of her recommendations were taken on board, it would take 11 years or more to deal with the whole issue. It was quite clear that could not happen because of the age of many of the people who had suffered abuse and who were accused of perpetrating abuse.
From 2000, Ms Justice Laffoy made clear there was a need to take action to make the commission work. Everybody wanted to make the commission work and obviously the purpose of the commission was to give hearing, redress and closure to survivors of abuse, but there was an absolute failure on the part of the Government to deal with that issue, particularly when Ms Justice Laffoy was in charge of the commission. It was not that she did not make it clear. She did on a number of occasions.
Ms Justice Laffoy also expressed serious reservations about the involvement of the Department of Education and Science and its failure to comply with requests for information from the commission. I too want to hear from the Department through the Minister whether eventually all those requests to which Ms Justice Laffoy referred were complied with. At the time we expressed reservations about the fact that the Department of Education and Science was still the lead Department and I still have those concerns. As the Department is inextricably linked up with this issue, admittedly in the past and not in the present, it is still wrong that it should be the Department in effective control of the legislation.
It is no harm to briefly go through the evolution of events to this point. Ms Justice Laffoy stated early on that those who suffered abuse and those accused of perpetrating it deserve “to see the inquiry, which they were promised over four years ago, concluded within a reasonable time frame”. In a statement she delivered at the first public sitting of the commission held on 29 June 2000, Ms Justice Laffoy stated:
The Commission, through its Committees, will hear all persons who come forward to tell of abuse they have suffered in institutions in childhood. No such person will be refused a hearing.
 The task of the investigation committee was to investigate child abuse alleged to have taken place in more than 100 institutions in respect of some 1,712 complainants over a period of 60 years. Many, if not most, of the complainants name or identify multiple alleged abusers, sometimes in different institutions. The oldest victim was born in 1926. Those accused of abuse are older than the complainants and some of them are dead, some left their congregations many years ago and some have not been traced. Those who are alive and traced include persons who are confused or not in a condition to defend themselves. These features partly explain the difficulty and complexity of the work to be done and make the investigation committee’s functions probably the most challenging ever to have been the subject of an Irish public inquiry.
Most of the complainants were in industrial or reformatory schools and accuse more than one person of abuse. On analysis of the figures it appears that the vast majority of complaints are in respect of a relatively small number of institutions and individuals. Of the 1,712 complainants, 1,312 made complaints in respect of 20 institutions.
Complaints were made against 1,195 alleged individual abusers. The total number of complaints made against those individual respondents is 4,128. The overall number of complaints against individual respondents in respect of the 20 institutions giving rise to the largest number of complaints was 3,192, which is 77% of all complaints against individual respondents. That gives an idea of the size of the issue.
Early on, Ms Justice Laffoy stated that the only way to deal with this effectively was to have parallel hearings and that she needed the resources the carry out those. The resources were never given to her. Therefore she could not effect the speedy addressing of the issue as she wished and she eventually ended up resigning.
Following Ms Justice Laffoy’s resignation, Mr. Justice Ryan made his first report in January 2004. At that time, he made recommendations which in many ways are largely similar to what is contained in this legislation. It is now April 2005. People who have suffered greatly and who need the opportunity to tell their story that was to be given by the commission are still waiting in most cases.
I looked up some of my queries on this matter. A response to Questions Nos. 39, 55 and 113 on 18 May 2004 told me the Government was awaiting the decision of the Christian Brothers’ case. The reply stated: “Consequently, it is not envisaged that amending legislation can be published before September 2004.” This is April 2005 and we are only dealing with the legislation.
We need to be cognisant that we are dealing with people who had great hope of having their issues addressed in 1999 and have had that hope dashed repeatedly. It is no accident that they are not in the Visitors Gallery today. A number of survivors’ groups lobbied all of us regularly in the  past but few of them are here today. While I do not know about the representations made to the other Members present in the Chamber, I certainly did not receive many representations on this legislation. It is not that people are unconcerned but that they have been worn down by the timeframe. They feel that if they do not accept what is contained in the legislation, they are unlikely to get another opportunity to change this. Obviously on Committee State we will try to change it in whatever way the survivors wish. It is significant. It is because people are tired and want to get on with it. They will accept now what, in effect, is a form of sampling in this legislation and I would ask the Minister to respond on this. It involves at least a withdrawal of control from the survivors to the commission in a way the original commission was not constructed.
I note the Minister stated in her speech that the numbers have reduced to about 1,300, from more than 1,700. I assume that is because some decided they no longer wanted to go before the investigative committee. I should stress that at all times we are talking about the investigative committee in the case of difficulties. What has happened to those 400 people? Is it because they have had to wait so long? Is it because some of them have passed away or may be too infirm to go before the commission?
I want to ask the Minister about the changes. She stated that everybody will have the opportunity to be heard but not everybody will go to full hearing. Certainly the original intention was that people would have the opportunity to tell their full story. The Minister said that if there are material areas of dispute, the committee will arrange for further investigation, including full hearings if appropriate. Later in her speech she suggested, as I understand it, that the commission will decide who will go to full hearing and who will not. That is clearly a transfer of power from the survivors as individuals to the commission as a body and that is to be regretted.
I can understand why there has been a need to speed up the process and why many of the changes are being made. Dealing with one institution at a time, for instance, is sensible and I support it fully. It makes great sense to deal with a particular institution and bring in everybody who was involved in that institution. Dividing up into decades is another good suggestion, in other words, that if allegations of abuse over three decades are made against an institution, one would deal with one decade at a time and that if somebody’s involvement overlapped between one decade and the next, one would deal with the decade in which the person spent the most time there. All of these are practical and sensible. The parallel hearings by another name, with the individual member of the commission in each one, are a good proposal as well. All those proposals are sensible. Some of these were put forward by Ms Justice Laffoy and could have been acted upon at that time.
 I have doubts about the proposal that people would not get the opportunity for a full hearing. Can people appeal that? People might strongly wish to tell their full stories, but the commission might decide their stories have been told by someone else. The commission may have good reason to think a person does not need to go to full hearing, but one of the fundamental undertakings given to survivors was that they would have the opportunity to tell their stories. I would like clarification on that.
I would also like clarification regarding section 6 and the issue of jointly taking the evidence of a number of survivors. Issues of confidentiality would arise. Will people be asked to give their permission before being expected to tell their stories with other people present?
Section 9 deals with the requirement for discovery of documents, which refers back to the issue of the involvement by the Department of Education and Science. I assume that would apply to that Department as well. That too might be clarified.
I have serious concerns about the sampling issue. The survivor groups made it clear they were strongly opposed to sampling. While the Minister says every person will have some opportunity to tell his or her story, I would like to know the extent of the opportunity to be afforded those not selected to go to full hearing. How much information will they be able to give?
I welcome that there will be more public hearings and, I hope, more public information. This possibly applies more to the redress board than to the commission, but there is a feeling of frustration among many survivors that they cannot talk about their experiences before the two bodies. This was exemplified by the protest outside Leinster House last year. People experience this frustration, particularly with regard to the redress board, but the dealings must be confidential. However, we need more public information on issues such as people’s level of satisfaction with the awards given through the board.
While I am speaking about the redress board, I will refer to the part of the legislation which deals with that. There is also the question of adding other institutions to the list, as raised by Deputy Enright. I too have contacted the Minister about certain institutions which have not been included and I hope the Minister can bring forward a further list. I know that some institutions would not necessarily be run by any of the religious bodies listed in the indemnity deal, but I hope that will not exclude them from being listed as being eligible to go before the redress board. Some of them would have been hospital-type institutions containing people who were ill but who were in effect in institutional care. I understand the Minister is examining those as well. There is a need to add to the list. The situation referred to by Deputy Enright must also be examined. I know the argument is that those in day schools could go home to their parents at  night and that people in residential institutions needed more protection from the State, but perhaps later, in a separate phase, the issue of day schools could be addressed.
I want to say a little about the education services and the section of the legislation which deals with setting up a board to provide for the education fund. The money appears to relate to the money provided for in the indemnity deal. If people were not in those institutions and if the other institutions were added on, would those people still be able to qualify for the education fund? I had some representations about the education fund as it was been working before this legislation. Some people felt it was not sufficiently flexible, that one could get only assistance with education if one were pursuing that education inside certain boundaries, and that it would otherwise be refused. Will the Minister make the administration of the fund as flexible as possible and allow for some form of appeals system whereby people refused educational funding could make a case? In many cases, survivors of abuse have missed out on educational opportunities and we must respond to their needs as broadly as possible.
The board comprises a chairperson and eight ordinary members appointed by the Minister for Education and Science. Four of the members must be former residents of institutions. Will the Minister select those former residents or will the survivor groups have a role in selection? I am conscious there are different groups, so when one is selecting just four people, it is difficult to represent the different voices. Those different voices must be acknowledged. People have different slants on the matter and take different approaches. As far as possible, all the different voices should be heard with regard to the board and the issue in general.
I welcome the Bill and by and large I welcome the intention that it will streamline the system and allow survivors of abuse to tell their stories to those directly involved. However, I have serious reservations about the fact that not all survivors will be able to tell their full stories if they want to. I say that conscious that there are time limits and a need to ensure that people get the opportunity for closure on the issue in an appropriate timeframe.
We will have an opportunity on Committee Stage to address other issues regarding the detail of the legislation. I welcome that we are finally dealing with this issue though I regret we did not do so many years ago. There is no justification for the Government taking so long in bringing this legislation before the House, nor is there any justification for the fact that when Ms Justice Laffoy was in charge of the commission, her complaints and recommendations, when brought to the attention of the Government, received no real response. However, I welcome that we have finally reached this stage. My party will try to ensure the legislation goes through the Oireachtas as speedily as possible.
Mr. Healy Mr. Healy
 Mr. Healy: I wish to share time with Deputies Gogarty and Crowe. I welcome the opportunity to speak on this legislation. As the Minister said, the background to this legislation and to the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002 is the reality of serious child abuse having taken place in homes and institutions funded by the State and, in effect, to a large extent run by it. In 1999, we all welcomed the apology on behalf of all of us by the Taoiseach for what had taken place during those years and the scale of abuse which residents had to endure over a long period.
Like others, I am concerned the process is so slow. It is sad that even if we start with the Taoiseach’s apology in 1999, the process will not be complete until at least 2008. The Minister said in her speech that it is the intention of the commission to report before May 2008, a timespan of nine years. On an issue such as this where victims need closure and to put these difficulties behind them, a timespan in that range is too long by half.
I hope this legislation goes through the Oireachtas speedily and that the necessary amendments will be made. When dealing with the previous legislation I expressed my concern about the Department of Education and Science as the sponsoring Department for this legislation because of the serious conflict of interest with its involvement. There is no doubt that the role of the Department in funding, managing and running some of these homes and institutions gives rise to a conflict of interest as has been indicated by the difficulties in getting information and files from the Department over the past number of years.
I am aware survivor groups have looked at and are concerned by this legislation. They have indicated a number of amendments they would like to see made. They have requested a meeting with the Minister and I have been asked to reiterate that request. I hope the Minister will meet representatives of the survivor groups as requested and that she will take on board some, if not all, of their amendments.
There are welcome aspects to this legislation, one of which is the extension of the definition of abuse. It will now be open to the commission “to make a finding of abuse where it might be reasonable to assume that acts or omissions concerned caused serious harm to the person”. I welcome that provision and also the provision under sections 27 and 28 of the principal Act whereby information coming to the commission or its committees required to be forwarded to the Garda Síochána has been amended so that any information which would lead to a serious offence carrying a period of imprisonment of at least one year must be brought to the attention of the Garda Síochána. Previously only offences that carried a five year sentence had to be reported to the Garda. This is a welcome change.
Survivors of abuse have serious concerns with regard to section 4 of the Bill which changes:
 the functions of the Commission in a number of respects. It extends the functions to include a duty on the Commission to inquire into the manner in which children were placed in institutions and the circumstances in which they continued to be resident there.
The survivors would like to see significant amendments to this section. They feel the wording is too vague. It should be more specific, particularly following the public statements by Mr. Justice Seán Ryan in May 2004. He said: “The Commission ought to examine the ‘role of the Courts’ in placing children in the institutions.”
The survivors also feel the wording “to inquire into the manner in which children were placed” in these institutions is no improvement and does not meet the assurances given by the former Minister, Deputy Woods, in the Dáil in April 2000. In addition the wording “the circumstances in which they continued to be resident” could mean anything and is, therefore, meaningless. It does not amount to the assurances given that the role of the Executive in keeping children detained against the wishes of parents would be examined. It must be appreciated that the Minister exercised statutory powers under various Children Acts and there is evidence of improper use of those powers. Therefore, to allay fears and give full expression to undertakings already given, section 4 should be amended and changed leaving no room for doubt that the commission intends to investigate the role of the courts and the Executive arm of Government which exercised statutory powers. The survivors want to see the role of the courts in placing children in these institutions and the role of the Department and the Government in that process investigated thoroughly. They feel Mr. Justice Seán Ryan’s stated aim to examine the role of the courts justifies the amendment they propose in this regard.
Survivors of abuse also have difficulty with section 22 which deals with the Education Finance Board. They want the substitution of the term “relative” by the word “families”. The €12.7 million contribution from CORI envisaged financial assistance to survivors and their “families”. Survivors believe the use of the word “relative” in the Bill is too wide and that in view of its interpretation within the amendment proposals, it will create criteria that will allow persons who were never in an institution, or even in Ireland, to make grant applications to the board on the same basis as those who spent years in industrial schools and suffered educational deprivation arising from that. The integrity of the fund should be protected and parties not originally envisaged by the CORI contributors or who are not blood issue or legally adopted children of survivors should not be invited to participate in the process.
Survivors want the Bill to make clear in section 25 what is meant by “educational services”. This should not be left for interpretation by others at a later date. Section 27(3) states: “The [finance] Board shall determine the criteria” for the fund.  Survivors believe this should be done by the Houses of the Oireachtas. Section 29(2) provides that four of the members of the board shall be persons who are each former residents of the institutions. This should include a reference that such persons should sign a conflict of interest protocol and resign from any body or organisation connected with these matters to which such person belongs.
While I welcome this Bill, significant amendments are required if it is to meet the views of those centrally involved, namely the survivors of child abuse. I hope the Minister will take into consideration the amendments suggested by these groups and that she will agree to meet their representatives at an early date.
Mr. Gogarty Mr. Gogarty
Mr. Gogarty: I welcome the opportunity to debate the legislation, which I look forward to going through in great detail on Committee Stage. It has been a long time coming and I am a little apprehensive about what will happen on Committee Stage because the Government has a majority. I ask the Minister to take on board the concerns that will be expressed.
It is a long time since the resignation of Ms Justice Laffoy. At the time, I described her final report as a damning critique of the Department of Education and Science’s ability to adequately deal with child abuse. It is a sensitive issue and many survivors want to air their stories in public. They want proper recognition of the pain and torture they suffered whether that is through financial compensation or airing their stories publicly. I concur with previous speakers that the issue should be taken out of the hands of the Department of Education and Science and transferred to the Department of the Taoiseach, even if additional resources are required to implement the legislation. Many survivors have outlined their lack of faith in the Department of Education and Science. Many good people work in the Department and we have an excellent new Minister but, at the same time, they cannot be expected to look into their own dirt effectively. There will always be a cover-up and in the interest of transparency, responsibility for the commission should be taken from the Department once and for all.
My main problem with the legislation is that many survivors will not be called to give evidence. While survivors welcome the financial provisions, more of them want more than anything else to get their stories out in public and they should be given the opportunity to do so. In addition, many complainants will not have an opportunity to be heard in court because of the delays in that system. They are being asked to accept that the commission will not make findings regarding whether individuals abused people, but that is what they want. There are legal implications to findings that individuals committed abuse but victims seek a definitive conclusion based on the evidence presented. Placing restric tions on the number of witnesses or the extent of the evidence that can be heard will not uncover the entire story.
Sampling is a controversial issue and it has not worked. For example, the third interim report of the commission in December 2003 outlined that there were 165 complainants from primary and secondary schools, 93% of whom could not be called because only one allegation was made against each of 135 individuals. This means 7% could have been called but a sample would have been taken. Sampling will not uncover the entire story because isolated incidents may come to light during the hearings that people may have suppressed for many years because they did not consider them important. However, they will only emerge during the telling of the story by the survivors.
The Minister stated the intention of the commission is to uncover the truth about what happened. However, we know what happened. I said in 2003 that people were raped, buggered and abused in many ways. I will not go into graphic detail but I said during the previous debate that history would judge the Government and religious unkindly when the truth finally emerged. The overwhelming anecdotal evidence is that countless people were abused and the organs of the State and individuals were complicit in this. The Taoiseach’s apology went some way to owning up to that but not as far as many survivors would like.
The onus on us is not to go through an arty farty “let us save a few million quid here to get the general truth out” scenario. That would be disingenuous to the survivors. They want their version of the truth to come out and they want history to decide on the basis of individual testimonies. They do not want the commission to reach a sampled conclusion that may be generally correct. We can generally correctly say now that abuse happened and the State was complicit in this regard but we need to get the specifics out into the open.
While I will go through the detail of the legislation on Committee Stage, I refer to a number of my concerns. I welcome section 3 but I have a number of queries about section 4. Sections 5 and 6 provide for speeding up the commission’s work without getting all the truth out. I welcome a number of sections, including sections 10 and 11. However, I do not like the use of the term “as far as is reasonably practicable” in section 7, which amends section 12 of the principal Act. That is open to interpretation and it needs to be tightened on Committee Stage.
Part 3 deals with the finance board. Section 27 permits the board to pay grants to former residents of institutions or their relatives to avail of educational services. I would like the legislation to outline the services that will be provided. I also share Deputy Healy’s concerns about section 29. While I welcome that four board members must be former residents of institutions, a conflict of interest may arise and this should be addressed  as we move through the various Stages. I welcome the miscellaneous provisions in Part 4 and I look forward to going through the legislation on Committee Stage.
Mr. Crowe Mr. Crowe
Mr. Crowe: None of us is approaching this issue in a vacuum because we all know survivors of abuse and we have listened to their stories. They have described how they were hurt, scared, lost, damaged, frustrated and how they felt inadequate, angry and let down. A number talked about a black hole or dark room to which the door was closed in their lives. Many victims feel let down because there was great expectation when the process commenced but the longer it went on, the more frustrated many of them became. The legislation intends to speed up the process and save money. Nobody wants the ambulance chasers to make additional millions out of people’s suffering and we are all approaching the legislation on the basis that it should improve the process.
When speaking to a victim of child abuse, his or her need to tell people what happened to him or her is most striking. People often live a great part of their lives without being able to do so. That is why it is important a mechanism should be provided whereby they can tell their stories. That is how people will judge the legislation and that is why the establishment of official inquiries into these matters is important. I welcome the changes in the Bill that will improve the effectiveness of the Commission to Inquire into Child Abuse. I am mindful, of course, that the impetus behind this Bill has come from the valid criticism made of the manner in which the commission had operated since its inception in 2000, or to be more exact criticism made of its lack of real powers. While much of the criticism that slowly emerged came from victims of abuse who were frustrated at the slow manner in which the process of inquiry was proceeding and what they saw as the lack of real power to tackle and punish institutional offenders, the most powerful criticism came from within the commission itself, from its former chairperson, Ms Justice Mary Laffoy, who resigned in September 2003.
Ms Justice Laffoy’s critique focused on the issues of compensation for victims, legal costs, adequate funding to enable the commission to carry out its work and the slowness of the Government in completing a review of the work of the commission and providing the additional resources contingent on the review’s completion. It is apparent, however, that there was an enormous amount of anger regarding the last-minute decision of former Minister for Education and Science, Deputy Woods, to indemnify the religious orders in the matter of cost. When the deal emerged, it was obvious that the greater burden would fall on the State, funded by the Irish taxpayer. That was one factor behind the lack of resources and the slowness of the process referred to by Ms Justice Laffoy. It is, therefore, worth restating that the religious orders in charge  of those institutions where abuse took place ought to have borne the cost of compensation for victims and the actual costs of the inquiry itself.
The review referred to by Ms Justice Laffoy has since been completed and this Bill is designed to implement its recommendations so we will have to monitor it closely and judge how effective it will be in helping the commission complete its substantial body of work. One of the key findings of the third interim report was that while the commission was appreciative of the efforts made by officials in the Department of Education and Science, it was still ultimately responsible for the majority of the institutions in which abuse took place and the commission felt that there had been a failure to ensure that it could comply with its statutory obligations in the process of investigation.
While the provisions in Part 3 of the Bill to establish a fund to assist victims financially in accessing education are very much to be welcomed, it is to be hoped that the Department of Education and Science will address the concerns expressed in the report in making its budgetary allocations and the Government as a whole will ensure that the necessary extra funds are made available from the central fund.
Regarding the Bill itself, the amendment contained in section 3 to change the definition of abuse is welcome. It is designed to broaden the definition so that not only the direct perpetrators of abuse can be made answerable but also that persons or institutions who through carelessness, complicity or incompetence put a child at risk can also be brought to book. That is most important because we are all aware by now that we are not talking about a small number of dangerous individuals who acted in secret but people who felt that they were in some way insulated or protected by the institutions in which they operated. They were also given protection by a culture permeating certain structures of Irish society that viewed children from certain backgrounds as unworthy of their protection.
The investigation of that aspect of the investigation will also be facilitated by the extension of the powers of the commission to inquire into why children were sent to and kept detained in institutions where they were abused. Above all, we must find out how the State allowed that abuse to take place and put in place mechanisms to ensure that such a situation is never allowed to happen again. It is not sufficient to find out what took place in the past; we must create structures that will ensure that it is never repeated.
I referred to the need that people feel to tell what happened to them in the institutions in which they were held. That has been recognised as an important part of the therapeutic recovery of victims, who have often come to be able to talk about what happened to them only many years later. Many of them were also abused in circumstances in which they felt no one cared what happened to them and that no one would believe them if they brought themselves to tell. Unfortu nately, that has been proven in all too many cases. That is why the amendments contained in sections 6 and 7 are welcome, allowing as they do greater scope for victims, either individually or as part of a group, to give their testimony, in certain cases in public.
I wish to raise the plight of those children abused in day care. I appreciate that the Act is being amended here, and the commission that it established is specifically designed to investigate cases of abuse in residential institutions. However, it is clear that there are significant numbers of people who were victims while attending educational or care institutions during the day. Sometimes they were in institutions where the abuse of residents took place, and in some cases, no doubt, the perpetrators were the same individuals. I ask that the situation of those victims be addressed. The Minister has argued that the State had different levels of responsibility, but no one can deny that many of those people are victims. They do not have the money to go through the courts and many of them want to be allowed to tell their stories.
We are still left with the sense that people who have been abused are frustrated at the manner in which they were treated or critical of how the commission has operated to date. We must avoid the situation that applies to other inquiries and tribunals, where many legal representatives do very well but there appears to be no redress. People who were in this situation are not concerned with the legal aspects. They simply want to be able to tell their story and see those individuals and institutions responsible for their abuse brought to justice. A society should not be afraid to confront those issues since it can become stronger only by addressing institutional abuse that took place in the past. Of course, we can also hope that the victims will become stronger from the opportunity to tell what happened.
I hope that the legislation will improve the situation for those victims, that the Bill will ensure the truth emerges and that it is not merely about saving money or fast-tracking for its own sake. The absence of many of the victims’ groups tells a story, namely, that people are frustrated. They are not happy with how the commission has been operated. I hope that the main thing to emerge from this is that whoever wants to tell his or her story of abuse is given the opportunity to do so.
Ms F. O’Malley Ms F. O’Malley
Ms F. O’Malley: I too am glad to have a few moments to speak on this Bill. It is part of the process whereby the State is finally accepting its responsibility to deal with the abuse that took place. It is important that happens since it proves that no person or institution is above scrutiny. It also means that those who suffered abuse will continue to be heard. I am reassured by this Bill that it is part of that process of the State facing its responsibilities, something that was delayed for far too long. I commend the Taoiseach on tak ing the initiative by issuing an apology on behalf of the State; it was long overdue.
This Bill and the Act that it proposes to amend represent progressive steps by the State, and we should not forget that. That path had not been taken very frequently previously. It is true that, although well-intentioned, problems arose with the original 2002 legislation. The State made moves both to investigate claims of abuse and to recompense survivors in a way that was effective and sensitive, and that must be commended. However, problems emerged, and the suspension of the commission, the resignation of Ms Justice Laffoy and the acceptance by the State of her criticisms evidenced the existence of problems. We have a duty to investigate and resolve those problems. I am satisfied that the Bill is an important part of that remedy.
The appointment of Mr. Justice Ryan was meant to probe those issues and, having established the review, it is our duty to act on its findings. We have a duty to give effect to those recommendations, and that is what the Bill will do. I will return briefly to the original legislation and its purpose. I mentioned that it was well-intentioned, and victims were promised an inquiry that would investigate every single claim of abuse. Not long after the establishment of the commission, it was realised that the expectation was unrealistic. Importantly, the victims’ group One in Four realised it was unrealistic:
People are perhaps beginning to realise that this was never realistic, and that the inquiry would never do what civil law could not do. The expectations created were not realistic.
The then Minister, Deputy Noel Dempsey, admitted that the State was guilty of an error of judgment when it mandated the inquiry to investigate every claim of abuse. It is understandable that victims feel disappointed because they have every right to believe that a promise that was made is being reneged on.
The State has a duty to ensure the inquiry can deliver closure to victims in a reasonable length of time. Ms Justice Laffoy estimated that it could take up to 11 years, which is quite a long time, for the commission to complete its work. Just 40 of the 1,700 complaints received by the commission had been heard by October 2002. The State could not continue to pursue that approach because it was not in its interests or in the interests of the victims to do so.
The good intentions of the original legislation should not be diminished in any way by the amendments being made. I am reminded of a motto adopted by doctors: “first, do no harm”. I would not support this amending legislation if I did not feel it is necessary and, more importantly, in the best interests of victims. It is important to emphasise that the Bill before the House clearly serves the interests of victims.
The State must act responsibly by establishing an inquiry that can deliver results. The 1,300  people who have applied to have their cases heard by the investigative committee will be invited for interview. The information obtained during such interviews will be recorded and reviewed. If there are material areas of dispute, the committee will arrange for further investigation, including further hearings, as appropriate. Such hearings will be heard in public, where possible. That change to the original arrangements has been made to provide for closure in a timely fashion. I would not support this legislation if I did not feel that it is in the best interests of victims. While the victims are not being given what was originally intended, it is significant that everyone will be heard in some context by the investigative committee. I am encouraged by that.
I wish to expand on the importance of listening to victims’ testimonies. I had the great pleasure of attending a performance of “James X”, a fabulous one-man play written and performed by Gerard Mannix Flynn during last year’s Dublin Theatre Festival. The play, which recounts the experiences of a victim, before and during his appearance at the redress board, is raw, moving and funny. The strength of the play is that it stresses the importance for victims of finally achieving closure. When the character’s ordeal was over and he had finally presented his case, a weight was lifted from his shoulders and he was able to move on. It is important that we should give people the opportunity to move on.
Deputy O’Sullivan seemed to give the impression that not everyone will be heard. It is important to clarify this matter. Everyone will be heard and interviewed, even if everyone does not receive the opportunity to speak individually in an open public forum. It is understandable that survivors feel somewhat let down — they have the right to feel that way. I hope they will receive absolute clarity about the process of deciding to bring cases to full hearings.
I welcome the changes being made in this Bill because they are needed following the resignation of Ms Justice Laffoy and in light of the projected duration of the review. While it is regrettable that we have deviated from the original plan for the board’s activities, we should understand that it is necessary. The views of survivors are paramount when dealing with this issue. I hope the Minister will continue to meet the representatives of those who were abused as we make progress with the redress process.
Mr. Stanton Mr. Stanton
Mr. Stanton: I am pleased to speak about the Commission to Inquire into Child Abuse (Amendment) Bill 2005, which relates to residential institutions. I agree with Deputies who have said we need to examine what happened in day schools too. Regardless of where it happened, the abuse that took place was wrong and has had a huge impact on those who were abused. I understand why we are focussing on residential institutions, but we also need to investigate the occurrence of abuse in day schools.
 Abuse can take many forms. We have all heard horrific accounts of awful physical and sexual abuse and bullying. We recognise that bullying can have a terrible effect on young children. If bullying by adults and peers is allowed to continue, terrible damage will be caused. I ask the Minister of State to consider the possibility of allowing people who suffered such abuse to tell their stories, at least. It is worth considering the option of allowing people who had terrible experiences in day schools to recount their memories.
I wish to discuss the substance of the Bill, the purpose of which is to give effect to the recommendations contained in the report of the review group on the Commission to Inquire into Child Abuse, the report and subsequent recommendations of Mr. Justice Ryan and the workings of the commission. It is hoped that the changes proposed will better enable the commission to complete a full inquiry into child abuse within a reasonable timeframe and at a reduced cost. The Bill establishes a statutory framework for the operation of an education fund for former residents of the institutions and their families. It makes a number of technical amendments to the Residential Institutions Redress Act 2002.
The Bill changes the definition of abuse to allow the commission to find that abuse occurred where it “could reasonably be” assumed that acts or omissions caused serious harm to a person. This is not the first time the Commission to Inquire into Child Abuse Act 2000 has been amended in this way. An attempt was made to amend the Act by means of the Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order 2001. That statutory instrument, No. 280 of 2001, was introduced by the then Minister for Health and Children to allow for investigations into vaccine trials which occurred in 1960-61, 1970 and 1973.
The statutory instrument was presented on foot of a report compiled by the chief medical officer of the Department of Health and Children, entitled Report on Three Clinical Trials Involving Babies and Children in Institutional Settings. The Minister for Health and Children referred the report to the Commission to Inquire into Child Abuse on 13 November 2000. The commission was asked by the Minister to inquire into the clinical trials referred to in the report. This is such a serious issue, as we know, that the Government attempted to amend the legislation on a previous occasion. I am concerned that the previous attempt to throw some light on the vaccine trials seems to have been swept under the carpet by the Government. It was challenged in the courts and the Minister was deemed to have exceeded his powers in bringing forward this order.
I have asked many questions about this and I am concerned about the responses I have received. I asked the first question on 29 June 2004 and was told that the recent judgment handed down by the courts was being examined and a decision would be made on the matter  when the examination was complete. I brought it up again on 15 December 2004 and the Minister for Health and Children told me that the order was ultra vires and the issue of vaccine trials would be considered in detail. He said that a number of complex issues had been considered, further consideration had to be given to some of them and that it was likely that discussion would also have to take place with the Commission to Inquire in Child Abuse before any final decision. I am now concerned that there is comprehensive amending legislation before us that does not refer to vaccine trials. I am alarmed that the vaccine trials are being swept under the carpet and forgotten.
I raised the issue on 12 April 2005 and was told again that a number of complex issues had to be considered, they were approaching finalisation, discussions had taken place with a number of parties involved and it was hoped to conclude all considerations in the short term. I was told that it was not envisaged the child abuse amendment Bill would address the issue of the trials. That was the first indication that this Bill would not deal with vaccine trials. I had raised the issue with the Taoiseach and the Tánaiste on the Order of Business on a number of occasions and was given to understand that this amending legislation would deal with the trials but it does not.
I was told on 19 April that the statutory instrument must be revoked by a draft resolution to be brought before both Houses of the Oireachtas. Once a statutory instrument is struck down in the courts, I understood that was the end of it. If the Minister did not have the power to bring it forward in the first place, and the court struck it down, it is null and void. Why must it be revoked in the Houses? Is there a need to do this? On 19 April I got the standard answer I have received for the past year, that complex issues had to be considered and the Minister was not in a position to outline the course of action the Government would take on this matter until all discussions had been completed, even though I had earlier been told they were complete.
Will the Minister look at this again? The then Minister for Health and Children in November 2000 identified a number of questions that the report of the CMO could not answer — why children in care received the experimental vaccine, why some of the recipients were outside the normal age for the administration of the vaccines, was the end result for commercial gain or public good and why were the records of the trials so inadequate. Real people need answers to these questions but they are not getting them. This Bill is a missed opportunity and I ask the Minister on Committee Stage to include a power whereby the commission can investigate the vaccine trials.
Looking at the High Court decision, this was struck down because a link could not be made between what happened at the vaccine trials and abuse so the vaccine trials could not be termed abuse. This Bill changes the definition of abuse  to include where it is reasonable to assume abuse occurred. Does that mean this SI No. 280 of 2001 will be reintroduced to cover acts or omissions that caused serious harm to the person?
The definition in the 2000 Act includes the willful, reckless or negligent infliction of physical harm and also failure to care for the child which results, or might be reasonably expected to result, in serious impairment. Will that allow us to include or introduce another instrument or to amend the Bill further to allow the vaccine trials to be investigated? If this was introduced in primary legislation, there would not be any need for a statutory instrument so this is an opportunity to do that and clear this matter up.
There is another problem where the Supreme Court said that some of the primary witnesses could not be forced to give evidence. I understand they were prepared to give written evidence. The people involved in these tests are in limbo as a result. The Minister at the time agreed that consent is the most important issue so if babies in cots in the 1960s had vaccines tested on them and the parents did not give consent, there are questions to be answered. People are now demanding those answers.
Chapter 14 of the third interim report of the Commission to Inquire into Child Abuse is devoted to the vaccine trials and a great deal of work went into it. The CMO recorded that there were no statutory controls in force in this jurisdiction regarding the conduct of clinical trials at the time and that the ethical standards applicable were the General Medical Council guidelines, the Nuremburg Code 1947, the Declaration of Helsinki 1964 and the statement of the Medical Research Council printed in the report of the Medical Research Council 1962-63. This issue must be resolved. Some people’s lives are on hold as a result of it and an opportunity now exists to do something about it.
Section 7 allows for survivors to recount abuse. What if they cannot remember it, although they were abused? What help will be given to those who do not remember the detail of the abuse? The vaccine trial is a typical example of this. Six month old babies were injected, although the motives of those carrying out the trials were exemplary. If people cannot recall the details, how can they recount them?
I welcome the Bill, it goes in the right direction. Terrible things happened in the past in these institutions. Such things also happened in day schools and we may need to allow those people to tell their stories. I would like to see the Government use this Bill to deal finally with the vaccine trials or at least to give some response as to what it intends to do. It is not fair to those whose lives are on hold not to give some response.
The former Minister for Health and Children, Deputy Martin, stated that the key issue of consent could not be fudged because it is fundamental. Children in care have the same rights as other children. He pointed to a number of issues  related to the ethical basis for the trials and emphasised that he found the lack of documentation both puzzling and unsatisfactory. When he introduced legislation to direct a commission to investigate the issue, he described it as the ultimate guarantee against a cover up or whitewash. At this stage, however, it looks as if something is going on that should not be going on. I want a response from the Government on it and, if possible, an amendment to clear up this matter and give the commission power to carry on the work it started.
Mr. F. McGrath Mr. F. McGrath
Mr. F. McGrath: I welcome the opportunity to speak on the Commission to Inquire into Child Abuse (Amendment) Bill 2005. This is an important Bill and an important debate. We should never forget the hurt felt by the victims of child abuse, particularly child sexual abuse. I have worked with and assisted many adults and children over the years and their trauma and pain should never be forgotten by Members. As a State and a society we must do all in our power to assist those people but we must also be constantly on our guard to prevent these types of crimes against children.
The sad reality is that such abuse is still going on in many dysfunctional and chaotic families, and many of the stories are hidden from the public eye. Most child sexual abuse survivors will not talk about their suffering and their pain. It is the responsibility of this House, therefore, to assist them through this legislation. Sitting on the fence is not an option. We all have a duty to give these people the maximum support and assistance.
The purpose of the Bill is to give effect to the recommendations of the Report to the Government of the Review Group on the Commission to Inquire into Child Abuse and the report and subsequent recommendations of Mr. Justice Ryan on the workings of the commission. The amendments proposed in the Bill will better enable the commission to complete a full inquiry into child abuse within a reasonable timeframe and at a reduced cost. I welcome that because this matter is urgent. I also welcome the fact that costs will be reduced.
The Bill will also establish a statutory framework for the operation of an education fund for former residents of institutions and their families. It will also make a number of technical amendments to the Residential Institutions Redress Act 2002. That is the purpose of the Bill but we should never lose focus on the victims who have been affected by this hell on earth. Their horrendous suffering should never be forgotten.
I welcome section 9, which amends section 14 of the principal Act by conferring additional powers on the investigation committee in its taking of evidence. It will now be entitled to require the discovery of documents, furnish questions which must be replied to and require parties to admit facts, statements and documents. The evidence obtained will be presumed to be prima  facie evidence of the matters to which it relates. Where a person, without good reason, refuses to comply with one of these requirements or with a direction issued under section 14(1) of the principal Act requiring the giving of evidence to the committee, the chairperson of the committee can award costs against him or her. The section provides that the investigation committee will take evidence of a person’s conviction for abuse of a child as evidence before the committee of that abuse.
It is important that we have openness and professionalism in this debate. We must also ensure we get to the heart of the matter while not forgetting that the victims must be respected and helped. This is not something that happened in the past. We must be constantly vigilant. Many of us have heard horrific stories through our constituency clinics in the past few years and recently. We must be on our guard and listen to the victims because many of them only declare their abuse in their 30s, 40s and 50s. I became aware of a case involving a man in his 40s who was sexually abused but who only declared the abuse recently. He had suffered that trauma for 20 or 30 years without disclosing it to anybody. We must be sensitive to these types of issues and give the victims the maximum support.
Section 27 permits the board to pay grants to former residents of institutions, or relatives of former residents, to assist them avail of educational services. The board will have discretion as to the amount of the grant, the educational service for which it is paid, the frequency of payment and the conditions to be attached to the grant. It will have to decide on criteria by which decisions on grants will be made and will have to publish those criteria.
I urge compassion, sensitivity and understanding of the victims in dealing with section 27 because if we do not take that approach we will be going nowhere in terms of their needs. It is important that when grants are being allocated we do not make the victims go through the hoops or make their lives even more difficult because their plight is very serious.
Section 34 provides for a number of amendments to the Residential Institutions Redress Act 2002. The offence of giving false evidence to the redress board or the review committee is extended to any person who gives such evidence, regardless of whether they have made an application for an award. That is important because allegations will be made against certain people that might not necessarily be true. We must protect the rights of our citizens and those against whom allegations are being made. We must be on our guard in respect of section 34.
Another amendment the section provides for is that in future, where an award is made but the applicant dies before deciding whether to accept it, the award will not die with them. That is a positive aspect. Where they are survived by a spouse or child, he or she may proceed with the application on the deceased’s behalf. If the  deceased does not have a spouse or child, the applicant will be deemed to have accepted the award, which will be paid to their estate.
The board will have discretion in deciding whether it needs to request a medical report on the applicant and remove the obligation on the applicant to appear in person at a board hearing.
Section 34 also states that the board will have a discretion in relation to the evidence it is required to rely upon in cases where an application is made on behalf of a deceased person. This is a very important section.
Section 29 provides that the board will consist of a chairperson and eight ordinary members appointed by the Minister for Education and Science. Four of the members must be former residents of institutions. That is significant because it provides an opportunity to the victims to have their voices heard at this level. If we are to bring forward commonsense proposals and help the victims, we must ensure their voices are heard.
Section 30 provides for the employment of staff by the board, their remuneration and terms and conditions of service. It is very important to get the right staff involved in this issue. They must be sensitive and caring, know the rights of citizens and understand the victims. This is a very important section because whether one is dealing with children or teenagers, the key strategy is to have the right person doing the job in the right circumstances, particularly in the area of education or working with children with disabilities. We hear much talk in this House about breaking the cycle of disadvantage but there are many people working in very difficult situations, be they primary or second level teachers, who because of the nature of their skills are changing children’s lives every day and having a positive impact in very negative circumstances.
We must pay tribute also to the people who are on the front line and those who take risks. Let us not forget the people who do valuable work in the public service and those involved in sports and community groups and teaching organisations who took risks in the interests of defending the rights of the child and protecting a child from abuse. Section 30 is important in that regard because it deals with the employment of staff by the board.
Section 32 requires the board to publish an annual report and to provide a copy of it to the Minister who must lay it before the Houses of the Oireachtas. The board must provide the Minister with such information on its activities as requested by him or her and may also provide information relating to applications and decisions relating to grants to any other appropriate person. However, the board will be precluded from providing information that could lead to the identity of the applicant being disclosed.
Two parts of that section are important, the first of which is the laying of the annual report before the Houses of the Oireachtas. This is  about responsibility and ensuring the victims’ needs are met and the taxpayers’ money is spent carefully. The second part is important also in that the board will be precluded from providing information that could lead to the identity of the applicant being disclosed.
Dáil Éireann 601 Commission to Inquire into Child Abuse (Amendment) Bill 2005: Second Stage.